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Voting & Elections

Minor v. Happersett

https://supreme.justia.com/cases/federal/us/88/162/

U.S. Supreme Court Minor v. Happersett, 88 U.S. 21 Wall. 162 162 (1874) Minor v. Happersett 88 U.S. (21 Wall.) 162 ERROR TO THE SUPREME COURT OF MISSOURI Syllabus 1. The word "citizen " is often used to convey the idea of membership in a nation. 2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United states, as much so before the adoption of the Fourteenth Amendment to the Constitution as since. 3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had. 4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the states; nor was it at the time of the adoption of the Constitution. Page 88 U. S. 163 5. Neither the Constitution nor the Fourteenth Amendment made all citizens voters. 6. A provision in a state constitution which confines the right of voting to "male citizens of the United States" is no violation of the federal Constitution. In such, a state women have no right to vote. The Fourteenth Amendment to the Constitution of the United States, in its first section, thus ordains: [ Footnote 1 ] " All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." And the Constitution of the State of Missouri [ Footnote 2 ] thus ordains: "Every male citizen of the United States shall be entitled to vote." Under a statute of the state, all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise. In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native-born free white citizen of the United States and of the State of Missouri over the age of twenty-one years wishing to vote for electors for President and Vice-President of the United States and for a representative in Congress and for other officers at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not Page 88 U. S. 164 a "male citizen of the United States," but a woman. She thereupon sued him in one of the inferior state courts of Missouri for willfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote. The registrar demurred, and the court in which the suit was brought sustained the demurrer and gave judgment in his favor, a judgment which the supreme court affirmed. Mrs. Minor now brought the case here on error. Page 88 U. S. 165 THE CHIEF JUSTICE delivered the opinion of the Court. The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone. We might, perhaps, decide the case upon other grounds, but this question is fairly made. From the opinion, we find that it was the only one decided in the court below, and it is the only one which has been argued here. The case was undoubtedly brought to this Court for the sole purpose of having that question decided by us, and in view of the evident propriety there is of having it settled, so far as it can be by such a decision, we have concluded to waive all other considerations and proceed at once to its determination. It is contended that the provisions of the constitution and laws of the State of Missouri which confine the right of suffrage and registration therefor to men are in violation of the Constitution of the United States, and therefore void. The argument is that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the state in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship which the state cannot by its laws or constitution abridge. There is no doubt that women may be citizens. They are persons, and by the Fourteenth Amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the state wherein they reside." But in our opinion it did not need this amendment to give them that position. Before its adoption, the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several states, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community such as a nation is implies an Page 88 U. S. 166 association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are in this connection reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience, it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose, the words "subject," "inhabitant," and "citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the states upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense, it is understood as conveying the idea of membership of a nation, and nothing more. To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership. Looking at the Constitution itself, we find that it was ordained and established by "the people of the United States," [ Footnote 3 ] and then going further back, we find that these were the people of the several states that had before dissolved the political bands which connected them with Great Britain and assumed a separate and equal station among the powers of the earth, [ Footnote 4 ] and that had by Articles of Confederation and Perpetual Union, in which they took the name of "the United States of America," entered into a firm league of Page 88 U. S. 167 friendship with each other for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever. [ Footnote 5 ] Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were. Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [ Footnote 6 ] that "No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President, [ Footnote 7 ]" and that Congress shall have power "to establish a uniform rule of naturalization." Thus, new citizens may be born or they may be created by naturalization. The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their Page 88 U. S. 168 parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea. Under the power to adopt a uniform system of naturalization, Congress, as early as 1790, provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. [ Footnote 8 ] These provisions thus enacted have in substance been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were or should be at the time of their birth citizens of the United States were declared to be citizens also. [ Footnote 9 ] As early as 1804 it was enacted by Congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States and entitled to all rights and privileges as such upon taking the necessary oath; [ Footnote 10 ] and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or Page 88 U. S. 169 who should be married to a citizen of the United States should be deemed and taken to be a citizen. [ Footnote 11 ] From this it is apparent that from the commencement of the legislation upon this subject, alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth. But if more is necessary to show that women have always been considered as citizens the same as men, abundant proof is to be found in the legislative and judicial history of the country. Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different states. Under this, it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist, the case must be dismissed. Notwithstanding this, the records of the courts are full of cases in which the jurisdiction depends upon the citizenship of women, and not one can be found, we think, in which objection was made on that account. Certainly none can be found in which it has been held that women could not sue or be sued in the courts of the United States. Again, at the time of the adoption of the Constitution, in many of the states (and in some probably now) aliens could not inherit or transmit inheritance. There are a multitude of cases to be found in which the question has been presented whether a woman was or was not an alien, and as such capable or incapable of inheritance, but in no one has it been insisted that she was not a citizen because she was a woman. On the contrary, her right to citizenship has been in all cases assumed. The only question has been whether, in the particular case under consideration, she had availed herself of the right. In the legislative department of the government, similar Page 88 U. S. 170 proof will be found. Thus, in the preemption laws, [ Footnote 12 ] a widow, "being a citizen of the United States," is allowed to make settlement on the public lands and purchase upon the terms specified, and women, "being citizens of the United States," are permitted to avail themselves of the benefit of the homestead law. [ Footnote 13 ] Other proof of like character might be found, but certainly more cannot be necessary to establish the fact that sex has never been made one of the elements of citizenship in the United States. In this respect, men have never had an advantage over women. The same laws precisely apply to both. The Fourteenth Amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship. The amendment prohibited the state, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States, but it did not confer citizenship on her. That she had before its adoption. If the right of suffrage is one of the necessary privileges of a citizen of the United States, then the Constitution and laws of Missouri confining it to men are in violation of the Constitution of the United States, as amended, and consequently void. The direct question is therefore presented whether all citizens are necessarily voters. The Constitution does not define the privileges and immunities of citizens. For that definition we must look elsewhere. In this case, we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms. The United States has no voters in the states of its own creation. The elective officers of the United States are all elected directly or indirectly by state voters. The members of the House of Representatives are to be chosen by the people of Page 88 U. S. 171 the states, and the electors in each state must have the qualifications requisite for electors of the most numerous branch of the state legislature. [ Footnote 14 ] Senators are to be chosen by the legislatures of the states, and necessarily the members of the legislature required to make the choice are elected by the voters of the state. [ Footnote 15 ] Each state must appoint in such manner, as the legislature thereof may direct, the electors to elect the President and Vice-President. [ Footnote 16 ] The times, places, and manner of holding elections for Senators and Representatives are to be prescribed in each state by the legislature thereof, but Congress may at any time, by law, make or alter such regulations, except as to the place of choosing Senators. [ Footnote 17 ] It is not necessary to inquire whether this power of supervision thus given to Congress is sufficient to authorize any interference with the state laws prescribing the qualifications of voters, for no such interference has ever been attempted. The power of the state in this particular is certainly supreme until Congress acts. The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the states, but it operates for this purpose, if at all, through the states and the state laws, and not directly upon the citizen. It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the states at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. Page 88 U. S. 172 But if it was not, the contrary may with propriety be assumed. When the federal Constitution was adopted, all the states with the exception of Rhode Island and Connecticut had constitutions of their own. These two continued to act under their charters from the Crown. Upon an examination of those constitutions, we find that in no state were all citizens permitted to vote. Each state determined for itself who should have that power. Thus, in New Hampshire, "Every male inhabitant of each town and parish with town privileges and places unincorporated in the state of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request," were its voters; in Massachusetts, "every male inhabitant of twenty-one years of age and upwards having a freehold estate within the commonwealth of the annual income of three pounds or any estate of the value of sixty pounds;" in Rhode Island, "such as are admitted free of the company and society" of the colony; in Connecticut, such persons as had "maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold or forty pounds personal estate," if so certified by the selectmen; in New York, "every male inhabitant of full age who shall have personally resided within one of the counties of the state for six months immediately preceding the day of election . . . if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds within the county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the state;" in New Jersey, "all inhabitants . . . of full age who are worth fifty pounds, proclamation money, clear estate in the same, and have resided in the county in which they claim a vote for twelve months immediately preceding the election;" in Pennsylvania, "every freeman of the age of twenty-one years, having resided in the state two years next before the election, and within that time paid a state or county tax which shall have been assessed at least six months before the election;" in Page 88 U. S. 173 Delaware and Virginia, "as exercised by law at present;" in Maryland, "all freemen above twenty-one years of age having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the state above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election;" in North Carolina, for senators, "all freemen of the age of twenty-one years who have been inhabitants of anyone county within the state twelve months immediately preceding the day of election and possessed of a freehold within the same county of fifty acres of land for six months next before and at the day of election," and for members of the house of commons, "all freemen of the age of twenty-one years who have been inhabitants in any one county within the state twelve months immediately preceding the day of any election, and shall have paid public taxes;" in South Carolina, "every free white man of the age of twenty-one years, being a citizen of the state and having resided therein two years previous to the day of election, and who hath a freehold of fifty acres of land, or a town lot of which he hath been legally seized and possessed at least six months before such election, or (not having such freehold or town lot) hath been a resident within the election district in which he offers to give his vote six months before said election, and hath paid a tax the preceding year of three shillings sterling towards the support of the government," and in Georgia such "citizens and inhabitants of the state as shall have attained to the age of twenty-one years and shall have paid tax for the year next preceding the election, and shall have resided six months within the county." In this condition of the law in respect to suffrage in the several states, it cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared. Page 88 U. S. 174 But if further proof is necessary to show that no such change was intended, it can easily be found both in and out of the Constitution. By Article IV, Section 2, it is provided that "The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." If suffrage is necessarily a part of citizenship, then the citizens of each state must be entitled to vote in the several states precisely as their citizens are. This is more than asserting that they may change their residence and become citizens of the state and thus be voters. It goes to the extent of insisting that, while retaining their original citizenship, they may vote in any state. This, we think, has never been claimed. And again, by the very terms of the amendment we have been considering (the fourteenth), "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in the rebellion, or other crimes, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." Why this if it was not in the power of the legislature to deny the right of suffrage to some male inhabitants? And if suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants? Women and children are, as we have seen, "persons." They are counted in the enumeration upon which the apportionment is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly no such form of words would have been Page 88 U. S. 175 selected to express the idea here indicated if suffrage was the absolute right of all citizens. And still again, after the adoption of the Fourteenth Amendment, it was deemed necessary to adopt a fifteenth, as follows: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." The Fourteenth Amendment had already provided that no state should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race &c.? Nothing is more evident than that the greater must include the less, and if all were already protected, why go through with the form of amending the Constitution to protect a part? It is true that the United States guarantees to every state a republican form of government. [ Footnote 18 ] It is also true that no state can pass a bill of attainder, [ Footnote 19 ] and that no person can be deprived of life, liberty, or property without due process of law. [ Footnote 20 ] All these several provisions of the Constitution must be construed in connection with the other parts of the instrument and in the light of the surrounding circumstances. The guaranty is of a republican form of government. No particular government is designated as republican; neither is the exact form to be guaranteed in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended. The guaranty necessarily implies a duty on the part of the states themselves to provide such a government. All the states had governments when the Constitution was adopted. In all, the people participated to some extent, through their representatives elected in the manner specially provided. Page 88 U. S. 176 These governments the Constitution did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the states to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term as employed in the Constitution. As has been seen, all the citizens of the states were not invested with the right of suffrage. In all save perhaps New Jersey, this right was only bestowed upon men, and not upon all of them. Under these circumstances, it is certainly now too late to contend that a government is not republican, within the meaning of this guaranty in the Constitution, because women are not made voters. The same may be said of the other provisions just quoted. Women were excluded from suffrage in nearly all the states by the express provision of their constitutions and laws. If that had been equivalent to a bill of attainder, certainly its abrogation would not have been left to implication. Nothing less than express language would have been employed to effect so radical a change. So also of the amendment which declares that no person shall be deprived of life, liberty, or property without due process of law, adopted as it was as early as 1791. If suffrage was intended to be included within its obligations, language better adapted to express that intent would most certainly have been employed. The right of suffrage, when granted, will be protected. He who has it can only be deprived of it by due process of law, but in order to claim protection, he must first show that he has the right. But we have already sufficiently considered the proof found upon the inside of the Constitution. That upon the outside is equally effective. The Constitution was submitted to the states for adoption in 1787, and was ratified by nine states in 1788, and finally by the thirteen original states in 1790. Vermont was the first new state admitted to the Union, and it came in under a constitution which conferred the right of suffrage only upon men of the full age of twenty-one years, having resided Page 88 U. S. 177 in the state for the space of one whole year next before the election, and who were of quiet and peaceable behavior. This was in 1791. The next year, 1792, Kentucky followed with a constitution confining the right of suffrage to free male citizens of the age of twenty-one years who had resided in the state two years or in the county in which they offered to vote one year next before the election. Then followed Tennessee, in 1796, with voters of freemen of the age of twenty-one years and upwards, possessing a freehold in the county wherein they may vote, and being inhabitants of the state or freemen being inhabitants of anyone county in the state six months immediately preceding the day of election. But we need not particularize further. No new state has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered a valid objection to her admission. On the contrary, as is claimed in the argument, the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey without any attempt to obtain the interference of the United States to prevent it. Since then, the governments of the insurgent states have been reorganized under a requirement that before their representatives could be admitted to seats in Congress, they must have adopted new constitutions, republican in form. In no one of these constitutions was suffrage conferred upon women, and yet the states have all been restored to their original position as states in the Union. Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the Constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas. Certainly if the courts can consider any question settled, this is one. For nearly ninety years, the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If Page 88 U. S. 178 uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be. We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman's need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a state to withhold. Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void, we Affirm the judgment. [ Footnote 1 ] See other sections, infra, p. 88 U. S. 174 . [ Footnote 2 ] Article 2, § 18. [ Footnote 3 ] Preamble, 1 Stat. at Large 10. [ Footnote 4 ] Declaration of Independence, ib. 1. [ Footnote 5 ] Articles of Confederation, § 3, 1 Stat. at Large 4. [ Footnote 6 ] Article 2, § 1. [ Footnote 7 ] Article I, § 8. [ Footnote 8 ] 1 Stat. at Large 103. [ Footnote 9 ] 10 id. 604. [ Footnote 10 ] 2 id. 293. [ Footnote 11 ] 10 Stat. at Large 604. [ Footnote 12 ] 5 Stat. at Large 455, § 10. [ Footnote 13 ] 12 id. 392. [ Footnote 14 ] Constitution, Article I, § 2. [ Footnote 15 ] Ib., Article I, § 3. [ Footnote 16 ] Ib., Article II, § 2. [ Footnote 17 ] Ib., Article I, § 4. [ Footnote 18 ] Constitution, Article IV, § 4. [ Footnote 19 ] Ib., Article I, § 10. [ Footnote 20 ] Ib., Amendment V.

In *Minor v. Happersett*, the U.S. Supreme Court ruled that the right to vote is not inherent in citizenship and that states have the power to restrict voting rights to men, excluding women from suffrage. The Court interpreted the Fourteenth Amendment as providing additional guarantees of protection for citizens but not as extending the right to vote to all citizens. This decision affirmed the Missouri Supreme Court's ruling, upholding the state constitution's provision limiting voting rights to male citizens.

Trademarks

Prestonettes, Inc. v. Coty

https://supreme.justia.com/cases/federal/us/264/359/

U.S. Supreme Court Prestonettes, Inc. v. Coty, 264 U.S. 359 (1924) Prestonettes, Inc. v. Coty No.197 Argued February 18, 19, 1924 Decided April 7, 1924 264 U.S. 359 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. The ownership of a registered trademark consisting of a name designating the owner's goods does not carry with it the right to prohibit a purchaser, who repacks and sells them with or without added ingredients, from using the name on his own labels to show the true relation of the trademarked product to the article he offers, provided the name be not so printed or otherwise used as to deceive the public. P. 264 U. S. 368 . 2. In this regard, no new right under the trademark can be evoked from the fact that the goods are peculiarly liable to be spoilt or adulterated. P. 264 U. S. 369 . 85 F. 501 reversed. Certiorari to a decree of the circuit court of appeals reversing a decree of the district court in a suit to enjoin alleged unlawful uses of trademarks. Page 264 U. S. 366 MR. JUSTICE HOLMES delivered the opinion of the Court. This is a bill in equity brought by the respondent Coty, a citizen of France, against Prestonettes, a New York corporation having its principal place of business in the Southern District of New York. It seeks to restrain alleged unlawful uses of the Plaintiff's registered trademarks, "Coty" and "L'Origan" upon toilet powders and perfumes. The defendant purchases the genuine powder, subjects it to pressure, adds a binder to give it coherence, and sells the compact in a metal case. It buys Page 264 U. S. 367 the genuine perfume in bottles and sells it in smaller bottles. We need not mention what labels it used before this suit, as the defendant is content to abide by the decree of the district court. That decree allowed the defendant to put upon the rebottled perfume "Prestonettes, Inc., not connected with Coty, states that the contents are Coty's [giving the name of the article] independently rebottled in New York," every word to be in letters of the same size, color, type, and general distinctiveness. It allowed the defendant to make compacts from the genuine loose powder of the plaintiff and to sell them with this label on the container: "Prestonettes, Inc., not connected with Coty, states that the compact of face powder herein was independently compounded by it from Coty's [giving the name] loose powder and its own binder. Loose powder -- percent, Binder -- percent.," every word to be in letters of the same size, color, type and general distinctiveness. The circuit court of appeals, considering the very delicate and volatile nature of the perfume, its easy deterioration, and the opportunities for adulteration, issued an absolute preliminary injunction against the use of the above marks except on the original packages as marked and sold by the plaintiff, thinking that the defendant could not put upon the plaintiff the burden of keeping a constant watch. 285 F. 501. Certiorari granted, 260 U.S. 720. The bill does not charge the defendant with adulterating or otherwise deteriorating the plaintiff's product except that it intimates, rather than alleges, metal containers to be bad, and the circuit court of appeals stated that there were no controverted questions of fact, but that the issue was simply one of law. It seemingly assumed that the defendant handled the plaintiff's product without in any way injuring its qualities, and made its decree upon that assumption. The decree seems to us to have gone too far. Page 264 U. S. 368 The defendant, of course, by virtue of its ownership, had a right to compound or change what it bought, to divide either the original or the modified product, and to sell it so divided. The plaintiff could not prevent or complain of its stating the nature of the component parts and the source from which they were derived if it did not use the trademark in doing so. For instance, the defendant could state that a certain percentage of its compound was made at a certain place in Paris, however well known as the plaintiff's factory that place might be. If the compound was worse than the constituent, it might be a misfortune to the plaintiff, but the plaintiff would have no cause of action, as the defendant was exercising the rights of ownership, and only telling the truth. The existence of a trademark would have no bearing on the question. Then what new rights does the trademark confer? It does not confer a right to prohibit the use of the word or words. It is not a copyright. The argument drawn from the language of the Trade-Mark Act does not seem to us to need discussion. A trademark only gives the right to prohibit the use of it so far as to protect the owner's goodwill against the sale of another's product as his. United Drug Co. v. Theodore Rectanus Co., 248 U. S. 90 . There is nothing to the contrary in A. Bourjois & Co. v. Katzel, 260 U. S. 689 . There, the trademark protected indicated that the goods came from the plaintiff in the United States, although not made by it, and therefore could not be put upon other goods of the same make coming from abroad. When the mark is used in a way that does not deceive the public, we see no such sanctity in the word as to prevent its being used to tell the truth. It is not taboo. Canal Co. v. Clark , 13 Wall. 311, 80 U. S. 327 . If the name Coty were allowed to be printed in different letters from the rest of the inscription dictated by the district court, a casual purchaser might look no Page 264 U. S. 369 further, and might be deceived. But when it in no way stands out from the statements of facts that unquestionably the defendant has a right to communicate in some form, we see no reason why it should not be used collaterally not to indicate the goods, but to say that the trademarked product is a constituent in the article now offered as new and changed. As a general proposition, there can be no doubt that the word might be so used. If a man bought a barrel of a certain flour, or a demijohn of Old Crow whisky, he certainly could sell the flour in smaller packages or, in former days, could have sold the whisky in bottles, and tell what it was, if he stated that he did the dividing up or the bottling. And this would not be because of a license implied from the special facts, but on the general ground that we have stated. It seems to us that no new right can be evoked from the fact that the perfume or powder is delicate, and likely to be spoiled, or from the omnipresent possibility of fraud. If the defendant's rebottling the plaintiff's perfume deteriorates it and the public is adequately informed who does the rebottling, the public, with or without the plaintiff's assistance, is likely to find it out. And so of the powder in its new form. This is not a suit for unfair competition. It stands upon the plaintiff's rights as owner of a trademark registered under the Act of Congress. The question, therefore, is not how far the court would go in aid of a plaintiff who showed ground for suspecting the defendant of making a dishonest use of his opportunities, but is whether the plaintiff has the naked right alleged to prohibit the defendant from making even a collateral reference to the plaintiff's mark. We are of opinion that the decree of the circuit court of appeals must be reversed, and that that of the district court must stand. Decree reversed. MR. JUSTICE McREYNOLDS dissents.

In Prestonettes, Inc. v. Coty (1924), the US Supreme Court ruled that the owner of a registered trademark cannot prohibit a purchaser from using the trademarked name on their own labels, provided they are not deceiving the public. The Court held that a trademark does not give the owner the right to control how others use the mark to communicate truthful information about the product. In this case, Prestonettes was allowed to repackage and sell Coty's perfume and powder with labels stating that the products were independently rebottled or compounded by Prestonettes, as long as the text was uniform in size, color, type, and distinctiveness. This decision set a precedent for trademark usage and resale rights.

Voting & Elections

U.S. v. Reese

https://supreme.justia.com/cases/federal/us/92/214/

U.S. Supreme Court United States v. Reese, 92 U.S. 214 (1875) United States v. Reese 92 U.S. 214 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY Syllabus 1. Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of that protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide, and may be varied to meet the necessities of a particular right. 2. The Fifteenth Amendment to the Constitution does not confer the right of suffrage, but it invests citizens of the United States with the right of Page 92 U. S. 215 exemption from discrimination in the exercise of the elective franchise on account of their race, color, or previous condition of servitude, and empowers Congress to enforce that right by "appropriate legislation." 3. The power of Congress to legislate at all upon the subject of voting at state elections rests upon this amendment, and can be exercised by providing a punishment only when the wrongful refusal to receive the vote of a qualified elector at such elections is because of his race, color, or previous condition of servitude. 4. The third and fourth sections of the Act of May 31, 1570, 16 Stat. 140, not being confined in their operation to unlawful discrimination on account of race, color, or previous condition of servitude, are beyond the limit of the Fifteenth Amendment and unauthorized. 5. As these sections are in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, and cannot be limited by judicial construction so as to make them operate only on that which Congress may rightfully prohibit and punish, held that Congress has not provided by "appropriate legislation" for the punishment of an inspector of a municipal election for refusing to receive and count at such election the vote of a citizen of the United States of African descent. 6. Since the passage of the act which gives the presiding judge the casting vote in cases of division and authorizes a judgment in accordance with his opinion, Rev.Stat., sec. 650, this Court, if it finds that the judgment as rendered is correct, need do no more than affirm it. If, however, that judgment is reversed, all questions certified, which are considered in the final determination of the case here, should be answered. MR. CHIEF JUSTICE WAITE delivered the opinion of the Court. This case comes hare by reason of a division of opinion between the judges of the Circuit Court in the District of Kentucky. It presents an indictment containing four counts, under secs. 3 and 4 of the Act of May 31, 1870, 16 Stat. 140, against two of the inspectors of a municipal election in the State of Kentucky for refusing to receive and count at such election the vote of William Garner, a citizen of the United States of African descent. All the questions presented by the certificate of division arose upon general demurrers to the several counts of the indictment. Page 92 U. S. 216 In this Court, the United States abandons the first and third counts and expressly waives the consideration of all claims not arising out of the enforcement of the Fifteenth Amendment of the Constitution. After this concession, the principal question left for consideration is whether the act under which the indictment is found can be made effective for the punishment of inspectors of elections who refuse to receive and count the votes of citizens of the United States, having all the qualifications of voters, because of their race, color, or previous condition of servitude. If Congress has not declared an act done within a state to be a crime against the United States, the courts have no power to treat it as such. United States v. Hudson , 7 Cranch 32. It is not claimed that there is any statute which can reach this case unless it be the one in question. Looking, then, to this statute, we find that its first section provides that all citizens of the United States who are or shall be otherwise qualified by law to vote at any election &c., shall be entitled and allowed to vote thereat without distinction of race, color, or previous condition of servitude, any constitution &c., of the state to the contrary notwithstanding. This simply declares a right, without providing a punishment for its violation. The second section provides for the punishment of any officer charged with the duty of furnishing to citizens an opportunity to perform any act, which, by the constitution or laws of any state, is made a prerequisite or qualification of voting, who shall omit to give all citizens of the United States the same and equal opportunity to perform such prerequisite, and become qualified on account of the race, color, or previous condition of servitude, of the applicant. This does not apply to or include the inspectors of an election whose only duty it is to receive and count the votes of citizens, designated by law as voters, who have already become qualified to vote at the election. The third section is to the effect that whenever, by or under the constitution or laws of any state &c., any act is or shall be required to be done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of such citizen to perform the act required to be done "as aforesaid" shall, if it Page 92 U. S. 217 fail to be carried into execution by reason of the wrongful act or omission "aforesaid" of the person or officer charged with the duty of receiving or permitting such performance, or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner, and to the same extent, as if he had in fact performed such act, and any judge, inspector, or other officer of election whose duty it is to receive, count &c., or give effect to the vote of any such citizen, who shall wrongfully refuse or omit to receive, count &c., the vote of such citizen, upon the presentation by him of his affidavit stating such offer, and the time and place thereof, and the name of the person or officer whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall, for every such offense, forfeit and pay, &c. The fourth section provides for the punishment of any person who shall, by force, bribery, threats, intimidation, or other unlawful means, hinder, delay &c., or shall combine with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote, or from voting, at any election. The second count in the indictment is based upon the fourth section of this act, and the fourth upon the third section. Rights and immunities created by or dependant upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected. The Fifteenth Amendment does not confer the right of suffrage upon anyone. It prevents the states, or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, color, or previous condition of servitude. Before its adoption, this could be done. It was as much within the power of a state to exclude citizens of the United States from voting on account of race &c., as it was on account of age, property, Page 92 U. S. 218 or education. Now it is not. If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination; now there is. It follows that the amendment has invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. This, under the express provisions of the second section of the amendment, Congress may enforce by "appropriate legislation." This leads us to inquire whether the act now under consideration is "appropriate legislation" for that purpose. The power of Congress to legislate at all upon the subject of voting at state elections rests upon this amendment. The effect of art. 1, sec. 4, of the Constitution, in respect to elections for senators and representatives, is not now under consideration. It has not been contended, nor can it be, that the amendment confers authority to impose penalties for every wrongful refusal to receive the vote of a qualified elector at state elections. It is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude that Congress can interfere and provide for its punishment. If, therefore, the third and fourth sections of the act are beyond that limit, they are unauthorized. The third section does not in express terms limit the offense of an inspector of elections, for which the punishment is provided, to a wrongful discrimination on account of race, &c. This is conceded, but it is urged that when this section is construed with those which precede it and to which, as is claimed, it refers, it is so limited. The argument is that the only wrongful act on the part of the officer whose duty it is to receive or permit the requisite qualification, which can dispense with actual qualification under the state laws, and substitute the prescribed affidavit therefor, is that mentioned and prohibited in sec. 2 -- to-wit, discrimination on account of race, &c., and that consequently sec. 3 is confined in its operation to the same wrongful discrimination. Page 92 U. S. 219 This is a penal statute, and must be construed strictly; not so strictly, indeed, as to defeat the clear intention of Congress, but the words employed must be understood in the sense they were obviously used. United States v. Wiltberger , 5 Wheat. 76, 85 [argument of counsel -- omitted]. If, taking the whole statute together, it is apparent that it was not the intention of Congress thus to limit the operation of the act, we cannot give it that effect. The statute contemplates a most important change in the election laws. Previous to its adoption, the states, as a general rule, regulated in their own way all the details of all elections. They prescribed the qualifications of voters and the manner in which those offering to vote at an election should make known their qualifications to the officers in charge. This act interferes with this practice, and prescribes rules not provided by the laws of the states. It substitutes, under certain circumstances, performance wrongfully prevented for performance itself. If the elector makes and presents his affidavit in the form and to the effect prescribed, the inspectors are to treat this as the equivalent of the specified requirement of the state law. This is a radical change in the practice, and the statute which creates it should be explicit in its terms. Nothing should be left to construction if it can be avoided. The law ought not to be in such a condition that the elector may act upon one idea of its meaning and the inspector upon another. The elector, under the provisions of the statute, is only required to state in his affidavit that he has been wrongfully prevented by the officer from qualifying. There are no words of limitation in this part of the section. In a case like this, if an affidavit is in the language of the statute, it ought to be sufficient both for the voter and the inspector. Laws which prohibit the doing of things and provide a punishment for their violation should have no double meaning. A citizen should not unnecessarily be placed where, by an honest error in the construction of a penal statute, he may be subjected to a prosecution for a false oath, and an inspector of elections should not be put in jeopardy because he, with equal honesty, entertains an opposite opinion. If this statute limits the wrongful act which will justify the affidavit to discrimination on account of race &c., then a citizen who makes an affidavit that he has been Page 92 U. S. 220 wrongfully prevented by the officer, which is true in the ordinary sense of that term, subjects himself to indictment and trial, if not to conviction, because it is not true that he has been prevented by such a wrongful act as the statute contemplated; and if there is no such limitation, but any wrongful Act of exclusion will justify the affidavit and give the right to vote without the actual performance of the prerequisite, then the inspector who rejects the vote because he reads the law in its limited sense, and thinks it is confined to a wrongful discrimination on account of race &c., subjects himself to prosecution, if not to punishment, because he has misconstrued the law. Penal statutes ought not to be expressed in language so uncertain. If the legislature undertakes to define by statute a new offense and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime. But when we go beyond the third section and read the fourth, we find there no words of limitation, or reference even, that can be construed as manifesting any intention to confine its provisions to the terms of the Fifteenth Amendment. That section has for its object the punishment of all persons who, by force, bribery &c., hinder, delay &c., any person from qualifying or voting. In view of all these facts, we feel compelled to say that in our opinion, the language of the third and fourth sections does not confine their operation to unlawful discriminations on account of race, &c. If Congress had the power to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such discrimination, the language of these sections would be broad enough for that purpose. It remains now to consider whether a statute, so general as this in its provisions, can be made available for the punishment of those who may be guilty of unlawful discrimination against citizens of the United States, while exercising the elective franchise, on account of their race, &c. There is no attempt in the sections now under consideration to provide specifically for such an offense. If the case is provided for at all, it is because it comes under the general prohibition Page 92 U. S. 221 against any wrongful act or unlawful obstruction in this particular. We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction unless it be as to the effect of the Constitution. The question, then, to be determined is whether we can introduce words of limitation into a penal statute so as to make it specific when, as expressed, it is general only. It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would to some extent substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. Within its legitimate sphere, Congress is supreme and beyond the control of the courts; but if it steps outside of its constitutional limitations and attempts that which is beyond its reach, the courts are authorized to, and when called upon in due course of legal proceedings must, annul its encroachments upon the reserved power of the states and the people. To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty. We must therefore decide that Congress has not as yet provided by "appropriate legislation" for the punishment of the offense charged in the indictment, and that the circuit court Page 92 U. S. 222 properly sustained the demurrers and gave judgment for the defendants. This makes it unnecessary to answer any of the other questions certified. Since the law which gives the presiding judge the casting vote in cases of division, and authorizes a judgment in accordance with his opinion, Rev.Stat., sec. 650, if we find that the judgment as rendered is correct, we need not do more than affirm. If, however, we reverse, all questions certified, which may be considered in the final determination of the case according to the opinion we express, should be answered. Judgment affirmed. MR. JUSTICE CLIFFORD and MR. JUSTICE HUNT dissenting. MR. JUSTICE CLIFFORD: I concur that the indictment is bad, but for reasons widely different from those assigned by the Court. States, as well as the United States, are prohibited by the Fifteenth Amendment of the Constitution from denying or abridging the right of citizens of the United States to vote on account of race, color, or previous condition of servitude, and power is vested in Congress by the second article of that amendment to enforce that prohibition "by appropriate legislation." Since the adoption of that amendment, Congress has legislated upon the subject, and, by the first section of the Enforcement Act, it is provided that citizens of the United States, without distinction of race, color, or previous condition of servitude, shall, if otherwise qualified to vote in state, territorial, or municipal elections, be entitled and allowed to vote at all such elections, any constitution, law, custom, usage, or regulation of any state or territory or by or under its authority, to the contrary notwithstanding. Beyond doubt that section forbids all discrimination between white citizens and citizens of color in respect to their right to vote; but the section does not provide that the person or officer making such discrimination shall be guilty of any offense, nor does it prescribe that the person or officer guilty of making such discrimination shall be subject to any fine, penalty, or Page 92 U. S. 223 punishment whatever. None of the counts of the indictment in this case, however, is framed under that section; nor will it be necessary to give it any further consideration except so far as it may aid in the construction of the other sections of the act. 16 Stat. 140. Sec. 2 of the act will deserve more examination, as it assumes that certain acts are or may be required to be done by or under the authority of the constitution or laws of certain states, or the laws of certain territories, as a prerequisite or qualification for voting, and that certain persons or officers are or may be, by such constitution or laws, charged with the performance of duties in furnishing to such citizens an opportunity to perform such prerequisites to become qualified to vote, and provides that it shall be the duty of every such person or officer to give all such citizens, without distinction of race, color, or previous condition of servitude, the same and equal opportunity to perform such prerequisites to become qualified to vote. Equal opportunity is required by that section to be given to all such citizens, without distinction of race, color, or previous condition of servitude, to perform the described prerequisite, and the further provision of the same section is that if any such person or officer charged with the performance of the described duties shall refuse or knowingly omit to give full effect to the requirements of that section, he shall for every such offense forfeit and pay $500 to the person aggrieved, and also be deemed guilty of a misdemeanor and punished as therein provided. Other sections applicable to the subject are contained in the Enforcement Act, to which reference will hereafter be made. 16 id. 141. 1. Four counts are exhibited in the indictment against the defendants, and the record shows that the defendants filed a demurrer to each of the counts, which was joined in behalf of the United States. Two of the counts -- to-wit, the first and the third -- having been abandoned at the argument, the examination will be confined to the second and the fourth. By the record, it also appears that the defendants, together with one William Farnaugh, on the 30th of January, 1873, were the lawful inspectors of a municipal election held on that day in the City of Lexington, in the State of Kentucky, pursuant to Page 92 U. S. 224 the constitution and laws of that state, and that they, as such inspectors, were then and there charged by law with the duty of receiving, counting, certifying, registering, reporting, and giving effect to the vote of all citizens qualified to vote at said election in Ward 3 of the city, and the accusation set forth in the second count of the indictment is that one William Garner, at said municipal election, offered to the said inspectors at the polls of said election in said Ward 3 to vote for members of the said city council, the said poll being then and there the lawful and proper voting place and precinct of the said William Garner, who was then and there a free male citizen of the United States and of the state, of African descent and having then and there resided in said state more than two years, and in said city more than one year, next preceding said election, and having been a resident of said voting precinct and ward in which he offered to vote more than sixty days immediately prior to said election, and being then and there, at the time of such offer to vote, qualified and entitled, as alleged, by the laws of the state, to vote at said election. Offer in due form to vote at the said election having been made, as alleged, by the said William Garner, the charge is that the said William Farnaugh consented to receive, count, register, and give effect to the vote of the party offering the same; but that the defendants, constituting the majority of the inspectors at the election, and as such having the power to receive or reject all votes offered at said poll, did then and there, when the said party offered to vote, unlawfully agree and confer with each other that they, as such inspectors, would not take, receive, certify, register, report, or give effect to the vote of any voters of African descent offered at said election unless the voter so offering to vote, besides being otherwise qualified to vote, had paid to said city the capitation tax of one dollar and fifty cents for the preceding year, on or before the 15th of January prior to the day of the election, which said agreement, the pleader alleges, was then and there made with intent thereby to hinder, prevent, and obstruct all voters of African descent on account of their race and color, though lawfully entitled to vote at said election, from so voting. Taken separately, that allegation would afford some support to the Page 92 U. S. 225 theory of the United States, but it must be considered in connection with the allegation which immediately follows it in the same count, where it is alleged as follows: that the defendants, in pursuance of said unlawful agreement, did then and there, at the election aforesaid, wrongfully and illegally require and demand of said party, when he offered to vote as aforesaid, that he should, as a prerequisite and qualification to his voting at said election, produce evidence of his having paid to said city or its proper officers the said capitation tax of one dollar and fifty cents for the year preceding, on or before the 15th of January preceding the day of said election, and the averment is to the effect that the party offering his vote then and there refused to comply with that illegal requirement and demand, or to produce the evidence so demanded and required. Offenses created by statute, as well as offenses created at common law, with rare exceptions, consist of more than one ingredient, and in some cases of many, and the rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment or the indictment will be bad on demurrer, or it may be quashed on motion, or the judgment may be arrested before sentence, or be reversed on a writ of error. United States v. Cook , 17 Wall. 174. Matters well pleaded, it is true, are admitted by the demurrer; but it is equally true that every ingredient of the offense must be accurately and clearly described and that no indictment is sufficient if it does not accurately and clearly describe all the ingredients of which the offense is composed. Citizens of the United States, without distinction of race, color, or previous condition of servitude, if otherwise qualified to vote at a state, territorial, or municipal election, shall be entitled and allowed to vote at such an election, even though the constitution, laws, customs, usages, or regulations of the state or territory do not allow, or even prohibit, such voter from exercising that right. 16 Stat. 140, sec. 1. Evidently the purpose of that section is to place the male citizen of color, as an elector, on the same footing with the white male citizen. Nothing else was intended by that provision, Page 92 U. S. 226 as is evident from the fact that it does not profess to enlarge or vary the prior existing right of white male citizens in any respect whatever. Conclusive support to that theory is also derived from the second section of the same act, which was obviously passed to enforce obedience to the rule forbidding discrimination between colored male citizens and white male citizens in respect to their right to vote at such elections. By the charter of the City of Lexington, it is provided that a tax shall be levied on each free male inhabitant of twenty-one years of age and upwards, except paupers, inhabiting said city, at a ratio not exceeding one dollar and fifty cents each. Sess.Laws 1867, p. 441. Such citizens, without distinction of race, color, or previous condition of servitude, in order that they may be entitled to vote at any such election, must be free male citizens "over twenty-one years of age, have been a resident of the city at least six months, and of the ward in which he resides at least sixty days, prior to the day of the election, and have paid the capitation tax assessed by the city on or before the 15th of January preceding the day of election." 2 Sess.Laws 1870, p. 71. White male citizens, not possessing the qualifications to vote required by law, find no guaranty of the right to exercise that privilege by the first section of the Enforcement Act; but the mandate of the section is explicit and imperative, that all citizens, without distinction of race, color, or previous condition of servitude, if otherwise qualified to vote at any state, territorial, or municipal election, shall be entitled and allowed to vote at all such elections, even though forbidden so to do, on account of race, color, or previous condition of servitude, by the constitution of the state, or by the laws, custom, usage, or regulation of the state or territory, where the election is held. Disability to vote of every kind, arising from race, color, or previous condition of servitude, is declared by the first section of that act to be removed from the colored male citizen; but unless otherwise qualified by law to vote at such an election, he is no more entitled to enjoy that privilege than a white male citizen who does not possess the qualifications required by law to constitute him a legal voter at such an election. Page 92 U. S. 227 Legal disability to vote at any such election, arising from race, color, or previous condition of servitude, is removed by the Fifteenth Amendment, as affirmed in the first section of the Enforcement Act; but the Congress knew full well that cases would arise where the want of other qualifications, if not removed, might prevent the colored citizen from exercising the right of suffrage at such an election, and the intent and purpose of the second section of the act are to furnish to all citizens an opportunity to remove every such other disability to enable them to become qualified to exercise that right, and to punish persons and officers charged with any duty in that regard who unlawfully and wrongfully refuse or willfully omit to cooperate to that end. Hence it is provided that where any act is or shall be required to be done as a prerequisite or qualification for voting, and persons or officers are charged in the manner stated with the performance of duties in furnishing to citizens an opportunity to perform such prerequisite or to become qualified to vote, it shall be the duty of every such person and officer to give all citizens, without distinction of race, color, or previous condition of servitude, the same and equal opportunity to perform such prerequisite, and to become qualified to vote. Persons or officers who wrongfully refuse or knowingly omit to perform the duty with which they are charged by that clause of the second section of the Enforcement Act commit the offense defined by that section, and incur the penalty, and subject themselves to the punishment, prescribed for that offense. Enough appears in the second court of the indictment to show beyond all question that it cannot be sustained under the second section of the Enforcement Act, as the count expressly alleges that the defendants as such inspectors, at the time the complaining party offered his vote, refused to receive and count the same because he did not produce evidence that he had paid to the city the capitation tax of one dollar and fifty cents assessed against him for the preceding year, which payment, it appears by the law of the state, is a prerequisite and necessary qualification to enable any citizen to vote at that election, without distinction of race, color, or previous condition of servitude; and the express allegation of the count is that the party offering his vote then and there refused to comply with that prerequisite, Page 92 U. S. 228 and then and there demanded that his vote should be received and counted without his complying with that prerequisite. Argument to show that such allegations are insufficient to constitute the offense defined in the second section of the Enforcement Act or any other section of that act is quite unnecessary, as it appears in the very terms of the allegations that the party offering his vote was not, irrespective of his race, color, or previous condition of servitude, a qualified voter at such an election by the law of the state where the election was held. Persons within the category described in the first section of the Enforcement Act, of whom it is enacted that they shall be entitled and allowed to vote at such an election, without distinction of race, color, or previous condition of servitude, are citizens of the United States otherwise qualified to vote at the election pending, and inasmuch as it is not alleged in the count that the party offering his vote in this case was otherwise qualified by law to vote at the time he offered his vote, and inasmuch as no excuse is pleaded for not producing evidence to establish that prerequisite of qualification, it is clear that the supposed offense is not set forth with sufficient certainty to justify a conviction and sentence of the accused. 2. Defects also exist in the fourth count, but it becomes necessary, before considering the questions which those defects present, to examine with care the third section of the Enforcement Act. Sec. 3 of that act differs in some respects from the second section -- as, for example, sec. 3 provides that whenever under the constitution and laws of a state or the laws of a territory any act is or shall be required to be done by any such citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, be deemed and held as a performance in law of such act, and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed the said act. By that clause of the section, it is enacted that the offer of the party interested to Page 92 U. S. 229 perform the prerequisite act to qualify or entitle him to vote shall, if it fail for the reason specified, have the same effect as the actual performance of the prerequisite act would have; and the further provision is that any judge, inspector, or other officer of election, whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of such citizen, upon the presentation by him of his affidavit, stating such offer and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall for every such offense forfeit and pay the sum of $500 dollars to the person aggrieved, and also be guilty of a misdemeanor. Payment of the capitation tax on or before the 15th of January preceding the day of the election is beyond all doubt one of the prerequisite acts, if not the only one, referred to in that part of the section, and it is equally clear that the introductory clause of the section is wholly inapplicable to a case where the citizen, claiming the right to vote at such an election, has actually paid the capitation tax as required by the election law of the state. Voters who have seasonably paid the tax are in no need of any opportunity to perform such a prerequisite to qualify them to vote; but the third section of the act was passed to provide for a class of citizens who had not paid the tax, and who had offered to pay it, and the offer had failed to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting the performance of such prerequisite. Qualified voters by the law of the state are male citizens over twenty-one years of age who have been residents of the city at least six months and of the ward in which they reside at least sixty days, immediately prior to the day of the election, and who have paid the capitation tax assessed by the city on or before the fifteenth day of January preceding the day of the election. Obviously the payment of the capitation tax on or before the time mentioned is a prerequisite to qualify the citizen to vote, and the purpose of the second section is to secure to the citizen an opportunity to perform that prerequisite and to punish the persons and officers charged with the duty of Page 92 U. S. 230 furnishing the citizen with such an opportunity to perform such prerequisite in case such person or officer refuses or knowingly omits to do his duty in that regard. Grant that, still it is clear that the punishment of the offender would not retroact and give effect to the right of the citizen to vote, nor secure to the public the right to have his vote received, counted, registered, reported, and made effectual at that election. 3. Injustice of the kind, it was foreseen, might be done, and to remedy that difficulty the third section was passed, the purpose of which is to provide that the offer of any such citizen to perform such prerequisite, if the offer fails to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance, shall be deemed and held as a performance in law of such act and prerequisite; and the person so offering to perform such prerequisite, and so failing by reason of the wrongful act or omission of the person or officer charged with such duty, if otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had, in fact, performed such prerequisite act. Nothing short of the performance of the prerequisite act will entitle any citizen to vote at any such election in that state if the opportunity to perform the prerequisite is furnished as required by the Act of Congress, but if those whose duty it is to furnish the opportunity to perform the act refuse or omit so to do, then the offer to perform such prerequisite act, if the offer fails to be carried into execution by the wrongful act or omission of those whose duty it is to receive and permit the performance of the prerequisite act, shall have the same effect in law as the actual performance. Such an offer to perform can have the same effect in law as actual performance only in case where it fails to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance, from which it follows that the offer must be made in such terms and under such circumstances that if it should be received and carried into execution, it would constitute a legal and complete performance of the prerequisite act. What the law of the state requires in that regard is that Page 92 U. S. 231 the citizen offering to vote at such an election should have paid the capitation tax assessed by the city, which in this case was one dollar and fifty cents, on or before the 15th of January preceding the day of election. Unless the offer is made in such terms and under such circumstances that if it is accepted and carried into execution, it would constitute a legal and complete performance of the prerequisite act, the person or officer who refused or omitted to carry the offer into execution would not incur the penalty nor be guilty of the offense defined by that section of the act, for it could not be properly alleged that it failed to be carried into effect by the wrongful act or omission of the person or officer charged with the duty of receiving and permitting such performance. Viewed in the light of these suggestions, it must be that the offer contemplated by the third section of the act is an offer made in such terms and under such circumstances that if it be accepted and carried into execution by the person or officer to whom it is made, it will constitute a complete performance of the prerequisite and show that the party making the offer, if otherwise qualified, is entitled to vote at the election. Evidence is entirely wanting to show that the authors of the Enforcement Act ever intended to abrogate any state election law except so far as it denies or abridges the right of the citizen to vote on account of race, color, or previous condition of servitude. Every discrimination on that account is forbidden by the Fifteenth Amendment, and the first section of the act under consideration provides, as before remarked, that "all citizens, otherwise qualified to vote, . . . shall be entitled and allowed to vote, . . . without distinction of race, color, or previous condition of servitude, any constitution, law" &c., to the contrary notwithstanding. State election laws creating such discriminations are superseded in that regard by the Fifteenth Amendment, but the Enforcement Act furnishes no ground to infer that the lawmakers intended to annul the state election laws in any other respect whatever. Had Congress intended by the third section of that act to abrogate the election law of the state creating the prerequisite in question, it is quite clear that the second section would have been wholly unnecessary, as it would be a useless regulation to provide the Page 92 U. S. 232 means to enable citizens to comply with a prerequisite which is abrogated and treated as null by the succeeding section. Statutes should be interpreted, if practicable, so as to avoid any repugnancy between the different parts of the same and to give a sensible and intelligent effect to every one of their provisions; nor is it ever to be presumed that any part of a statute is supererogatory or without meaning. Potter's Dwarris 145. Difficulties of the kind are all avoided if it be held that the second section was enacted to afford citizens an opportunity to perform the prerequisite act to qualify themselves to vote, and to punish the person or officer who refuses or knowingly omits to perform his duty in furnishing them with that opportunity, and that the intent and purpose of the third section are to protect such citizens from the consequences of the wrongful refusal or willful omission of such person or officer to receive and give effect to the actual offer of such citizen to perform such prerequisite, if made in terms and under such circumstances that the offer, if accepted and carried into execution, would constitute an actual and complete performance of the act made a prerequisite to the right of voting by the state law. Apply these suggestions to the fourth count of the indictment and it is clear that the allegations in that regard are insufficient to describe the offense defined by the third section of the Enforcement Act. 4. Beyond all doubt, the general rule is that in an indictment for an offense created by statute, it is sufficient to describe the offense in the words of the statute, and it is safe to admit that that general rule is supported by many decided cases of the highest authority; but it is equally certain that exceptions exist to the rule, which are as well established as the rule itself, most of which result from another rule of criminal pleading, which, in framing indictments founded upon statutes, is paramount to all others and is one of universal application -- that every ingredient of the offense must be accurately and clearly expressed, or in other words that the indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted. United States v. Cook , 17 Wall. 174. Speaking of that principle, Mr. Bishop says it pervades the Page 92 U. S. 233 entire system of the adjudged law of criminal procedure, as appears by all the cases; that wherever we move in that department of our jurisprudence, we come in contact with it; and that we can no more escape from it than from the atmosphere which surrounds us. 1 Bishop, Cr.Pro., 2d ed., sec. 81; Archbold's Crim.Plead., 15th ed., 54; 1 Stark Crim.Plead., 236; 1 Am.Cr.Law, 6th rev. ed., sec. 364; Steel v. Smith, 1 Barn. & Ald. 99. Examples of the kind, where it has been held that exceptions exist to the rule that it is sufficient in an indictment founded upon a statute to follow the words of the statute, are very numerous and show that many of the exceptions have become as extensively recognized and are as firmly settled as any rule of pleading in the criminal law. Moreover, says Mr. Bishop, there must be such an averment of facts as shows prima facie guilt in the defendant, and if, supposing all the facts set out to be true, there is, because of the possible nonexistence of some fact not mentioned, room to escape from the prima facie conclusion of guilt, the indictment is insufficient, which is the exact case before the court. 1 Bishop, Cr.Pro., 2d ed., sec. 325. It is plain, says the same learned author, that if, after a full expression has been given to the statutory terms, any of the other rules relating to the indictment are left uncomplied with, the indictment is still insufficient. To it must be added what will conform also to the other rules. Consequently the general doctrine that the indictment is sufficient if it follows the words of the statute creating and defining the offense, is subject to exceptions, requiring the allegation to be expanded beyond the prohibiting terms. 1 id., sec. 623. In general, says Marshall, C.J., it is sufficient in a libel (being a libel of information) to charge the offense in the very words which direct the forfeiture; but the proposition is not, we think, universally true. If the words which describe the subject of the law are general, . . . we think the charge in the libel ought to conform to the true sense and meaning of those words as used by the legislature. The Mary Ann , 8 Wheat. 389. Similar views are expressed by this Court in United States v. Page 92 U. S. 234 Gooding, 12 Wheat. 474, in which the opinion was given by Mr. Justice Story. Having first stated the general rule that it is sufficient certainty in an indictment to allege the offense in the very terms of the Statute, he proceeds to remark, "We say in general for there are doubtless cases where more particularity is required, either from the obvious intention of the legislature or from the application of known principles of law. Known principles of law require more particularity in this case, in order that all the ingredients of the offense may be accurately and clearly alleged, and it is equally clear that the intention of the legislature also requires the same thing, as it is obvious that the mere statement of the party that he offered to perform the prerequisite was never intended to be made equivalent to performance unless such statement was accompanied by an offer to pay the tax, and under circumstances which shown that he was ready and able to make the payment. Authorities are not necessary to prove that an indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indicted precisely within the provisions of the statute defining the offense." Statutes are often framed, says Colby, to meet the relations of parties to each other, to prevent frauds by the one upon the other, and in framing such statutes, the language used is often elliptical, leaving some of the circumstances expressive of the relations of the parties to each other to be supplied by intendment or construction. In all such cases, the facts and circumstances constituting such relation must be alleged in the indictment, though not expressed in the words of the statute. 2 Colby, Cr.Law, 114; People v. Wibur, 4 Park Cr.Cas. 21; Com. v. Cook, 18 B.Monr. 149; Pearce v. State, 1 Sneed 63; People v. Stone, 9 Wend. 191; Whiting v. State, 14 Conn. 487; Anthony v. State, 29 Ala. 27; 1 Am.Cr.Law, 6th rev. ed., sec. 364, note d , and cases cited. Like the preceding counts, the preliminary allegations of the fourth count are without objection; and the jury proceed to present that the party offering to vote, having then and there all the qualifications, as to age, citizenship, and residence, required by the state law, did, on the thirtieth day of January, 1873, in order that he might become qualified to vote at said election, Page 92 U. S. 235 offer to the collector at his office in said city to pay any capitation tax due from him to said city, or any capitation tax that had been theretofore assessed against him by said city, or which could be assessed against him by said city, or which said city or said collector claimed was due from him to said city, and that the said collector then and there wrongfully refused, on account of his race or color, to give the said party an opportunity to pay said capitation tax for the preceding year, and then and there wrongfully refused to receive said tax from the said party in order that he might become qualified to vote at said election, the said collector having then and there given to citizens of the white race an opportunity to pay such taxes due from them to said city, in order that they might become qualified for that purpose. All that is there alleged may be admitted, and yet it may be true that the complaining party never made any offer at the time and place mentioned to pay the capitation tax of one dollar and fifty cents due to the city at the time and place mentioned, in such terms, and under such circumstances, that if the offer as made had been accepted by the person or officer to whom the offer was made, and that such person or officer had done everything which it was his duty to do, or everything which it was in his power to do, to carry it into effect, the offer would have constituted performance of the prerequisite act. Actual payment of the capitation tax on or before the 15th of January preceding the day of election is the prerequisite act to be performed to qualify the citizen, without distinction of race, color, or previous condition of servitude, to vote at said election. Such an offer, therefore, in order that it may be deemed and held as a performance in law of such prerequisite, must be an offer to pay the amount of the capitation tax; and the party making the offer must then and there possess the ability and means to pay the amount to the person or officer to whom the offer is made, for unless payment of the amount of tax is then and there made to the said person or officer, he would not be authorized to discharge the tax, and could not carry the offer into execution without violating his duty to the city. 5. Readiness to pay, therefore, is necessarily implied from Page 92 U. S. 236 the language of the third section, as it is only in case the offer fails to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance that the offer can be deemed and held as performance in law of such prerequisite act. Where the party making the offer is not ready to pay the tax to the person or officer to whom the offer is made, and has not then and there the means to make the payment, it cannot be held that the offer fails to be carried into execution by reason of the wrongful act or omission of the person or officer to whom the offer is made, as it would be a perversion of law and good sense to hold that it is the duty of such a person or officer to carry such an offer into execution by discharging the tax without receiving the amount of the tax from the party making the offer of performance. Giving full effect to the several allegations of the count, nothing approximating to such a requirement is therein alleged, nor can anything of the kind be implied from the word "offer" as used in any part of the indictment. Performance of that prerequisite, by citizens otherwise qualified, entitles all such, without distinction of race, color, or previous condition of servitude, to vote at such an election, and the offer to perform the same, if the offer is made in terms, and under such circumstances, that if it be accepted and carried into execution, it will constitute performance, will also entitle such citizens to vote in the same manner and to the same extent as if they had performed such prerequisite, provided the offer fails to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving and permitting such performance. Judges, inspectors, and other officers of elections, must take notice of these provisions, as they constitute the most essential element or ingredient of the offense defined by the third section of the act. Officers of the elections, whether judges or inspectors, are required to carry those regulations into full effect, and the provision is, that any judge, inspector, or other officer of election, whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of such citizens, who shall wrongfully refuse or omit to receive, count, certify, Page 92 U. S. 237 register, or give effect to the vote of any such citizen, upon the presentation by him of his affidavit stating such offer, and the time and place thereof, and the name of the officer or person whose duty it was to act on such offer, and that he, the citizen, was wrongfully prevented by such person or officer from performing such prerequisite act, shall for every such offense forfeit and pay the sum of $500 to the person aggrieved, and also be guilty of a misdemeanor, and be fined and imprisoned as therein provided. 6. Of course, it must be assumed that the terms of the affidavit were exactly the same as those set forth in the third count of the indictment, and if so it follows that the word "offer" used in the affidavit must receive the same construction as that already given to the same word in that part of the section which provides that the offer, if it fail to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance, shall be deemed and held as a performance in law of such prerequisite act. Decisive confirmation of that view is derived from the fact that the complaining party is only required to state in his affidavit the offer, the time, and the place thereof, the name of the person or officer whose duty it was to act thereon, and that he, the affiant, was wrongfully prevented by such person or officer from performing such prerequisite act. None will deny, it is presumed, that the word "offer" in the affidavit means the same thing as the word "offer" used in the declaratory part of the same section, and if so it must be held that the offer described in the affidavit must have been one made in such terms and under such circumstances that if the offer had been accepted, it might have been carried into execution by the person or officer to whom it was made -- or in other words it must have been an offer to do whatever it was necessary to do to perform the prerequisite act, and it follows that if the word "offer," as used in the Act of Congress, necessarily includes readiness to pay the tax, it is equally clear that the affidavit should contain the same statement. Plainly it must be so, for unless the offer has that scope, if it failed to be carried into execution, it could not be held that the failure was by Page 92 U. S. 238 the wrongful act or omission of the person or officer to whom the offer was made. Such a construction must be erroneous, for if adopted it would lead to consequences which would shock the public sense, as it would require the collector to discharge the tax without payment, which would be a manifest violation of his duty. Taken in any point of view, it is clear that the third count of the indictment is too vague, uncertain, and indefinite in its allegations to constitute the proper foundation for the conviction and sentence of the defendants. Even suppose that the signification of the word "offer" is sufficiently comprehensive to include readiness to perform, which is explicitly denied, still it is clear that the offer, as pleaded in the fourth count, was not in season to constitute a compliance with the prerequisite qualification, for the reason that the state statute requires that the capitation tax shall be paid on or before the fifteenth day of January preceding the day of the election. Having come to these conclusions, it is not necessary to examine the fourth section of the Enforcement Act, for the reason that it is obvious without much examination that no one of the counts of the indictment is sufficient to warrant the conviction and sentence of the defendants for the offense defined in that section. MR. JUSTICE HUNT: I am compelled to dissent from the judgment of the Court in this case. The defendants were indicted in the Circuit Court of the United States for the District of Kentucky. Upon the trial, the defendants were, by the judgment of the court, discharged from the indictment on account of its alleged insufficiency. The fourth count of the indictment contains the allegations concerning the election in the city of Lexington; that by the statute of Kentucky, to entitle one to vote at an election in that state, the voter must possess certain qualifications recited, and have paid a capitation tax assessed by the City of Lexington; that James F. Robinson was the collector of said city, entitled to collect said tax; that Garner, in order that he might be entitled to vote, did offer to said Robinson, at his office, to pay any capitation tax which had been or could be assessed against Page 92 U. S. 239 him, or which was claimed against him; that Robinson refused to receive such tax on account of the race and color of Garner; that at the time of the election, having the other necessary qualifications, Garner offered his vote, and at the same time presented an affidavit to the inspector stating his offer aforesaid made to Robinson, with the particulars required by the statute, and the refusal of Robinson to receive the tax; that Farnaugh consented to receive his vote, but the defendants, constituting a majority of the inspectors, wrongfully refused to receive the same, which refusal was on account of the race and color of the said Garner. This indictment is based upon the Act of Congress of May 31, 1870, 16 Stat. 140. The first four sections of the act are as follows: "SECTION 1. That all citizens of the United States, who are or shall be otherwise qualified by law to vote at any election by the people in any state, territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any state or territory, or by or under its authority, to the contrary notwithstanding." "SEC. 2. That if, by or under the authority of the constitution or laws of any state or the laws of any territory, any act is or shall be required to be done as a prerequisite or qualification for voting, and, by such constitution or laws, persons or officers are or shall be charged with the performance of duties, in furnishing to citizens an opportunity to perform such prerequisite, or to become qualified to vote, it shall be the duty of every such person and officer to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote, without distinction of race, color, or previous condition of servitude, and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case with full costs, and such allowance for counsel fees as the court shall deem just; and shall also, for every such offense, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than five Page 92 U. S. 240 hundred dollars, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court." "SEC. 3. That whenever, by or under the authority of the constitution or laws of any state, or the laws of any territory, any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful act or omission aforesaid of the person or officer charged with the duty of receiving or permitting such performance, or offer to perform, or acting thereon, be deemed and held as a performance in law of such act; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had, in fact, performed such act; and any judge, inspector, or other officer of election, whose duty it is or shall be to receive, count, certify, register, report, or give effect to the vote of any such citizen who shall wrongfully refuse or omit to receive, count, certify, register, report, or give effect to the vote of such citizen, upon the presentation by him of his affidavit stating such offer, and the time and place thereof, and the name of the officer or person whose duty it was to act thereon, and that he was wrongfully prevented by such person or officer from performing such act, shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case, with full costs, and such allowance for counsel fees as the court shall deem just; and shall also, for every such offense, be guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than $500, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court." "SEC. 4. That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall, for every such offense, forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered by an action on the case, with full costs and such allowance for counsel fees as the court shall deem just, and shall also, for every such offense, be deemed guilty of a misdemeanor, and shall, on conviction thereof, be fined not less than $500, or be imprisoned not less than one month and not more than one year, or both, at the discretion of the court. " Page 92 U. S. 241 It is said, in opposition to this indictment and in hostility to the statute under which it is drawn, that while the second section makes it a penal offense for any officer to refuse an opportunity to perform the prerequisite therein referred to on account of the race and color of the party, and therefore an indictment against that officer may be good as in violation of the Fifteenth Amendment, the third section, which relates to the inspectors of elections, omits all reference to race and color, and therefore no indictment can be sustained against those officers. It is said that Congress has no power to punish for violation of the rights of an elector generally, but only where such violation is attributable to race, color, or condition. It is said also that the prohibition of an act by Congress in general language is not a prohibition of that act on account of race or color. Hence it is insisted that both the statute and the indictment are insufficient. This I understand to be the basis of the opinion of the majority of the court. On this I observe: 1. That the intention of Congress on this subject is too plain to be discussed. The Fifteenth Amendment had just been adopted, the object of which was to secure to a lately enslaved population protection against violations of their right to vote on account of their color or previous condition. The act is entitled "An Act to enforce the right of citizens of the United States to vote in the several states of the Union, and for other purposes." The first section contains a general announcement that such right is not to be embarrassed by the fact of race, color, or previous condition. The second section requires that equal opportunity shall be given to the races in providing every prerequisite for voting, and that any officer who violates this provision shall be subject to civil damages to the extent of $500, and to fine and imprisonment. To suppose that Congress, in making these provisions, intended to impose no duty upon, and subject to no penalty, the very officers who were to perfect the exercise of the right to vote -- to-wit, the inspectors who receive or reject the votes -- would be quite absurd. 2. Garner, a citizen of African descent, had offered to the collector of taxes to pay any capitation tax existing or claimed Page 92 U. S. 242 to exist against him as a prerequisite to voting at an election to be held in the City of Lexington on the thirtieth day of January, 1873. The collector illegally refused to allow Garner, on account of his race and color, to make the payment. This brought Garner and his case within the terms of the third section of the statute, that "the person so offering and failing as aforesaid" -- that is, who had made the offer which had been illegally rejected on account of his race and color -- shall be entitled to vote "as if he had, in fact, performed such act." He then made an affidavit setting forth these facts, stating, with the particularity required in the statute, that he was wrongfully prevented from paying the tax, and presented the same to the inspector, who wrongfully refused to receive the same, and to permit him to vote, on account of his race and color. A wrongful refusal to receive a vote which was in fact incompetent only by reason of the act "aforesaid" -- that is, on account of his race and color -- brings the inspector within the statutory provisions respecting race and color. By the words "as aforesaid," the provisions respecting race and color of the first and second sections of the statute are incorporated into and made a part of the third and fourth sections. To illustrate, sec. 4 enacts that if any person by unlawful means shall hinder or prevent any citizen from voting at any election "as aforesaid," he shall be subject to fine and imprisonment. What do the words, "as aforesaid," mean? They mean, for the causes and pretenses or upon the grounds in the first and second sections mentioned -- that is, on account of the race or color of the person so prevented. All those necessary words are by this expression incorporated into the fourth section. The same is true of the words "the wrongful act or omission as aforesaid," and "the person so offering and failing as aforesaid," in the third section. By this application of the words "as aforesaid," they become pertinent and pointed. Unless so construed, they are wholly and absolutely without meaning. No other meaning can possibly be given to them. "The person (Garner) so offering and failing as aforesaid shall be entitled to vote as if he had performed the act." He failed "as aforesaid" on account of his Page 92 U. S. 243 race. The inspectors thereupon "wrongfully refused to receive his vote" because he had not paid his capitation tax. His race and color had prevented that payment. The words "hindered and prevented his voting as aforesaid," in the fourth section, and in the third section the words "wrongfully refuse" and "as aforesaid," sufficiently accomplish this purpose of the statute. They amount to an enactment that the refusal to receive the vote on account of race or color shall be punished as in the third and fourth sections is declared. I am the better satisfied with this construction of the statute when, looking at the Senate debates at the time of its passage, I find, 1st, that attention was called to the point whether this act did make the offense dependent on race, color, or previous condition; 2d, that it was conceded by those having charge of the bill that its language must embrace that class of cases; 3d, that they were satisfied with the bill as it then stood, and as it now appears in the act we are considering. The particularity required in an indictment or in the statutory description of offenses has at times been extreme, the distinctions almost ridiculous. I cannot but think that in some cases good sense is sacrificed to technical nicety, and a sound principle carried to an extravagant extent. The object of an indictment is to apprise the court and the accused of what is charged against him, and the object of a statute is to declare or define the offense intended to be made punishable. It is laid down that "when the charge is not the absolute perpetration of an offense, but its primary characteristic lies in the intent, instigation, or motives of the party towards its perpetration, the acts of the accused, important only as developing the mala mens, and not constituting of themselves the crime, need not be spread upon the record." United States v. Almeida, Whart.Prac. 1061, 1062, note; 1 Whart.C.L. § 285, note. In the case before us, the acts constituting the offense are all spread out in the indictment, and the alleged defects are in the facts constituting the mala mens. The refusal to receive an affidavit as evidence that the tax had been paid by Garner, and the rejection of his vote, are the essential acts of the defendants which constitute their guilt. The rest is matter of motive or instigation only. As to these, the extreme particularity and Page 92 U. S. 244 the strict construction expected in indictments, and penal statutes would seem not to be necessary. In Sickles v. Sharp, 13 Johns. 49, it is said, "The rule that penal statutes are to be strictly construed admits of some qualification. The plain and manifest intention of the legislature ought to be regarded." In United States v. Hartwell , 6 Wall. 385, it is said, "The object in construing penal as well as other statutes is to ascertain the legislative intent. The words must not be narrowed to the exclusion of what the legislature intended to embrace, but that intention must be gathered from the words. When the words are general, and embrace various classes of persons, there is no authority in the court to restrict them to one class, when the purpose is alike applicable to all." In Ogden v. Strong, 2 Paine C.C. 584, it is said, "Statutes must be so construed as to make all parts harmonize, and give a sensible effect to each. It should not be presumed that the legislature meant that any part of the statute should be without meaning or effect." In United States v. Morris , 14 Pet. 474, the statute made it unlawful for a person "voluntarily to serve on a vessel employed and made use of in the transportation of slaves from one foreign country to another." No slaves had been actually received or transported on board the defendant's vessel, but the court held that the words of the statute embraced the case of a vessel sailing with the intent to be so employed. The court said, "A penal statute will not be extended beyond the plain meaning of its words; . . . yet the evident intention of the legislature ought not to be defeated by a forced and over-strict construction." In the case of The Donna Mariana, 1 Dods. 91, the vessel was condemned by Sir William Scott under the English statute condemning vessels in which slaves "shall be exported, transported, carried," &c., although she was on her outward voyage, and had never taken a slave on board. "The result is that where the general intent of a statute is to prevent certain acts, the subordinate proceedings necessarily connected with them, and coming within that intent, are embraced in its provisions." Id. In Hodgman v. People, 4 Den. 235, 5 id. 116, an act subjecting Page 92 U. S. 245 an offender to "the penalties" of a prior act was held to subject him to an indictment, as well as to the pecuniary penalties in the prior statute provided for. Especially should this liberal rule of construction prevail, where, though in form the statute is penal, it is in fact to protect freedom. An examination of the surrounding circumstances, a knowledge of the evil intended to be prevented, a clear statement in the statute of the acts prohibited and made punishable, a certain knowledge of the legislative intention, furnish a rule by which the language of the statute before us is to be construed. The motives instigating the acts forbidden, and by which those acts are brought within the jurisdiction of the federal authority, need not be set forth with the technical minuteness to which reference has been made. The intent is fully set forth in the second section, and the court below ought to have held, that, by the references in the third and fourth sections to the motives and instigations declared in the second section, they were incorporated into and became a part of the third and fourth sections, and that a sufficient offense against the United States authority was therein stated. I hold, therefore, that the third and fourth sections of the statute we are considering do provide for the punishment of inspectors of elections who refuse the votes of qualified electors on account of their race or color. The indictment is sufficient, and the statute sufficiently describes the offense. The opinion of the majority of the court discusses no subjects except the sufficiency of the indictment and the validity of the Act of May 31, 1870. Holding that there was no valid law upon which the crime charged could be predicated, it became unnecessary that the opinion should discuss other points. If it had been held by the court that the indictment was good, and that the statute created the offense charged, the question would have arisen, whether such statute was constitutional, and it was to this question that much the larger part of the argument of the counsel in the cause was directed. If the conclusions I have reached are correct, this question directly presents itself; and I trust it is not unbecoming that my views upon the constitutional points thus arising should be set forth. I have no warrant to say that those views are, or are not, entertained Page 92 U. S. 246 by any or all of my associates. The opinions and the arguments are those of the writer only. The question of the constitutionality of the Act of May 31, 1870, arises mainly upon the Fifteenth Amendment to the Constitution of the United States. It is as follows: "1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." "2. The Congress shall have power to enforce this article by appropriate legislation." I observe in the first place that the right here protected is in behalf of a particular class of persons -- to-wit citizens of the United States. The limitation is to the persons concerned, and not to the class of cases in which the question shall arise. The right of citizens of the United States to vote, and not the right to vote at an election for United States officers, is the subject of the provision. The person protected must be a citizen of the United States, and, whenever a right to vote exists in such person, the case is within the amendment. This is the literal and grammatical construction of the language, and that such was the intention of Congress will appear from many considerations. As originally introduced by Mr. Senator Henderson, it read, "No state shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition." Globe, 1868-69, pt. i. p. 542, Jan. 23, 1869. The Judiciary Committee reported back the resolution in this from: "The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any state on account of race, color, or previous condition of servitude. The Congress, by appropriate legislation, may enforce the provisions of this article." Id. Omitting the words "and hold office," this is the form in which it was adopted. The class of persons indicated in the original resolution to be protected were described as citizens of a state; in the resolution when reported by the committee, as citizens of the United States. In neither resolution was there any limitations as to the character of the elections at which the vote was to be given. If there was a right to vote, and the person offering Page 92 U. S. 247 the vote was a citizen, the clause attached. It is both illiberal and illogical to say that this protection was intended to be limited to an election for particular officers -- to-wit those to take part in the affairs of the federal government. Congress was now completing the third of a series of amendments intended to protect the rights of the newly emancipated freedmen of the South. In the adoption of the Thirteenth Amendment -- that slavery or involuntary servitude should not exist within the United States, or any place subject to their jurisdiction -- it took the first and the great step for the protection and confirmation of the political rights of this class of persons. In the adoption of the Fourteenth Amendment -- that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states in which they reside," and that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," another strong measure in the same direction was taken. A higher privilege was yet untouched; a security, vastly greater than any thus far given to the colored race, was not provided for, but, on the contrary, its exclusion was permitted. This was the elective franchise -- the right to vote at the elections of the country and for the officers by whom the country should be governed. By the second section of the Fourteenth Amendment, each state had the power to refuse the right of voting at its elections to any class of persons, the only consequence being a reduction of its representation in Congress, in the proportion which such excluded class should bear to the whole number of its male citizens of the age of twenty-one years. This was understood to mean and did mean that if one of the late slaveholding states should desire to exclude all its colored population from the right of voting at the expense of reducing its representation in Congress, it could do so. The existence of a large colored population in the southern Page 92 U. S. 248 states, lately slaves and necessarily ignorant, was a disturbing element in our affairs. It could not be overlooked. It confronted us always and everywhere. Congress determined to meet the emergency by creating a political equality, by conferring upon the freedmen all the political rights possessed by the white inhabitants of the state. It was believed that the newly enfranchised people could be most effectually secured in the protection of their rights of life, liberty, and the pursuit of happiness by giving to them that greatest of rights among freemen -- the ballot. Hence the Fifteenth Amendment was passed by Congress and adopted by the states. The power of any state to deprive a citizen of the right to vote on account of race, color, or previous condition of servitude or to impede or to obstruct such right on that account was expressly negatived. It was declared that this right of the citizen should not be thus denied or abridged. The persons affected were citizens of the United States; the subject was the right of these persons to vote, not at specified elections or for specified officers, not for federal officers or for state officers, but the right to vote in its broadest terms. The citizen of this country, where nearly everything is submitted to the popular test and where office is eagerly sought, who possesses the right to vote, holds a powerful instrument for his own advantage. The political and personal importance of the large bodies of emigrants among us, who are entrusted at an early period with the right to vote, is well known to every man of observation. Just so far as the ballot to them or to the freedman is abridged, in the same degree is their importance and their security diminished. State rights and municipal rights touch the numerous and the everyday affairs of life; those of the federal government are less numerous, and, to most men, less important. That Congress, possessing, in making a constitutional amendment, unlimited power in what it should propose, intended to confine this great guaranty to a single class of elections -- to-wit, elections for United States officers -- is scarcely to be credited. I hold therefore that the Fifteenth Amendment embraces the case of elections held for state or municipal as well as for federal officers, and that the first section of the Act of May Page 92 U. S. 249 31, 1870, wherein the right to vote is freed from all restriction by reason of race, color, or condition, at all elections by the people -- state, county, town, municipal, or of other subdivision -- is justified by the Constitution. It is contended also that in the case before us there has been no denial or abridgment by the State of Kentucky of the right of Garner to vote at the election in question. The state, it is said, by its statute authorized him to vote, and if he has been illegally prevented from voting, it was by an unauthorized and illegal Act of the inspectors. The word "state" "describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government. It is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently and whether organized under a regular government or united by looser and less definite relations, constitute the state. . . . In the Constitution, the term 'state' most frequently expresses the combined idea just noticed, of people, territory, and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states under a common constitution which forms the distinct and greater political unit which that constitution designates as the United States, and makes of the people and states which compose it one people and one country." Texas v. White , 7 Wall. 720, 74 U. S. 721 . That the word "state" is not confined in its meaning to the legislative power of a community is evident not only from the authority just cited, but from a reference to the various places in which it is used in the Constitution of the United States. A few only of these will be referred to. The power of Congress to "regulate commerce among the Page 92 U. S. 250 several states," sec. 8, subd. 3, refers to the commerce between the inhabitants of the different states, and not to transactions between the political organizations called "states." The people of a state are here intended by the word "state." The numerous cases in which this provision has been considered by this Court were cases where the questions arose upon individual transactions between citizens of different states, or as to rights in, upon, or through the territory of different states. "Vessels bound to or from one state shall not be obliged to enter, clear, or pay duties, in another." Sec. 9, subd. 5. This refers to region or locality only. So "the electors (of President and Vice-President) shall meet in their respective states, and vote," &c. Art. 2, sec. 1, subd. 3. Again, when it is ordained that the judicial power of the United States shall extend "to controversies between two or more states, between a state and the citizens of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different states, and between a state or the citizens thereof and foreign states, citizens, or subjects," art. 3, sec. 2, subd. 1, we find different meaning attached to the same word in different parts of the same sentence. The controversy "between two or more states" spoken of refers to the political organizations known as states; the controversy "between a state and the citizens of another state" refers to the political organization of the first-named party, and again to the persons living within the locality where the citizens composing the second party may reside; the controversy "between citizens of different states, between citizens of the same state claiming lands under grants of different states," refers to the local region or territory described in the first branch of the sentence, and to the political organization as to the grantor under the second branch. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings, of every other state." Art. 4, sec. 1. Full faith shall be given in or throughout the territory of each state. By whom? By the sovereign state, by its agencies and authorities. To what is Page 92 U. S. 251 faith and credit to be given? To the acts of the political organization known as the state. Not only this, but to all its agencies, to the acts of its executive, to the acts of its courts of record. The expression "state," in this connection, refers to and includes all these agencies, and it is to these agencies that the legislation of Congress under this authority has been directed, and it is to the question arising upon the agencies of the courts that the questions have been judicially presented. Hampton v. McConnell , 3 Wheat. 234; Green v. Sacramento, 3 W.C.C. 17; Bank of Alabama v. Dalton , 9 How. 528. The judicial proceedings of a state mean the proceedings of the courts of the state. It has never been doubted that under the constitutional authority to provide that credit should be given to the records of a "state," it was lawful to provide that credit should be given to the records of the courts of a state. For this purpose, the court is the state. The provision that "the United States shall guarantee to every state a republican form of government," is a guaranty to the people of the state, and may be exercised in their favor against the political power called the "state." It seems plain that when the Constitution speaks of a state, and prescribes what it may do or what it may not do, it includes, in some cases, the agencies and instrumentalities by which the state acts. When it is intended that the prohibition shall be upon legislative action only, it is so expressed. Thus, in art. 1, sec. 10, subd. 1, it is provided that "no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." The provision is, not that no state shall impair the obligation of contracts, but that no state shall pass a law impairing the obligation of contracts. The word "state" in the Fifteenth Amendment is to be construed as in the paragraph heretofore quoted respecting commerce among the states, and in that which declares that acts of a state shall receive full faith and credit in every other state -- that is, to include the acts of all those who proceed under the authority of the state. The political organization called the "state" can act only through its agents. It may act through a convention, through its legislature, its governor, or its magistrates and officers of lower degree. Whoever is authorized to Page 92 U. S. 252 wield the power of the state is the state, and this whether he acts within his powers or exceeds them. If a convention of the State of Kentucky should ordain or its legislature enact that no person of African descent, or who had formerly been a slave, should be entitled to vote at its elections, such ordinance or law would be void. It would be in excess of the power of the body enacting it. It would possess no validity whatever. It cannot be doubted, however, that it would afford ground for the jurisdiction of the courts under the Fifteenth Amendment. It is the state that speaks and acts through its agents; although such agents exercise powers they do not possess, or that the state does not possess, and although their action is illegal. Inspectors of elections represent the state. They exercise the whole power of the state in creating its actual government by the reception of votes and the declaration of the results of the votes. If they willfully and corruptly receive illegal votes, reject legal votes, make false certificates by which a usurper obtains an office, the act is in each case the act of the state, and the result must be abided by until corrected by the action of the courts. No matter how erroneous, how illegal or corrupt, may be their action, if it is upon the subject which they are appointed to manage, it binds all parties as the action of the state until legal measures are taken to annul it. They are authorized by the state to act in the premises, and if their act is contrary to their instructions or their duty, they are nevertheless officers of the state, acting upon a subject committed to them by the state, and their acts are those of the state. The legislature speaks; its officers act. The voice and the act are equally those of the state. I am of the opinion, therefore, that the refusal of the defendants, inspectors of elections, to receive the vote of Garner was a refusal by the State of Kentucky, and was a denial by that state, within the meaning of the Fifteenth Amendment, of the right to vote. It is contended further that Congress has no power to enforce the provisions of this amendment by the enactment of penal laws; that the power of enforcement provided for is limited to correcting erroneous decisions of the state court, when presented to the federal courts by appeal or writ of error. "For Page 92 U. S. 253 example (it is said), when it is declared that no state shall deprive any person of life, liberty, or property, without due process of law, this declaration is not intended as a guaranty against the commission of murder, false imprisonment, robbery, or other crimes committed by individual malefactors, so as to give Congress power to pass laws for the punishment of such crimes in the several states generally." So far as the Act of May, 1870, shall be held to include cases not dependent upon race, color, or previous condition, and so far as the power to impose pains and penalties for those offenses may arise, I am not here called upon to discuss the subject. So far as this argument is applied to legislation for offenses committed on account of race or color, I hold it to be entirely unsound. If sound, it brings to an impotent conclusion the vigorous amendments on the subject of slavery. If there be no protection to the ignorant freedman against hostile legislation and personal prejudice other than a tedious, expensive, and uncertain course of litigation through state courts, thence by appeal or writ of error to the federal courts, he has practically no remedy. It were as well that the amendments had not been passed. Of rights infringed, not one in a thousand could be remedied or protected by this process. In adopting the Fifteenth Amendment, it was ordained as the second section thereof, "The Congress shall have power to enforce this article by appropriate legislation." This was done to remove doubts, if any existed, as to the former power; to add at least the weight of repetition to an existing power. It was held in the United States Bank Cases and in the Legal Tender Cases, 17 U. S. Maryland, 4 Wheat. 316; Gibbons v. Ogden , 7 Wheat. 204; New York v. Miln , 11 Pet. 102; Knox v. Lee , 12 Wall. 457; Dooley v. Smith , 13 Wall. 604, that it was for Congress to determine whether the necessity had arisen which called for its action. If Congress adjudges that the necessities of the country require the establishment of a bank, or the issue of legal tender notes, that judgment is conclusive upon the court. It is not within their power to review it. If Congress, being authorized to do so, desires to protect the freedman in his rights as a citizen and a voter, and as against Page 92 U. S. 254 those who may be prejudiced and unscrupulous in their hostility to him and to his newly conferred rights, its manifest course would be to enact that they should possess that right; to provide facilities for its exercise by appointing proper superintendents and special officers to examine alleged abuses, giving jurisdiction to the federal courts, and providing for the punishment of those who interfere with the right. The statute books of all countries abound with laws for the punishment of those who violate the rights of others, either as to property or person, and this not so much that the trespassers may be punished as that the peaceable citizen may be protected. Punishment is the means; protection is the end. The arrest, conviction, and sentence to imprisonment, of one inspector, who refused the vote of a person of African descent on account of his race, would more effectually secure the right of the voter than would any number of civil suits in the state courts, prosecuted by timid, ignorant, and penniless parties against those possessing the wealth, the influence, and the sentiment of the community. It is certain that in fact the legislation taken by Congress, which we are considering, was not only the appropriate, but the most effectual, means of enforcing the amendment. That the legislation in this respect is constitutional is also proved by the previous action of Congress and of this Court. Art. 4, sec. 5, subd. 3, of the Constitution provides as follows: "No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." At the time of the adoption of the Constitution containing this provision, slavery was recognized as legal in many states. The rights of the slaveholder in his slave were intended to be protected by this clause. To enforce this protection, Congress, from time to time, passed laws providing not only the means of restoring the escaped slave to his master, but inflicting punishment upon those who violated that master's rights. Thus as early as 1793, Congress enacted not only that the master or his agent might seize and arrest such fugitive slave, and, upon obtaining a certificate from a judge or magistrate, carry him back Page 92 U. S. 255 to the state from whence he escaped and return him into slavery, but that every person who hindered or obstructed such master or agent or who harbored or concealed such fugitive after notice that he was such, should be subject to damages not only, but to a penalty of $500, to be recovered for the benefit of the claimant in any court proper to try the same. 1 Stat. 302. By the Act of 1850, 9 Stat. 462, the circuit courts were ordered to enlarge the number of commissioners, "with a view to afford reasonable facilities to reclaim fugitives from labor." The ninth section of the act provided that any person who should willfully obstruct or hinder the removal of such fugitive, either with or without process, or should rescue or aid or abet an attempt to escape, or should harbor or conceal the fugitive, having notice, should for either of said offenses be subject to a fine not exceeding $1,000 and imprisonment not exceeding six months, by indictment and conviction in the United States court, "and shall pay and forfeit, by way of civil damages to the party injured by such illegal conduct, the sum of $1,000 for each fugitive so lost as aforesaid, to be recovered by action of debt," &c. In Prigg v. Pennsylvania , 16 Pet. 539, the legislation of 1793 was held to be valid. It was held in Sims's Case, 7 Cush. 285, that the Act of 1850 was constitutional and that the state tribunals cannot by writ of habeas corpus interfere with the federal authorities when acting upon cases arising under that act. In Ableman v. Booth , 21 How. 506, it was held by this Court that the Fugitive Slave Act of 1850 was constitutional in all its provisions, and that a habeas corpus under the state laws must not be obeyed, but the authority of the United States must be executed. The case of Prigg, decided under the Act of 1793, and that of Booth, under the Act of 1850, are pertinent to the present question. In the former case, it was held that the Act of 1793, so far as it authorized the owner to seize and recapture his slave in any state of the Union, was self-executing, requiring no aid from legislation, either state or national. The clause relating to fugitive slaves, it is there said, is found in the national, and not Page 92 U. S. 256 in the state, constitution. It was said to be a necessary conclusion, in the absence of all positive provision to the contrary, that the national government is bound through its own departments, legislative, judicial, or executive, to carry into effect all the rights and duties imposed upon it by the Constitution. This doctrine is useful at the present time and is pertinent to the point we are considering. The clause protecting the freedmen, like that sustaining the rights of slaveholders, is found in the federal Constitution only. Like the former, it provides the means of enforcing its authority, through fines and imprisonments, in the federal courts, and here, as there, the national government is bound, through its own departments, to carry into effect all the rights and duties imposed upon it by the Constitution. In connection with the clause of the Constitution just quoted, there was not found, as here, an express authority in Congress to enforce it by appropriate legislation, and yet the court decided not only that Congress had power to enforce its provisions by fine and imprisonment, but that the right to legislate on the subject belongs to Congress exclusively. Courts should be ready, now and here, to apply these sound and just principles of the Constitution. This provision of the Constitution and these decisions seem to furnish the rule of deciding the constitutionality of the law in question, rather than that which provides that life, liberty, or property, shall not be interfered with except by due process of law. It is not necessary to consider how far Congress may legislate upon individual crimes under that provision. If I am right in this view, the legislation we are considering -- to-wit, the enforcement of the Fifteenth Amendment by the means of penalties and indictments -- is legal. It is a well settled principle that if an indictment contain both good counts and bad counts, a judgment of guilty upon the whole indictment will be sustained. The record shows that the court below considered each and every count of the indictment as insufficient, and that judgment was entered discharging the defendants without day -- i.e., from the whole indictment. Upon the view I have taken of the validity of the fourth count, this judgment was erroneous. It should be reversed and a trial ordered upon the indictment.

In United States v. Reese (1875), the US Supreme Court ruled that Congress has the power to legislate on voting rights in state elections under the Fifteenth Amendment, but only to address discrimination based on race, color, or previous servitude. The Court invalidated parts of the 1870 Act that went beyond this scope. The case established the principle that Congress's power to enforce constitutional amendments is limited to addressing the specific issues they address.

Trademarks

Inwood Laboratories v. Ives Laboratories

https://supreme.justia.com/cases/federal/us/456/844/

U.S. Supreme Court Inwood Laboratories v. Ives Laboratories, 456 U.S. 844 (1982) Inwood Laboratories, Inc. v. Ives Laboratories, Inc. No. 80-2182 Argued February 22, 1982 Decided June 1, 1982 456 U.S. 844 ast|>* 456 U.S. 844 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent manufactured and marketed the patented prescription drug cyclandelate to wholesalers, retail pharmacists, and hospitals in colored capsules under the registered trademark CYCLOSPASMOL. After respondent's patent expired, several generic drug manufacturers, including petitioner manufacturers, began marketing the drug, intentionally copying the appearance of the CYCLOSPASMOL capsules. Respondent then brought an action against petitioner manufacturers and wholesalers in Federal District Court under, inter alia, § 32 of the Trademark Act of 1946, alleging that some pharmacists had dispensed generic drugs mislabeled as CYCLOSPASMOL and that petitioners' use of look-alike capsules and catalog entries comparing prices and revealing the colors of generic capsules contributed to the pharmacists' mislabeling. Respondent sought injunctive relief and damages. The District Court entered judgment for petitioners, finding that, although the pharmacists had violated § 32, respondent had not made the necessary factual showing that petitioners had intentionally induced the pharmacists to mislabel generic drugs or continued to supply cyclandelate to pharmacists who the petitioners knew or should have known were mislabeling generic drugs. The Court of Appeals reversed, rejecting the District Court's findings and holding that the District Court failed to give sufficient weight to the evidence respondent offered to show a pattern of illegal substitution and mislabeling. After completing its own review of the evidence, the Court of Appeals further held that the evidence was "clearly sufficient to establish a § 32 violation." Held: The Court of Appeals erred in setting aside the District Court's findings of fact. Pp. 456 U. S. 853 -858. (a) In reviewing such findings, the Court of Appeals was bound by the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). P. 456 U. S. 855 . (b) By rejecting the findings simply because it would have given more weight to evidence of mislabeling than did the trial court, the Court of Page 456 U. S. 845 Appeals clearly erred. Determining the weight and credibility of the evidence is the special province of the trier of fact. Because the District Court's findings concerning the significance of the instances of mislabeling were not clearly erroneous, they should not have been disturbed. Pp. 456 U. S. 855 -856. (c) Moreover, each of the conclusions that the Court of Appeals made in holding that the evidence established a § 32 violation was contrary to the District Court's findings. An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court "might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent." United States v. Real Estate Boards, 339 U. S. 485 , 339 U. S. 495 . Pp. 456 U. S. 856 -85. 638 F.2d 538, reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., filed an opinion concurring in the result, in which MARSHALL, J., joined, post, p. 456 U. S. 859 . REHNQUIST, J., filed an opinion concurring in the result, post, p. 456 U. S. 864 . Page 456 U. S. 846 JUSTICE O'CONNOR delivered the opinion of the Court. This action requires us to consider the circumstances under which a manufacturer of a generic drug, designed to duplicate the appearance of a similar drug marketed by a competitor under a registered trademark, can be held vicariously liable for infringement of that trademark by pharmacists who dispense the generic drug. I In 1955, respondent Ives Laboratories, Inc. (Ives), received a patent on the drug cyclandelate, a vasodilator used in long-term therapy for peripheral and cerebral vascular diseases. Until its patent expired in 1972, Ives retained the exclusive right to make and sell the drug, which it did under the registered trademark CYCLOSPASMOL. [ Footnote 1 ] Ives marketed the drug, a white powder, to wholesalers, retail pharmacists, and hospitals in colored gelatin capsules. Ives arbitrarily selected Page 456 U. S. 847 a blue capsule, imprinted with "Ives 4124," for its 200 mg dosage and a combination blue-red capsule, imprinted with "Ives 4148," for its 400 mg dosage. After Ives' patent expired, several generic drug manufacturers, including petitioners Premo Pharmaceutical Laboratories, Inc., Inwood Laboratories, Inc., and MD Pharmaceutical Co., Inc. (collectively the generic manufacturers), began marketing cyclandelate. [ Footnote 2 ] They intentionally copied the appearance of the CYCLOSPASMOL capsules, selling cyclandelate in 200 mg and 400 mg capsules in colors identical to those selected by Ives. [ Footnote 3 ] The marketing methods used by Ives reflect normal industry practice. Because cyclandelate can be obtained only by prescription, Ives does not direct its advertising to the ultimate consumer. Instead, Ives' representatives pay personal visits to physicians, to whom they distribute product literature and "starter samples." Ives initially directed these efforts toward convincing physicians that CYCLOSPASMOL is superior to other vasodilators. Now that its patent has expired and generic manufacturers have entered the market, Ives concentrates on convincing physicians to indicate on prescriptions that a generic drug cannot be substituted for CYCLOSPASMOL. [ Footnote 4 ] The generic manufacturers also follow a normal industry practice by promoting their products primarily by distribution Page 456 U. S. 848 of catalogs to wholesalers, hospitals, and retail pharmacies, rather than by contacting physicians directly. The catalogs truthfully describe generic cyclandelate as "equivalent" or "comparable" to CYCLOSPASMOL. [ Footnote 5 ] In addition, some of the catalogs include price comparisons of the generic drug and CYCLOSPASMOL, and some refer to the color of the generic capsules. The generic products reach wholesalers, hospitals, and pharmacists in bulk containers which correctly indicate the manufacturer of the product contained therein. A pharmacist, regardless of whether he is dispensing CYCLOSPASMOL or a generic drug, removes the capsules from the container in which he receives them and dispenses them to the consumer in the pharmacist's own bottle with his Page 456 U. S. 849 own label attached. Hence, the final consumer sees no identifying marks other than those on the capsules themselves. II A Ives instituted this action in the United States District Court for the Eastern District of New York under §§ 32 and 43(a) of the Trademark Act of 1946 (Lanham Act), 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq., and under New York's unfair competition law, N.Y.Gen.Bus.Law § 368-d (McKinney 1968). [ Footnote 6 ] Ives' claim under § 32, 60 Stat. 437, as amended, 15 U.S.C. § 1114, [ Footnote 7 ] derived from its allegation that some pharmacists had dispensed generic drugs mislabeled as CYCLOSPASMOL. [ Footnote 8 ] Page 456 U. S. 850 Ives contended that the generic manufacturers' use of look-alike capsules and of catalog entries comparing prices and revealing the colors of the generic capsules induced pharmacists illegally to substitute a generic drug for CYCLOSPASMOL and to mislabel the substitute drug CYCLOSPASMOL. Although Ives did not allege that the petitioners themselves applied the Ives trademark to the drug products they produced and distributed, it did allege that the petitioners contributed to the infringing activities of pharmacists who mislabeled generic cyclandelate. Ives' claim under § 43(a), 60 Stat. 441, 15 U.S.C. § 1125(a), [ Footnote 9 ] alleged that the petitioners falsely designated the origin of their products by copying the capsule colors used by Ives and by promoting the generic products as equivalent to CYCLOSPASMOL. In support of its claim, Ives argued that the colors of its capsules were not functional, [ Footnote 10 ] and that Page 456 U. S. 851 they had developed a secondary meaning for the consumers. [ Footnote 11 ] Contending that pharmacists would continue to mislabel generic drugs as CYCLOSPASMOL so long as imitative products were available, Ives asked that the court enjoin the petitioners from marketing cyclandelate capsules in the same colors and form as Ives uses for CYCLOSPASMOL. In addition, Ives sought damages pursuant to § 35 of the Lanham Act, 60 Stat. 439, as amended, 15 U.S.C. § 1117. B The District Court denied Ives' request for an order preliminarily enjoining the petitioners from selling generic drugs identical in appearance to those produced by Ives. 455 F. Supp. 939 (1978). Referring to the claim based upon § 32, the District Court stated that, while the "knowing and deliberate instigation" by the petitioners of mislabeling by pharmacists would justify holding the petitioners as well as the pharmacists liable for trademark infringement, Ives had made no showing sufficiently to justify preliminary relief. Id. at 945. Ives had not established that the petitioners conspired with the pharmacists or suggested that they disregard physicians' prescriptions. The Court of Appeals for the Second Circuit affirmed. 601 F.2d 631 (1979). To assist the District Court in the upcoming trial on the merits, the appellate court defined the elements of a claim based upon § 32 in some detail. Relying primarily upon Coca-Cola Co. v. Snow Crest Beverage, Inc., 64 F. Supp. 980 (Mass.1946), aff'd, 162 F.2d 280 (CA1), cert. denied, 332 U.S. 809 (1947), the court stated that the petitioners would be liable under § 32 either if they suggested, even by implication, that retailers fill bottles with generic cyclandelate and label the bottle with Ives' trademark, or if Page 456 U. S. 852 the petitioners continued to sell cyclandelate to retailers whom they knew or had reason to know were engaging in infringing practices. 601 F.2d at 636. C After a bench trial on remand, the District Court entered judgment for the petitioners. 488 F. Supp. 394 (1980). Applying the test approved by the Court of Appeals to the claim based upon § 32, the District Court found that the petitioners had not suggested, even by implication, that pharmacists should dispense generic drugs incorrectly identified as CYCLOSPASMOL. [ Footnote 12 ] In reaching that conclusion, the court first looked for direct evidence that the petitioners intentionally induced trademark infringement. Since the petitioners' representatives do not make personal visits to physicians and pharmacists, the petitioners were not in a position directly to suggest improper drug substitutions. Cf. William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526 , 265 U. S. 530 -531 (1924); Smith, Kline & French Laboratories v. Clark & Clark, 157 F.2d 725, 731 (CA3), cert. denied, 329 U.S. 796 (1946). Therefore, the court concluded, improper suggestions, if any, must have come from catalogs and promotional materials. The court determined, however, that those materials could not "fairly be read" to suggest trademark infringement. 488 F. Supp. at 397. The trial court next considered evidence of actual instances of mislabeling by pharmacists, since frequent improper substitutions of a generic drug for CYCLOSPASMOL could provide circumstantial evidence that the petitioners, merely by making available imitative drugs in conjunction with comparative price advertising, implicitly had suggested that pharmacists substitute improperly. After reviewing the evidence Page 456 U. S. 853 of incidents of mislabeling, the District Court concluded that such incidents occurred too infrequently to justify the inference that the petitioners' catalogs and use of imitative colors had "impliedly invited" druggists to mislabel. Ibid. Moreover, to the extent mislabeling had occurred, the court found it resulted from pharmacists' misunderstanding of the requirements of the New York Drug Substitution Law, rather than from deliberate attempts to pass off generic cyclandelate as CYCLOSPASMOL. Ibid. The District Court also found that Ives failed to establish its claim based upon § 43(a). In reaching its conclusion, the court found that the blue and blue-red colors were functional to patients, as well as to doctors and hospitals: many elderly patients associate color with therapeutic effect; some patients commingle medications in a container and rely on color to differentiate one from another; colors are of some, if limited, help in identifying drugs in emergency situations; and use of the same color for brand name drugs and their generic equivalents helps avoid confusion on the part of those responsible for dispensing drugs. Id. at 398-399. In addition, because Ives had failed to show that the colors indicated the drug's origin, the court found that the colors had not acquired a secondary meaning. Id. at 399. Without expressly stating that the District Court's findings were clearly erroneous, and for reasons which we discuss below, the Court of Appeals concluded that the petitioners violated § 32. 638 F.2d 538 (1981). The Court of Appeals did not reach Ives' other claims. We granted certiorari, 454 U.S. 891 (1981), and now reverse the judgment of the Court of Appeals. III A As the lower courts correctly discerned, liability for trademark infringement can extend beyond those who actually mislabel goods with the mark of another. Even if a manufacturer does not directly control others in the chain of distribution, Page 456 U. S. 854 it can be held responsible for their infringing activities under certain circumstances. Thus, if a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit. [ Footnote 13 ] See William R. Warner & Co. v. Eli Lilly & Co., supra; Coca-Cola Co. v. Snow Crest Beverages, Inc., supra. It is undisputed that those pharmacists who mislabeled generic drugs with Ives' registered trademark violated § 32. [ Footnote 14 ] Page 456 U. S. 855 However, whether these petitioners were liable for the pharmacists' infringing acts depended upon whether, in fact, the petitioners intentionally induced the pharmacists to mislabel generic drugs or, in fact, continued to supply cyclandelate to pharmacists whom the petitioners knew were mislabeling generic drugs. The District Court concluded that Ives made neither of those factual showings. B In reviewing the factual findings of the District Court, the Court of Appeals was bound by the "clearly erroneous" standard of Rule 52(a), Federal Rules of Civil Procedure. Pullman-Standard v. Swint, ante p. 456 U. S. 273 . That Rule recognizes and rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100 , 395 U. S. 123 (1969). Because of the deference due the trial judge, unless an appellate court is left with the "definite and firm conviction that a mistake has been committed," United States v. United States Gypsum Co., 333 U. S. 364 , 333 U. S. 395 (1948), it must accept the trial court's findings. [ Footnote 15 ] IV In reversing the District Court's judgment, the Court of Appeals initially held that the trial court failed to give sufficient weight to the evidence Ives offered to show a "pattern of illegal substitution and mislabeling in New York. . . ." [ Footnote 16 ] Page 456 U. S. 856 638 F.2d at 543. By rejecting the District Court's findings simply because it would have given more weight to evidence of mislabeling than did the trial court, the Court of Appeals clearly erred. Determining the weight and credibility of the evidence is the special province of the trier of fact. Because the trial court's findings concerning the significance of the instances of mislabeling were not clearly erroneous, they should not have been disturbed. Next, after completing its own review of the evidence, the Court of Appeals concluded that the evidence was "clearly sufficient to establish a § 32 violation." Ibid. In reaching its conclusion, the Court of Appeals was influenced by several factors. First, it thought the petitioners reasonably could have anticipated misconduct by a substantial number of the pharmacists who were provided imitative, lower priced products which, if substituted for the higher priced brand name without passing on savings to consumers, could provide an economic advantage to the pharmacists. Ibid. [ Footnote 17 ] Second, it Page 456 U. S. 857 disagreed with the trial court's finding that the mislabeling which did occur reflected confusion about state law requirements. Id. at 44. [ Footnote 18 ] Third, it concluded that illegal substitution and mislabeling in New York are neither de minimis nor inadvertent. Ibid. [ Footnote 19 ] Finally, the Court of Appeals indicated it was further influenced by the fact that the petitioners did not offer "any persuasive evidence of a legitimate reason unrelated to CYCLOSPASMOL" for producing an imitative product. Ibid. [ Footnote 20 ] Each of those conclusions is contrary to the findings of the District Court. An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court "might give the facts another construction, resolve the ambiguities differently, and find a Page 456 U. S. 858 more sinister cast to actions which the District Court apparently deemed innocent." United States v. Real Estate Boards, 339 U. S. 485 , 339 U. S. 495 (1950). V The Court of Appeals erred in setting aside findings of fact that were not clearly erroneous. Accordingly, the judgment of the Court of Appeals that the petitioners violated § 32 of the Lanham Act is reversed. Although the District Court also dismissed Ives' claims alleging that the petitioners violated § 43(a) of the Lanham Act and the state unfair competition law, the Court of Appeals did not address those claims. Because § 43(a) prohibits a broader range of practices than does § 32, as may the state unfair competition law, the District Court's decision dismissing Ives' claims based upon those statutes must be independently Page 456 U. S. 859 reviewed. Therefore, we remand to the Court of Appeals for further proceedings consistent with this opinion. Reversed and remanded. * Together with No. 81-11, Darby Drug Co., Inc., et al. v. Ives Laboratories, Inc., also on certiorari to the same court. [ Footnote 1 ] Under the Trademark Act of 1946 (Lanham Act), 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq., the term "trade-mark" includes "any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others." 15 U.S.C. § 1127. A "registered mark" is one registered in the United States Patent and Trademark Office under the terms of the Lanham Act "or under the Act of March 3, 1881, or the Act of February 20, 1905, or the Act of March 19, 1920." Ibid. [ Footnote 2 ] The generic manufacturers purchase cyclandelate and empty capsules and assemble the product for sale to wholesalers and hospitals. The petitioner wholesalers, Darby Drug Co., Inc., Rugby Laboratories, Inc., and Sherry Pharmaceutical Co., Inc., in turn, sell to other wholesalers, physicians, and pharmacies. [ Footnote 3 ] Initially, the generic manufacturers did not place any identifying mark on their capsules. After Ives initiated this action, Premo imprinted "Premo" on its capsules and Inwood imprinted "Inwood 258." [ Footnote 4 ] Since the early 1970's, most States have enacted laws allowing pharmacists to substitute generic drugs for brand name drugs under certain conditions. See generally Note, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky.L.J. 384 (1978-1979). The New York statutes involved in this action are typical of these generic substitution laws. New York law requires that prescription forms contain two lines, one of which a prescribing physician must sign. N.Y.Educ.Law § 6810 (McKinney Supp.1981-1982). If the physician signs over the words "substitution permissible," substitution is mandatory if a substitute generic drug is on an approved list, N.Y.Educ.Law § 6816-a (McKinney Supp.1981-1982); N.Y.Pub.Health Law § 206.1( o ) (McKinney Supp.1981-1982), and permissible if another generic drug is available. Unless the physician directs otherwise, the pharmacist must indicate the name of the generic manufacturer and the strength of the drug dispensed on the label. N.Y.Educ.Law § 6816-a(1)(c). In addition, the prescription form must specifically state that, unless the physician signs above the line"dispense as written," the prescription will be filled generically. § 6810(6)(a). If a pharmacist mislabels a drug or improperly substitutes, he is guilty of a misdemeanor, and subject to a fine, § 6811, 6815, 6816, and to revocation of his license. § 6808. [ Footnote 5 ] Ives conceded that CYCLOSPASMOL and the petitioners' generic equivalents are bioequivalent, and have the same bioavailability. See 455 F. Supp. 939 , 942 (EDNY 1978), and 488 F. Supp. 394 , 396 (EDNY 1980). Bioavailability is an absolute term which measures both the rate and the amount of a drug which reaches the general circulation from a defined dosage. Drugs are "bioequivalent" if, when administered in equal amounts to the same individual, they reach general circulation at the same relative rate and to the same relative extent. Remington's Pharmaceutical Sciences 1368 (15th ed.1975). [ Footnote 6 ] The state law claim was not discussed in the decision under review, and no further reference will be made to it here. [ Footnote 7 ] Section 32 of the Lanham Act, 60 Stat. 437, as amended, 15 U.S.C. § 1114, provides in part: "(1) Any person who shall, without the consent of the registrant -- " "(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or" "(b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive," "shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) of this section, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake or to deceive." [ Footnote 8 ] The claim involved two types of infringements. The first was "direct" infringement, in which druggists allegedly filled CYCLOSPASMOL prescriptions marked "dispense as written" with a generic drug and mislabeled the product as CYCLOSPASMOL. The second, "intermediate" infringement, occurred when pharmacists, although authorized by the prescriptions to substitute, allegedly mislabeled a generic drug as CYCLOSPASMOL. The one retail pharmacy originally named as a defendant consented to entry of a decree enjoining it from repeating such actions. 455 F. Supp. at 942. [ Footnote 9 ] Section 43(a) of the Lanham Act, 60 Stat. 441, 15 U.S.C. § 1125(a), provides: "(a) Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin or description or representation cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person doing business in the locality falsely indicated as that of origin or in the region in which said locality is situated, or by any person who believes that he is or is likely to be damaged by the use of any such false description or representation." [ Footnote 10 ] In general terms, a product feature is functional if it is essential to the use or purpose of the article or if it affects the cost or quality of the article. See Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 , 376 U. S. 232 (1964); Kellogg Co. v. National Biscuit Co., 305 U. S. 111 , 305 U. S. 122 (1938). [ Footnote 11 ] To establish secondary meaning, a manufacturer must show that, in the minds of the public, the primary significance of a product feature or term is to identify the source of the product, rather than the product itself. See Kellogg Co. v. National Biscuit Co., supra, at 305 U. S. 118 . [ Footnote 12 ] The District Court also found that the petitioners did not continue to provide drugs to retailers whom they knew or should have known were engaging in trademark infringement. 488 F. Supp. at 397. The Court of Appeals did not discuss that finding, and we do not address it. [ Footnote 13 ] JUSTICE WHITE, in his opinion concurring in the result, voices his concern that we may have "silently acquiesce[d] in a significant change in the test for contributory infringement." Post at 456 U. S. 861 . His concern derives from his perception that the Court of Appeals abandoned the standard enunciated by Judge Friendly in its first opinion, a standard which both we and JUSTICE WHITE approve, post at 456 U. S. 859 -860. The Court of Appeals, however, expressly premised its second opinion on "the governing legal principles . . . set forth in Judge Friendly's opinion upon the earlier appeal, 601 F.2d 631 (2d Cir.1979)," and explicitly claimed to have rendered its second decision by "[a]pplying those principles. . . ." 638 F.2d 538, 542 (1981). JUSTICE WHITE's concern is based on a comment by the Court of Appeals that the generic manufacturers "could reasonably anticipate" illegal substitution of their drugs. Id. at 543. If the Court of Appeals had relied upon that statement to define the controlling legal standard, the court indeed would have applied a "watered down" and incorrect standard. As we read the Court of Appeals' opinion, however, that statement was intended merely to buttress the court's conclusion that the legal test for contributory infringement, as earlier defined, had been met. See infra at 456 U. S. 856 -857. [ Footnote 14 ] Such blatant trademark infringement inhibits competition and subverts both goals of the Lanham Act. By applying a trademark to goods produced by one other than the trademark's owner, the infringer deprives the owner of the goodwill which he spent energy, time, and money to obtain. See S.Rep. No. 1333, 79th Cong., 2d Sess., 3 (1946). At the same time, the infringer deprives consumers of their ability to distinguish among the goods of competing manufacturers. See H.R.Rep. No. 944, 76th Cong., 1st Sess., 3 (1939). [ Footnote 15 ] Of course, if the trial court bases its findings upon a mistaken impression of applicable legal principles, the reviewing court is not bound by the clearly erroneous standard. United States v. Singer Manufacturing Co., 374 U. S. 174 , 374 U. S. 194 , n. 9 (1963). However, in this instance, the District Court applied correct legal principles when it adopted the precise test developed by the Court of Appeals. Compare 601 F.2d 631, 636 (1979), with 488 F. Supp. at 397. [ Footnote 16 ] As the opinions from the lower courts reveal, more than one inference can be drawn from the evidence presented. Prior to trial, test shoppers hired by Ives gave CYCLOSPASMOL prescriptions on which the "substitution permissible" line was signed to 83 New York pharmacists. Forty-eight of the pharmacists dispensed CYCLOSPASMOL; the rest dispensed a generic drug. Ten of the thirty-five pharmacists who dispensed a generic drug included the word CYCLOSPASMOL on the label, although 5 of those 10 also included some form of the word "generic." Nine of the ten told the consumer of the substitution. Only 1 of the 10 charged the brand name price for the generic drug. 488 F. Supp. at 397. The District Court concluded that that evidence did not justify the inference that the petitioners' catalogs invite pharmacists to mislabel. Ibid. The Court of Appeals, emphasizing that 10 of the 35 druggists who dispensed a generic drug mislabeled it as CYCLOSPASMOL, found a pattern of substitution and mislabeling. 638 F.2d at 543. The dissenting judge on the appellate panel, emphasizing that only 1 of 83 pharmacists attempted an illegal substitution and reaped a profit made possible by the color imitation, concluded the facts supported the District Court's finding that mislabeling resulted from confusion about the substitution laws, rather than from profit considerations. Id. at 546. On the basis of the record before us, the inferences drawn by the District Court are not, as a matter of law, unreasonable. [ Footnote 17 ] The Court of Appeals cited no evidence to support its conclusion, which apparently rests upon the assumption that a pharmacist who has been provided an imitative generic drug will be unable to resist the temptation to profit from illegal activity. We find no support in the record for such a far-reaching conclusion. Moreover, the assumption is inconsistent with the District Court's finding that only a "few instances," rather than a substantial number, of mislabelings occurred. 488 F. Supp. at 397. [ Footnote 18 ] The Court of Appeals characterized the District Court's finding as resting on "a short and casual exchange with a witness. . . ." 638 F.2d at 544. The District Court, however, stated that its conclusion that pharmacists did not understand the drug substitution law rested upon the fact that, in numerous instances, a pharmacist told a consumer that state law prohibited filling prescriptions with generic products, even though the consumer had presented a prescription allowing generic substitution. 488 F. Supp. at 397-398. [ Footnote 19 ] In reaching that conclusion, the Court of Appeals took judicial notice of the fact that, in May, 1980, six indictments were handed down in New York City charging pharmacists with substituting cyclandelate for CYCLOSPASMOL. We note that the evidence of which the Court of Appeals took judicial notice not only involved no convictions, but also reflected knowledge that was not available when the District Court rendered its decision. Moreover, even if the District Court failed to consider relevant evidence, which would have been an error of law, the Court of Appeals, rather than make its own factual determination, should have remanded for further proceedings to allow the trial court to consider the evidence. See Pullman-Standard v. Swint, ante at 456 U. S. 291 -292. [ Footnote 20 ] The Court of Appeals reached that conclusion despite the District Court's express finding that, for purposes of § 43(a), the capsule colors were functional. See supra at 456 U. S. 853 . As the dissent below noted, the Court of Appeals' majority either disregarded the District Court's finding of functionality, see 638 F.2d at 545, n. 1 (Mulligan, J., dissenting), or implicitly rejected that finding as not "persuasive." See id. at 547. While the precise basis for the Court of Appeals' ruling on this issue is unclear, it is clear that the Court of Appeals erred. The appellate court was not entitled simply to disregard the District Court's finding of functionality. While the doctrine of functionality is most directly related to the question of whether a defendant has violated § 43(a) of the Lanham Act, see generally Note, The Problem of Functional Features: Trade Dress Infringement Under Section 43(a) of the Lanham Act, 82 Colum.L.Rev. 77 (1982), a finding of functionality may also be relevant to an action involving § 32. By establishing to the District Court's satisfaction that uniform capsule colors served a functional purpose, the petitioners offered a legitimate reason for producing an imitative product. Nor was the Court of Appeals entitled simply to dismiss the District Court's finding of functionality as not "persuasive." If the District Court erred as a matter of law, the Court of Appeals should have identified the District Court's legal error. If the Court of Appeals disagreed with the District Court's factual findings, it should not have dismissed them without finding them clearly erroneous. JUSTICE WHITE, with whom JUSTICE MARSHALL joins, concurring in the result. We granted certiorari in these cases in order to review the legal standard employed by the Second Circuit in finding that a generic drug manufacturer is vicariously liable for trademark infringement committed by pharmacists who dispense the generic drug. The Court implicitly endorses the legal standard purportedly employed by the Court of Appeals, ante at 456 U. S. 853 -854, but finds that the court erred in setting aside factual findings that were not clearly erroneous. The question whether the Court of Appeals had misapplied the clearly erroneous rule, however, was not presented in the petitions for certiorari. This was conceded at oral argument. [ Footnote 2/1 ] Tr. of Oral Arg. 69. Our Rule 21.1(a) states that "[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court." The majority suggests no reason for ignoring our own Rule. Furthermore, if the issue presented in the petitions for certiorari had been whether the clearly erroneous standard, although properly invoked, was erroneously applied, it is doubtful in my mind that this fact-bound issue would have warranted certiorari. I nevertheless concur in reversal, because I believe that the Court of Appeals has watered down to an impermissible extent the standard for finding a violation of § 32 of the Lanham Act, 15 U.S.C. § 1114. In its first opinion in this litigation, the Court of Appeals indicated that a "manufacturer or wholesaler would be liable Page 456 U. S. 860 under § 32 if he suggested, even if only by implication, that a retailer fill a bottle with the generic capsules and apply Ives' mark to the label, or continued to sell capsules containing the generic drug which facilitated this to a druggist whom he knew or had reason to know was engaging in the practices just described." 601 F.2d 631, 636 (1979) ( Ives II ). The District Court applied this test, but concluded that no violation of § 32 had been shown. On appeal after trial, a majority of the Second Circuit found defendants liable for contributory infringement by revising and expanding the doctrine of contributory trademark infringement. 638 F.2d 538 (1981) ( Ives IV ): "By using capsules of identical color, size, and shape, together with a catalog describing their appearance and listing comparable prices of CYCLOSPASMOL and generic cyclandelate, appellees could reasonably anticipate that their generic drug product would by a substantial number of druggists be substituted illegally. . . . This amounted to a suggestion, at least by implication, that the druggists take advantage of the opportunity to engage in such misconduct." Id. at 543 (emphasis added). Ives II required a showing that petitioners intended illegal substitution or knowingly continued to supply pharmacists palming off generic cyclandelate as CYCLOSPASMOL; Ives IV was satisfied merely by the failure to "reasonably anticipate" that illegal substitution by some pharmacists was likely. In my view, this is an erroneous construction of the statutory law governing trademark protection. William R. Warner & Co. v. Eli Lilly & Co., 265 U. S. 526 (1924), made clear that a finding of contributory infringement requires proof of either an intent to induce illegal substitution or continued sales to particular customers whom the manufacturer knows or should know are engaged in improper palming off. In that case, it was shown that the manufacturer's salesmen actively induced, either in direct terms or by insinuation, the filling of requests for Coco-Quinine with Page 456 U. S. 861 Quin-Coco. "The wrong was in designedly enabling the dealers to palm off the preparation as that of the respondent." [ Footnote 2/2 ] Id. at 265 U. S. 530 . Coca-Cola Co. v. Snow Crest Beverages, Inc., 64 F. Supp. 980 , 989 (Mass.1946), aff'd, 162 F.2d 280 (CA1), cert. denied, 332 U.S. 809 (1947), the case upon which the Court of Appeals relied in Ives II, stands for this very proposition. There was no contributory infringement in Snow Crest's manufacture of a product identical in appearance to that of Coca-Cola. Judge Wyzanski observed that "any man of common sense knows that, in any line of business, . . . there are some unscrupulous persons who, when it is to their financial advantage to do so, will palm off on customers a different product from that ordered by the customer." 64 F. Supp. at 988-989. These cases reflect the general consensus. 2 J. McCarthy, Trademarks and Unfair Competition § 25:2 (1973) ("[T]he supplier's duty does not go so far as to require him to refuse to sell to dealers who merely might pass off its goods"). The mere fact that a generic drug company can anticipate that some illegal substitution will occur to some unspecified extent, and by some unknown pharmacists, should not, by itself, be a predicate for contributory liability. I thus am inclined to believe that the Court silently acquiesces in a significant change in the test for contributory infringement. Diluting the requirement for establishing a prima facie case of contributory trademark infringement is particularly unjustified in the generic drugs field. Preventing the use of generic drugs of the same color to which customers had become accustomed in their prior use of the brand name product interferes with the important state policy, expressed in New York and 47 other States, of promoting the substitution of Page 456 U. S. 862 generic formulations. See Warner, Consumer Protection and Prescription Drugs: The Generic Drug Substitution Laws, 67 Ky.L.J. 384 (1978-1979). The Court of Appeals concluded that there was no "persuasive evidence of a legitimate reason" for petitioners to use imitative colors. The District Court, however, had expressly found that, for purposes of § 43(a), the capsule colors were functional. With respect to functionality, I fully agree with the Court that the Court of Appeals erred in setting aside factual findings without finding that they were clearly erroneous. The District Court found that capsule color was functional in several respects: patient anxiety and confusion were likely if accustomed medicine were dispensed in a different color; capsule colors assist patients in identifying the correct pill to take; standard colors help physicians identify the drug involved in case of overdose. [ Footnote 2/3 ] Clearly, the Court of Appeals could not reject these findings merely because it viewed the evidence as less persuasive than did the District Court. Rule 52(a) imposes a stricter standard. Finally, although the Court states that a "finding of functionality may also be relevant to an action involving § 32," it does not explicate the relationship of functionality in a § 32 case. It is my view that a finding of functionality offers a complete affirmative defense to a contributory infringement Page 456 U. S. 863 claim predicated solely on the reproduction of a functional attribute of the product. A functional characteristic is "an important ingredient in the commercial success of the product," 601 F.2d at 643, and, after expiration of a patent, it is no more the property of the originator than the product itself. It makes no more sense to base contributory infringement upon the copying of functional colors than on the petitioners' decision to use the same formulation of the drug, or even to market the generic substitute in the first place. To be sure, the very existence of generic drugs "facilitates" illegal substitution. But Ives no longer has a patent for cyclandelate, "and the defendants have a right to reproduce it as nearly as they can." Saxlehner v. Wagner, 216 U. S. 375 , 216 U. S. 380 (1910) (Holmes, J.). Reproduction of a functional attribute is legitimate competitive activity. I am also mindful that functionality is a defense to a suit under § 43(a) of the Lanham Act alleging damages from a competitor's "false designation of origin" on a good. [ Footnote 2/4 ] The use of a product or package design that is so similar to that of another producer that it is likely to confuse purchasers as to the product's source may constitute "false designation of origin" within the meaning of the Act. [ Footnote 2/5 ] As the Court of Appeals noted in Ives II, § 43(a) "goes beyond § 32 in making certain types of unfair competition federal statutory torts," 601 F.2d at 641. Section 43(a) offers the direct protection of Ives' interest in this case, and it is not surprising that the alleged Page 456 U. S. 864 § 43(a) violation was the primary claim in this litigation, as it has been in other cases of this genre. It would be anomalous for the imitation of a functional feature to constitute contributory infringement for purposes of § 32, while the same activity is not a "false designation of origin" under § 43(a). [ Footnote 2/6 ] I would reverse the decision of the Court of Appeals and remand for review of the District Court's findings consistent with the principles stated above. [ Footnote 2/1 ] The third question in petitioner Darby Drug Co.'s petition embraced the claim that the Court of Appeals had failed to observe Rule 52(a) in overturning the District Judge's finding of functionality. As discussed below, I agree with the Court's invocation of Rule 52 with respect to this aspect of the decision below. [ Footnote 2/2 ] Although Warner and other cases were decided before § 32 was enacted, the purpose of the Lanham Act was to codify and unify the common law of unfair competition and trademark protection. S.Rep. No. 1333, 79th Cong., 2d Sess. (1946). There is no suggestion that Congress intended to depart from Warner and other contemporary precedents. [ Footnote 2/3 ] "The reality is that, for every link in the distributive chain (from producer to ultimate consumer), the color and shape of drugs dispensed by prescription do perform a function. For each of them, color or shape may be a convenient shorthand code by which to identify the drug and its milligram dosage so that mistakes can be avoided in the interests of pharmaceutical precaution and patient safety. For the patient-user, of course, the constancy of color and shape may be as psychologically reassuring, and therefore as medically beneficial, as the drug itself; in addition, they also serve to identify the drug for his ingestion. . . ." "[I]f the generic producer is constrained by § 43(a), trademark law, or the law of unfair competition to adopt a substantially different color, . . . the therapeutic value of his generic drug might be seriously impaired, and confusion at the pharmacist level could be compounded beyond redemption." 3 R. Callmann, Unfair Competition, Trademarks and Monopolies § 82.1(m), pp. 217, 213 (Supp.1981). [ Footnote 2/4 ] See, e. g International Order of Job's Daughter v. Lindeburg & Co., 633 F.2d 912, 917 (CA9 1980), cert. denied, 452 U.S. 941 (1981); Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 378 (CA1 1980). See generally Note, The Problem of Functional Features: Trade Dress Infringement Under Section 43(a) of the Lanham Act, 82 Colum.L.Rev. 77, 81 (1982) ("Over the past three years, the rule that functionality of a copied feature bars relief in section 43(a) claims for trade dress infringement or product imitation has become the plurality view"). [ Footnote 2/5 ] See, e.g., Truck Equip. Serv. Co. v. Fruehauf Corp., 536 F.2d 1210 (CA8), cert. denied, 429 U.S. 861 (1976); Warner Bros., Inc. v. Gay Toy Inc., 658 F.2d 76 (CA2 1981). See also Note, 82 Colum.L.Rev., supra, at 78-80. [ Footnote 2/6 ] This is not to suggest that the copying of a functional feature protects a defendant from § 32 liability predicated on active inducement of trademark infringement or protects a defendant who has also reproduced nonfunctional features. JUSTICE REHNQUIST, concurring in the result. I agree that the judgment of the Court of Appeals should be reversed. That court set aside factual findings of the District Court without having found them to be clearly erroneous, as required by Rule 52(a) of the Federal Rules of Civil Procedure. I disagree, however, with the Court's determining for itself that the findings of the District Court were not clearly erroneous. I think, in the usual case, this is a question best decided by the courts of appeals, who have a good deal more experience with the application of this principle than we do, and I see no reason to make an exception in this case. I also assume, correctly I hope, that the Court's discussion of appellate review of trial court findings in bench trials, ante at 456 U. S. 855 , is limited to cases in which the appellate court has not found the trial court findings to be "clearly erroneous." United States v. United States Gypsum Co., 333 U. S. 364 (1948), upon which the Court relies, establishes the authority of a reviewing court to make its own findings, contrary to those of the trial court, where it has determined the latter to be "clearly erroneous." I agree with the Court that these cases should be remanded to the Court of Appeals to review the District Court's dismissal of respondent's claims under § 43(a) of the Lanham Act and its state law claims.

Here is a summary of the case: Inwood Laboratories v. Ives Laboratories (1982) concerned generic drug manufacturers, including Inwood, marketing a drug with capsules that looked like Ives' patented drug, CYCLOSPASMOL. Ives sued Inwood for trademark infringement under § 32 of the Trademark Act, alleging pharmacists mislabeled generic drugs as CYCLOSPASMOL. The District Court ruled in favor of Inwood, finding no intentional inducement of trademark infringement. The Court of Appeals reversed, but the Supreme Court reinstated the District Court's ruling, stating the Court of Appeals erred in setting aside the factual findings without finding them "clearly erroneous." The Supreme Court emphasized deference to trial courts' factual findings and remanded for review of Ives' other claims.

Search & Seizure

Florida v. Jimeno

https://supreme.justia.com/cases/federal/us/500/248/

U.S. Supreme Court Florida v. Jimeno, 500 U.S. 248 (1991) Florida v. Jimeno No. 90-622 Argued March 25, 1991 Decided May 23, 1991 500 U.S. 248 CERTIORARI TO THE SUPREME COURT OF FLORIDA Syllabus Having stopped respondent Jimeno's car for a traffic infraction, police officer Trujillo, who had been following the car after overhearing Jimeno arranging what appeared to be a drug transaction, declared that he had reason to believe that Jimeno was carrying narcotics in the car, and asked permission to search it. Jimeno consented, and Trujillo found cocaine inside a folded paper bag on the car's floorboard. Jimeno was charged with possession with intent to distribute cocaine in violation of Florida law, but the state trial court granted his motion to suppress the cocaine on the ground that his consent to search the car did not carry with it specific consent to open the bag and examine its contents. The Florida District Court of Appeal and Supreme Court affirmed. Held: A criminal suspect's Fourth Amendment right to be free from unreasonable searches is not violated when, after he gives police permission to search his car, they open a closed container found within the car that might reasonably hold the object of the search. The Amendment is satisfied when, under the circumstances, it is objectively reasonable for the police to believe that the scope of the suspect's consent permitted them to open the particular container. Here, the authorization to search extended beyond the car's interior surfaces to the bag, since Jimeno did not place any explicit limitation on the scope of the search, and was aware that Trujillo would be looking for narcotics in the car, and since a reasonable person may be expected to know that narcotics are generally carried in some form of container. There is no basis for adding to the Fourth Amendment's basic test of objective reasonableness a requirement that, if police wish to search closed containers within a car, they must separately request permission to search each container. Pp. 500 U. S. 250 -252. 564 So. 2d 1083 (Fla.1990), reversed and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 500 U. S. 252 . Page 500 U. S. 249 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In this case, we decide whether a criminal suspect's Fourth Amendment right to be free from unreasonable searches is violated when, after he gives a police officer permission to search his automobile, the officer opens a closed container found within the car that might reasonably hold the object of the search. We find that it is not. The Fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect's consent permitted him to open a particular container within the automobile. This case began when a Dade County police officer, Frank Trujillo, overheard respondent, Enio Jimeno, arranging what appeared to be a drug transaction over a public telephone. Believing that respondent might be involved in illegal drug trafficking, Officer Trujillo followed his car. The officer observed respondent make a right turn at a red light without stopping. He then pulled respondent over to the side of the road in order to issue him a traffic citation. Officer Trujillo told respondent that he had been stopped for committing a traffic infraction. The officer went on to say that he had reason to believe that respondent was carrying narcotics in his car, and asked permission to search the car. He explained that respondent did not have to consent to a search of the car. Respondent stated that he had nothing to hide, and gave Trujillo Page 500 U. S. 250 permission to search the automobile. After two passengers stepped out of respondent's car, Officer Trujillo went to the passenger side, opened the door, and saw a folded, brown paper bag on the floorboard. The officer picked up the bag, opened it, and found a kilogram of cocaine inside. Respondent was charged with possession with intent to distribute cocaine in violation of Florida law. Before trial, he moved to suppress the cocaine found in the bag on the ground that his consent to search the car did not extend to the closed paper bag inside of the car. The trial court granted the motion. It found that, although respondent "could have assumed that the officer would have searched the bag" at the time he gave his consent, his mere consent to search the car did not carry with it specific consent to open the bag and examine its contents. No. 88-23967 (Cir.Ct.Dade Cty., Fla., Mar. 21, 1989); App. to Pet. for Cert. A-6. The Florida District Court of Appeal affirmed the trial court's decision to suppress the evidence of the cocaine. 550 So. 2d 1176 (Fla. 3d DCA 1989). In doing so, the court established a per se rule that "consent to a general search for narcotics does not extend to sealed containers within the general area agreed to by the defendant.'" Ibid. (citation omitted). The Florida Supreme Court affirmed, relying upon its decision in State v. Wells, 539 So. 2d 464 (1989) aff'd on other grounds, 495 U. S. 495 U.S. 1 (1990). 564 So. 2d 1083 (1990). We granted certiorari to determine whether consent to search a vehicle may extend to closed containers found inside the vehicle. 498 U.S. 997 (1990), and we now reverse the judgment of the Supreme Court of Florida. The touchstone of the Fourth Amendment is reasonableness. Katz v. United States, 389 U. S. 347 , 389 U. S. 360 (1967). The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Illinois v. Rodriguez, 497 U. S. 177 (1990). Thus, we have long approved consensual searches because it Page 500 U. S. 251 is no doubt reasonable for the police to conduct a search once they have been permitted to do so. Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 219 (1973). The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect? Illinois v. Rodriguez, supra, at 497 U. S. 183 -189; Florida v. Royer, 460 U. S. 491 , 460 U. S. 501 -502 (1983) (opinion of WHITE, J.); id. at 460 U. S. 514 (BLACKMUN, J., dissenting). The question before us, then, is whether it is reasonable for an officer to consider a suspect's general consent to a search of his car to include consent to examine a paper bag lying on the floor of the car. We think that it is. The scope of a search is generally defined by its expressed object. United States v. Ross, 456 U. S. 798 (1982). In this case, the terms of the search's authorization were simple. Respondent granted Officer Trujillo permission to search his car, and did not place any explicit limitation on the scope of the search. Trujillo had informed respondent that he believed respondent was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search respondent's car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. "Contraband goods rarely are strewn across the trunk or floor of a car." Id. at 456 U. S. 820 . The authorization to search in this case, therefore, extended beyond the surfaces of the car's interior to the paper bag lying on the car's floor. The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the suppression order in this case. There, the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely Page 500 U. S. 252 unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag. Respondent argues, and the Florida trial court agreed with him, that, if the police wish to search closed containers within a car, they must separately request permission to search each container. But we see no basis for adding this sort of superstructure to the Fourth Amendment's basic test of objective reasonableness. Cf. Illinois v. Gates, 462 U. S. 213 (1983). A suspect may, of course, delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization. "[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may ensure that a wholly innocent person is not wrongly charged with a criminal offense." Schneckloth v. Bustamonte, supra, at 412 U. S. 243 . The judgment of the Supreme Court of Florida is accordingly reversed, and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE MARSHALL, with whom JUSTICE STEVENS joins, dissenting. The question in this case is whether an individual's general consent to a search of the interior of his car for narcotics should reasonably be understood as consent to a search of closed containers inside the car. Nothing in today's opinion dispels my belief that the two are not one and the same from the consenting individual's standpoint. Consequently, an individual's consent to a search of the interior of his car should not be understood to authorize a search of closed containers inside the car. I dissent. Page 500 U. S. 253 In my view, analysis of this question must start by identifying the differing expectations of privacy that attach to cars and closed containers. It is well established that an individual has but a limited expectation of privacy in the interior of his car. A car ordinarily is not used as a residence or repository for one's personal effects, and its passengers and contents are generally exposed to public view. See Cardwell v. Lewis, 417 U. S. 583 , 417 U. S. 590 (1974) (plurality opinion). Moreover, cars "are subjected to pervasive and continuing governmental regulation and controls," South Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 368 (1976), and may be seized by the police when necessary to protect public safety or to facilitate the flow of traffic, see id. at 428 U. S. 368 -369. In contrast, it is equally well established that an individual has a heightened expectation of privacy in the contents of a closed container. See, e.g., United States v. Chadwick, 433 U. S. 1 , 433 U. S. 13 (1977). Luggage, handbags, paper bags, and other containers are common repositories for one's papers and effects, and the protection of these items from state intrusion lies at the heart of the Fourth Amendment. U.S.Const., Amdt. 4 ("The right of the people to be secure in their . . . papers, and effects, against unreasonable searches and seizures, shall not be violated"). By placing his possessions inside a container, an individual manifests an intent that his possessions be "preserve[d] as private," United States v. Katz, 389 U. S. 347 , 389 U. S. 351 (1967), and thus kept "free from public examination," United States v. Chadwick, supra, 433 U.S. at 433 U. S. 11 . The distinct privacy expectations that a person has in a car, as opposed to a closed container, do not merge when the individual uses his car to transport the container. In this situation, the individual still retains a heightened expectation of privacy in the container. See Robbins v. California, 453 U. S. 420 , 453 U. S. 425 (1981) (plurality opinion); Arkansas v. Sanders, 442 U. S. 753 , 442 U. S. 763 -764 (1979). Nor does an individual's heightened expectation of privacy turn on the type of container Page 500 U. S. 254 in which he stores his possessions. Notwithstanding the majority's suggestion to the contrary, see ante at ___, this Court has soundly rejected any distinction between "worthy" containers, like locked briefcases, and "unworthy" containers, like paper bags. "Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case." United States v. Ross, 456 U. S. 798 , 456 U. S. 822 (1982) (footnotes omitted). Because an individual's expectation of privacy in a container is distinct from, and far greater than, his expectation of privacy in the interior of his car, it follows that an individual's consent to a search of the interior of his car cannot necessarily be understood as extending to containers in the car. At the very least, general consent to search the car is ambiguous with respect to containers found inside the car. In my view, the independent and divisible nature of the privacy interests in cars and containers mandates that a police officer who wishes to search a suspicious container found during a consensual automobile search obtain additional consent to search the container. If the driver intended to authorize search of the container, he will say so; if not, then he will say no. * The only objection that the police could have to such a Page 500 U. S. 255 rule is that it would prevent them from exploiting the ignorance of a citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through his packages. According to the majority, it nonetheless is reasonable for a police officer to construe generalized consent to search an automobile for narcotics as extending to closed containers, because "[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container." Ante at ___. This is an interesting contention. By the same logic, a person who consents to a search of the car from the driver's seat could also be deemed to consent to a search of his person, or indeed of his body cavities, since a reasonable person may be expected to know that drug couriers frequently store their contraband on their persons or in their body cavities. I suppose (and hope) that even the majority would reject this conclusion, for a person who consents to the search of his car for drugs certainly does not consent to a search of things other than his car for drugs. But this example illustrates that, if there is a reason for not treating a closed container as something "other than" the car in which it sits, the reason cannot be based on intuitions about where people carry drugs. The majority, however, never identifies a reason for conflating the distinct privacy expectations that a person has in a car and in closed containers. The majority also argues that the police should not be required to secure specific consent to search a closed container, because " [t]he community has a real interest in encouraging consent.'" Ante at 500 U. S. 252 , quoting Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 243 (1973). I find this rationalization equally unsatisfactory. If anything, a rule that permits the police to construe a consent to search more broadly than it may have been intended would discourage individuals from consenting to searches of their cars. Apparently, the majority's real concern is that, if the police were required to ask for additional consent to search a closed container found during the Page 500 U. S. 256 consensual search of an automobile, an individual who did not mean to authorize such additional searching would have an opportunity to say no. In essence, then, the majority is claiming that "the community has a real interest" not in encouraging citizens to consent to investigatory efforts of their law enforcement agents, but rather in encouraging individuals to be duped by them. This is not the community that the Fourth Amendment contemplates. Almost 20 years ago, this Court held that an individual could validly "consent" to a search -- or, in other words, waive his right to be free from an otherwise unlawful search -- without being told that he had the right to withhold his consent. See Schneckloth v. Bustamonte, supra. In Schneckloth, as in this case, the Court cited the practical interests in efficacious law enforcement as the basis for not requiring the police to take meaningful steps to establish the basis of an individual's consent. I dissented in Schneckloth, and what I wrote in that case applies with equal force here. "I must conclude, with some reluctance, that, when the Court speaks of practicality, what it really is talking of is the continued ability of the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights. Of course it would be 'practical' for the police to ignore the commands of the Fourth Amendment, if, by practicality, we mean that more criminals will be apprehended, even though the constitutional rights of innocent people go by the board. But such a practical advantage is achieved only at the cost of permitting the police to disregard the limitations that the Constitution places on their behavior, a cost that a constitutional democracy cannot long absorb." 412 U.S. at 412 U. S. 288 . I dissent. * Alternatively, the police could obtain such consent in advance by asking the individual for permission to search both the car and any closed containers found inside.

Here is a summary of the case: The Supreme Court ruled that a criminal suspect's Fourth Amendment rights are not violated when the police, after receiving the suspect's permission to search their car, open a closed container within the car that could reasonably hold the object of the search. In this case, the Court decided that it was objectively reasonable for the officer to believe that the suspect's consent included the search of a closed paper bag on the car floorboard, where narcotics (the object of the search) could be reasonably expected to be found. The Court emphasized that the Fourth Amendment is satisfied by objective reasonableness, and there is no need to add further requirements for police to separately request permission to search each closed container within a car. Justice Marshall dissented, arguing that distinct privacy expectations exist for cars and closed containers, and that the majority's decision undermines an individual's right to be secure against unreasonable searches.

Taxes

Crandall v. Nevada

https://supreme.justia.com/cases/federal/us/73/35/

U.S. Supreme Court Crandall v. State of Nevada, 73 U.S. 6 Wall. 35 35 (1867) Crandall v. State of Nevada 73 U.S. (6 Wall.) 35 ERROR TO THE SUPREME COURT OF NEVADA Syllabus 1. A special tax on railroad and stage companies for every passenger carried out of the state by them is a tax on the passenger for the privilege of passing through the state by the ordinary modes of travel, and is not a simple tax on the business of the companies. 2. Such a tax imposed by a state is not in conflict with that provision of the federal Constitution which forbids a state to lay a duty on exports. 3. The power granted to Congress to regulate commerce with foreign nations and among the states includes subjects of legislation which are necessarily of a national character, and therefore exclusively within the control of Congress. 4. But it also includes matters of a character merely local in their operation, as the regulation of port pilots, the authorization of bridges over navigable streams, and perhaps others, and upon this class of subjects the state may legislate in the absence of any such legislation by Congress. 5. If the tax on passengers when carried out of the state be called a regulation of commerce, it belongs to the latter class, and there being no legislation of Congress on the same subject, the statute will not be void as a regulation of commerce. 6. The United States has a right to require the service of its citizens at the seat of federal government, in all executive, legislative, and judicial departments and at all the points in the several states where the functions of government are to be performed. Page 73 U. S. 36 7. By virtue of its power to make war and to suppress insurrection, the government has a right to transport troops through all parts of the Union by the usual and most expeditious modes of transportation. 8. The citizens o� the United States have the correlative right to approach the great departments of the government, the ports of entry through which commerce is conducted, and the various federal offices in the states. 9. The taxing power, being in its nature unlimited over the subjects within its control, would enable the state governments to destroy the above-mentioned rights of the federal government and of its citizens if the right of transit through the states by railroad and other ordinary modes of travel were one of the legitimate objects of state taxation. 10. The existence of such a power in the states is therefore, inconsistent with objects for which the federal government was established and with rights conferred by the Constitution on that government and on the people. An exercise of such a power is accordingly void. In 1865, the Legislature of Nevada enacted that "There shall be levied and collected a capitation tax of one dollar upon every person leaving the state by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire," and that the proprietors, owners, and corporations so engaged should pay the said tax of one dollar for each and every person so conveyed or transported from the state. For the purpose of collecting the tax, another section required from persons engaged in such business or their agents a report every month, under oath, of the number of passengers so transported, and the payment of the tax to the sheriff or other proper officer. With the statute in existence, Crandall, who was the agent of a stage company engaged in carrying passengers through the State of Nevada, was arrested for refusing to report the number of passengers that had been carried by the coaches of his company and for refusing to pay the tax of one dollar imposed on each passenger by the law of that state. He pleaded that the law of the state under which he was prosecuted was void because it was in conflict with the Constitution of the United States, and his plea being overruled, the case came into the supreme court of the state. The court -- considering that the tax laid was not an impost on "exports" Page 73 U. S. 37 nor an interference with the power of Congress "to regulate commerce among the several states" -- decided against the right thus set up under the federal Constitution. Its judgment was now here for review. Page 73 U. S. 39 MR. JUSTICE MILLER delivered the opinion of the Court. The question for the first time presented to the Court by this record is one of importance. The proposition to be considered is the right of a state to levy a tax upon persons residing in the state who may wish to get out of it, and upon persons not residing in it who may have occasion to pass through it. It is to be regretted that such a question should be submitted to our consideration with neither brief nor argument on the part of plaintiff in error. But our regret is diminished by the reflection that the principles which must govern its determination have been the subject of much consideration in cases heretofore decided by this Court. It is claimed by counsel for the state that the tax thus levied is not a tax upon the passenger, but upon the business of the carrier who transports him. If the act were much more skillfully drawn to sustain this hypothesis than it is, we should be very reluctant to admit that any form of words which had the effect to compel every person traveling through the country by the common and usual modes of public conveyance to pay a specific sum to the state was not a tax upon the right thus exercised. The statute before us is not, however, embarrassed by any nice difficulties of this character. The language which we have just quoted is that there shall be levied and collected a capitation tax upon every person leaving the state by any railroad or stage coach, and the remaining provisions of the act which refer to this tax only provide a mode of collecting it. The officers and agents of the railroad companies, and the proprietors of the stage coaches, are made responsible for this, and so become the collectors of the tax. We shall have occasion to refer hereafter somewhat in detail to the opinions of the judges of this Court in The Passenger Page 73 U. S. 40 Cases, [ Footnote 1 ] in which there were wide differences on several points involved in the case before us. In the case from New York then under consideration, the statute provided that the health commissioner should be entitled to demand and receive from the master of every vessel that should arrive in the port of New York from a foreign port, one dollar and fifty cents for every cabin passenger, and one dollar for each steerage passenger, and from each coasting vessel, twenty-five cents for every person on board. That statute does not use language so strong as the Nevada statute indicative of a personal tax on the passenger, but merely taxes the master of the vessel according to the number of his passengers; but the Court held it to be a tax upon the passenger, and that the master was the agent of the state for its collection. Chief Justice Taney, while he differed from the majority of the Court and held the law to be valid, said of the tax levied by the analogous statute of Massachusetts that "its payment is the condition upon which the state permits the alien passenger to come on shore and mingle with its citizens and to reside among them. It is demanded of the captain, and not from every separate passenger, for convenience of collection. But the burden evidently falls upon the passenger, and he in fact pays it either in the enhanced price of his passage or directly to the captain before he is allowed to embark for the voyage. The nature of the transaction and the ordinary course of business show that this must be so." Having determined that the statute of Nevada imposes a tax upon the passenger for the privilege of leaving the state or passing through it by the ordinary mode of passenger travel, we proceed to inquire if it is for that reason in conflict with the Constitution of the United States. In the argument of the counsel for the defendant in error and in the opinion of the Supreme Court of Nevada, which is found in the record, it is assumed that this question must be decided by an exclusive reference to two provisions of Page 73 U. S. 41 the Constitution, namely that which forbids any state, without the consent of Congress, to lay any imposts or duties on imports or exports and that which confers on Congress the power to regulate commerce with foreign nations and among the several states. The question as thus narrowed is not free from difficulties. Can a citizen of the United States traveling from one part of the Union to another be called an export? It was insisted in The Passenger Cases, to which we have already referred, that foreigners coming to this country were "imports" within the meaning of the Constitution, and the provision of that instrument that the migration or importation of such persons as any of the states then existing should think proper to admit should not be prohibited prior to the year 1808, but that a tax might be imposed on such importation, was relied on as showing that the word "import," applied to persons as well as to merchandise. It was answered that this latter clause had exclusive reference to slaves, who were property as well as persons, and therefore proved nothing. While some of the judges who concurred in holding those laws to be unconstitutional gave as one of their reasons that they were taxes on imports, it is evident that this view did not receive the assent of a majority of the Court. The application of this provision of the Constitution to the proposition which we have stated in regard to the citizen is still less satisfactory than it would be to the case of foreigners migrating to the United States. But it is unnecessary to consider this point further in the view which we have taken of the case. As regards the commerce clause of the Constitution, two propositions are advanced on behalf of the defendant in error. 1. That the tax imposed by the state on passengers is not a regulation of commerce. 2. That if it can be so considered, it is one of those powers which the states can exercise until Congress has so legislated as to indicate its intention to exclude state legislation on the same subject. The proposition that the power to regulate commerce, as granted to Congress by the Constitution, necessarily excludes Page 73 U. S. 42 the exercise by the states of any of the power thus granted is one which has been much considered in this Court, and the earlier discussions left the question in much doubt. As late as the January Term 1849, the opinions of the judges in The Passenger Cases show that the question was considered to be one of much importance in those cases, and was even then unsettled, though previous decisions of the Court were relied on by the judges themselves as deciding it in different ways. It was certainly, so far as those cases affected it, left an open question. In the case of Cooley v. Board of Wardens, [ Footnote 2 ] four years later, the same question came directly before the Court in reference to the local laws of the port of Philadelphia concerning pilots. It was claimed that they constituted a regulation of commerce, and were therefore void. The Court held that they did come within the meaning of the term "to regulate commerce," but that until Congress made regulations concerning pilots, the states were competent to do so. Perhaps no more satisfactory solution has ever been given of this vexed question than the one furnished by the Court in that case. After showing that there are some powers granted to Congress which are exclusive of similar powers in the states because they are declared to be so, and that other powers are necessarily so from their very nature, the Court proceeds to say that the authority to regulate commerce with foreign nations and among the states includes within its compass powers which can only be exercised by Congress, as well as powers which, from their nature, can best be exercised by the state legislatures, to which latter class the regulation of pilots belongs. "Whatever subjects of this power are in their nature national or admit of one uniform system or plan of regulation may justly be said to be of such a nature as to require exclusive legislation by Congress." In the case of Gilman v. Philadelphia [ Footnote 3 ] this doctrine is reaffirmed, and under it a bridge across a stream navigable from the ocean, authorized by state law, was held to be Page 73 U. S. 43 well authorized in the absence of any legislation by Congress affecting the matter. It may be that under the power to regulate commerce among the states, Congress has authority to pass laws the operation of which would be inconsistent with the tax imposed by the state of Nevada, but we know of no such statute now in existence. Inasmuch, therefore, as the tax does not itself institute any regulation of commerce of a national character or which has a uniform operation over the whole country, it is not easy to maintain, in view of the principles on which those cases were decided, that it violates the clause of the federal Constitution which we have had under review. But we do not concede that the question before us is to be determined by the two clauses of the Constitution which we have been examining. The people of these United States constitute one nation. They have a government in which all of them are deeply interested. This government has necessarily a capital established by law, where its principal operations are conducted. Here sits its legislature, composed of senators and representatives, from the states and from the people of the states. Here resides the President, directing through thousands of agents the execution of the laws over all this vast country. Here is the seat of the supreme judicial power of the nation, to which all its citizens have a right to resort to claim justice at its hands. Here are the great executive departments, administering the offices of the mails, of the public lands, of the collection and distribution of the public revenues, and of our foreign relations. These are all established and conducted under the admitted powers of the federal government. That government has a right to call to this point any or all of its citizens to aid in its service, as members of the Congress, of the courts, of the executive departments, and to fill all its other offices, and this right cannot be made to depend upon the pleasure of a state over whose territory they must pass to reach the point where these services must be rendered. The government also has its offices of secondary Page 73 U. S. 44 importance in all other parts of the country. On the seacoasts and on the rivers it has its ports of entry. In the interior it has its land offices, its revenue offices, and its subtreasuries. In all these it demands the services of its citizens and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a state to obstruct this right that would not enable it to defeat the purposes for which the government was established. The federal power has a right to declare and prosecute wars, and, as a necessary incident, to raise and transport troops through and over the territory of any state of the Union. If this right is dependent in any sense, however limited, upon the pleasure of a state, the government itself may be overthrown by an obstruction to its exercise. Much the largest part of the transportation of troops during the late rebellion was by railroads, and largely through states whose people were hostile to the Union. If the tax levied by Nevada on railroad passengers had been the law of Tennessee, enlarged to meet the wishes of her people, the Treasury of the United States could not have paid the tax necessary to enable its armies to pass through her territory. But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its seaports, through which all the operations of foreign trade and commerce are conducted, to the subtreasuries, the land offices, the revenue offices, and the courts of justice in the several states, and this right is in its nature independent of the will of any state over whose soil he must pass in the exercise of it. The views here advanced are neither novel nor unsupported by authority. The question of the taxing power of the states, as its exercise has affected the functions of the federal government, has been repeatedly considered by this Page 73 U. S. 45 Court, and the right of the states in this mode to impede or embarrass the constitutional operations of that government, or the rights which its citizens hold under it, has been uniformly denied. The leading case of this class is that of McCulloch v. Maryland. [ Footnote 4 ] The case is one every way important, and is familiar to the statesman and the constitutional lawyer. The Congress, for the purpose of aiding the fiscal operations of the government, had chartered the Bank of the United States, with authority to establish branches in the different states and to issue notes for circulation. The Legislature of Maryland had levied a tax upon these circulating notes which the bank refused to pay on the ground that the statute was void by reason of its antagonism to the federal Constitution. No particular provision of the Constitution was pointed to as prohibiting the taxation by the state. Indeed, the authority of Congress to create the bank, which was strenuously denied, and the discussion of which constituted an important element in the opinion of the Court, was not based by that opinion on any express grant of power, but was claimed to be necessary and proper to enable the government to carry out its authority to raise a revenue, and to transfer and disburse the same. It was argued also that the tax on the circulation operated very remotely, if at all, on the only functions of the bank in which the government was interested. But the Court, by a unanimous judgment, held the law of Maryland to be unconstitutional. It is not possible to condense the conclusive argument of Chief Justice Marshall in that case, and it is too familiar to justify its reproduction here, but an extract or two, in which the results of his reasoning are stated, will serve to show its applicability to the case before us. "That the power of taxing the bank by the states," he says, "may be exercised so as to destroy it is too obvious to be denied. But taxation is said to be an absolute power which acknowledges no other limits than those prescribed by the Constitution, and, like Page 73 U. S. 46 sovereign power of any description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the state in the article of taxation is subordinate to, and may be controlled by, the Constitution of the United States." Again he says, "We find then, on just theory, a total failure of the original right to tax the means employed by the government of the Union for the execution of its powers. The right never existed, and the question of its surrender cannot arise. . . . That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very means, is declared to be supreme over that which exerts the control, are propositions not to be denied. If the states may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom house; they may tax judicial process; they may tax all the means employed by the government to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states." It will be observed that it was not the extent of the tax in that case which was complained of, but the right to levy any tax of that character. So in the case before us it may be said that a tax of one dollar for passing through the state of Nevada by stage coach or by railroad cannot sensibly affect any function of the government or deprive a citizen of any valuable right. But if the state can tax a railroad passenger one dollar, it can tax him one thousand dollars. If one state can do this, so can every other state. And thus one or more states covering the only practicable routes of travel from the east to the west, or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to the other. Page 73 U. S. 47 A case of another character in which the taxing power as exercised by a state was held void because repugnant to the federal Constitution, is that of Brown v. state of Maryland. [ Footnote 5 ] The State of Maryland required all importers of foreign merchandise who sold the same by wholesale, by bale or by package, to take out a license, and this act was claimed to be unconstitutional. The Court held it to be so on three different grounds: first, that it was a duty on imports; second, that it was a regulation of commerce; and third, that the importer who had paid the duties imposed by the United States, had acquired a right to sell his goods in the same original packages in which they were imported. To say nothing of the first and second grounds, we have in the third a tax of a state declared to be void because it interfered with the exercise of a right derived by the importer from the laws of the United States. If the right of passing through a state by a citizen of the United States is one guaranteed to him by the Constitution, it must be as sacred from state taxation as the right derived by the importer from the payment of duties to sell the goods on which the duties were paid. In the case of Weston v. City of Charleston, [ Footnote 6 ] we have a case of state taxation of still another class held to be void as an interference with the rights of the federal government. The tax in that instance was imposed on bonds or stocks of the United States, in common with all other securities of the same character. It was held by the Court that the free and successful operation of the government required it at times to borrow money; that to borrow money it was necessary to issue this class of national securities, and that if the states could tax these securities, they might so tax them as to seriously impair or totally destroy the power of the government to borrow. This case, itself based on the doctrines advanced by the Court in McCulloch v. State of Maryland, has been followed in all the recent cases involving state Page 73 U. S. 48 taxation of government bonds, from that of People of New York v. Tax Commissioners, [ Footnote 7 ] to the decisions of the court at this term. In all these cases, the opponents of the taxes levied by the states were able to place their opposition on no express provision of the Constitution, except in that of Brown v. Maryland. But in all the other cases and in that case also, the Court distinctly placed the invalidity of the state taxes on the ground that they interfered with an authority of the federal government, which was itself only to be sustained as necessary and proper to the exercise of some other power expressly granted. In The Passenger Cases, to which reference has already been made, JUSTICE GRIER, with whom Justice Catron concurred, makes this one of the four propositions on which they held the tax void in those cases. Judge Wayne expresses his assent to JUSTICE GRIER's views, and perhaps this ground received the concurrence of more of the members of the Court who constituted the majority than any other. But the principles here laid down may be found more clearly stated in the dissenting opinion of the Chief Justice in those cases, and with more direct pertinency to the case now before us than anywhere else. After expressing his views fully in favor of the validity of the tax, which he said had exclusive reference to foreigners, so far as those cases were concerned, he proceeds to say, for the purpose of preventing misapprehension, that so far as the tax affected American citizens, it could not, in his opinion, be maintained. He then adds: "Living as we do under a common government, charged with the great concerns of the whole Union, every citizen of the United States from the most remote states or territories, is entitled to free access not only to the principal departments established at Washington, but also to its judicial tribunals and public offices in every state in the Union. . . . For all the great purposes for which the federal government was formed, we are one people, with one common country. Page 73 U. S. 49 We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states. And a tax imposed by a state for entering its territories or harbors is inconsistent with the rights which belong to citizens of other states as members of the Union and with the objects which that Union was intended to attain. Such a power in the states could produce nothing but discord and mutual irritation, and they very clearly do not possess it." Although these remarks are found in a dissenting opinion, they do not relate to the matter on which the dissent was founded. They accord with the inferences which we have already drawn from the Constitution itself and from the decisions of this Court in exposition of that instrument. Those principles, as we have already stated them in this opinion, must govern the present case. Judgments reversed and the case remanded to the Supreme Court of the State of Nevada, with directions to discharge the plaintiff in error from custody. [ Footnote 1 ] 48 U. S. 7 How. 283. [ Footnote 2 ] 53 U. S. 12 How. 299. [ Footnote 3 ] 70 U. S. 3 Wall. 713. [ Footnote 4 ] 17 U. S. 4 Wheat. 316. [ Footnote 5 ] 25 U. S. 12 Wheat. 419. [ Footnote 6 ] 27 U. S. 2 Pet. 449. [ Footnote 7 ] 67 U. S. 2 Black 620. MR. JUSTICE CLIFFORD. I agree that the state law in question is unconstitutional and void, but I am not able to concur in the principal reasons assigned in the opinion of the Court in support of that conclusion. On the contrary, I hold that the act of the state legislature is inconsistent with the power conferred upon Congress to regulate commerce among the several states, and I think the judgment of the Court should have been placed exclusively upon that ground. Strong doubts are entertained by me whether Congress possesses the power to levy any such tax, but whether so or not, I am clear that the state legislature cannot impose any such burden upon commerce among the several states. Such commerce is secured against such legislation in the states by the Constitution, irrespective of any Congressional action. THE CHIEF JUSTICE also dissents, and concurs in the views I have expressed.

In Crandall v. State of Nevada (1867), the U.S. Supreme Court ruled that a state tax on passengers leaving the state by railroad or stagecoach was unconstitutional. The Court held that such a tax was not a simple tax on the transportation companies but a tax on the passengers' right to travel freely between states, conflicting with the federal government's power to regulate interstate commerce. The Court also argued that the state tax infringed on citizens' rights to access federal government institutions and services and the federal government's ability to function effectively. Justice Clifford dissented, believing the state law violated Congress's power to regulate commerce among states, regardless of whether Congress had acted on that power.

Taxes

Hylton v. U.S.

https://supreme.justia.com/cases/federal/us/3/171/

U.S. Supreme Court Hylton v. United States, 3 U.S. 3 Dall. 171 171 (1796) Hylton v. United States 3 U.S. (3 Dall.) 171 ERROR TO THE CIRCUIT COURT FOR THE DISTRICT OF VIRGINIA Syllabus The act of Congress of 6 June 1794, laying "a tax on carriages for the conveyance of persons, kept for the use of the owner," is a constitutional law, and is within the authority granted to Congress by the eighth section of the first article of the Constitution. This was a writ of error directed to the Circuit Court for the District of Virginia, and upon the return of the record the following proceedings appeared. An action of debt had been instituted to May Term, 1795, by the attorney of the district in the name of the United States against Daniel Hylton to recover the penalty imposed by the Act of Congress of 5 June, 1794, for not entering and paying the duty on a number of carriages for the conveyance of persons which he kept for his own use. The defendant pleaded nil debet, whereupon issue was joined. But the parties, waiving the right of trial by jury, mutually submitted the controversy to the court on a case which stated "That the defendant, on 5 June, 1794, and therefrom to the last day of September following, owned, possessed, and kept, 125 chariots for the conveyance of persons, and no more; that the chariots were kept exclusively for the defendant's own private use, and not to let out to hire or for the conveyance of persons for Page 3 U. S. 172 hire, and that the defendant had notice according to the act of Congress entitled 'An act laying duties upon carriages for the conveyance of persons,' but that he omitted and refused to make an entry of the said chariots and to pay the duties thereupon as in and by the said recited law is required, alleging that the said law was unconstitutional and void. If the court adjudged the defendant to be liable to pay the tax and fine for not doing so and for not entering the carriages, then judgment shall be entered for the plaintiff for $2,000 dollars, to be discharged by the payment of $16, the amount of the duty and penalty; otherwise that judgment be entered for the defendant." After argument, the court (consisting of Wilson & Justices) delivered their opinions, but being equally divided, the defendant, by agreement of the parties, confessed judgment, as a foundation for the present writ of error, which (as well as the original proceeding) was brought merely to try the constitutionality of the tax. Page 3 U. S. 175 PATERSON, JUSTICE. By the second section of the first article of the Constitution of the United States it is ordained that representatives and direct taxes shall be apportioned among the states according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and including Indians not taxed, three fifths of all other persons. The eighth section of the said article declares that Congress shall have power to lay and collect taxes, duties, imposts, and excises, but all duties, imposts and excises, shall be uniform throughout the United States. The ninth section of the same article provides that no capitation or other direct tax shall be laid unless in proportion to the census or enumeration before directed to be taken. Congress passed a law on 5 June, 1794, entitled, "An act laying duties upon carriages for the conveyance of persons." Page 3 U. S. 176 Daniel Lawrence Hilton, on 5 June, 1794, and therefrom to the last day of September next following, owned, possessed, and kept one hundred and twenty-five chariots for the conveyance of persons, but exclusively for his own separate use, and not to let out to hire, or for the conveyance of persons for hire. The question is whether a tax upon carriages be a direct tax? If it be a direct tax, it is unconstitutional, because it has been laid pursuant to the rule of uniformity, and not to the rule of apportionment. In behalf of the plaintiff in error, it has been urged that a tax on carriages does not come within the description of a duty, impost, or excise, and therefore is a direct tax. It has, on the other hand, been contended that as a tax on carriages is not a direct tax, it must fall within one of the classifications just enumerated, and particularly must be a duty or excise. The argument on both sides turns in a circle; it is not a duty, impost, or excise, and therefore must be a direct tax; it is not tax, and therefore must be a duty or excise. What is the natural and common, or technical and appropriate, meaning of the words "duty" and "excise" it is not easy to ascertain. They present no clear and precise idea to the mind. Different persons will annex different significations to the terms. It was, however, obviously the intention of the framers of the Constitution that Congress should possess full power over every species of taxable property, except exports. The term "taxes" is generic, and was made use of to vest in Congress plenary authority in all cases of taxation. The general division of taxes is into direct and indirect. Although the latter term is not to be found in the Constitution, yet the former necessarily implies it. "Indirect" stands opposed to "direct." There may perhaps be an indirect tax on a particular article that cannot be comprehended within the description of duties or imposts or excises; in such case, it will be comprised under the general denomination of "taxes." For the term "tax" is the genus, and includes 1. Direct taxes. 2. Duties, imposts, and excises. 3. All other classes of an indirect kind, and not within any of the classifications enumerated under the preceding heads. The question occurs how is such tax to be laid, uniformly or proportionately? The rule of uniformity will apply, because it is an indirect tax, and direct taxes only are to be apportioned. What are direct taxes within the meaning of the Constitution? The Constitution declares that a capitation tax is a direct tax, and both in theory and practice a tax on land is deemed to be a direct tax. In this way, the terms "direct taxes" and "capitation and other direct tax" are satisfied. It is not necessary Page 3 U. S. 177 to determine whether a tax on the product of land be a direct or indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered as the land itself; it makes part of it or else the provision made against taxing exports would be easily eluded. Land, independently of its produce, is of no value. When the produce is converted into a manufacture, it assumes a new shape; its nature is altered; its original state is changed; it becomes quite another subject, and will be differently considered. Whether direct taxes, in the sense of the Constitution, comprehend any other tax than a capitation tax and tax on land is a questionable point. If Congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the states in the Union, then perhaps the rule of apportionment would be the most proper, especially if an assessment was to intervene. This appears by the practice of some of the states to have been considered as a direct tax. Whether it be so under the Constitution of the United States is a matter of some difficulty, but as it is not before the Court, it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal, I will not say, the only, objects that the framers of the Constitution contemplated as falling within the rule of apportionment were a capitation tax and a tax on land. Local considerations and the particular circumstances and relative situation of the states naturally lead to this view of the subject. The provision was made in favor of the southern states. They possessed a large number of slaves; they had extensive tracts of territory, thinly settled and not very productive. A majority of the states had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The southern states, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other states. Congress in such case might tax slaves at discretion or arbitrarily, and land in every part of the Union after the same rate or measure: so much a head in the first instance, and so much an acre in the second. To guard them against imposition in these particulars was the reason of introducing the clause in the Constitution which directs that representatives and direct taxes shall be apportioned among the states according to their respective numbers. On the part of the plaintiff in error it has been contended that the rule of apportionment is to be favored rather than the rule of uniformity, and of course that the instrument is to receive such a construction as will extend the former and restrict the latter. I am not of that opinion. The Constitution has been considered as an accommodating system; it was the Page 3 U. S. 178 effect of mutual sacrifices and concessions; it was the work of compromise. The rule of apportionment is of this nature; it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented more than any other property? The rule therefore ought not to be extended by construction. Again, numbers do not afford a just estimate or rule of wealth. It is indeed a very uncertain and incompetent sign of opulence. There is another reason against the extension of the principle laid down in the Constitution. The counsel on the part of the plaintiff in error have further urged that an equal participation of the expense or burden by the several states in the Union was the primary object which the framers of the Constitution had in view, and that this object will be effected by the principle of apportionment, which is an operation upon states, and not on individuals, for each state will be debited for the amount of its quota of the tax and credited for its payments. This brings it to the old system of requisitions. An equal rule is doubtless the best. But how is this to be applied to states or to individuals? The latter are the objects of taxation, without reference to states, except in the case of direct taxes. The fiscal power is exerted certainly, equally, and effectually on individuals; it cannot be exerted on states. The history of the United Netherlands and of our own country will evince the truth of this position. The government of the United States could not go on under the confederation, because Congress was obliged to proceed in the line of requisition. Congress could not, under the old confederation, raise money by taxes, be the public exigencies ever so pressing and great. It had no coercive authority -- if it had it must have been exercised against the delinquent states, which would be ineffectual or terminate in a separation. Requisitions were a dead letter unless the state legislatures could be brought into action, and when they were, the sums raised were very disproportional. Unequal contributions or payments engendered discontent and fomented state jealousy. Whenever it shall be thought necessary or expedient to lay a direct tax on land, where the object is one and the same, it is to be apprehended that it will be a fund not much more productive than that of requisition under the former government. Let us put the case. A given sum is to be raised from the landed property in the United States. It is easy to apportion this sum or to assign to each state its quota. The Constitution gives the rule. Suppose the proportion of North Carolina to be $80,000. This sum is to be laid on the landed property in the state, but by what rule, and by whom? Shall every acre pay Page 3 U. S. 179 the same sum, without regard to its quality, value, situation, or productiveness? This would be manifestly unjust. Do the laws of the different states furnish sufficient data for the purpose of forming one common rule, comprehending the quality, situation, and value of the lands? In some of the states there has been no land tax for several years, and where there has been, the mode of laying the tax is so various and the diversity in the land is so great that no common principle can be deduced and carried into practice. Do the laws of each state furnish data from whence to extract a rule whose operation shall be equal and certain in the same state? Even this is doubtful. Besides, subdivisions will be necessary; the apportionment of the state, and perhaps of a particular part of the state, is again to be apportioned among counties, townships, parishes, or districts. If the lands be classed, then a specific value must be annexed to each class. And there a question arises how often are classifications and assessments to be made? Annually, triennially, septennially? The oftener they are made, the greater will be the expense, and the seldomer they are made, the greater will be the inequality and injustice. In the process of the operation, a number of persons will be necessary to class, to value, and assess the land, and after all the guards and provisions that can be devised, we must ultimately rely upon the discretion of the officers in the exercise of their functions. Tribunals of appeal must also be instituted to hear and decide upon unjust valuations or the assessors will act ad libitum without check or control. The work, it is to be feared, will be operose and unproductive and full of inequality, injustice, and oppression. Let us, however, hope that a system of land taxation may be so corrected and matured by practice as to become easy and equal in its operation and productive and beneficial in its effects. But to return. A tax on carriages, if apportioned, would be oppressive and pernicious. How would it work? In some states there are many carriages and in others but few. Shall the whole sum fall on one or two individuals in a state who may happen to own and possess carriages? The thing would be absurd and inequitable. In answer to this objection, it has been observed that the sum, and not the tax, is to be apportioned, and that Congress may select in the different states different articles or objects from whence to raise the apportioned sum. The idea is novel. What, shall land be taxed in one state, slaves in another, carriages in a third, and horses in a fourth, or shall several of these be thrown together in order to levy and make the quoted sum? The scheme is fanciful. It would not work well, and perhaps is utterly impracticable. It is easy to discern that great and perhaps insurmountable obstacles must arise in forming the subordinate Page 3 U. S. 180 arrangements necessary to carry the system into effect; when formed, the operation would be slow and expensive, unequal and unjust. If a tax upon land, where the object is simple and uniform throughout the states, is scarcely practicable, what shall we say of a tax attempted to be apportioned among, and raised and collected from, a number of dissimilar objects. The difficulty will increase with the number and variety of the things proposed for taxation. We shall be obliged to resort to intricate and endless valuations and assessments in which everything will be arbitrary and nothing certain. There will be no rule to walk by. The rule of uniformity, on the contrary, implies certainty, and leaves nothing to the will and pleasure of the assessor. In such case the object and the sum coincide, the rule and the thing unite, and of course there can be no imposition. The truth is that the articles taxed in one state should be taxed in another; in this way the spirit of jealousy is appeased and tranquility preserved; in this way the pressure on industry will be equal in the several states, and the relation between the different subjects of taxation duly preserved. Apportionment is an operation on states, and involves valuations and assessments which are arbitrary and should not be resorted to but in case of necessity. Uniformity is an instant operation on individuals, without the intervention of assessments or any regard to states, and is at once easy, certain, and efficacious. All taxes on expenses or consumption are indirect taxes. A tax on carriages is of this kind, and of course is not a direct tax. Indirect taxes are circuitous modes of reaching the revenue of individuals, who generally live according to their income. In many cases of this nature the individual may be said to tax himself. I shall close the discourse with reading a passage or two from Smith's Wealth of Nations. "The impossibility of taxing people in proportion to their revenue by any capitation seems to have given occasion to the invention of taxes upon consumable commodities; the state, not knowing how to tax directly and proportionally the revenue of its subjects, endeavors to tax it indirectly by taxing their expense, which it is supposed in most cases will be neatly in proportion to their revenue. Their expense is taxed by taxing the consumable commodities upon which it is laid out." Vol. 3, p. 331. "Consumable commodities, whether necessaries or luxuries, may be taxed in two different ways: the consumer may either pay an annual sum on account of his using or consuming goods of a certain kind or the goods may be taxed while they remain in the hands of the dealer, and before they are delivered to the consumer. The consumable goods, which Page 3 U. S. 181 last a considerable time before they are consumed altogether, are most properly taxed in the one way, those of which the consumption is immediate or more speedy in the other; the coach tax and plate tax are examples of the former method of imposing; the greater part of the other duties of excise and customs of the latter." Vol. 3, p. 341. I am therefore of opinion, that the judgment rendered in the Circuit Court of Virginia ought to be affirmed. IREDELL, JUSTICE. I agree in opinion with my brothers, who have already expressed theirs, that the tax in question, is agreeable to the Constitution, and the reasons which have satisfied me can be delivered in a very few words, since I think the Constitution itself affords a clear guide to decide the controversy. The Congress possess the power of taxing all taxable objects, without limitation, with the particular exception of a duty on exports. There are two restrictions only on the exercise of this authority: 1. All direct taxes must be apportioned. 2. All duties, imposts, and excises must be uniform. If the carriage tax be a direct tax within the meaning of the Constitution, it must be apportioned. If it be a duty, impost, or excise within the meaning of the Constitution, it must be uniform. If it can be considered as a tax neither direct within the meaning of the Constitution nor comprehended within the term "duty, impost or excise," there is no provision in the Constitution one way or another, and then it must be left to such an operation of the power as if the authority to lay taxes had been given generally in all instances, without saying whether they should be apportioned or uniform, and in that case I should presume the tax ought to be uniform, because the present Constitution was particularly intended to affect individuals, and not states, except in particular cases specified. And this is the leading distinction between the articles of Confederation and the present Constitution. As all direct taxes must be apportioned, it is evident that the Constitution contemplated none as direct but such as could be apportioned. If this cannot be apportioned, it is therefore not a direct tax in the sense of the Constitution. That this tax cannot be apportioned is evident. Suppose $10 contemplated as a tax on each chariot, or post chaise, in the United States, and the number of both in all the United States be computed at 105, the number of Representatives in Congress. Page 3 U. S. 182 This would produce in the whole $1,050. The share of Virginia being 19/105 parts, would be $190. The share of Connecticut being 7/105 parts, would be $70. Then suppose Virginia had 50 carriages, Connecticut 2. The share of Virginia being $190, this must of course be collected from the owners of carriages, and there would therefore be collected from each carriage $3.80. The share of Connecticut being $70, each carriage would pay $35. If any state had no carriages, there could be no apportionment at all. This mode is too manifestly absurd to be supported, and has not even been attempted in debate. But two expedients have been proposed of a very extraordinary nature, to evade the difficulty. 1. To raise the money a tax on carriages would produce not by laying a tax on each carriage uniformly, but by selecting different articles in different states, so that the amount paid in each state may be equal to the sum due upon a principle of apportionment. One state might pay by a tax on carriages, another by a tax on slaves, etc. I should have thought this merely an exercise of ingenuity if it had not been pressed with some earnestness, and as this was done by gentlemen of high respectability in their possession, it deserves a serious answer, though it is very difficult to give such a one. 1. This is not an apportionment of a tax on Carriages, but of the money a tax on carriages might be supposed to produce, which is quite a different thing. 2. It admits that Congress cannot lay a uniform tax on all carriages in the Union in any mode, but that it may on carriages in one or more states. It may therefore lay a tax on carriages in 14 states, but not in the 15th. 3. If Congress, according to this new decree, may select carriages as a proper object in one or more states but omit them in others, I presume it may omit them in all and select other articles. Suppose, then, a tax on carriages would produce $100,000, and a tax on horses a like sum -- $100,000 -- and $100,000 were to be apportioned according to that mode. Gentlemen might amuse themselves with calling this a tax on carriages or a tax on horses while not a Page 3 U. S. 183 single carriage nor a single horse was taxed throughout the Union. 4. Such an arbitrary method of taxing different states differently is a suggestion altogether new, and would lead, if practiced, to such dangerous consequences that it will require very powerful arguments to show that that method of taxing would be in any manner compatible with the Constitution, with which at present I deem it utterly irreconcilable, it being altogether destructive of the notion of a common interest, upon which the very principles of the Constitution are founded so far as the condition of the United States will admit. The second expedient proposed was that of taxing carriages, among other things, in a general assessment. This amounts to saying that Congress may lay a tax on carriages, but that it may not do it unless it blends it with other subjects of taxation. For this no reason or authority has been given, and in addition to other suggestions offered by the counsel on that side, affords an irrefragable proof that when positions plainly so untenable are offered to counteract the principle contended for by the opposite counsel, the principle itself is a right one; for no one can doubt that if better reasons could have been offered, they would not have escaped the sagacity and learning of the gentlemen who offered them. There is no necessity or propriety in determining what is or is not a direct or indirect tax in all cases. Some difficulties may occur which we do not at present foresee. Perhaps a direct tax in the sense of the Constitution can mean nothing but a tax on something inseparably annexed to the soil -- something capable of apportionment under all such circumstances. A land or a poll tax may be considered of this description. The latter is to be considered so particularly, under the present Constitution, on account of the slaves in the southern states, who give a ratio in the representation in the proportion of 3 to 5. Either of these is capable of apportionment. In regard to other articles there may possibly be considerable doubt. It is sufficient on the present occasion for the Court to be satisfied that this is not a direct tax contemplated by the Constitution in order to affirm the present judgment, since if it cannot be apportioned, it must necessarily be uniform. I am clearly of opinion this is not a direct tax in the sense of the Constitution, and therefore that the judgment ought to be affirmed. WILSON, JUSTICE. As there were only four judges, including myself, who attended the argument of this cause, I Page 3 U. S. 184 should have thought it proper to join in the decision, though I had before expressed a judicial opinion on the subject in the Circuit Court of Virginia, did not the unanimity of the other three judges relieve me from the necessity. I shall now, however, only add that my sentiments in favor of the constitutionality of the tax in question have not been changed. CUSHING, JUSTICE. As I have been prevented by indisposition from attending to the argument, it would be improper to give an opinion on the merits of the cause. By the Court. Let the judgment of the circuit court be affirmed.

The Supreme Court upheld the constitutionality of a tax on carriages for conveying people, kept for the owner's use. The Court ruled that this tax was not a direct tax under the Constitution and did not need to be apportioned among the states.

Search & Seizure

California v. Acevedo

https://supreme.justia.com/cases/federal/us/500/565/

U.S. Supreme Court California v. Acevedo, 500 U.S. 565 (1991) California v. Acevedo No. 89-1690 Argued Jan . 8, 1991 Decided May 30, 1991 500 U.S. 565 CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT Syllabus Police observed respondent Acevedo leave an apartment, known to contain marijuana, with a brown paper bag the size of marijuana packages they had seen earlier. He placed the bag in his car's trunk, and, as he drove away, they stopped the car, opened the trunk and the bag, and found marijuana. Acevedo's motion to suppress the marijuana was denied, and he pleaded guilty to possession of marijuana for sale. The California Court of Appeal held that the marijuana should have been suppressed. Finding that the officers had probable cause to believe that the bag contained drugs but lacked probable cause to suspect that the car, itself, otherwise contained contraband, the court concluded that the case was controlled by United States v. Chadwick, 433 U. S. 1 , which held that police could seize movable luggage or other closed containers, but could not open them without a warrant, since, inter alia, a person has a heightened privacy expectation in such containers. Held: Police, in a search extending only to a container within an automobile, may search the container without a warrant where they have probable cause to believe that it holds contraband or evidence. Carroll v. United States, 267 U. S. 132 -- which held that a warrantless search of an automobile based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the vehicle's likely disappearance did not contravene the Fourth Amendment's Warrant Clause -- provides one rule to govern all automobile searches. Pp. 500 U. S. 569 -581. (a) Separate doctrines have permitted the warrantless search of an automobile to include a search of closed containers found inside the car when there is probable cause to search the vehicle, United States v. Ross, 456 U. S. 798 , but prohibited the warrantless search of a closed container located in a moving vehicle when there is probable cause to search only the container, Arkansas v. Sanders, 442 U. S. 753 . Pp. 500 U. S. 569 -572. (b) The doctrine of stare decisis does not preclude this Court from eliminating the warrant requirement of Sanders, which was specifically undermined in Ross. The Chadwick-Sanders rule affords minimal protection to privacy interests. Police, knowing that they may open a bag only if they are searching the entire car, may search more extensively Page 500 U. S. 566 than they otherwise would in order to establish the probable cause Ross requires. Cf. United States v. Johns, 469 U. S. 478 . And they may seize a container and hold it until they obtain a search warrant or search it without a warrant as a search incident to a lawful arrest. Moreover, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned in Carroll, where prohibition agents slashed a car's upholstery. The Chadwick-Sanders rule also is the antithesis of a clear and unequivocal guideline and, thus, has confused courts and police officers and impeded effective law enforcement. United States v. Place, 462 U. S. 696 ; Oklahoma v. Castleberry, 471 U. S. 146 , distinguished. Pp. 500 U. S. 572 -579. (c) This holding neither extends the Carroll doctrine nor broadens the scope of permissible automobile searches. In the instant case, the probable cause the police had to believe that the bag in the car's trunk contained marijuana now allows a warrantless search of the bag, but the record reveals no probable cause to search the entire vehicle. P. 500 U. S. 579 -580. 216 Cal. App. 3d 586 , 265 Cal. Rptr. 23 , reversed and remanded. BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 500 U. S. 581 . WHITE, J., filed a dissenting opinion, post, p. 500 U. S. 585 . STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 500 U. S. 585 . JUSTICE BLACKMUN delivered the opinion of the Court. This case requires us once again to consider the so-called "automobile exception" to the warrant requirement of the Fourth Amendment and its application to the search of a closed container in the trunk of a car. I On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a telephone call from a federal Page 500 U. S. 567 drug enforcement agent in Hawaii. The agent informed Coleman that he had seized a package containing marijuana which was to have been delivered to the Federal Express Office in Santa Ana and which was addressed to J.R. Daza at 805 West Stevens Avenue in that city. The agent arranged to send the package to Coleman instead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it. Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package into the apartment. At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contained the marijuana into a trash bin. Coleman at that point left the scene to get a search warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carrying a blue knapsack which appeared to be half full. The officers stopped him as he was driving off, searched the knapsack, and found 1 1/2 pounds of marijuana. At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza's apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag, and found marijuana. [ Footnote 1 ] Page 500 U. S. 568 Respondent was charged in state court with possession of marijuana for sale, in violation of Cal.Health & Safety Code Ann. § 11359 (West Supp.1987). App. 2. He moved to suppress the marijuana found in the car. The motion was denied. He then pleaded guilty, but appealed the denial of the suppression motion. The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper bag in the car's trunk should have been suppressed. People v. Acevedo, 216 Cal. App. 3d 586 , 265 Cal. Rptr. 23 (1990). The court concluded that the officers had probable cause to believe that the paper bag contained drugs, but lacked probable cause to suspect that Acevedo's car, itself, otherwise contained contraband. Because the officers' probable cause was directed specifically at the bag, the court held that the case was controlled by United States v. Chadwick, 433 U. S. 1 (1977), rather than by United States v. Ross, 456 U. S. 798 (1982). Although the court agreed that the officers could seize the paper bag, it held that, under Chadwick, they could not open the bag without first obtaining a warrant for that purpose. The court then recognized "the anomalous nature" of the dichotomy between the rule in Chadwick and the rule in Ross. 216 Cal. App. 3d at 592, 265 Cal. Rptr. at 27. That dichotomy dictates that, if there is probable cause to search a car, then the entire car -- including any closed container found therein -- may be searched without a warrant, but if there is probable cause only as to a container in the car, the container may be held, but not searched, until a warrant is obtained. The Supreme Court of California denied the State's petition for review. App. to Pet. for Cert. 33. On May 14, 1990, JUSTICE O'CONNOR stayed enforcement of the Court of Appeal's judgment pending the disposition of the State's petition for certiorari, and, if that petition were granted, the issuance of the mandate of this Court. We granted certiorari, 498 U.S. 807 (1990), to reexamine the law applicable to a closed container in an automobile, a Page 500 U. S. 569 subject that has troubled courts and law enforcement officers since it was first considered in Chadwick. II The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in "a dwelling house or similar place" and the need for a warrant to search for contraband concealed in a movable vessel. See Carroll v. United States, 267 U. S. 132 , 267 U. S. 151 (1925). See also Boyd v. United States, 116 U. S. 616 , 116 U. S. 623 -624 (1886). In Carroll, this Court established an exception to the warrant requirement for moving vehicles, for it recognized "a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 267 U.S. at 267 U. S. 153 . It therefore held that a warrantless search of an automobile based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle did not contravene the Warrant Clause of the Fourth Amendment. See id. at 267 U. S. 158 -159. The Court refined the exigency requirement in Chambers v. Maroney, 399 U. S. 42 (1970), when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. The car search at issue in Page 500 U. S. 570 Chambers took place at the police station, where the vehicle was immobilized, some time after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Court held that the later warrantless search at the station passed constitutional muster. The validity of the later search derived from the ruling in Carroll that an immediate search without a warrant at the moment of seizure would have been permissible. See Chambers, 399 U.S. at 399 U. S. 51 . The Court reasoned in Chambers that the police could search later whenever they could have searched earlier, had they so chosen. Id. at 399 U. S. 51 -52. Following Chambers, if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle. In United States v. Ross, 456 U. S. 798 , decided in 1982, we held that a warrantless search of an automobile under the Carroll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. The warrantless search of Ross' car occurred after an informant told the police that he had seen Ross complete a drug transaction using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered in the trunk a brown paper bag containing drugs. We decided that the search of Ross' car was not unreasonable under the Fourth Amendment: "The scope of a warrantless search based on probable cause is no narrower -- and no broader -- than the scope of a search authorized by a warrant supported by probable cause." Id. at 456 U. S. 823 . Thus, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 456 U. S. 825 . In Ross, therefore, we clarified the scope of the Carroll doctrine as properly including a "probing search" of compartments and containers within the automobile so long as the search is supported by probable cause. Id. at 456 U. S. 800 . Page 500 U. S. 571 In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule that governed the search of closed containers. See 456 U.S. at 456 U. S. 817 . The Court had announced this separate rule, unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick, 433 U. S. 1 (1977). In Chadwick, federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the defendants removed it from a train and carried it through the station to a waiting car. As soon as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the locker, and searched it. In this Court, the United States did not contend that the locker's brief contact with the automobile's trunk sufficed to make the Carroll doctrine applicable. Rather, the United States urged that the search of movable luggage could be considered analogous to the search of an automobile. 433 U.S. at 433 U. S. 11 -12. The Court rejected this argument because, it reasoned, a person expects more privacy in his luggage and personal effects than he does in his automobile. Id. at 433 U. S. 13 . Moreover, it concluded that, as "may often not be the case when automobiles are seized," secure storage facilities are usually available when the police seize luggage. Id. at 433 U. S. 13 , n. 7. In Arkansas v. Sanders, 442 U. S. 753 (1979), the Court extended Chadwick's rule to apply to a suitcase actually being transported in the trunk of a car. In Sanders, the police had probable cause to believe a suitcase contained marijuana. They watched as the defendant placed the suitcase in the trunk of a taxi and was driven away. The police pursued the taxi for several blocks, stopped it, found the suitcase in the trunk, and searched it. Although the Court had applied the Carroll doctrine to searches of integral parts of the automobile itself, (indeed, in Carroll, contraband whiskey was in the upholstery of the seats, see 267 U.S. at 267 U. S. 136 ), it did not extend the doctrine to the warrantless search of personal luggage Page 500 U. S. 572 "merely because it was located in an automobile lawfully stopped by the police." 442 U.S. at 442 U. S. 765 . Again, the Sanders majority stressed the heightened privacy expectation in personal luggage, and concluded that the presence of luggage in an automobile did not diminish the owner's expectation of privacy in his personal items. Id. at 442 U. S. 764 -765. Cf. California v. Carney, 471 U. S. 386 (1985). In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross automobile search, and Chadwick, which governed the Sanders automobile search. It held that the Carroll doctrine covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the officers had probable cause to search only a container within the vehicle. Thus, in a Ross situation, the police could conduct a reasonable search under the Fourth Amendment without obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before they searched. JUSTICE STEVENS is correct, of course, that Ross involved the scope of an automobile search. See post at 500 U. S. 592 . Ross held that closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception could also be searched. Thus, this Court in Ross took the critical step of saying that closed containers in cars could be searched without a warrant because of their presence within the automobile. Despite the protection that Sanders purported to extend to closed containers, the privacy interest in those closed containers yielded to the broad scope of an automobile search. III The facts in this case closely resemble the facts in Ross. In Ross, the police had probable cause to believe that drugs were stored in the trunk of a particular car. See 456 U.S. at 456 U. S. 800 . Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was Page 500 U. S. 573 carrying marijuana in a bag in his car's trunk. [ Footnote 2 ] 216 Cal. App. 3d at 590, 265 Cal. Rptr. at 25. Furthermore, for what it is worth, in Ross, as here, the drugs in the trunk were contained in a brown paper bag. This Court in Ross rejected Chadwick's distinction between containers and cars. It concluded that the expectation of privacy in one's vehicle is equal to one's expectation of privacy in the container, and noted that "the privacy interests in a car's trunk or glove compartment may be no less than those in a movable container." 456 U.S. at 456 U. S. 823 . It also recognized that it was arguable that the same exigent circumstances that permit a warrantless search of an automobile would justify the warrantless search of a movable container. Id. at 456 U. S. 809 . In deference to the rule of Chadwick and Sanders, however, the Court put that question to one side. Id. at 456 U. S. 809 -810. It concluded that the time and expense of the warrant process would be misdirected if the police could search every cubic inch of an automobile until they discovered a paper sack, at which point the Fourth Amendment required them to take the sack to a magistrate for permission to look inside. We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not. IV Dissenters in Ross asked why the suitcase in Sanders was "more private, less difficult for police to seize and store, or in Page 500 U. S. 574 any other relevant respect more properly subject to the warrant requirement, than a container that police discover in a probable cause search of an entire automobile?" Id. 456 U.S. at 456 U. S. 839 -840. We now agree that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy, and have impeded effective law enforcement. The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. We noted this in Ross in the context of a search of an entire vehicle. Recognizing that, under Carroll, the "entire vehicle itself . . . could be searched without a warrant," we concluded that "prohibiting police from opening immediately a container in which the object of the search is most likely to be found, and instead forcing them first to comb the entire vehicle, would actually exacerbate the intrusion on privacy interests." 456 U.S. at 456 U. S. 821 , n. 28. At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively Page 500 U. S. 575 than they otherwise would in order to establish the general probable cause required by Ross. Such a situation is not far-fetched. In United States v. Johns, 469 U. S. 478 (1985), customs agents saw two trucks drive to a private airstrip and approach two small planes. The agents drew near the trucks, smelled marijuana, and then saw in the backs of the trucks packages wrapped in a manner that marijuana smugglers customarily employed. The agents took the trucks to headquarters and searched the packages without a warrant. Id. at 469 U. S. 481 . Relying on Chadwick, the defendants argued that the search was unlawful. Id. at 469 U. S. 482 . The defendants contended that Ross was inapplicable because the agents lacked probable cause to search anything but the packages themselves, and supported this contention by noting that a search of the entire vehicle never occurred. Id. at 469 U. S. 483 . We rejected that argument, and found Chadwick and Sanders inapposite because the agents had probable cause to search the entire body of each truck, although they had chosen not to do so. Id. at 469 U. S. 482 -483. We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law enforcement officers may seize a container and hold it until they obtain a search warrant. Chadwick, 433 U.S. at 433 U. S. 13 . "Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases." Sanders, 442 U.S. at 442 U. S. 770 (dissenting opinion). And the police often will be able to search containers without a warrant, despite the Chadwick-Sanders rule, as a search incident to a lawful arrest. In New York v. Belton, 453 U. S. 454 (1981), the Court said: Page 500 U. S. 576 "[W]e hold that, when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." "It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment." Id. at 453 U. S. 460 (footnote omitted). Under Belton, the same probable cause to believe that a container holds drugs will allow the police to arrest the person transporting the container and search it. Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude that looking inside a closed container is. In light of the minimal protection to privacy afforded by the Chadwick-Sanders rule, and our serious doubt whether that rule substantially serves privacy interests, we now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle. V The Chadwick-Sanders rule not only has failed to protect privacy, but it has also confused courts and police officers and impeded effective law enforcement. The conflict between the Carroll doctrine cases and the Chadwick-Sanders line has been criticized in academic commentary. See, e.g., Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations in a Post- Ross World, 62 Neb.L.Rev. 1 (1983); Latzer, Searching Cars and Their Contents, 18 Crim.L.Bull. 381 (1982); Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, Page 500 U. S. 577 in 3 The Supreme Court: Trends and Developments 1980-1981, p. 69 (1982). One leading authority on the Fourth Amendment, after comparing Chadwick and Sanders with Carroll and its progeny, observed: "These two lines of authority cannot be completely reconciled, and thus how one comes out in the container-in-the-car situation depends upon which line of authority is used as a point of departure." 3 W. LaFave, Search & Seizure 53 (2d ed.1987). The discrepancy between the two rules has led to confusion for law enforcement officers. For example, when an officer, who has developed probable cause to believe that a vehicle contains drugs, begins to search the vehicle and immediately discovers a closed container, which rule applies? The defendant will argue that the fact that the officer first chose to search the container indicates that his probable cause extended only to the container and that Chadwick and Sanders therefore require a warrant. On the other hand, the fact that the officer first chose to search in the most obvious location should not restrict the propriety of the search. The Chadwick rule, as applied in Sanders, has devolved into an anomaly such that the more likely the police are to discover drugs in a container, the less authority they have to search it. We have noted the virtue of providing " "clear and unequivocal" guidelines to the law enforcement profession.'" Minnick v. Mississippi, 498 U. S. 146 , 498 U. S. 151 (1990) quoting Arizona v. Roberson, 486 U. S. 675 , 486 U. S. 682 (1988). The Chadwick-Sanders rule is the antithesis of a "`clear and unequivocal' guideline." JUSTICE STEVENS argues that the decisions of this Court evince a lack of confusion about the automobile exception. See post at 500 U. S. 594 . The first case cited by the dissent, United States v. Place, 462 U. S. 696 (1983), however, did not involve an automobile at all. We considered in Place the temporary detention of luggage in an airport. Not only was no automobile involved, but the defendant, Place, was waiting Page 500 U. S. 578 at the airport to board his plane, rather than preparing to leave the airport in a car. Any similarity to Sanders, in which the defendant was leaving the airport in a car, is remote, at best. Place had nothing to do with the automobile exception, and is inapposite. Nor does JUSTICE STEVENS's citation to Oklahoma v. Castleberry, 471 U. S. 146 (1985), support its contention. Castleberry presented the same question about the application of the automobile exception to the search of a closed container that we face here. In Castleberry, we affirmed by an equally divided court. That result illustrates this Court's continued struggle with the scope of the automobile exception, rather than the absence of confusion in applying it. JUSTICE STEVENS also argues that law enforcement has not been impeded because the Court has decided 29 Fourth Amendment cases since Ross in favor of the government. See post at 500 U. S. 600 . In each of these cases, the government appeared as the petitioner. The dissent fails to explain how the loss of 29 cases below, not to mention the many others which this Court did not hear, did not interfere with law enforcement. The fact that the state courts and the federal courts of appeals have been reversed in their Fourth Amendment holdings 29 times since 1982 further demonstrates the extent to which our Fourth Amendment jurisprudence has confused the courts. Most important, with the exception of Johns, supra, and Texas v. Brown, 460 U. S. 730 (1983), the Fourth Amendment cases cited by the dissent do not concern automobiles or the automobile exception . From Carroll through Ross, this Court has explained that automobile searches differ from other searches. The dissent fails to acknowledge this basic principle, and so misconstrues and misapplies our Fourth Amendment case law. The Chadwick dissenters predicted that the container rule would have "the perverse result of allowing fortuitous circumstances to control the outcome" of various searches. 433 Page 500 U. S. 579 U.S. at 433 U. S. 22 . The rule also was so confusing that, within two years after Chadwick, this Court found it necessary to expound on the meaning of that decision and explain its application to luggage in general. Sanders, 442 U.S. at 442 U. S. 761 -764. Again, dissenters bemoaned the "inherent opaqueness" of the difference between the Carroll and Chadwick principles, and noted "the confusion to be created for all concerned." Id. at 442 U. S. 771 . See also Robbins v. California, 453 U. S. 420 , 453 U. S. 425 -426 (1981) (listing cases decided by Federal Courts of Appeals since Chadwick had been announced). Three years after Sanders, we returned in Ross to "this troubled area," 456 U.S. at 456 U. S. 817 , in order to assert that Sanders had not cut back on Carroll. Although we have recognized firmly that the doctrine of stare decisis serves profoundly important purposes in our legal system, this Court has overruled a prior case on the comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous results. See, e.g., Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 , 430 U. S. 288 -289 (1977). Sanders was explicitly undermined in Ross, 456 U.S. at 456 U. S. 824 , and the existence of the dual regimes for automobile searches that uncover containers has proved as confusing as the Chadwick and Sanders dissenters predicted. We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders. VI The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. The Court in Ross put it this way: "The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object Page 500 U. S. 580 of the search and the places in which there is probable cause to believe that it may be found." 456 U.S. at 456 U. S. 824 . It went on to note: "Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab." Ibid. We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile's trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. Our holding today neither extends the Carroll doctrine nor broadens the scope of the permissible automobile search delineated in Carroll, Chambers, and Ross. It remains a "cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 390 (1978), quoting Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967) (footnote omitted). We held in Ross: "The exception recognized in Carroll is unquestionably one that is specifically established and well delineated.'" 456 U.S. at 456 U. S. 825 . Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. Page 500 U. S. 581 The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] When Officer Coleman returned with a warrant, the apartment was searched and bags of marijuana were found there. We are here concerned, of course, only with what was discovered in the automobile. [ Footnote 2 ] Although respondent now challenges this holding, we decline to second-guess the California courts, which have found probable cause. Respondent did not raise the probable cause question in his Brief in Opposition, nor did he cross-petition for resolution of the issue. He also did not raise the point in a cross-petition to the Supreme Court of California. We therefore do not consider the issue here. See Lytle v. Household Mfg., Inc., 494 U. S. 545 , 494 U. S. 551 , n. 3 (1990); Heckler v. Campbell, 461 U. S. 458 , 461 U. S. 468 -469, n. 12 (1983). JUSTICE SCALIA, concurring in the judgment. I agree with the dissent that it is anomalous for a briefcase to be protected by the "general requirement" of a prior warrant when it is being carried along the street, but for that same briefcase to become unprotected as soon as it is carried into an automobile. On the other hand, I agree with the Court that it would be anomalous for a locked compartment in an automobile to be unprotected by the "general requirement" of a prior warrant, but for an unlocked briefcase within the automobile to be protected. I join in the judgment of the Court because I think its holding is more faithful to the text and tradition of the Fourth Amendment, and if these anomalies in our jurisprudence are ever to be eliminated, that is the direction in which we should travel. The Fourth Amendment does not, by its terms, require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are "unreasonable." What it explicitly states regarding warrants is by way of limitation upon their issuance, rather than requirement of their use. See Wakely v. Hart, 6 Binney 316, 318 (Pa.1814). For the warrant was a means of insulating officials from personal liability assessed by colonial juries. An officer who searched or seized without a warrant did so at his own risk; he would be liable for trespass, including exemplary damages, unless the jury found that his action was "reasonable." Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1178-1180 (1991); Huckle v. Money, 95 Eng.Rep. 768 (K.B.1763). If, however, the officer acted pursuant to a proper warrant, he would be absolutely immune. See Bell v. Clapp, 10 Johns. 263 (N.Y.1813); 4 W. Blackstone, Commentaries 288 (1769). By restricting the issuance of warrants, Page 500 U. S. 582 the Framers endeavored to preserve the jury's role in regulating searches and seizures. Amar, supra; Posner, Rethinking the Fourth Amendment, 1981 S.Ct.Rev. 49, 7273; see also T. Taylor, Two Studies in Constitutional Interpretation 41 (1969). Although the Fourth Amendment does not explicitly impose the requirement of a warrant, it is, of course, textually possible to consider that implicit within the requirement of reasonableness. For some years after the (still continuing) explosion in Fourth Amendment litigation that followed our announcement of the exclusionary rule in Weeks v. United States, 232 U. S. 383 (1914), our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone. (The opinions preferring a warrant involved searches of structures.) Compare Harris v. United States, 331 U. S. 145 (1947) with Johnson v. United States, 333 U. S. 10 (1948); compare Trupiano v. United States, 334 U. S. 699 (1948) with United States v. Rabinowitz, 339 U. S. 56 (1950). See generally Chimel v. California, 395 U. S. 752 (1969). By the late 1960's, the preference for a warrant had won out, at least rhetorically. See Chimel; Coolidge v. New Hampshire, 403 U. S. 443 (1971). The victory was illusory. Even before today's decision, the "warrant requirement" had become so riddled with exceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including "searches incident to arrest . . . automobile searches . . . border searches . . . administrative searches of regulated businesses . . . exigent circumstances . . . search[es] incident to nonarrest when there is probable cause to arrest . . . boat boarding for document checks . . . welfare searches . . . inventory searches . . . airport searches . . . school search[es]. . . ." Bradley, Two Models of the Fourth Amendment, 83 Mich.L.Rev. 1468, 1473-1474 (1985) (footnotes omitted). Since then, we have added at least two more. California v. Carney , 471 Page 500 U. S. 583 U.S. 386 (1985) (searches of mobile homes); O'Connor v. Ortega, 480 U. S. 709 (1987) (searches of offices of government employees). Our intricate body of law regarding "reasonable expectation of privacy" has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth Amendment "search," and therefore not subject to the general warrant requirement. Cf. id. at 480 U. S. 729 (SCALIA, J., concurring in judgment). Unlike the dissent, therefore, I do not regard today's holding as some momentous departure, but rather as merely the continuation of an inconsistent jurisprudence that has been with us for years. Cases like United States v. Chadwick, 433 U. S. 1 (1977), and Arkansas v. Sanders, 442 U. S. 753 (1979), have taken the "preference for a warrant" seriously, while cases like United States v. Ross, 456 U. S. 798 (1982) and Carroll v. United States, 267 U. S. 132 (1925), have not . There can be no clarity in this area unless we make up our minds, and unless the principles we express comport with the actions we take. In my view, the path out of this confusion should be sought by returning to the first principle that the "reasonableness" requirement of the Fourth Amendment affords the protection that the common law afforded. See County of Riverside v. McLaughlin, ante at 500 U. S. 60 (1991) (SCALIA, J., dissenting); People v. Chiagles, 237 N.Y. 193, 195, 142 N.E. 583 (1923) (Cardozo, J.). Cf. California v. Hodari D., 499 U. S. 621 (1991). I have no difficulty with the proposition that that includes the requirement of a warrant, where the common law required a warrant; and it may even be that changes in the surrounding legal rules (for example, elimination of the common law rule that reasonable, good faith belief was no defense to absolute liability for trespass, Little v. Barreme , 2 Cranch 170 (1804) (Marshall, C.J.); see generally Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1486-1487 (1987)), may make a warrant indispensable to reasonableness where it once was not. But the supposed "general Page 500 U. S. 584 rule" that a warrant is always required does not appear to have any basis in the common law, see, e.g., Carroll, supra, 267 U.S. at 267 U. S. 150 -153; Gelston v. Hoyt , 3 Wheat. 246, 16 U. S. 310 -311 (1818) (Story, J.); Wakely, supra, and confuses, rather than facilitates, any attempt to develop rules of reasonableness in light of changed legal circumstances, as the anomaly eliminated and the anomaly created by today's holding both demonstrate. And there are more anomalies still. Under our precedents (as at common law), a person may be arrested outside the home on the basis of probable cause, without an arrest warrant. United States v. Watson, 423 U. S. 411 , 423 U. S. 418 -421 (1976); Rohan v. Sawin, 59 Mass. 281 (1851). Upon arrest, the person, as well as the area within his grasp, may be searched for evidence related to the crime. Chimel v. California, 395 U. S. 752 , 395 U. S. 762 -763 (1969); People v. Chiagles, supra, (collecting authority). Under these principles, if a known drug dealer is carrying a briefcase reasonably believed to contain marijuana (the unauthorized possession of which is a crime), the police may arrest him and search his person on the basis of probable cause alone. And, under our precedents, upon arrival at the station house, the police may inventory his possessions, including the briefcase, even if there is no reason to suspect that they contain contraband. Illinois v. Lafayette, 462 U. S. 640 (1983). According to our current law, however, the police may not, on the basis of the same probable cause, take the less intrusive step of stopping the individual on the street and demanding to see the contents of his briefcase. That makes no sense a priori, and, in the absence of any common law tradition supporting such a distinction, I see no reason to continue it. * * * * I would reverse the judgment in the present case, not because a closed container carried inside a car becomes subject to the "automobile" exception to the general warrant requirement, Page 500 U. S. 585 but because the search of a closed container, outside a privately owned building, with probable cause to believe that the container contains contraband, and when it in fact does contain contraband, is not one of those searches whose Fourth Amendment reasonableness depends upon a warrant. For that reason I concur in the judgment of the Court. JUSTICE WHITE, dissenting. Agreeing as I do with most of JUSTICE STEVENS' opinion and with the result he reaches, I dissent and would affirm the judgment below. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting. At the end of its opinion, the Court pays lip service to the proposition that should provide the basis for a correct analysis of the legal question presented by this case: It is ""a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 390 (1978), quoting Katz v. United States, 389 U. S. 347 , 389 U. S. 357 (1967) (footnote omitted)." Ante at 500 U. S. 580 . Relying on arguments that conservative judges have repeatedly rejected in past cases, the Court today -- despite its disclaimer to the contrary, ibid. -- enlarges the scope of the automobile exception to this "cardinal principle," which undergirded our Fourth Amendment jurisprudence prior to the retirement of the author of the landmark opinion in United States v. Chadwick, 433 U. S. 1 (1977). As a preface to my response to the Court's arguments, it is appropriate to restate the basis for the warrant requirement, the significance of the Chadwick case, and the reasons why the limitations on the automobile exception that were articulated in United States v. Ross, 456 U. S. 798 (1982), represent a fair accommodation Page 500 U. S. 586 between the basic rule requiring prior judicial approval of searches and the automobile exception. I The Fourth Amendment is a restraint on Executive power. The Amendment constitutes the Framers' direct constitutional response to the unreasonable law enforcement practices employed by agents of the British Crown. See Weeks v. United States, 232 U. S. 383 , 232 U. S. 389 -391 (1914); Boyd v. United States, 116 U. S. 616 , 116 U. S. 624 -625 (1886); 1 W. LaFave, Search and Seizure 3-5 (2d ed.1987). Over the years -- particularly in the period immediately after World War II and particularly in opinions authored by Justice Jackson after his service as a special prosecutor at the Nuremburg trials -- the Court has recognized the importance of this restraint as a bulwark against police practices that prevail in totalitarian regimes. See, e.g., United States v. Di Re, 332 U. S. 581 , 332 U. S. 595 (1948); Johnson v. United States, 333 U. S. 10 , 333 U. S. 17 (1948). This history is, however, only part of the explanation for the warrant requirement. The requirement also reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual's personal effects should be made by a neutral magistrate, rather than an agent of the Executive. In his opinion for the Court in Johnson v. United States, id. at 333 U. S. 13 -14, Justice Jackson explained: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Our decisions have always acknowledged that the warrant requirement imposes a burden on law enforcement. And our Page 500 U. S. 587 cases have not questioned that trained professionals normally make reliable assessments of the existence of probable cause to conduct a search. We have repeatedly held, however, that these factors are outweighed by the individual interest in privacy that is protected by advance judicial approval. The Fourth Amendment dictates that the privacy interest is paramount, no matter how marginal the risk of error might be if the legality of warrantless searches were judged only after the fact. In the concluding paragraph of his opinion in Chadwick, Chief Justice Burger made the point this way: "Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of [their luggage] were invaded." 433 U.S. at 433 U. S. 15 -16. In Chadwick, the Department of Justice had mounted a frontal attack on the warrant requirement. The Government's principal contention was that "the Fourth Amendment Warrant Clause protects only interests traditionally identified with the home." Id. at 433 U. S. 6 . We categorically rejected that contention, relying on the history and text of the amendment, [ Footnote 2/1 ] the policy underlying the warrant requirement, [ Footnote 2/2 ] Page 500 U. S. 588 and a line of cases spanning over a century of our jurisprudence. [ Footnote 2/3 ] We also rejected the Government's alternative argument that the rationale of our automobile search cases demonstrated the reasonableness of permitting warrantless searches of luggage. We concluded that neither of the justifications for the automobile exception could support a similar exception for luggage. We first held that the privacy interest in luggage is "substantially greater than in an automobile." Id. at 433 U. S. 13 . Unlike automobiles and their contents, we reasoned, "[l]uggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis." Ibid. Indeed, luggage is specifically intended to safeguard the privacy of personal effects, unlike an automobile, "whose primary function is transportation." Ibid. We then held that the mobility of luggage did not justify creating an additional exception to the Warrant Clause. Unlike an automobile, luggage can easily be seized and detained pending judicial approval of a search. Once the police have Page 500 U. S. 589 luggage "under their exclusive control, there [i]s not the slightest danger that the [luggage] or its contents could [be] removed before a valid search warrant could be obtained. . . . With the [luggage] safely immobilized, it [i]s unreasonable to undertake the additional and greater intrusion of a search without a warrant." (Footnote omitted.) Ibid. Two Terms after Chadwick, we decided a case in which the relevant facts were identical to those before the Court today. In Arkansas v. Sanders, 442 U. S. 753 (1979), the police had probable cause to search a green suitcase that had been placed in the trunk of a taxicab at the Little Rock Airport. Several blocks from the airport, they stopped the cab, arrested the passengers, seized the suitcase and, without obtaining a warrant, opened and searched it. The Arkansas Supreme Court held that the search was unconstitutional. Relying on Chadwick, the state court had no difficulty in concluding that there was "nothing in this set of circumstances that would lend credence to an assertion of impracticability in obtaining a search warrant." Sanders v. State, 262 Ark. 595, 600, 559 S.W.2d 704 , 706 (1977). Over the dissent of JUSTICE BLACKMUN and then-JUSTICE REHNQUIST, both of whom had also dissented in Chadwick, this Court affirmed. In his opinion for the Court, Justice Powell noted that the seizure of the green suitcase was entirely proper, [ Footnote 2/4 ] but that the State nevertheless had the burden of justifying the warrantless search, [ Footnote 2/5 ] and that it had "failed to Page 500 U. S. 590 carry its burden of demonstrating the need for warrantless searches of luggage properly taken from automobiles." 442 U.S. at 442 U. S. 763 . Chief Justice Burger wrote separately to identify the distinction between cases in which police have probable cause to believe contraband is located somewhere in a vehicle -- the typical automobile exception case -- and cases, like Chadwick and Sanders, in which they had probable cause to search a particular container before it was placed in the car. He wrote: "Because the police officers had probable cause to believe that respondent's green suitcase contained marihuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 U. S. 1 (1977). The essence of our holding in Chadwick is that there is a legitimate expectation of privacy in the contents of a trunk or suitcase accompanying or being carried by a person; that expectation of privacy is not diminished simply because the owner's arrest occurs in a public place. Whether arrested in a hotel lobby, an airport, a railroad terminal, or on a public street, as here, the owner has the right to expect that the contents of his luggage will not, without his consent, be exposed on demand of the police. . . ." "The breadth of the Court's opinion and its repeated references to the 'automobile' from which respondent's suitcase was seized at the time of his arrest, however, might lead the reader to believe -- as the dissenters apparently do -- that this case involves the 'automobile' exception to the warrant requirement. See ante [442 U.S.] at 442 U. S. 762 -765, and n. 14. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at Page 500 U. S. 591 the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband." 442 U.S. at 442 U. S. 766 -767 (Burger, C.J., concurring in judgment). Chief Justice Burger thus carefully explained that Sanders, which the Court overrules today, "simply d[id] not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car's structure." Id. at 442 U. S. 767 . We confronted that question in United States v. Ross, 456 U. S. 798 (1982). [ Footnote 2/6 ] We held in Ross that "the scope of the warrantless search authorized by [the automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant." See id. at 456 U. S. 825 . The inherent mobility of the vehicle justified the immediate search without a warrant, but did not affect the scope of the search. See id. at 456 U. S. 822 . Thus, the search could encompass containers, which might or might not conceal the object of the search, as well as the remainder of the vehicle. See id. at 456 U. S. 821 . Our conclusion was supported not only by prior cases defining the proper scope of searches authorized by warrant, as well as cases involving the automobile exception, but also by practical considerations that apply to searches in which the police have only generalized probable cause to believe that contraband is somewhere in a vehicle. We explained that, in such instances, "prohibiting police from opening immediately a container in which the object of the search is most likely to be found, and instead forcing them first to comb the entire vehicle, would actually exacerbate the intrusion on privacy interests. " Page 500 U. S. 592 Id. at 456 U. S. 821 , n. 28. Indeed, because "the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle," the most likely result would be that "the vehicle would need to be secured while a warrant was obtained." Ibid. These concerns that justified our holding in Ross are not implicated in cases like Chadwick and Sanders in which the police have probable cause to search a particular container, rather than the entire vehicle. Because the police can seize the container which is the object of their search, they have no need either to search or to seize the entire vehicle. Indeed, as even the Court today recognizes, they have no authority to do so. See 456 U.S. at 456 U. S. 824 ; ante at 500 U. S. 580 . In reaching our conclusion in Ross, we therefore did not retreat at all from the holding in either Chadwick or Sanders. Instead, we expressly endorsed the reasoning in Chief Justice Burger's separate opinion in Sanders. 456 U.S. at 456 U. S. 813 -814. [ Footnote 2/7 ] We explained repeatedly that Ross involved the scope of the warrantless search authorized by the automobile exception, id. at 456 U. S. 800 , 456 U. S. 809 , 456 U. S. 817 , 456 U. S. 825 , and, unlike Chadwick and Sanders, did not involve the applicability of the exception to closed containers. 456 U.S. at 456 U. S. 809 -817. Thus, we recognized in Ross that Chadwick and Sanders had not created a special rule for container searches, but Page 500 U. S. 593 rather had merely applied the cardinal principle that warrantless searches are per se unreasonable unless justified by an exception to the general rule. See 456 U.S. at 456 U. S. 811 -812. [ Footnote 2/8 ] Ross dealt with the scope of the automobile exception; Chadwick and Sanders were cases in which the exception simply did not apply. II In its opinion today, the Court recognizes that the police did not have probable cause to search respondent's vehicle, and that a search of anything but the paper bag that respondent had carried from Daza's apartment and placed in the trunk of his car would have been unconstitutional. Ante at 500 U. S. 580 . Moreover, as I read the opinion, the Court assumes that the police could not have made a warrantless inspection of the bag before it was placed in the car. See ibid. Finally, the Court also does not question the fact that, under our prior cases, it would have been lawful for the police to seize the container and detain it (and respondent) until they obtained a search warrant. Ante at 500 U. S. 575 . Thus, all of the relevant facts that governed our decisions in Chadwick and Sanders are present here, whereas the relevant fact that justified the vehicle search in Ross is not present. The Court does not attempt to identify any exigent circumstances that would justify its refusal to apply the general rule against warrantless searches. Instead, it advances these three arguments: First, the rules identified in the foregoing cases are confusing and anomalous. Ante at 500 U. S. 576 -579. Second, the rules do not protect any significant interest in privacy. Ante at 500 U. S. 573 -576. And third, the rules impede effective Page 500 U. S. 594 law enforcement. Ante at 500 U. S. 576 -577. None of these arguments withstands scrutiny. The "Confusion" In the nine years since Ross was decided, the Court has considered three cases in which the police had probable cause to search a particular container, and one in which they had probable cause to search two vehicles. The decisions in all four of those cases were perfectly straightforward and provide no evidence of confusion in the state or lower federal courts. In United States v. Place, 462 U. S. 696 (1983), we held that, although reasonable suspicion justifies the temporary detention of an airline passenger's luggage, the seizure in that particular case was unreasonable because of the prolonged delay in ascertaining the existence of probable cause. In the course of our opinion, we noted that the then-recent decision in Ross had not modified the holding in Sanders. 462 U.S. at 462 U. S. 701 , n. 3. We also relied on Chadwick for our conclusion that the temporary seizure of luggage is substantially less intrusive than a search of its contents. 462 U.S. at 462 U. S. 706 -707. In Oklahoma v. Castleberry, 471 U. S. 146 (1985), police officers had probable cause to believe the defendant carried narcotics in blue suitcases in the trunk of his car. After arresting him, they opened the trunk, seized the suitcases, and searched them without a warrant. The state court held that the search was invalid, explaining: "If the officer has probable cause to believe there is contraband somewhere in the car, but he does not know exactly where, he may search the entire car, as well as any containers found therein. See United States v. Ross, 456 U. S. 798 (1982); Chambers v. Maroney, 399 U. S. 42 (1970); Carroll v. United States, 267 U. S. 132 (1925). If, on the other hand, the officer only has probable cause to believe there is contraband in a Page 500 U. S. 595 specific container in the car, he must detain the container and delay his search until a search warrant is obtained. See United States v. Ross, 456 U. S. 798 (1982); Arkansas v. Sanders, 442 U. S. 753 (1979); United States v. Chadwick, 433 U. S. 1 (1977)." Castleberry v. State, 678 P.2d 720 , 724 (Okla.1984). This Court affirmed by an equally-divided court. 471 U. S. 146 (1985). In the case the Court decides today, the California Court of Appeal also had no difficulty applying the critical distinction. Relying on Chadwick, it explained that "the officers had probable cause to believe marijuana would be found only in a brown lunch bag and nowhere else in the car. We are compelled to hold they should have obtained a search warrant before opening it." 216 Cal. App. 3d 586 , 592, 265 Cal. Rptr. 23 , 27 (1990). In the case in which the police had probable cause to search two vehicles, United States v. Johns, 469 U. S. 478 (1985), [ Footnote 2/9 ] we rejected the respondent's reliance on Chadwick with a straightforward explanation of why that case, unlike Ross, did not involve an exception to the warrant requirement. We first expressed our agreement with the Court of Appeals that the Customs officers who had conducted the search had Page 500 U. S. 596 probable cause to search the vehicles. Id. at 469 U. S. 482 . We then explained: "Under the circumstances of this case, respondents' reliance on Chadwick is misplaced. . . . Chadwick . . . did not involve the exception to the warrant requirement recognized in Carroll v. United States, supra, because the police had no probable cause to believe that the automobile, as contrasted to the footlocker, contained contraband. See 433 U.S. at 433 U. S. 11 -12. This point is underscored by our decision in Ross, which held that, notwithstanding Chadwick, police officers may conduct a warrantless search of containers discovered in the course of a lawful vehicle search. See 456 U.S. at 456 U. S. 810 -814. Given our conclusion that the Customs officers had probable cause to believe that the pickup trucks contained contraband, Chadwick is simply inapposite. See 456 U.S. at 456 U. S. 817 ." 469 U.S. at 469 U. S. 482 -483. The decided cases thus provide no support for the Court's concern about "confusion." The Court instead relies primarily on predictions that were made by JUSTICE BLACKMUN in his dissenting opinions in Chadwick and Sanders. [ Footnote 2/10 ] The Court, however, cites no evidence that these predictions have, in fact, materialized, or that anyone else has been unable to understand the "inherent opaqueness," ante at 500 U. S. 579 , of this uncomplicated issue. The only support offered by the Court, other than the unsubstantiated allegations of prior dissents, is three law review comments and a sentence from Professor LaFave's treatise. None of the law review pieces Page 500 U. S. 597 criticizes the holdings in Chadwick and Sanders. [ Footnote 2/11 ] The sentence from Professor LaFave's treatise, at most, indicates that, as is often the case, there may be some factual situations at the margin of the relevant rules that are difficult to decide. Moreover, to the extent Professor LaFave criticizes our jurisprudence in this area, he is critical of Ross, rather than Chadwick or Sanders. And he ultimately concludes that even Ross was correctly decided. See 3 W. LaFave, Search and Seizure 55-56 (2d ed.1987). The Court summarizes the alleged "anomaly" created by the coexistence of Ross, Chadwick, and Sanders with the statement that "the more likely the police are to discover drugs in a container, the less authority they have to search it." Ante at 500 U. S. 577 . This juxtaposition is only anomalous, however, if one accepts the flawed premise that the degree to which the police are likely to discover contraband is correlated with their authority to search without a warrant. Yet even proof beyond a reasonable doubt will not justify a warrantless search that is not supported by one of the exceptions to the warrant requirement. And, even when the police have a warrant or an exception applies, once the police possess probable cause, the extent to which they are more or less certain of the contents of a container has no bearing on their authority to search it. Page 500 U. S. 598 To the extent there was any "anomaly" in our prior jurisprudence, the Court has "cured" it at the expense of creating a more serious paradox. For surely it is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street, yet to permit a search once the owner has placed the briefcase in the locked trunk of his car. One's privacy interest in one's luggage can certainly not be diminished by one's removing it from a public thoroughfare and placing it -- out of sight -- in a privately owned vehicle. Nor is the danger that evidence will escape increased if the luggage is in a car, rather than on the street. In either location, if the police have probable cause, they are authorized to seize the luggage and to detain it until they obtain judicial approval for a search. Any line demarking an exception to the warrant requirement will appear blurred at the edges, but the Court has certainly erred if it believes that, by erasing one line and drawing another, it has drawn a clearer boundary. The Privacy Argument The Court's statement that Chadwick and Sanders provide only "minimal protection to privacy," ante at 500 U. S. 576 , is also unpersuasive. Every citizen clearly has an interest in the privacy of the contents of his or her luggage, briefcase, handbag or any other container that conceals private papers and effects from public scrutiny. That privacy interest has been recognized repeatedly in cases spanning more than a century. See, e.g., Chadwick, 433 U.S. at 433 U. S. 6 -11; United States v. Van Leeuwen, 397 U. S. 249 , 397 U. S. 251 (1970); Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 (1878). Under the Court's holding today, the privacy interest that protects the contents of a suitcase or a briefcase from a warrantless search when it is in public view simply vanishes when its owner climbs into a taxicab. Unquestionably the rejection of the Sanders line of cases by today's decision will result in a significant loss of individual privacy. Page 500 U. S. 599 To support its argument that today's holding works only a minimal intrusion on privacy, the Court suggests that, "[i]f the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross. " Ante at 500 U. S. 574 -575. As I have already noted, see 500 U.S. 565 fn2/9|>n. 9, supra, this fear is unexplained and inexplicable. Neither evidence uncovered in the course of a search nor the scope of the search conducted can be used to provide post hoc justification for a search unsupported by probable cause at its inception. The Court also justifies its claim that its holding inflicts only minor damage by suggesting that, under New York v. Belton, 453 U. S. 454 (1981), the police could have arrested respondent and searched his bag if respondent had placed the bag in the passenger compartment of the automobile, instead of the trunk. In Belton, however, the justification for stopping the car and arresting the driver had nothing to do with the subsequent search, which was based on the potential danger to the arresting officer. The holding in Belton was supportable under a straightforward application of the automobile exception. See Robbins v. California, 453 U. S. 420 , 453 U. S. 449 -453 (1981) (STEVENS, J., dissenting). I would not extend Belton's holding to this case, in which the container -- which was protected from a warrantless search before it was placed in the car -- provided the only justification for the arrest. Even accepting Belton's application to a case like this one, however, the Court's logic extends its holding to a container placed in the trunk of a vehicle, rather than in the passenger compartment. And the Court makes this extension without any justification whatsoever other than convenience to law enforcement. The Burden on Law Enforcement The Court's suggestion that Chadwick and Sanders have created a significant burden on effective law enforcement Page 500 U. S. 600 is unsupported, inaccurate, and, in any event, an insufficient reason for creating a new exception to the warrant requirement. Despite repeated claims that Chadwick and Sanders have "impeded effective law enforcement," ante at 500 U. S. 574 , 500 U. S. 576 , the Court cites no authority for its contentions. Moreover, all evidence that does exist points to the contrary conclusion. In the years since Ross was decided, the Court has heard argument in 30 Fourth Amendment cases involving narcotics. [ Footnote 2/12 ] In all but one, the government was the petitioner. [ Footnote 2/13 ] All save two involved a search or seizure without a warrant or with a defective warrant. [ Footnote 2/14 ] And, in all except three, the Court upheld the constitutionality of the search or seizure. [ Footnote 2/15 ] Page 500 U. S. 601 In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. [ Footnote 2/16 ] See Annual Report of the Attorney General of the United States 21 (1989). No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive's fight against crime. Even if the warrant requirement does inconvenience the police to some extent, that fact does not distinguish this constitutional requirement from any other procedural protection secured by the Bill of Rights. It is merely a part of the price that our society must pay in order to preserve its freedom. Thus, in a unanimous opinion that relied on both Johnson and Chadwick, Justice Stewart wrote: "Moreover, the mere fact that law enforcement may be made more efficient can never, by itself, justify disregard of the Fourth Amendment. Cf. Coolidge v. New Hampshire, supra, [403 U.S.] at 403 U. S. 481 . The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United States v. Chadwick, 433 U. S. 1 , 433 U. S. 6 -11." Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 393 . Page 500 U. S. 602 It is too early to know how much freedom America has lost today. The magnitude of the loss is, however, not nearly as significant as the Court's willingness to inflict it without even a colorable basis for its rejection of prior law. I respectfully dissent. [ Footnote 2/1 ] "Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home. First, the Warrant Clause does not, in terms, distinguish between searches conducted in private homes and other searches. There is also a strong historical connection between the Warrant Clause and the initial clause of the Fourth Amendment, which draws no distinctions among 'persons, houses, papers, and effects' in safeguarding against unreasonable searches and seizures." United States v. Chadwick, 433 U. S. 1 , 433 U. S. 8 (1977). [ Footnote 2/2 ] "The judicial warrant has a significant role to play, in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer 'engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization 'particularly describing the place to be searched and the persons or things to be seized.' Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." Id. 433 U.S. at 433 U. S. 9 . [ Footnote 2/3 ] See id. at 433 U. S. 10 -11. The earliest case cited by Chief Justice Burger was Justice Field's opinion in Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 (1878). [ Footnote 2/4 ] "Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband. See Chambers v. Maroney, supra, 399 U.S. at 399 U. S. 52 . At oral argument, respondent conceded that the stopping of the taxi and the seizure of the suitcase were constitutionally unobjectionable. See Tr. of Oral Arg. 30, 44-46." Arkansas v. Sanders, 442 U.S. at 442 U. S. 761 -762. [ Footnote 2/5 ] "[B]ecause each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated, and 'the burden is on those seeking the exemption to show the need for it.' United Sates v. Jeffers, 342 U. S. 48 , 342 U. S. 51 (1951)." Id. 442 U.S. at 442 U. S. 759 -760. [ Footnote 2/6 ] In framing the question for decision, we stated: "Unlike Chadwick and Sanders, in this case, police officers had probable cause to search respondent's entire vehicle." 456 U.S. at 456 U. S. 817 . [ Footnote 2/7 ] Moreover, we quoted the following paragraph from Justice Powell's opinion in the intervening case of Robbins v. California, 453 U. S. 420 (1981): "[W]hen the police have probable cause to search an automobile, rather than only to search a particular container that fortuitously is located in it, the exigencies that allow the police to search the entire automobile without a warrant support the warrantless search of every container found therein. See post at 453 U. S. 13. (STEVENS, J., dissenting). This analysis is entirely consistent with the holdings in Chadwick and Sanders, neither of which is an 'automobile case,' because the police there had probable cause to search the double-locked footlocker and the suitcase, respectively, before either came near an automobile." Id. at 453 U. S. 435 , quoted in United States v. Ross, 456 U. S. 798 , 456 U. S. 816 (1982). [ Footnote 2/8 ] Although the Court today purports to acknowledge that the warrant requirement is the general rule, ante at 500 U. S. 569 , it nonetheless inexplicably persists in referring to Chadwick and Sanders as announcing a "separate rule, unique to luggage and other closed packages, bags, and containers." Ante at 500 U. S. 571 . Equally inexplicable is the Court's contention that, in overruling Sanders, it has not "extend[ed] the Carroll doctrine" that created the automobile exception. Ante at 500 U. S. 580 . [ Footnote 2/9 ] In its discussion of the Johns case, the Court makes the puzzling statement that it "cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one." See ante at 500 U. S. 575 . I assume that the Court does not mean to suggest that evidence found during the course of a search may provide the probable cause that justifies the search. Our cases have unequivocally rejected this bootstrap justification for a search which was not lawful when it commenced. See, e.g., United States v. Di Re, 332 U. S. 581 , 332 U. S. 595 (1948); Byars v. United States, 273 U. S. 28 , 273 U. S. 29 -30 (1927). Perhaps the Court fears that defendants will attempt similar post hoc reasoning and argue that, when the police have searched only a container, rather than the whole car, they must have had probable cause only to search the container. If so, the Court's fear is unwarranted, for Johns itself foreclosed this argument. See 469 U.S. at 469 U. S. 482 -483. [ Footnote 2/10 ] See ante at 500 U. S. 578 -579 (referring to the undocumented prediction made by JUSTICE BLACKMUN, joined by JUSTICE REHNQUIST, in dissent in Chadwick ); ante at 500 U. S. 579 (referring to the fact that the dissenters had "bemoaned the inherent opaqueness' of the difference between the Carroll and Chadwick principles and noted `the confusion to be created for all concerned'"). [ Footnote 2/11 ] One of the three pieces, Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, in 3 J. Choper, Y. Kamisar, & L. Tribe, The Supreme Court: Trends and Developments 1980-1981 (1982), was written prior to the decision in Ross. Moreover, rather than criticizing Chadwick and Sanders, the article expressly endorses Justice Brennan's refutation of the arguments advanced by JUSTICE BLACKMUN in his dissent in Chadwick. See id. at 83-85. The other two articles were written shortly after Ross, and both criticize Ross rather than Chadwick or Sanders. Se Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations in a Post- Ross World, 62 Neb.L.Rev. 1 (1983); Latzer, Searching Cars and Their Contents, 18 Crim.L.Bull. 381 (1982). [ Footnote 2/12 ] Illinois v. Rodriguez, 497 U. S. 177 (1990); Florida v. Wells, 495 U. S. 1 (1990); United States v. Verdugo-Urquidez, 494 U. S. 259 (1990); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989); Treasury Employees v. Von Raab, 489 U. S. 656 (1989); Florida v. Riley, 488 U. S. 445 (1989); Michigan v. Chesternut, 486 U. S. 567 (1988); California v. Greenwood, 486 U. S. 35 (1988); United States v. Dunn, 480 U. S. 294 (1987); Maryland v. Garrison, 480 U. S. 79 (1987); Colorado v. Bertine, 479 U. S. 367 (1987); California v. Ciraolo, 476 U. S. 207 (1986); United States v. Montoya de Hernandez, 473 U. S. 531 (1985); California v. Carney, 471 U. S. 386 (1985); United States v. Sharpe, 470 U. S. 675 (1985); United States v. Johns, 469 U. S. 478 (1985); New Jersey v. T.LO., 469 U. S. 325 (1985); United States v. Leon, 468 U. S. 897 (1984); United States v. Karo, 468 U. S. 705 (1984); Oliver v. United States, together with Maine v. Thornton, 466 U. S. 170 (1984); United States v. Jacobsen, 466 U. S. 109 (1984); Michigan v. Long, 463 U. S. 1032 (1983); Illinois v. Andreas, 463 U. S. 765 (1983); Illinois v. Lafayette, 462 U. S. 640 (1983); United States v. Place, 462 U. S. 696 (1983); United States v. Villamonte-Marquez, 462 U. S. 579 (1983); Texas v. Brown, 460 U. S. 730 (1983); Illinois v. Gates, 462 U. S. 213 (1983); Florida v. Royer, 460 U. S. 491 (1983); United States v. Knotts, 460 U. S. 276 (1983). [ Footnote 2/13 ] See Treasury Employees v. Von Raab, 489 U. S. 656 (1989). [ Footnote 2/14 ] See Maryland v. Garrison, 480 U. S. 79 (1987); Illinois v. Gates, 462 U. S. 213 (1983). [ Footnote 2/15 ] See Florida v. Wells, 495 U. S. 1 (1990); United States v. Place, 462 U. S. 696 (1983); Florida v. Royer, 460 U. S. 491 (1983). [ Footnote 2/16 ] The number of defendants charged with drug law violations who were convicted in federal courts increased 134% between 1980 and 1986. The corresponding increase in convictions for nondrug offenses was 27%. Bureau of Justice Statistics Special Report, Drug Law Violators, 1980-86, p. 1 (June 1988). The percentage of drug cases dismissed by district courts declined from 22.2% in 1980 to 13.8% in 1989. See Bureau of Justice Statistics, Federal Criminal Case Processing, 1980-87, Addendum for 1988 and Preliminary 1989, p. 12 (Nov.1990).

Police may search a container within a car without a warrant if they have probable cause to believe it holds contraband or evidence, regardless of whether they have probable cause to search the entire vehicle. This decision eliminates the previous distinction between warrantless searches of closed containers within a car and warrantless searches of closed containers located in a moving vehicle.

Antitrust

U.S. v. E.C. Knight Co.

https://supreme.justia.com/cases/federal/us/156/1/

U.S. Supreme Court United States v. E. C. Knight Co., 156 U.S. 1 (1895) United States v. E. C. Knight Company No. 675 Argued October 24, 1894 Decided January 21, 1895 156 U.S. 1 APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus The monopoly and restraint denounced by the Act of July 2, 1890, c. 647, 26 Stat. 209, "to protect trade and commerce against unlawful restraints and monopolies," are a monopoly in interstate and international trade or commerce, and not a monopoly in the manufacture of a necessary of life. The American Sugar Refining Company, a corporation existing under the laws of the New Jersey, being in control of a large majority of the manufactories of refined sugar in the United States, acquired, through the purchase of stock in four Philadelphia refineries, such disposition over those manufactories throughout the United States as gave it a practical monopoly of the business. Held that the result of the transaction was the creation of a monopoly in the manufacture of a necessary of life, which could not be suppressed under the provisions of the Act of July 2, 1890, c. 647, 26 Stat. 209, "to protect trade and commerce against unlawful restraints and monopolies," in the mode attempted in this suit, and that the acquisition of Philadelphia refineries by a New Jersey corporation, and the business of sugar refining in Pennsylvania, bear no direct relation to commerce between the states or with foreign nations. Page 156 U. S. 2 This was a bill filed by the United States against E. C. Knight Company and others, in the Circuit Court of the United States for the Eastern District of Pennsylvania, charging that the defendants had violated the provisions of an Act of Congress approved July 2, 1890, c. 647, entitled, "An act to protect trade and commerce against unlawful restraints and monopolies," 26 Stat. 209, providing that "[e]very contract, combination in the form of trust, or otherwise, or conspiracy in restraint of trade and commerce among the several states is illegal, and that persons who shall monopolize or shall attempt to monopolize, or combine or conspire with other persons to monopolize trade and commerce among the several states, shall be guilty of a misdemeanor." The bill alleged that the defendant the American Sugar Refining Company was incorporated under and by virtue of the laws of New Jersey, whose certificate of incorporation named the places in New Jersey and New York at which its principal business was to be transacted, and several other states in which it proposed to carry on operations, and stated the objects for which said company was formed were "the purchase, manufacture, refining, and sale of sugar, molasses, and melads, and all lawful business incidental thereto;" that the defendant E. C. Knight Company was incorporated under the laws of Pennsylvania "for the purpose of importing, manufacturing, refining, and dealing in sugars and molasses" at the City of Philadelphia; that the defendant the Franklin Sugar Company was incorporated under the laws of Pennsylvania "for the purpose of the manufacture of sugar and the purchase of raw material for that purpose" at Philadelphia; that the defendant Spreckels Sugar Refining Company was incorporated under the laws of Pennsylvania "for the purpose of refining sugar, which will involve the buying of the raw material therefor, the selling the manufactured product, and of doing whatever else shall be incidental to the said business of refining" at the City of Philadelphia; that the defendant the Delaware Sugar House was incorporated under the laws of Pennsylvania "for the purpose of the manufacture of sugar and syrups, and preparing the same for Page 156 U. S. 3 market, and the transaction of such work or business as may be necessary or proper for the proper management of the business of manufacture." It was further averred that the four defendants last named were independently engaged in the manufacture and sale of sugar until or about March 4, 1892; that the product of their refineries amounted to thirty-three percent of the sugar refined in the United States; that they were competitors with the American Sugar Refining Company; that the products of their several refineries were distributed among the several states of the United States, and the all the companies were engaged in trade or commerce with the several states and with foreign nations; that the American Sugar Refining Company had, on or prior to March 4, 1892, obtained the control of all the sugar refineries of the United States with the exception of the Revere of Boston and the refineries of the four defendants above mentioned; that the Revere produced annually about two percent of the total amount of sugar refined. The bill then alleged that in order that the American Sugar Refining Company might obtain complete control of the price of sugar in the United States, that company, and John E. Searles, Jr., acting for it, entered into an unlawful and fraudulent scheme to purchase the stock, machinery, and real estate of the other four corporations defendant, by which they attempted to control all the sugar refineries for the purpose of restraining the trade thereof with other states as theretofore carried on independently by said defendants; that in pursuance of this scheme, on or about March 4, 1892, Searles entered into a contract with the defendant Knight Company and individual stockholders named for the purchase of all the stock of that company, and subsequently delivered to the defendants therefor in exchange shares of the American Sugar Refining Company; that on or about the same date, Searles entered into a similar contract with the Spreckels Company and individual stockholders, and with the Franklin Company and stockholders, and with the Delaware Sugar House and stockholders. It was further averred that the American Sugar Refining Company monopolized the manufacture and Page 156 U. S. 4 sale of refined sugar in the United States, and controlled the price of sugar; that in making the contracts, Searles and the American Sugar Refining Company combined and conspired with the other defendants to restrain trade and commerce in refined sugar among the several states and foreign nations, and that the said contracts were made with the intent to enable the American Sugar Refining Company to restrain the sale of refined sugar in Pennsylvania and among the several states, and to increase the regular price at which refined sugar was sold, and thereby to exact and secure large sums of money from the State of Pennsylvania, and from the other states of the United States, and from all other purchasers, and that the same was unlawful, and contrary to the said act. The bill called for answers under oath, and prayed: "1. That all and each of the said unlawful agreements made and entered into by and between the said defendants on or about the 4th day of March, 1892, shall be delivered up, cancelled, and declared to be void, and that the said defendants the American Sugar Refining Company and John E. Searles, Jr., be ordered to deliver to the other said defendants respectively the shares of stock received by them in performance of the said contracts, and that the other said defendants be ordered to deliver to the said defendants the American Sugar Refining Company and John E. Searles, Jr., the shares of stock received by them respectively in performance of the said contracts." "2. That an injunction issue preliminary until the final determination of this cause, and perpetual thereafter, preventing and restraining the said defendants from the further performance of the terms and conditions of the said unlawful agreements." "3. That an injunction may issue preventing and restraining the said defendants from further and continued violations of the said act of Congress approved July 2, 1890." "4. Such other and further relief as equity and justice may require in the premises." Answers were filed, and evidence taken, which was thus Page 156 U. S. 5 sufficiently summarized by Judge Butler in his opinion in the circuit court: "The material facts proved are that the American Sugar Refining Company, one of the defendants, is incorporated under the laws of New Jersey, and has authority to purchase, refine, and sell sugar; that the Franklin Sugar Refinery, the E. C. Knight Company, the Spreckels Sugar Refinery, and the Delaware Sugar House were incorporated under the laws of Pennsylvania, and authorized to purchase, refine, and sell sugar; that the four latter Pennsylvania companies were located in Philadelphia, and, prior to March, 1892, produced about thirty-three percent of the total amount of sugar refined in the United States, and were in active competition with the American Sugar Refining Company, and with each other, selling their product wherever demand was found for it throughout the United States; that prior to March, 1892, the American Sugar Refining Company had obtained control of all refineries in the United States excepting the four located in Philadelphia and that of the Revere Company in Boston, the latter producing about two percent of the amount refined in this country; that in March, 1892, the American Sugar Refining Company entered into contracts (on different dates) with the stockholders of each of the Philadelphia corporations named whereby it purchased their stock, paying therefor by transfers of stock in its company; that the American Sugar Refining Company thus obtained possession of the Philadelphia refineries and their business; that each of the purchases was made subject to the American Sugar Refining Company's obtaining authority to increase its stock $25,000,000; that this assent was subsequently obtained, and the increase made; that there was no understanding or concert of action between the stockholders of the several Philadelphia companies respecting the sales, but that those of each company acted independently of those of the others, and in ignorance of what was being done by such others; that the stockholders of each company acted in concert with each other, understanding and intending that all the stock and property of the company should be sold; that the contract of sale in each instance left the sellers free to establish other refineries Page 156 U. S. 6 and continue the business if they should see fit to do so, and contained no provision respecting trade or commerce in sugar, and that no arrangement or provision on this subject has been made since; that since the purchase, the Delaware Sugar House Refinery has been operated in conjunction with the Spreckels Refinery, and the E. C. Knight Refinery in connection with the Franklin, this combination being made apparently for reasons of economy in conducting the business; that the amount of sugar refined in Philadelphia has been increased since the purchases; that the price has been slightly advanced since that event, but is still lower than it had been for some years before, and up to within a few months of the sales; that about ten percent of the sugar refined and sold in the United States is refined in other refineries than those controlled by the American Sugar Refining Company; that some additional sugar is produced in Louisiana and some is brought from Europe, but the amount is not large in either instance." "The object in purchasing the Philadelphia refineries was to obtain a greater influence or more perfect control over the business of refining and selling sugar in this country." The circuit court held that the facts did not show a contract, combination, or conspiracy to restrain or monopolize trade or commerce "among the several states or with foreign nations," and dismissed the bill. 60 F. 306. The cause was taken to the Circuit Court of Appeals for the Third Circuit, and the decree affirmed. 60 F. 934. This appeal was then prosecuted. The Act of Congress of July 2, 1890, is as follows: "An act to protect trade and commerce against unlawful restraints and monopolies." "SEC 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations is hereby declared to be illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars, or by imprisonment not exceeding one Page 156 U. S. 7 year, or by both said punishments, in the discretion of the court." "SEC. 2. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states or with foreign nations shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." "SEC. 3. Every contract, combination in form of trust or otherwise, or conspiracy in restraint of trade or commerce in any territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such territory and another, or between any such territory or territories and any state or states or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court." "SEC. 4. The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act, and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition, the court shall proceed as soon as may be to the hearing and determination of the case, and pending such petition and before final decree, the court may at any time make such temporary Page 156 U. S. 8 restraining order or prohibition as shall be deemed just in the premises." "SEC. 5. Whenever it shall appear to the court before which any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not, and subpoenas to that end may be served in any district by the marshal thereof." "SEC. 6. Any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one state to another, or to a foreign country, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property imported into the United States contrary to law." "SEC. 7. Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee." "SEC. 8. That the word 'person,' or 'persons,' wherever used in this act, shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the territories, the laws of any state, or the laws of any foreign country." 26 Stat. 209, c. 647. Page 156 U. S. 9 MR. CHIEF JUSTICE FULLER, after stating the facts in the foregoing language, delivered the opinion of the Court. By the purchase of the stock of the four Philadelphia refineries with shares of its own stock the American Sugar Refining Company acquired nearly complete control of the manufacture of refined sugar within the United States. The bill charged that the contracts under which these purchases were made constituted combinations in restraint of trade, and that in entering into them, the defendants combined and conspired to restrain the trade and commerce in refined sugar among the several states and with foreign nations, contrary to the Act of Congress of July 2, 1890. The relief sought was the cancellation of the agreements under which the stock was transferred, the redelivery of the stock to the parties respectively, and an injunction against the further performance of the agreements and further violations of the act. As usual, there was a prayer for general relief, but only such relief could be afforded under that prayer as would be agreeable to the case made by the bill and consistent with that specifically prayed. And as to the injunction asked, that relief was ancillary to and in aid of the primary equity, or ground of suit, and, if that failed, would fall with it. That ground here was the existence of contracts to monopolize interstate or international trade or commerce, and to restrain such trade or commerce which, by the provisions of the act, could be rescinded, or operations thereunder arrested. In commenting upon the statute, 21 Jac. I. c. 3, at the commencement of chapter 85 of the third institute, entitled "Against Monopolists, Propounders, and Projectors," Lord Coke, in language often quoted, said: "It appeareth by the preamble of this act (as a judgment in Parliament) that all grants of monopolies are against the ancient and fundamental laws of this kingdome. And therefore it is necessary to define what a monopoly is." "A monopoly is an institution, or allowance by the King by his grant, commission, or otherwise to any person or persons, bodies politique, or corporate, of or for the sole Page 156 U. S. 10 buying, selling, making, working, or using of anything, whereby any person or persons, bodies politique, or corporate, are sought to be restrained of any freedome or liberty that they had before or hindred in their lawfull trade." "For the word 'monopoly,' dicitur [Greek phrase] (i. solo, ) [Greek phrase] (i. vendere ) quodest cum unus solus aliquod genus mercaturae universum vendit, ut solus vendat, pretium and suum libitum statuens: hereof you may read more at large in that case. Trin. 44 Eliz. Lib. 11, f. 84, 85; le case de monopolies. " 3 Inst. 181. Counsel contend that this definition, as explained by the derivation of the word, may be applied to all cases in which "one person sells alone the whole of any kind of marketable thing, so that only he can continue to sell it, fixing the price at his own pleasure," whether by virtue of legislative grant or agreement; that the monopolization referred to in the act of Congress is not confined to the common law sense of the term as implying an exclusive control, by authority, of one branch of industry without legal right of any other person to interfere therewith by competition or otherwise, but that it includes engrossing as well, and covers controlling the market by contracts securing the advantage of selling alone or exclusively all or some considerable portion of a particular kind or merchandise or commodity to the detriment of the public, and that such contracts amount to that restraint of trade or commerce declared to be illegal. But the monopoly and restraint denounced by the act are the monopoly and restraint of interstate and international trade or commerce, while the conclusion to be assumed on this record is that the result of the transaction complained of was the creation of a monopoly in the manufacture of a necessary of life. In the view which we take of the case, we need not discuss whether, because the tentacles which drew the outlying refineries into the dominant corporation were separately put out, therefore there was no combination to monopolize; or because, according to political economists, aggregations of capital may reduce prices, therefore the objection to concentration of power is relieved, or, because others were theoretically left Page 156 U. S. 11 free to go into the business of refining sugar, and the original stockholders of the Philadelphia refineries, after becoming stockholders of the American Company, might go into competition with themselves, or, parting with that stock, might set up again for themselves, therefore no objectionable restraint was imposed. The fundamental question is whether, conceding that the existence of a monopoly in manufacture is established by the evidence, that monopoly can be directly suppressed under the act of Congress in the mode attempted by this bill. It cannot be denied that the power of a state to protect the lives, health, and property of its citizens, and to preserve good order and the public morals, "the power to govern men and things within the limits of its dominion," is a power originally and always belonging to the states, not surrendered by them to the general government nor directly restrained by the Constitution of the United States and essentially exclusive. The relief of the citizens of each state from the burden of monopoly and the evils resulting from the restraint of trade among such citizens was left with the states to deal with, and this Court has recognized their possession of that power even to the extent of holding that an employment or business carried on by private individuals, when it becomes a matter of such public interest and importance as to create a common charge or burden upon the citizen -- in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community -- is subject to regulation by state legislative power. On the other hand, the power of Congress to regulate commerce among the several states is also exclusive. The Constitution does not provide that interstate commerce shall be free, but, by the grant of this exclusive power to regulate it, it was left free except as Congress might impose restraints. Therefore it has been determined that the failure of Congress to exercise this exclusive power in any case is an expression of its will that the subject shall be free from restrictions or impositions upon it by the several states, and if a law passed by a state in the exercise of its acknowledged powers comes into conflict Page 156 U. S. 12 with that will, the Congress and the state cannot occupy the position of equal opposing sovereignties, because the Constitution declares its supremacy, and that of the laws passed in pursuance thereof, and that which is not supreme must yield to that which is supreme. "Commerce undoubtedly is traffic," said Chief Justice Marshall, "but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse." That which belongs to commerce is within the jurisdiction of the United States, but that which does not belong to commerce is within the jurisdiction of the police power of the state. Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 210 ; Brown v. Maryland , 12 Wheat. 419, 25 U. S. 448 ; The License Cases , 5 How. 599; Mobile v. Kimball, 102 U. S. 691 ; Bowman v. Chicago & N.W. Railway, 125 U. S. 465 ; Leisy v. Hardin, 135 U. S. 100 ; In re Rahrer, 140 U. S. 545 , 140 U. S. 555 . The argument is that the power to control the manufacture of refined sugar is a monopoly over a necessary of life, to the enjoyment of which by a large part of the population of the United States interstate commerce is indispensable, and that therefore the general government, in the exercise of the power to regulate commerce, may repress such monopoly directly and set aside the instruments which have created it. But this argument cannot be confined to necessaries of life merely, and must include all articles of general consumption. Doubtless the power to control the manufacture of a given thing involves, in a certain sense, the control of its disposition, but this is a secondary, and not the primary, sense, and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly. But it may operate in repression of monopoly whenever that comes within the rules by which commerce is governed, or whenever the transaction is itself a monopoly of commerce. Page 156 U. S. 13 It is vital that the independence of the commercial power and of the police power, and the delimitation between them, however sometimes perplexing, should always be recognized and observed, for while the one furnishes the strongest bond of union, the other is essential to the preservation of the autonomy of the states as required by our dual form of government, and acknowledged evils, however grave and urgent they may appear to be, had better be borne, than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality. It will be perceived how far-reaching the proposition is that the power of dealing with a monopoly directly may be exercised by the general government whenever interstate or international commerce may be ultimately affected. The regulation of commerce applies to the subjects of commerce, and not to matters of internal police. Contracts to buy, sell, or exchange goods to be transported among the several states, the transportation and its instrumentalities, and articles bought, sold, or exchanged for the purposes of such transit among the states or put in the way of transit, may be regulated; but this is because they form part of interstate trade or commerce. The fact that an article is manufactured for export to another state does not, of itself, make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or product passes from the control of the state and belongs to commerce. This was so ruled in Coe v. Errol, 116 U. S. 517 , in which the question before the Court was whether certain logs cut at a place in New Hampshire and hauled to a river town for the purpose of transportation to the State of Maine were liable to be taxed like other property in the State of New Hampshire. Mr. Justice Bradley, delivering the opinion of the Court, said: "Does the owner's state of mind in relation to the goods -- that is, his intent to export them, and his partial preparation to do so -- exempt them from taxation? This is the precise question for solution. . . . There must be a point of time when they cease to be governed exclusively by the domestic Page 156 U. S. 14 law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose in which they commence their final movement from the State of their origin to that of their destination." And again, in Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 20 , 128 U. S. 24 , where the question was discussed whether the right of a state to enact a statute prohibiting within its limits the manufacture of intoxicating liquors except for certain purposes could be overthrown by the fact that the manufacturer intended to export the liquors when made, it was held that the intent of the manufacturer did not determine the time when the article or product passed from the control of the state and belonged to commerce, and that therefore the statute, in omitting to except from its operation the manufacture of intoxicating liquors within the limits of the state for export, did not constitute an unauthorized interference with the right of Congress to regulate commerce. And Mr. Justice Lamar remarked: "No distinction is more popular to the common mind, or more clearly expressed in economic and political literature, than that between manufacture and commerce. Manufacture is transformation -- the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling, and the transportation incidental thereto, constitute commerce, and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. . . . If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future, it is impossible to deny that it would also include all productive industries that contemplate the same thing. The result would be that Congress would be invested, to the exclusion of the states, with the power to regulate not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining -- in short, every branch of human industry. For is there one of them that does not contemplate more or less clearly an interstate or foreign market? Does not the wheat grower of the Northwest and the cotton planter of the Page 156 U. S. 15 South plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the states, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform, and vital interests -- interests which in their nature are, and must be, local in all the details of their successful management. . . . The demands of such supervision would require not uniform legislation generally applicable throughout the United States, but a swarm of statutes only locally applicable and utterly inconsistent. Any movement towards the establishment of rules of production in this vast country, with its many different climates and opportunities, would only be at the sacrifice of the peculiar advantages of a large part of the localities in it, if not of everyone of them. On the other hand, any movement towards the local, detailed, and incongruous legislation required by such interpretation would be about the widest possible departure from the declared object of the clause in question. Nor this alone. Even in the exercise of the power contended for, Congress would be confined to the regulation not of certain branches of industry, however numerous, but to those instances in each and every branch where the producer contemplated an interstate market. These instances would be almost infinite, as we have seen, but still there would always remain the possibility, and often it would be the case, that the producer contemplated a domestic market. In that case, the supervisory power must be executed by the state, and the interminable trouble would be presented that whether the one power or the other should exercise the authority in question would be determined not by any general or intelligible rule, but by the secret and changeable intention of the producer in each and every act of production. A situation more paralyzing to the state governments, and more provocative of conflicts between the general government and the states, and less likely to have been what the framers of the Constitution intended, it would be difficult to imagine." And see 55 U. S. Moor, 14 How. 568, 55 U. S. 574 . In Gibbons v. Ogden, Brown v. Maryland, and other cases Page 156 U. S. 16 often cited, the state laws, which were held inoperative, were instances of direct interference with or regulations of interstate or international commerce; yet in Kidd v. Pearson, the refusal of a state to allow articles to be manufactured within her borders, even for export, was held not to directly affect external commerce, and state legislation which in a great variety of ways affected interstate commerce and persons engaged in it has been frequently sustained because the interference was not direct. Contracts, combinations, or conspiracies to control domestic enterprise in manufacture, agriculture, mining, production in all its forms, or to raise or lower prices or wages might unquestionably tend to restrain external as well as domestic trade, but the restraint would be an indirect result, however inevitable, and whatever its extent, and such result would not necessarily determine the object of the contract, combination, or conspiracy. Again, all the authorities agree that, in order to vitiate a contract or combination, it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition. Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries whose ultimate result may affect external commerce, comparatively little of business operations and affairs would be left for state control. It was in the light of well settled principles that the Act of July 2, 1890, was framed. Congress did not attempt thereby to assert the power to deal with monopoly directly as such, or to limit and restrict the rights of corporations created by the states or the citizens of the states in the acquisition, control, or disposition of property, or to regulate or prescribe the price or prices at which such property or the products thereof should be sold, or to make criminal the acts of persons in the acquisition and control of property which the states of their residence or creation sanctioned or permitted. Aside from the provisions applicable where Congress might exercise municipal Page 156 U. S. 17 power, what the law struck at was combinations, contracts, and conspiracies to monopolize trade and commerce among the several states or with foreign nations; but the contracts and acts of the defendants related exclusively to the acquisition of the Philadelphia refineries and the business of sugar refining in Pennsylvania, and bore no direct relation to commerce between the states or with foreign nations. The object was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. It is true that the bill alleged that the products of these refineries were sold and distributed among the several states, and that all the companies were engaged in trade or commerce with the several states and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfill its function. Sugar was refined for sale, and sales were probably made at Philadelphia for consumption, and undoubtedly for resale by the first purchasers throughout Pennsylvania and other states, and refined sugar was also for warded by the companies to other states for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, whether executory or consummated, to monopolize commerce, even though, in order to dispose of the product, the instrumentality of commerce was necessarily invoked. There was nothing in the proofs to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen, that trade or commerce might be indirectly affected was not enough to entitle complainants to a decree. The subject matter of the sale was shares of manufacturing stock, and the relief sought was the surrender of property which had already passed, and the suppression of the alleged monopoly in manufacture by the restoration of the status quo before the transfers; yet the act of Congress only authorized the circuit courts to proceed by way of preventing and restraining violations of the act in respect of contracts, combinations, or conspiracies in restraint of interstate or international trade or commerce. The circuit court declined, upon the pleadings and proofs, Page 156 U. S. 18 to grant the relief prayed, and dismissed the bill, and we are of opinion that the circuit court of appears did not err in affirming that decree. Decree affirmed. MR. JUSTICE HARLAN, dissenting. Prior to the 4th day of March, 1892, the American Sugar Refining Company, a corporation organized under a general statute of New Jersey for the purpose of buying, manufacturing, refining, and selling sugar in different parts of the country, had obtained the control of all the sugar refineries in the United States except five, of which four were owned and operated by Pennsylvania corporations -- the E. C. Knight Company, the Franklin Sugar Refining Company, Spreckels' Sugar Refining Company, and the Delaware Sugar House, and the other by the Revere Sugar Refinery of Boston. These five corporations were all in active competition with the American Sugar Refining Company and with each other. The product of the Pennsylvania companies was about thirty-three percent, and that of the Boston company about two percent, of the entire quantity of sugar refined in the United States. In March, 1892, by means of contracts or arrangements with stockholders of the four Pennsylvania companies, the New Jersey corporation -- using for that purpose its own stock -- purchased the stock of those companies, and thus obtained absolute control of the entire business of sugar refining in the United States except that done by the Boston company, which is too small in amount to be regarded in this discussion. "The object," the court below said, "in purchasing the Philadelphia refineries was to obtain a greater influence or more perfect control over the business of refining and selling sugar in this country." This characterization of the object for which this stupendous combination was formed is properly accepted in the opinion of the court as justified by the proof. I need not, therefore, analyze the evidence upon this point. In its consideration of the important constitutional question presented, this Court assumes on the record before us Page 156 U. S. 19 that the result of the transactions disclosed by the pleadings and proof was the creation of a monopoly in the manufacture of a necessary of life. If this combination, so far as its operations necessarily or directly affect interstate commerce, cannot be restrained or suppressed under some power granted to Congress, it will be cause for regret that the patriotic statesmen who framed the Constitution did not foresee the necessity of investing the national government with power to deal with gigantic monopolies holding in their grasp, and injuriously controlling in their own interest, the entire trade among the states in food products that are essential to the comfort of every household in the land. The Court holds it to be vital in our system of government to recognize and give effect to both the commercial power of the nation and the police powers of the states, to the end that the Union be strengthened, and the autonomy of the states preserved. In this view I entirely concur. Undoubtedly the preservation of the just authority of the states is an object of deep concern to every lover of his country. No greater calamity could befall our free institutions than the destruction of that authority, by whatever means such a result might be accomplished. "Without the states in union," this Court has said, "there could be no such political body as the United States." Lane County v. Oregon , 7 Wall. 71, 74 U. S. 76 . But it is equally true that the preservation of the just authority of the general government is essential as well to the safety of the states as to the attainment of the important ends for which that government was ordained by the people of the United States, and the destruction of that authority would be fatal to the peace and wellbeing of the American people. The Constitution, which enumerates the powers committed to the nation for objects of interest to the people of all the states, should not therefore be subjected to an interpretation so rigid, technical, and narrow that those objects cannot be accomplished. Learned counsel in Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 187 , having suggested that the Constitution should be strictly construed, this Court, speaking by Chief Justice Marshall, said that when the original states "converted their league into a Page 156 U. S. 20 government, when they converted their Congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature empowered to enact laws on the most interesting subjects, the whole character in which the states appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected. . . . What do gentlemen mean," the Court inquired, "by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, one might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent -- then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded." Id., 22 U. S. 188 . On the same occasion, the principle was announced that the objects for which a power was granted to Congress, especially when those objects are expressed in the Constitution itself, should have great influence in determining the extent of any given power. Congress is invested with power to regulate commerce with foreign nations and among the several states. The power to regulate is the power to prescribe the rule by which the subject regulated is to be governed. It is one that must be exercised whenever necessary throughout the territorial limits of the several states. Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 413 . The power to make these regulations "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." It is plenary because vested in Congress "as absolutely as it Page 156 U. S. 21 would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States." It may be exercised "whenever the subject exists." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 195 -196. In his concurring opinion in that case, Mr. Justice Johnson observed that the grant to Congress of the power to regulate commerce carried with it the whole subject, leaving nothing for the state to act upon, and that, "if there was anyone object riding over every other in the adoption of the Constitution, it was to keep commercial intercourse among the states free from all invidious and partial restraints." Id., 22 U. S. 231 . "In all commercial regulations, we are one and the same people." Mr. Justice Bradley, speaking for this Court, said that the United States are but one country, and are and must be subject to one system of regulations in respect to interstate commerce. Robbins v. Shelby Taxing District, 120 U. S. 489 , 120 U. S. 494 . What is commerce among the states? The decisions of this Court fully answer the question. "Commerce, undoubtedly, is traffic, but it is something more; it is intercourse." It does not embrace the completely interior traffic of the respective states -- that which is "carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states" -- but it does embrace "every species of commercial intercourse" between the United States and foreign nations and among the states, and therefore it includes such traffic or trade, buying, selling, and interchange of commodities as directly affects or necessarily involves the interests of the people of the United States. "Commerce, as the word is used in the Constitution, is a unit," and "cannot stop at the external boundary line of each state, but may be introduced into the interior. . . . The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally. " These principles were announced in Gibbons v. Ogden and have often been approved. It is the settled doctrine of this Page 156 U. S. 22 Court that interstate commerce embraces something more than the mere physical transportation of articles of property and the vehicles or vessels by which such transportation is effected. In County of Mobile v. Kimball, 102 U. S. 691 , 102 U. S. 702 , it was said that commerce with foreign countries and among the states, strictly considered, consists "in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property as well as the purchase, sale, and exchange of commodities." In Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 , 114 U. S. 203 , the language of the Court was: "Commerce among the states consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale, and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in Congress, is the power to prescribe the rules by which it shall be governed -- that is, the conditions upon which it shall be conducted; to determine when it shall be free, and when subject to duties or other exactions." In Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 20 , it was said that "the buying and selling and the transportation incidental thereto constitute commerce." Interstate commerce does not, therefore, consist in transportation simply. It includes the purchase and sale of articles that are intended to be transported from one state to another -- every species of commercial intercourse among the states and with foreign nations. In the light of these principles, determining as well the scope of the power to regulate commerce among the states as the nature of such commerce, we are to inquire whether the Act of Congress of July 2, 1890, c. 647, entitled "An act to protect trade and commerce against unlawful restraints and monopolies," 26 Stat. 209, is repugnant to the Constitution. By that act "every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or with foreign nations" is declared to be illegal, and every person making any such contract, or engaging in any such combination or conspiracy, Page 156 U. S. 23 is to be deemed guilty of a misdemeanor, and punishable, on conviction, by a fine not exceeding $5,000, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. § 1. It is also made a misdemeanor, punishable in like manner, for any person to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons to monopolize, any part of the trade or commerce among the several states or with foreign nations." § 2. The act also declares illegal "every contract, combination in form of trust or otherwise, or conspiracy in restraint of trade or commerce in any Territory of the United States or of the District of Columbia, or in restraint of trade or commerce between any such territory and another, or between any such territory or territories or any state or states or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations," and prescribes the same punishments for every person making any such contract, or engaging in any such combination or conspiracy. § 3. The fourth section of the act is in these words: "SEC. 4. The several circuit courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act, and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duly notified of such petition, the court shall proceed, as soon as may be, to the hearing and determination of the case, and pending such petition and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises." It would seem to be indisputable that no combination of corporations or individuals can, of right, impose unlawful restraints upon interstate trade, whether upon transportation or upon such interstate intercourse and traffic as precede transportation, Page 156 U. S. 24 any more than it can, of right, impose unreasonable restraints upon the completely internal traffic of a state. The supposition cannot be indulged that this general proposition will be disputed. If it be true that a combination of corporations or individuals may, so far as the power of Congress is concerned, subject interstate trade, in any of its stages, to unlawful restraints, the conclusion is inevitable that the Constitution has failed to accomplish one primary object of the Union, which was to place commerce among the states under the control of the common government of all the people, and thereby relieve or protect it against burdens or restrictions imposed, by whatever authority, for the benefit of particular localities or special interests. The fundamental inquiry in this case is what, in a legal sense, is an unlawful restraint of trade? Sir William Erle, formerly Chief Justice of the Common Pleas, in his essay on the Law Relating to Trade Unions, well said that "restraint of trade, according to a general principle of the common law, is unlawful," that "at common law, every person has individually, and the public also have collectively, a right to require that the course of trade should be kept free from unreasonable obstruction, " and that "the right to a free course for trade is of great importance to commerce and productive industry, and has been carefully maintained by those who have administered the common law." Pp. 6-8. There is a partial restraint of trade which in certain circumstances is tolerated by the law. The rule upon that subject is stated in Oregon Steam Nav. Co. v. Winsor , 20 Wall. 64, 87 U. S. 66 , where it was said that: "An agreement in general restraint of trade is illegal and void, but an agreement which operates merely in partial restraint of trade is good, provided it be not unreasonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint imposed must not be larger than is required for the necessary protection of the party with whom the contract is made. A contract, even on good consideration, not to use a trade anywhere in England is held void in that country as being too general a restraint of trade. Horner v. Graves, 7 Bing. 743. A contract, even on good consideration, not to use a trade anywhere in England is held void in that country as being to general a restraint of trade. " Page 156 U. S. 25 But a general restraint of trade has often resulted from combinations formed for the purpose of controlling prices by destroying the opportunity of buyers and sellers to deal with each other upon the basis of fair, open, free competition. Combinations of this character have frequently been the subject of judicial scrutiny, and have always been condemned as illegal because of their necessary tendency to restrain trade. Such combinations are against common right, and are crimes against the public. To some of the cases of that character it will be well to refer. In Morris Run Coal Co. v. Barclay Coal Co., 68 Penn.St. 173, 183-187, the principal question was as to the validity of a contract made between five coal corporations of Pennsylvania by which they divided between themselves two coal regions of which they had the control. The referee in the case found that those companies acquired under their arrangement the power to control the entire market for bituminous coal in the northern part of the state, and their combination was therefore a restraint upon trade, and against public policy. In response to the suggestion that the real purpose of the combination was to lessen expenses, to advance the quality of coal, and to deliver it in the markets intended to be supplied in the best order to the consumer, the Supreme Court of Pennsylvania said: "This is denied by the defendants, but it seems to us it is immaterial whether these positions are sustained or not. Admitting their correctness, it does not follow that these advantages redeem the contract from the obnoxious effects so strikingly presented by the referee. The important fact is that these companies control this immense coal field; that it is the great source of supply of bituminous coal to the State of New York and large territories westward; that by this contract they control the price of coal in this extensive market, and make it bring sums it would not command if left to the natural laws of trade; that it concerns an article of prime necessity for many uses; that its operation is general in this large region, and affects all who use coal as a fuel, and this is accomplished by a combination of all the companies engaged in this branch of business Page 156 U. S. 26 in the large region where they operate. The combination is wide in scope, general in its influence, and injurious in effects. These being its features, the contract is against public policy, illegal, and therefore void." Again, in the same case: "The effects produced on the public interests lead to the consideration of another feature of great weight in determining the illegality of the contract, to-wit, the combination resorted to by these five companies. Singly, each might have suspended deliveries and sales of coal to suit its own interests, and might have raised the price even though this might have been detrimental to the public interest. There is a certain freedom which must be allowed to everyone in the management of his own affairs. When competition is left free, individual error or folly will generally find a corrective in the conduct of others. But here is a combination of all the companies operating in the Blossburg and Barclay regions, and controlling their entire productions. They have combined together to govern the supply and the price of coal in all the markets from the Hudson to the Mississippi Rivers and from Pennsylvania to the Lakes. This combination has a power in its confederated form which no individual action can confer. The public interest must succumb to it, for it has left no competition free to correct its baleful influence. When the supply of coal is suspended, the demand for it becomes importunate, and prices must rise, or, if the supply goes forward, the price fixed by the confederates must accompany it. The domestic hearth, the furnaces of the iron master, and the fires of the manufacturer all feel the restraint, while many dependent hands are paralyzed, and hungry mouths are stinted. The influence of a lack of supply or a rise in the price of an article of such prime necessity cannot be measured. It permeates the entire mass of the community, and leaves few of its members untouched by its withering blight. Such a combination is more than a contract; it is an offense. 'I take it,' said Gibson, J.," "a combination is criminal whenever the act to be done has a necessary tendency to prejudice the public or to oppress individuals by unjustly subjecting them to the power of the confederates and giving effect to the purpose of the Page 156 U. S. 27 latter, whether of extortion or of mischief." " Commonwealth v. Carlisle, Brightly (Penn.) 40. In all such combinations where the purpose is injurious or unlawful, the gist of the offense is the conspiracy. Men can often do by the combination of many what severally no one could accomplish, and even what, when done by one, would be innocent. . . . There is a potency in numbers when combined which the law cannot overlook where injury is the consequence." This case in the Supreme Court of Pennsylvania was cited with approval in Arnot v. Pittston & Elmira Coal Co., 68 N.Y. 558, 565, which involved the validity of a contract between two coal companies the object and effect of which were to give one of them the monopoly of the trade in coal in a particular region by which the price of that commodity could be artificially enhanced. The Court of Appeals of New York held that: "A combination to effect such a purpose is inimical to the interests of the public, and that all contracts designed to effect such an end are contrary to public policy, and therefore illegal. . . . If they should be sustained, the prices of articles of pure necessity, such as coal, flour, and other indispensable commodities might be artificially raised to a ruinous extent far exceeding any naturally resulting from the proportion between supply and demand. No illustration of the mischief of such contracts is perhaps more apt than a monopoly of anthracite coal, the region of the production of which is known to be limited." See also Hooker v. Vandewater, 4 Denio 352; Stanton v. Allen, 5 Denio 434; Saratoga Bank v. King, 44 N.Y. 87. In Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666, 672, the principal question was as to the legality of an association of substantially all the manufacturers of salt in a large salt-producing territory. After adverting to the rule that contracts in general restraint of trade are against public policy and to the agreement there in question, the court said: "Public policy unquestionably favors competition in trade to the end that its commodities may be afforded to the consumer as cheaply as possible, and is opposed to monopolies which tend to advance market prices, to the injury of the general public. . . . Page 156 U. S. 28 The clear tendency of such an agreement is to establish a monopoly and to destroy competition in trade, and for that reason, on grounds of public policy, the courts will not aid in its enforcement. It is no answer to say that competition in the salt trade was not in fact destroyed, or that the price of the commodity was not unreasonably advanced. Courts will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to know that the inevitable tendency of such contracts is injurious to the public." In Craft v. McConoughy, 79 Ill. 346, 349-350, which related to a combination between all the grain dealers of a particular town to stifle competition and to obtain control of the price of grain, the Supreme Court of Illinois said: "While the agreement, upon its face, would seem to indicate that the parties had formed a copartnership for the purpose of trading in grain, yet, from the terms of the contract and the other proof in the record, it is apparent that the true object was to form a secret combination which would stifle all competition and enable the parties, by secret and fraudulent means, to control the price of grain, cost of storage, and expense of shipment. In other words, the four firms, by a shrewd, deep-laid, secret combination, attempted to control and monopolize the entire grain trade of the town and surrounding country. That the effect of this contract was to restrain the trade and commerce of the country is a proposition that cannot be successfully denied. We understand it to be a well settled rule of law that an agreement in general restraint of trade is contrary to public policy, illegal and void, but an agreement in partial or particular restraint upon trade has been held good where the restraint was only partial, consideration adequate, and the restriction reasonable. . . . While these parties were in business, in competition with each other, they had the undoubted right to establish their own rates for grain stored and commissions for shipment and sale. They could pay as high or low a price for grain as they saw proper, and as they could make contracts with the producer. So long as competition was free, the interest of the public was safe. The laws of trade, in connection with the right of competition, was all the Page 156 U. S. 29 guaranty the public required, but the secret combination created by the contract destroyed all competition and created a monopoly against which the public interest had no protection." These principles were applied in People v. Chicago Gas Trust Co., 130 Ill. 269, 292, 297, which involved the validity of a corporation formed for the purpose of operating gas works and of manufacturing and selling gas, and which, for the purpose of destroying competition, acquired the stock of four other gas companies, and thereby obtained a monopoly in the business of furnishing illuminating gas to the City of Chicago and its inhabitants. The court, in declaring the organization of the company to be illegal, said: "The fact that the appellee, almost immediately after its organization, bought up a majority of the shares of stock of each of these companies, shows that it was not making a mere investment of surplus funds, but that it designed and intended to bring the four companies under its control, and, by crushing out competition, to monopolize the gas business in Chicago. . . . Of what avail," said the court, "is it that any number of gas companies may be formed under the general incorporation law if a giant trust company can be clothed with the power of buying up and holding the stock and property of such companies, and, through the control thereby attained, can direct all their operations, and weld them into one huge combination?" So, in India Bagging Association v. Kock, 14 La.Ann. 168, where the court passed upon the legality of an association of various commercial firms in New Orleans that were engaged in the sale of India bagging, it was said: "The agreement between the parties was palpably and unequivocally a combination in restraint of trade, and to enhance the price in the market of an article of primary necessity to cotton planters. Such combinations are contrary to public order, and cannot be enforced in a court of justice." In Clara Mill & Lumber Co. v. Hayes, 76 Cal. 387, 390, which related to a combination, the result of certain contracts among certain manufacturers, the court found that the object, purpose, and consideration of those contracts were to form a combination among all the manufacturers of lumber Page 156 U. S. 30 at or near a particular place, for the sole purpose of increasing the price of that article, limiting the amount to be manufactured, and giving certain parties the control of all lumber manufactured near that place for the year 1881, and of the supply for that year in specified counties. It held the combination to be illegal, observing that "among the contracts illegal at common law, because opposed to public policy, were contracts in general restraint of trade; contracts between individuals to prevent competition and keep up the prices of articles of utility." It further said that while the courts had nothing to do with the results naturally flowing from the laws of demand and supply, they would not respect agreements made for the purpose of "taking trade out of the realm of competition, and thereby enhancing or depressing prices of commodities." A leading case on the question as to what combinations are illegal as being in general restraint of trade is Richardson v. Buhl, 77 Mich. 632, 635, 657, 660, which related to certain agreements connected with the business and operations of the Diamond Match Company. From the report of the case, it appears that that company was organized under the laws of Connecticut for the purpose of uniting in one corporation all the match manufactories in the United States, and to monopolize and control the business of making all the friction matches in the country, and establish the price thereof. To that end it became necessary, among other things, to buy many plants that had become established or were about to be established, as well as the property used in connection therewith. Chief Justice Sherwood of the Supreme Court of Michigan said: "The sole object of the corporation is to make money by having it in its power to raise the price of the article, or diminish the quantity to be made and used at its pleasure. Thus, both the supply of the article and the price thereof are made to depend upon the action of a half dozen individuals, more or less, to satisfy their cupidity and avarice, who may happen to have the controlling interest in this corporation -- an artificial person, governed by a single motive or purpose, which is to accumulate money regardless of the wants or necessities Page 156 U. S. 31 of over 60,000,000 people. The article thus completely under their control for the last fifty years has come to be regarded as one of necessity not only in every household in the land, but one of daily use by almost every individual in the country. It is difficult to conceive of a monopoly which can affect a greater number of people, or one more extensive in its effect on the country, than that of the Diamond Match Company. It was to aid that company in its purposes and in carrying out its object that the contract in this case was made between those parties, and which we are now asked to and in enforcing. Monopoly in trade, or in any kind of business in this country, is odious to our form of government. It is sometimes permitted to aid the government in carrying on a great public enterprise or public work under governmental control in the interest of the public. Its tendency is, however, destructive of free institutions, and repugnant to the instincts of a free people, and contrary to the whole scope and spirit of the federal Constitution, and is not allowed to exist under express provisions in several of our state constitutions. . . . All combinations among persons or corporations for the purpose of raising or controlling the prices of merchandise, or any of the necessaries of life, are monopolies, and intolerable, and ought to receive the condemnation of all courts." In the same case, Mr. Justice Champlin, with whom Mr. Justice Campbell concurred, said: "There is no doubt that all the parties to this suit were active participants in perfecting the combination called the Diamond Match Company, and that the present dispute grows out of that transaction, and is the fruit of the scheme by which all competition in the manufacture of matches was stifled, opposition in the business crushed, and the whole business of the country in that line engrossed by the Diamond Match Company. Such a vast combination as has been entered into under the above name is a menace to the public. Its object and direct tendency is to prevent free and fair competition and control prices throughout the national domain. It is no answer to say that this monopoly has in fact reduced the price of friction matches. That policy may have been necessary to crush competition. Page 156 U. S. 32 The fact exists that it rests in the discretion of this company at any time to raise the price to an exorbitant degree. Such combinations have frequently been condemned by courts as unlawful and against public policy." See also Raymond v. Leavitt, 46 Mich. 447, and Texas Standard Oil Co. v. Adoue, 83 Tex. 650. This extended reference to adjudged cases relating to unlawful restraints upon the interior traffic of a state has been made for the purpose of showing that a combination such as that organized under the name of the American Sugar Refining Company has been uniformly held by the courts of the states to be against public policy and illegal because of its necessary tendency to impose improper restraints upon trade. And such, I take it, would be the judgment of any circuit court of the United States in a case between parties in which it became necessary to determine the question. The judgments of the state courts rest upon general principles of law, and not necessarily upon statutory provisions expressly condemning restraints of trade imposed by or resulting from combinations. Of course, in view of the authorities, it will not be doubted that it would be competent for a state, under the power to regulate its domestic commerce, and for the purpose of protecting its people against fraud and injustice, to make it a public offense, punishable by fine and imprisonment, for individuals or corporations to make contracts, form combinations or engage in conspiracies which unduly restrain trade or commerce carried on within its limits, and also to authorize the institution of proceedings for the purpose of annulling contracts of that character, as well as of preventing or restraining such combinations and conspiracies. But there is a trade among the several states which is distinct from that carried on within the territorial limits of a state. The regulation and control of the former are committed by the national Constitution to Congress. Commerce among the states, as this Court has declared, is a unit, and in respect of that commerce, this is one country, and we are one people. It may be regulated by rules applicable to every part of the United States, and state lines and state jurisdiction cannot Page 156 U. S. 33 interfere with the enforcement of such rules. The jurisdiction of the general government extends over every foot of territory within the United States. Under the power with which it is invested, Congress may remove unlawful obstructions of whatever kind to the free course of trade among the states. In so doing, it would not interfere with the "autonomy of the states," because the power thus to protect interstate commerce is expressly given by the people of all the states. Interstate intercourse, trade, and traffic are absolutely free except as such intercourse, trade, or traffic may be incidentally or indirectly affected by the exercise by the states of their reserved police powers. Sherlock v. Alling, 99 U. S. 99 , 99 U. S. 103 . It is the Constitution, the supreme law of the land, which invests Congress with power to protect commerce among the states against burdens and exactions arising from unlawful restraints by whatever authority imposed. Surely a right secured or granted by that instrument is under the protection of the government which that instrument creates. Any combination, therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other states, or to be carried to other states -- a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition -- affects not incidentally but directly, the people of all the states, and the remedy for such an evil is found only in the exercise of powers confided to a government which, this Court has said, was the government of all, exercising powers delegated by all, representing all, acting for all. M'Culloch v. Maryland , 4 Wheat. 405. It has been argued that a combination between corporations of different states, or between the stockholders of such corporations, with the object and effect of controlling not simply the manufacture, but the price, of refined sugar throughout the whole of the United States -- which is the case now before us -- cannot be held to be in restraint of "commerce among the states," and amenable to national authority, without conceding that the general government has authority to say what shall and what shall not be manufactured in the several states. Page 156 U. S. 34 Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 20 , was cited in argument as supporting that view. In that case, the sole question was whether the State of Iowa could forbid the manufacture within its limits of ardent spirits intended for sale ultimately in other states. This Court held that the manufacture of intoxicating liquors in a state is nonetheless a business within the state, subject to state control, because the manufacturer may intend at his convenience, to export such liquors to foreign countries or to other states. The authority of the states over the manufacture of strong drinks within their respective jurisdictions was referred to their plenary power, never surrendered to the national government, of providing for the health, morals, and safety of their people. That case presented no question as to a combination to monopolize the sale of ardent spirits manufactured in Iowa to be sold in other states -- no question as to combinations in restraint of trade as involved in the buying and selling of articles that are intended to go and do go, and will always go, into commerce throughout the entire country, and are used by the people of all the states, and the making or manufacturing of which no state could forbid consistently with the liberty that everyone has of pursuing, without undue restrictions, the ordinary callings of life. There is no dispute here as to the lawfulness of the business of refining sugar, apart from the undue restraint which the promoters of such business, who have combined to control prices, seek to put upon the freedom of interstate traffic in that article. It may be admitted that an act which did nothing more than forbid, and which had no other object than to forbid, the mere refining of sugar in any state would be in excess of any power granted to Congress. But the act of 1890 is not of that character. It does not strike at the manufacture simply of articles that are legitimate or recognized subjects of commerce, but at combinations that unduly restrain, because they monopolize, the buying and selling of articles which are to go into interstate commerce. In State v. Stewart, 59 Vt. 273, 286, it was said that if a combination of persons "seek to restrain trade, or tend to the destruction of the material property Page 156 U. S. 35 of the country, they work injury to the whole people." And in State v. Glidden, 55 Conn. 46, 75, the court said: "Any one man, or anyone of several men acting independently, is powerless; but when several combine, and direct their united energies to the accomplishment of a bad purpose, the combination is formidable. Its power for evil increases as its number increases. . . . The combination becomes dangerous and subversive of the rights of others, and the law wisely says it is a crime." Chief Justice Gibson well said in Commonwealth v. Carlisle, Brightly (Penn.) 36, 39-40: "There is between the different parts of the body politic a reciprocity of action on each other, which, like the action of antagonizing muscles in the natural body, not only prescribes to each its appropriate state and action, but regulates the motion of the whole. The effort of an individual to disturb this equilibrium can never be perceptible, nor carry the operation of his interest, or that of any other individual, beyond the limits of fair competition; but the increase of power by combination of means being in geometrical proportion to the number concerned, an association may be able to give an impulse not only oppressive to individuals, but mischievous to the public at large, and it is the employment of an engine so powerful and dangerous that gives criminality to an act that would be perfectly innocent at least in a legal view, when done by an individual." These principles underlie the act of Congress, which has for its sole object the protection of such trade and commerce as the Constitution confides to national control, and the question is presented whether the combination assailed by this suit is an unlawful restraint upon interstate trade in a necessary article of food which, as everyone knows, has always entered, now enters, and must continue to enter in vast quantities into commerce among the states. In Kidd v. Pearson, we recognized, as had been done in previous cases, the distinction between the mere transportation of articles of interstate commerce and the purchasing and selling that precede transportation. It is said that manufacture precedes commerce, and is not a part of it. But it is equally true that when manufacture ends, that which has been manufactured Page 156 U. S. 36 becomes a subject of commerce; that buying and selling succeed manufacture, come into existence after the process of manufacture is completed, precede transportation, and are as much commercial intercourse, where articles are bought to be carried from one state to another, as is the manual transportation of such articles after they have been so purchased. The distinction was recognized by this Court in Gibbons v. Ogden, where the principal question was whether commerce included navigation. Both the court and counsel recognized buying and selling or barter as included in commerce. Chief Justice Marshall said that the mind can scarcely conceive a system for regulating commerce, which was " confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or of barter." Pp. 22 U. S. 189 -190. The power of Congress covers and protects the absolute freedom of such intercourse and trade among the states as may or must succeed manufacture and precede transportation from the place of purchase. This would seem to be conceded, for the court in the present case expressly declare that " contracts to buy, sell, or exchange goods to be transported among the several states, the transportation and its instrumentalities, and articles bought, sold, or exchanged for the purpose of such transit among the states, or put in the way of transit, may be regulated, but this is because they form part of interstate trade or commerce. " Here is a direct admission -- one which the settled doctrines of this Court justify -- that contracts to buy, and the purchasing of goods to be transported from one state to another, and transportation, with its instrumentalities, are all parts of interstate trade or commerce. Each part of such trade is then under the protection of Congress. And yet, by the opinion and judgment in this case, if I do not misapprehend them, Congress is without power to protect the commercial intercourse that such purchasing necessarily involves against the restraints and burdens arising from the existence of combinations that meet purchasers, from whatever state they come, with the threat -- for it is nothing more nor less than a threat -- that they shall not purchase what Page 156 U. S. 37 they desire to purchase, except at the prices fixed by such combinations. A citizen of Missouri has the right to go in person, or send orders, to Pennsylvania and New Jersey for the purpose of purchasing refined sugar. But of what value is that right if he is confronted in those states by a vast combination which absolutely controls the price of that article by reason of its having acquired all the sugar refineries in the United States in order that they may fix prices in their own interest exclusively? In my judgment, the citizens of the several states composing the Union are entitled of right to buy goods in the state where they are manufactured, or in any other state, without being confronted by an illegal combination whose business extends throughout the whole country, which, by the law everywhere, is an enemy to the public interests, and which prevents such buying except at prices arbitrarily fixed by it. I insist that the free course of trade among the states cannot coexist with such combinations. When I speak of trade, I mean the buying and selling of articles of every kind that are recognized articles of interstate commerce. Whatever improperly obstructs the free course of interstate intercourse and trade, as involved in the buying and selling of articles to be carried from one state to another, may be reached by Congress under its authority to regulate commerce among the states. The exercise of that authority so as to make trade among the states in all recognized articles of commerce absolutely free from unreasonable or illegal restrictions imposed by combinations is justified by an express grant of power to Congress, and would redound to the welfare of the whole country. I am unable to perceive that any such result would imperil the autonomy of the states, especially as that result cannot be attained through the action of anyone state. Undue restrictions or burdens upon the purchasing of goods in the market for sale, to be transported to other states, cannot be imposed, even by a state, without violating the freedom of commercial intercourse guarantied by the Constitution. But if a state within whose limits the business of refining sugar is exclusively carried on may not constitutionally impose Page 156 U. S. 38 burdens upon purchases of sugar to be transported to other states, how comes it that combinations of corporations or individuals within the same state may not be prevented by the national government from putting unlawful restraints upon the purchasing of that article to be carried from the state in which such purchases are made? If the national power is competent to repress state action in restraint of interstate trade as it may be involved in purchases of refined sugar to be transported from one state to another state, surely it ought to be deemed sufficient to prevent unlawful restraints attempted to be imposed by combinations of corporations or individuals upon those identical purchases; otherwise illegal combinations of corporations or individuals may -- so far as national power and interstate commerce are concerned -- do with impunity what no state can do. Suppose that a suit were brought in one of the courts of the United States, jurisdiction being based, it may be, alone upon the diverse citizenship of the parties, to enforce the stipulations of a written agreement which had for its object to acquire the possession of all the sugar refineries in the United States in order that those engaged in the combination might obtain the entire control of the business of refining and selling sugar throughout the country, and thereby to increase or diminish prices as the particular interests of the combination might require. I take it that the Court, upon recognized principles of law common to the jurisprudence of this country and of Great Britain, would deny the relief asked and dismiss the suit upon the ground that the necessary tendency of such an agreement and combination was to restrain not simply trade that was completely internal to the state in which the parties resided, but trade and commerce among all the states, and was therefore against public policy and illegal. If I am right in this view, it would seem to follow necessarily that Congress could enact a statute forbidding such combinations so far as they affected interstate commerce, and provide for their suppression as well through civil proceedings instituted for that purpose as by penalties against those engaged in them. Page 156 U. S. 39 In committing to Congress the control of commerce with foreign nations and among the several states, the Constitution did not define the means that may be employed to protect the freedom of commercial intercourse and traffic established for the benefit of all the people of the Union. It wisely forbore to impose any limitations upon the exercise of that power except those arising from the general nature of the government or such as are embodied in the fundamental guarantees of liberty and property. It gives to Congress, in express words, authority to enact all laws necessary and proper for carrying into execution the power to regulate commerce, and whether an act of Congress, passed to accomplish an object to which the general government is competent, is within the power granted must be determined by the rule announced through Chief Justice Marshall three-quarters of a century ago, and which has been repeatedly affirmed by this Court. That rule is: "The sound construction of the Constitution must allow to the national legislature the discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional." M'Culloch v. Maryland , 4 Wheat. 316, 17 U. S. 421 . The end proposed to be accomplished by the act of 1890 is the protection of trade and commerce among the states against unlawful restraints. Who can say that that end is not legitimate, or is not within the scope of the Constitution? The means employed are the suppression, by legal proceedings, of combinations, conspiracies, and monopolies which, by their inevitable and admitted tendency, improperly restrain trade and commerce among the states. Who can say that such means are not appropriate to attain the end of freeing commercial intercourse among the states from burdens and exactions imposed upon it by combinations which, under principles long recognized in this country, as well as at the Page 156 U. S. 40 common law, are illegal and dangerous to the public welfare? What clause of the Constitution can be referred to which prohibits the means thus prescribed in the act of Congress? It may be that the means employed by Congress to suppress combinations that restrain interstate trade and commerce are not all or the best that could have been devised. But Congress, under the delegation of authority to enact laws necessary and proper to carry into effect a power granted, is not restricted to the employment of those means "without which the end would be entirely unattainable. . . . To have prescribed the means," this Court has said, "by which government should in all future time execute its powers would have been to change entirely the character of that instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." Again: "Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." M'Culloch v. Maryland , 4 Wheat. 316, 17 U. S. 415 , 17 U. S. 423 . By the act of 1890, Congress subjected to forfeiture "any property owned under any contract or by any combination, or pursuant to any conspiracy (and being the subject thereof) mentioned in section one of this act, and being in the course of transportation from one state to another, or to a foreign country." It was not deemed wise to subject such property to forfeiture before transportation began or after it ended. If it be suggested that Congress might have prohibited the transportation from the state in which they are manufactured any articles, by whomsoever at the time owned, that had been Page 156 U. S. 41 manufactured by combinations formed to monopolize some designated part of trade or commerce among the states, my answer is that it is not within the functions of the judiciary to adjudge that Congress shall employ particular means in execution of a given power simply because such means are, in the judgment of the courts, best conducive to the end sought to be accomplished. Congress, in the exercise of its discretion as to choice of means conducive to an end to which it was competent, determined to reach that end through civil proceedings, instituted to prevent or restrain these obnoxious combinations in their attempts to burden interstate commerce by obstructions that interfere in advance of transportation with the free course of trade between the people of the states. In other words, Congress sought to prevent the coming into existence of combinations, the purpose or tendency of which was to impose unlawful restraints upon interstate commerce. There is nothing in conflict with these views in Coe v. Errol, 116 U. S. 517 . There, the question was whether certain logs cut in New Hampshire, and hauled to a river that they might be transported to another state, were liable to be taxed in the former state before actual transportation to the latter state began. The court held that the logs might be taxed while they remained in the State of their origin as part of the general mass of property there; that "for this purpose " -- taxation -- the property did not pass from the jurisdiction of the state in which it was until transportation began. The scope of the decision is clearly indicated by the following clause in the opinion of Mr. Justice Bradley: "How can property thus situated, to-wit, deposited or stored at the place of entrepot for future exportation, be taxed in the regular way as part of the property of the state? The answer is plain. It can be taxed as all other property is taxed, in the place where it is found, if taxed or assessed for taxation in the usual manner in which such property is taxed, and not singled out to be assessed by itself in an unusual and exceptional manner because of its situation." As we have now no question as to the taxation of articles manufactured by one of the combinations condemned by the act of Congress, and Page 156 U. S. 42 as no one has suggested that the state in which they may be manufactured could not tax them as property so long as they remained within its limits, and before transportation of them to other states began, I am at a loss to understand how the case before us can be affected by a decision that personal property, while it remains in the state of its origin, although it is to be sent at a future time to another state, is within the jurisdiction of the former state for purposes of taxation. The question here relates to restraints upon the freedom of interstate trade and commerce imposed by illegal combinations After the fullest consideration I have been able to bestow upon this important question, I find it impossible to refuse my assent to this proposition: whatever a state may do to protect its completely interior traffic or trade against unlawful restraints, the general government is empowered to do for the protection of the people of all the states -- for this purpose, one people -- against unlawful restraints imposed upon interstate traffic or trade in articles that are to enter into commerce among the several states. If, as already shown, a state may prevent or suppress a combination the effect of which is to subject its domestic trade to the restraints necessarily arising from their obtaining the absolute control of the sale of a particular article in general use by the community, there ought to be no hesitation in allowing to Congress the right to suppress a similar combination that imposes a like unlawful restraint upon interstate trade and traffic in that article. While the states retain, because they have never surrendered, full control of their completely internal traffic, it was not intended by the framers of the Constitution that any part of interstate commerce should be excluded from the control of Congress. Each state can reach and suppress combinations so far as they unlawfully restrain its interior trade, while the national government may reach and suppress them so far as they unlawfully restrain trade among the states. While the opinion of the court in this case does not declare the act of 1890 to be unconstitutional, it defeats the main object for which it was passed, for it is, in effect, held that the statute would be unconstitutional if interpreted as embracing Page 156 U. S. 43 such unlawful restraints upon the purchasing of goods in one state to be carried to another state as necessarily arise from the existence of combinations formed for the purpose and with the effect not only of monopolizing the ownership of all such goods in every part of the country, but of controlling the prices for them in all the states. This view of the scope of the act leaves the public, so far as national power is concerned, entirely at the mercy of combinations which arbitrarily control the prices of articles purchased to be transported from one state to another state. I cannot assent to that view. In my judgment, the general government is not placed by the Constitution in such a condition of helplessness that it must fold its arms and remain inactive while capital combines, under the name of a corporation, to destroy competition not in one state only, but throughout the entire country, in the buying and selling of articles -- especially the necessaries of life -- that go into commerce among the states. The doctrine of the autonomy of the states cannot properly be invoked to justify a denial of power in the national government to meet such an emergency, involving as it does that freedom of commercial intercourse among the states which the Constitution sought to attain. It is said that there are no proofs in the record which indicate an intention upon the part of the American Sugar Refining Company and its associates to put a restraint upon trade or commerce. Was it necessary that formal proof be made that the persons engaged in this combination admitted in words that they intended to restrain trade or commerce? Did anyone expect to find in the written agreements which resulted in the formation of this combination a distinct expression of a purpose to restrain interstate trade or commerce? Men who form and control these combinations are too cautious and wary to make such admissions orally or in writing. Why, it is conceded that the object of this combination was to obtain control of the business of making and selling refined sugar throughout the entire country. Those interested in its operations will be satisfied with nothing less than to have the whole population of America pay tribute to them. That object Page 156 U. S. 44 is disclosed upon the very face of the transactions described in the bill. And it is proved -- indeed, is conceded -- that that object has been accomplished to the extent that the American Sugar Refining Company now controls ninety-eight percent of all the sugar refining business in the country, and therefore controls the price of that article everywhere. Now the mere existence of a combination having such an object and possessing such extraordinary power is itself, under settled principles of law, there being no adjudged case to the contrary in this country, a direct restraint of trade in the article for the control of the sales of which in this country that combination was organized. And that restraint is felt in all the states, for the reason, known to all, that the article in question goes, was intended to go, and must always go, into commerce among the several states, and into the homes of people in every condition of life. A decree recognizing the freedom of commercial intercourse as embracing the right to buy goods to be transported from one state to another without buyers' being burdened by unlawful restraints imposed by combinations of corporations or individuals, so far from disturbing or endangering would tend to preserve the autonomy of the states, and protect the people of all the states against dangers so portentous as to excite apprehension for the safety of our liberties. If this be not a sound interpretation of the Constitution, it is easy to perceive that interstate traffic, so far as it involves the price to be paid for articles necessary to the comfort and wellbeing of the people in all the states, may pass under the absolute control of overshadowing combinations having financial resources without limit, and an audacity in the accomplishment of their objects that recognizes none of the restraints of moral obligations controlling the action of individuals -- combinations governed entirely by the law of greed and selfishness, so powerful that no single state is able to overthrow them, and give the required protection to the whole country, and so all-pervading that they threaten the integrity of our institutions. We have before us the case of a combination which absolutely controls, or may at its discretion control, the price of all Page 156 U. S. 45 refined sugar in this country. Suppose another combination, organized for private gain and to control prices, should obtain possession of all the large flour mills in the United States, another of all the grain elevators, another of all the oil territory, another of all the salt-producing regions, another of all the cotton mills, and another, of all the great establishments for slaughtering animals and the preparation of meats. What power is competent to protect the people of the United States against such dangers except a national power, one that is capable of exerting its sovereign authority throughout every part of the territory and over all the people of the nation? To the general government has been committed the control of commercial intercourse among the states, to the end that it may be free at all times from any restraints except such as Congress may impose or permit for the benefit of the whole country. The common government of all the people is the only one that can adequately deal with a matter which directly and injuriously affects the entire commerce of the country, which concerns equally all the people of the Union, and which, it must be confessed, cannot be adequately controlled by anyone state. Its authority should not be so weakened by construction that it cannot reach and eradicate evils that, beyond all question, tend to defeat an object which that government is entitled, by the Constitution, to accomplish. "Powerful and ingenious minds," this Court has said, "taking, as postulates, that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them, may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 222 . While a decree annulling the contracts under which the Page 156 U. S. 46 combination in question was formed may not, in view of the facts disclosed, be effectual to accomplish the object of the act of 1890, I perceive no difficulty in the way of the court passing a decree declaring that that combination imposes an unlawful restraint upon trade and commerce among the states, and perpetually enjoining it from further prosecuting any business pursuant to the unlawful agreements under which it was formed, or by which it was created. Such a decree would be within the scope of the bill, and is appropriate to the end which Congress intended to accomplish -- namely, to protect the freedom of commercial intercourse among the states against combinations and conspiracies which impose unlawful restraints upon such intercourse. For the reasons stated, I dissent from the opinion and judgment of the court.

In United States v. E. C. Knight Co. (1895), the U.S. Supreme Court ruled that the federal government could not use the Sherman Antitrust Act of 1890 to break up a sugar manufacturing monopoly because the Commerce Clause of the U.S. Constitution does not give Congress the power to regulate manufacturing, only the power to regulate commerce across state lines. This decision limited the federal government's ability to regulate monopolies and interstate commerce, and it prompted calls for an amendment to the Constitution to explicitly grant Congress that power, which eventually came with the passage of the Sixteenth Amendment in 1913.

Search & Seizure

Weeks v. U.S.

https://supreme.justia.com/cases/federal/us/232/383/

U.S. Supreme Court Weeks v. United States, 232 U.S. 383 (1914) Weeks v. United States No. 461 Argued December 2, 3, 1913 Decided February 24,1914 232 U.S. 383 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI Syllabus Under the Fourth Amendment, Federal courts and officers are under such limitations and restraints in the exercise of their power and authority as to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. The protection of the Fourth Amendment reaches all alike, whether accused of crime or not; and the duty of giving it force and effect is obligatory on all entrusted with the enforcement of Federal laws. The tendency of those executing Federal criminal laws to obtain convictions by means of unlawful seizures and enforced confessions in violation of Federal rights is not to be sanctioned by the courts which are charged with the support of constitutional rights. The Federal courts cannot, as against a seasonable application for their return, in a criminal prosecution, retain for the purposes of evidence against the accused his letters and correspondence seized in his house during his absence and without his authority by a United States marshal holding no warrant for his arrest or for the search of his premises. While the efforts of courts and their officials to bring the guilty to punishment are praiseworthy, they are not to be aided by sacrificing the great fundamental rights secured by the Constitution. While an incidental seizure of incriminating papers, made in the execution of a legal warrant, and their use as evidence, may be justified, and a collateral issue will not be raised to ascertain the source of competent evidence, Adams v. New York, 192 U. S. 585 , that rule does not justify the retention of letters seized in violation of the protection given by the Fourth Amendment where an application in the cause for their return has been made by the accused before trial. The court has power to deal with papers and documents in the possession of the District Attorney and other officers of the court and to direct their return to the accused if wrongfully seized. Where letters and papers of the accused were taken from his premises by an official of the United States, acting under color of office but Page 232 U. S. 384 without any search warrant and in violation of the constitutional rights of accused under the Fourth Amendment, and a seasonable application for return of the letters and papers has been refused and they are used in evidence over his objection, prejudicial error is committed, and the judgment should be reversed. The Fourth Amendment is not directed to individual misconduct of state officers. Its limitations reach the Federal Government and its agencies. Boyd v. United States, 116 U. S. 616 . The facts, which involve the validity under the Fourth Amendment of a verdict and sentence and the extent to which the private papers of the accused taken without search warrant can be used as evidence against him, are stated in the opinion. Page 232 U. S. 386 MR. JUSTICE DAY delivered the opinion of the court: An indictment was returned against the plaintiff in error, defendant below, and herein so designated, in the district court of the United States for the western district of Missouri, containing nine counts. The seventh count, upon which a conviction was had, charged the use of the mails for the purpose of transporting certain coupons or tickets representing chances or shares in a lottery or gift enterprise, in violation of § 213 of the Criminal Code. Sentence of fine and imprisonment was imposed. This writ of error is to review that judgment. The defendant was arrested by a police officer, so far as the record shows, without warrant, at the Union Station in Kansas City, Missouri, where he was employed by an express company. Other police officers had gone to the house of the defendant, and being told by a neighbor where the key was kept, found it and entered the house. They searched the defendant's room and took possession of various papers and articles found there, which were afterwards turned over to the United States marshal. Later in the same day, police officers returned with the marshal, who thought he might find additional evidence and, being admitted by someone in the house, probably a boarder, in response to a rap, the marshal searched the defendant's room and carried away certain letters and envelops found in the drawer of a chiffonier. Neither the marshal nor the police officer had a search warrant. Page 232 U. S. 387 The defendant filed in the cause before the time for trial the following petition: "Petition to Return Private Papers, Books, and Other Property." "Now comes defendant and states that he is a citizen and resident of Kansas City, Missouri, and that he resides, owns, and occupies a home at 1834 Penn street in said city:" "That, on the 21st day of December, 1911, while plaintiff was absent at his daily vocation, certain officers of the government, whose names are to plaintiff unknown, unlawfully and without warrant or authority so to do, broke open the door to plaintiff's said home and seized all of his books, letters, money, papers, notes, evidences of indebtedness, stock, certificates, insurance policies, deeds, abstracts, and other muniments of title, bonds, candies, clothes, and other property in said home, and this in violation of §§ 11 and 23 to the Constitution of Missouri, and of the 4th and Fifth Amendments to the Constitution of the United States;" "That the district attorney, marshal, and clerk of the United States court for the western district of Missouri took the above-described property so seized into their possession, and have failed and refused to return to defendant portion of same, to-wit:" "One (1) leather grip, value about $7; one (1) tin box valued at $3; one (1) Pettis county, Missouri, bond, value $500; three (3) mining stock certificates which defendant is unable to more particularly describe, valued at $12,000; and certain stock certificates in addition thereto, issued by the San Domingo Mining, Loan, & Investment Company; about $75 in currency; one (1) newspaper published about 1790, an heirloom; and certain other property which plaintiff is now unable to describe." "That said property is being unlawfully and improperly Page 232 U. S. 388 held by said district attorney, marshal, and clerk, in violation of defendant's rights under the Constitution of the United States and the state of Missouri." "That said district attorney purposes to use said books, letters, papers, certificates of stock, etc., at the trial of the above-entitled cause, and that, by reason thereof and of the facts above set forth, defendant's rights under the amendments aforesaid to the Constitutions of Missouri and the United States have been and will be violated unless the court order the return prayed for;" "Wherefore, defendant prays that said district attorney, marshal, and clerk be notified, and that the court direct and order said district attorney, marshal, and clerk, to return said property to said defendant." Upon consideration of the petition, the court entered in the cause an order directing the return of such property as was not pertinent to the charge against the defendant, but denied the petition as to pertinent matter, reserving the right to pass upon the pertinency at a later time. In obedience to the order, the district attorney returned part of the property taken and retained the remainder, concluding a list of the latter with the statement that "all of which last above described property is to be used in evidence in the trial of the above-entitled cause, and pertains to the alleged sale of lottery tickets of the company above named." After the jury had been sworn and before any evidence had been given, the defendant again urged his petition for the return of his property, which was denied by the court. Upon the introduction of such papers during the trial, the defendant objected on the ground that the papers had been obtained without a search warrant, and by breaking open his home, in violation of the 4th and Fifth Amendments to the Constitution of the United States, which objection was overruled by the court. Among the papers retained and put in evidence were a number of Page 232 U. S. 389 lottery tickets and statements with reference to the lottery, taken at the first visit of the police to the defendant's room, and a number of letters written to the defendant in respect to the lottery, taken by the marshal upon his search of defendant's room. The defendant assigns error, among other things, in the court's refusal to grant his petition for the return of his property, and in permitting the papers to be used at the trial. It is thus apparent that the question presented involves the determination of the duty of the court with reference to the motion made by the defendant for the return of certain letters, as well as other papers, taken from his room by the United States marshal, who, without authority of process, if any such could have been legally issued, visited the room of the defendant for the declared purpose of obtaining additional testimony to support the charge against the accused, and, having gained admission to the house, took from the drawer of a chiffonier there found certain letters written to the defendant, tending to show his guilt. These letters were placed in the control of the district attorney, and were subsequently produced by him and offered in evidence against the accused at the trial. The defendant contends that such appropriation of his private correspondence was in violation of rights secured to him by the 4th and Fifth Amendments to the Constitution of the United States. We shall deal with the 4th Amendment, which provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The history of this Amendment is given with particularity in the opinion of Mr. Justice Bradley, speaking for Page 232 U. S. 390 the court in Boyd v. United States, 116 U. S. 616 . As was there shown, it took its origin in the determination of the framers of the Amendments to the Federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safeguards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, make against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies. See 2 Watson, Const. 1414 et seq. Resistance to these practices had established the principle which was enacted into the fundamental law in the Fourth Amendment, that a man's house was his castle, and not to be invaded by any general authority to search and seize his goods and papers. Judge Cooley, in his Constitutional Limitations, pp. 425, 426, in treating of this feature of our Constitution said: "The maxim that 'every man's house is his castle' is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen." "Accordingly," says Lieber in his work on Civil Liberty and Self-Government, 62, in speaking of the English law in this respect, "no man's house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony; and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon." In Ex parte Jackson, 96 U. S. 727 , 96 U. S. 733 , this court recognized the principle of protection as applicable to letters and sealed packages in the mail, and held that, consistently Page 232 U. S. 391 with this guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures, such matter could only be opened and examined upon warrants issued on oath or affirmation, particularly describing the thing to be seized, "as is required when papers are subjected to search in one's own household." In the Boyd case, supra, after citing Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials 1029, Mr. Justice Bradley said (630): "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense -- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment." In Bram v. United States, 168 U. S. 532 , this court, in speaking by the present Chief Justice of Boyd's Case, dealing with the Fourth and Fifth Amendments, said (544): "It was in that case demonstrated that both of these Amendments contemplated perpetuating, in their full efficacy, by means of a constitutional provision, principles of humanity and civil liberty which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity, free from the possibilities of future legislative change." The effect of the Fourth Amendment is to put the courts Page 232 U. S. 392 of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. What, then, is the present case? Before answering that inquiry specifically, it may be well, by a process of exclusion, to state what it is not. It is not an assertion of the right on the part of the government always recognized under English and American law to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop.Criminal Procedure § 211; Wharton, Crim. Plead. & Practice 8th ed. § 60; Dillon v. O'Brien, 16 Cox C.C. 245. Nor is it the case of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained -- of which we shall have occasion to treat later in this opinion. Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the accused. Page 232 U. S. 393 The case in the aspect in which we are dealing with it involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence and without his authority, by a United States marshal holding no warrant for his arrest and none for the search of his premises. The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well or other property. This application was denied, the letters retained and put in evidence, after a further application at the beginning of the trial, both applications asserting the rights of the accused under the Fourth and Fifth Amendments to the Constitution. If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established be years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land. The United States marshal could only have invaded the house of the accused when armed with a warrant issued as required by the Constitution, upon sworn information, and describing with reasonable particularity the thing for which the search was to be made. Instead, he acted without sanction of law, doubtless prompted by the desire to bring further proof to the aid of the government, and, under color of his office, undertook to make a seizure of private papers in direct violation of the constitutional prohibition against such action. Under such circumstances, without sworn information and particular description, not even an order of court would Page 232 U. S. 394 have justified such procedure; much less was it within the authority of the United States marshal to thus invade the house and privacy of the accused. In Adams v. New York, 192 U. S. 585 , this court said that the Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law, acting under legislative or judicial sanction. This protection is equally extended to the action of the government and officers of the law acting under it. ( Boyd Case, supra ) To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action. The court before which the application was made in this case recognized the illegal character of the seizure, and ordered the return of property not in its judgment competent to be offered at the trial, but refused the application of the accused to turn over the letters, which were afterwards put in evidence on behalf of the government. While there is no opinion in the case, the court in this proceeding doubtless relied upon what is now contended by the government to be the correct rule of law under such circumstances -- that the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but, if competent, would keep them and permit their use in evidence. Such proposition, the government asserts, is conclusively established by certain decisions of this court, the first of which is Adams v. New York, supra. In that case, the plaintiff in error had been convicted in the Supreme Court of the State of New York for having in his possession certain gambling paraphernalia used in the game known as policy, in violation of the Penal Code of New York. At the trial, certain papers, which had been seized by police officers executing a search warrant for the discovery and Page 232 U. S. 395 seizure of policy slips, and which had been found in addition to the policy slips, were offered in evidence over his objection. The conviction was affirmed by the court of appeals of New York (176 N.Y. 351), and the case was brought here for alleged violation of the Fourth and Fifth Amendments to the Constitution of the United States. Pretermitting the question whether these Amendments applied to the action of the states, this court proceeded to examine the alleged violations of the Fourth and Fifth Amendments, and put its decision upon the ground that the papers found in the execution of the search warrant, which warrant had a legal purpose in the attempt to find gambling paraphernalia, was competent evidence against the accused, and their offer in testimony did not violate his constitutional privilege against unlawful search or seizure, for is was held that such incriminatory documents thus discovered were not the subject of an unreasonable search and seizure, and, in effect, that the same were incidentally seized in the lawful execution of a warrant, and not in the wrongful invasion of the home of a citizen and the unwarranted seizure of his papers and property. It was further held, approving in that respect the doctrine laid down in 1 Greenleaf, § 254a, that it was no valid objection to the use of the papers that they had been thus seized, and that the courts in the course of a trial would not make an issue to determine that question, and many state cases were cited supporting that doctrine. The same point had been ruled in People v. Adams, 176 N.Y. 351, from which decision the case was brought to this court, where it was held that if the papers seized in addition to the policy slips were competent evidence in the case, as the court held they were, they were admissible in evidence at the trial, the court saying (p. 358): "The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of Page 232 U. S. 396 the manner in which witnesses have possessed themselves of papers or other articles of personal property which are material and properly offered in evidence." This doctrine thus laid down by the New York Court of Appeals and approved by this Court, that a court will not, in trying a criminal cause, permit a collateral issue to be raised as to the source of competent testimony, has the sanction of so many state cases that it would be impracticable to cite or refer to them in detail. Many of them are collected in the note to State v. Turner, 136 Am. St. Rep. 129, 135 et seq. After citing numerous cases, the editor says: "The underlying principle of all these decisions obviously is that the court, when engaged in the trial of a criminal action, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence which are material and properly offered in evidence. People v. Adams, supra. Such an investigation is not involved necessarily in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause, and consider incidentally a question which has happened to cross the path of such litigation, and which is wholly independent thereof." It is therefore evident that the Adams Case affords no authority for the action of the court in this case, when applied to in due season for the return of papers seized in violation of the Constitutional Amendment. The decision in that case rests upon incidental seizure made in the execution of a legal warrant, and in the application of the doctrine that a collateral issue will not be raised to ascertain the source from which testimony, competent in a criminal case, comes. The government also relies upon Hale v. Henkel, 201 U. S. 43 , in which the previous cases of Boyd v. United States, Adams v. New York, supra; 154 U. S. S. 397� Commerce Commission v. Brimson, 154 U. S. 447 , and Interstate Commerce Commission v. Baird, 194 U. S. 25 , are reviewed, and wherein it was held that a subpoena duces tecum@ requiring a corporation to produce all its contracts and correspondence with no less than six other companies, as well as all letters received by the corporation from thirteen other companies, located in different parts of the United States, was an unreasonable search and seizure within the Fourth Amendment, and it was there stated that (201 U.S. p. 201 U. S. 76 ) "an order for the production of books and papers may constitute an unreasonable search and seizure within the Fourth Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd Case, the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection." If such a seizure under the authority of a warrant supposed to be legal constitutes a violation of the constitutional protection, a fortiori does the attempt of an officer of the United States, the United States marshal, acting under color of his office, without even the sanction of a warrant, constitute an invasion of the rights within the protection afforded by the Fourth Amendment. Another case relied upon is American Tobacco Co. v. Werckmeister, 207 U. S. 284 , in which it was held that the seizure by the United States marshal in a copyright case of certain pictures under a writ of replevin did not constitute an unreasonable search and seizure. The other case from this court relied upon is Holt v. United States, 218 U. S. 245 , in which it was held that testimony tending to show that a certain blouse which was in evidence as incriminating him, had been put upon the prisoner, and fitted him, did not violate his constitutional right. We Page 232 U. S. 398 are at a loss to see the application of these cases to the one in hand. The right of the court to deal with papers and documents in the possession of the district attorney and other officers of the court, and subject to its authority, was recognized in Wise v. Henkel, 220 U. S. 556 . That papers wrongfully seized should be turned over to the accused has been frequently recognized in the early, as well as later, decisions of the courts. 1 Bishop on Criminal Procedure § 210; Rex v. Barnett, 3 C. & P. 600; Rex v. Kinsey, 7 C. & P. 447; United States v. Mills, 185 Fed. 318; United States v. McHie, 194 Fed. 894, 898. We therefore reach the conclusion that the letters in question were taken from the house of the accused by an official of the United States, acting under color of his office, in direct violation of the constitutional rights of the defendant; that, having made a seasonable application for their return, which was heard and passed upon by the court, there was involved in the order refusing the application a denial of the constitutional rights of the accused, and that the court should have restored these letters to the accused. In holding them and permitting their use upon the trial, we think prejudicial error was committed. As to the papers and property seized by the policemen, it does not appear that they acted under any claim of Federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the Federal court -- under what supposed right or authority does not appear. What remedies the defendant may have against them we need not inquire, as the Fourth Amendment is not directed to individual misconduct of such officials. Its limitations reach the Federal government and its agencies. Boyd case, 116 U.S., supra, and see Twining v. New Jersey, 211 U. S. 78 Page 232 U. S. 399 It results that the judgment of the court below must be reversed, and the case remanded for further proceedings in accordance with this opinion. Reversed.

In the case of Weeks v. United States (1914), the Supreme Court ruled that the Fourth Amendment protects individuals from unreasonable searches and seizures by federal officers and courts. The Court held that any evidence obtained through such unlawful means, including letters and documents, cannot be used against the accused in a criminal trial if a timely application for their return is made. This decision established the exclusionary rule, which prevents illegally obtained evidence from being used in court proceedings.

Search & Seizure

Florida v. Bostick

https://supreme.justia.com/cases/federal/us/501/429/

U.S. Supreme Court Florida v. Bostick, 501 U.S. 429 (1991) Florida v. Bostick No. 89-1717 Argued Feb. 26, 1991 Decided June 20, 1991 501 U.S. 419 CERTIORARI TO THE SUPREME COURT OF FLORIDA Syllabus As part of a drug interdiction effort, Broward County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. Two officers boarded respondent Bostick's bus and, without articulable suspicion, questioned him and requested his consent to search his luggage for drugs, advising him of his right to refuse. He gave his permission, and the officers, after finding cocaine, arrested Bostick on drug trafficking charges. His motion to suppress the cocaine on the ground that it had been seized in violation of the Fourth Amendment was denied by the trial court. The Florida Court of Appeal affirmed, but certified a question to the State Supreme Court. That court, reasoning that a reasonable passenger would not have felt free to leave the bus to avoid questioning by the police, adopted a per se rule that the sheriff's practice of "working the buses" is unconstitutional. Held: 1. The Florida Supreme Court erred in adopting a per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter. Pp. 501 U. S. 433 -437. (a) A consensual encounter does not trigger Fourth Amendment scrutiny. See Terry v. Ohio, 392 U. S. 1 , 392 U. S. 19 , n. 16. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, Florida v. Rodriguez, 469 U. S. 1 , 469 U. S. 5 -6, ask to examine identification, INS v. Delgdo, 466 U. S. 210 , 466 U. S. 216 , and request consent to search luggage, Florida v. Royer, 460 U. S. 491 , 460 U. S. 501 , provided they do not convey a message that compliance with their requests is required. Thus, there is no doubt that, if this same encounter had taken place before Bostick boarded the bus or in the bus terminal, it would not be a seizure. Pp. 501 U. S. 434 -435. (b) That this encounter took place on a bus is but one relevant factor in determining whether or not it was of a coercive nature. The state court erred in focusing on the "free to leave" language of Michigan v. Chesternut, 486 U. S. 567 , 486 U. S. 573 , rather than on the principle that those words were intended to capture. This inquiry is not an accurate measure of an encounter's coercive effect when a person is seated on a bus about to depart, has no desire to leave, and would not feel free to leave Page 501 U. S. 430 even if there were no police present. The more appropriate inquiry is whether a reasonable passenger would feel free to decline the officers' request or otherwise terminate the encounter. Thus, this case is analytically indistinguishable from INS v. Delgado, supra. There, no seizure occurred when INS agents visited factories at random, stationing some agents at exits while others questioned workers, because, even though workers were not free to leave without being questioned, the agents' conduct gave them no reason to believe that they would be detained if they answered truthfully or refused to answer. Such a refusal, alone, does not furnish the minimal level of objective justification needed for detention or seizure. Id. at 466 U. S. 216 -217. Pp. 501 U. S. 435 -437. 2. This case is remanded for the Florida courts to evaluate the seizure question under the correct legal standard. The trial court made no express findings of fact, and the State Supreme Court rested its decision on a single fact -- that the encounter took place on a bus -- rather than on the totality of the circumstances. Rejected, however, is Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage containing drugs, since the "reasonable person" test presumes an innocent person. Pp. 501 U. S. 437 -440. 554 So. 2d 1153 (Fla.1989), reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 501 U. S. 440 . Page 501 U. S. 431 JUSTICE O'CONNOR delivered the opinion of the Court. We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus. I Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision: "'Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted, and explained their presence as narcotics agents on the Page 501 U. S. 432 lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'" 554 So. 2d 1153 , 1154-1155 (1989), quoting 510 So. 2d 321, 322 (Fla. App.1987) (Letts, J., dissenting in part). Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol -- the equivalent of carrying a gun in a holster -- but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post at 501 U. S. 448 , is colorful, but lacks any basis in fact. Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion, but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress. The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme Court. 510 So. 2d at 322. Page 501 U. S. 433 The Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police. 554 So. 2d at 1154. It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that "''an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'" Ibid. The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional. * The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see id. at 1156; but they may not engage in the same behavior on a bus. Id. at 1157. We granted certiorari, 498 U.S. 894 (1990), to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence. II The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable Page 501 U. S. 434 suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit. Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., 499 U. S. 621 , 501 U. S. 628 (1991), the encounter is consensual, and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U. S. 1 , 392 U. S. 19 , n. 16 (1968): "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, 460 U. S. 491 (1983) (plurality opinion), for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Id. at 460 U. S. 497 ; see id. at 460 U. S. 523 , n. 3 (REHNQUIST, J., dissenting). There is no doubt that, if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports, and has found them to be "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest." Florida v. Rodriguez, 469 U. S. 1 , 469 U. S. 5 -6 (1984). We have stated that even Page 501 U. S. 435 when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see INS v. Delgado, 466 U. S. 210 , 466 U. S. 216 (1984); Rodriguez, supra, 469 U.S. at 469 U. S. 5 -6; ask to examine the individual's identification, see Delgado, supra, 466 U.S. at 466 U. S. 216 ; Royer, supra, 460 U.S. at 460 U. S. 501 (plurality opinion); United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 557 -558 (1980); and request consent to search his or her luggage, see Royer, supra, 460 U.S. at 460 U. S. 501 (plurality opinion) -- as long as the police do not convey a message that compliance with their requests is required. Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from Michigan v. Chesternut, 486 U. S. 567 , 486 U. S. 573 (1988), and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment. The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave," rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person Page 501 U. S. 436 would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive. In this respect, the Court's decision in INS v. Delgado, supra, is dispositive. At issue there was the INS' practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building's exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity: "Ordinarily, when people are at work, their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." Id. 466 U.S. at 466 U. S. 218 . We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents' conduct should have given employees "no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Ibid. The present case is analytically indistinguishable from Delgado. Like the workers in that case, Bostick's freedom of movement was restricted by a factor independent of police conduct -- i.e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This Page 501 U. S. 437 formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Chesternut, supra, 486 U.S. at 486 U. S. 569 . See also Hodari D., supra, 499 U.S. at 499 U. S. 628 . Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer's request without fearing prosecution. See Brief for the United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See Delgado, 466 U.S. at 466 U. S. 216 -217; Royer, 460 U.S. at 460 U. S. 498 (plurality opinion); Brown v. Texas, 443 U. S. 47 , 443 U. S. 52 -53 (1979). The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage -- so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point guns at Bostick or otherwise threaten him, and that they specifically advised Bostick that he could refuse consent. Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact -- that the encounter took place on a bus -- rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick's argument that he must have been seized Page 501 U. S. 438 because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the "reasonable person" test presupposes an innocent person. See Royer, supra, 460 U.S. at 460 U. S. 519 , n. 4 (BLACKMUN, J., dissenting) ("The fact that [respondent] knew the search was likely to turn up contraband is, of course, irrelevant; the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position"). Accord, Chesternut, 486 U.S. at 486 U. S. 574 ("This reasonable person' standard . . . ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached"). The dissent characterizes our decision as holding that police may board buses and, by an " intimidating show of authority," post at 501 U. S. 447 (emphasis added), demand of passengers their "voluntary" cooperation. That characterization is incorrect. Clearly, a bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage. The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this ease -- whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter -- applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particular Page 501 U. S. 439 mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional. The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today's decision follows logically from those decisions, and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken. This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." See post at 501 U. S. 440 , 501 U. S. 450 -451. If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case. We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to Page 501 U. S. 440 encounters on a bus. The Florida Supreme Court erred in adopting a per se rule. The judgment of the Florida Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. * The dissent acknowledges that the Florida Supreme Court's answer to the certified question reads like a per se rule, but dismisses as "implausible" the notion that the court would actually apply this rule to "trump" a careful analysis of all the relevant facts. Post at 501 U. S. 445 . Implausible as it may seem, that is precisely what the Florida Supreme Court does. It routinely grants review in bus search cases and quashes denials of motions to suppress expressly on the basis of its answer to the certified question in this case. See, e.g., McBride v. State, 554 So. 2d 1160 (1989); Mendez v. State, 554 So. 2d 1161 (1989); Shaw v. State, 555 So. 2d 351 (1989); Avery v. State, 555 So. 2d 351 (1989); Serpa v. State, 555 So. 2d 1210 (1989); Jones v. State, 559 So. 2d 1096 (1990). JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting. Our Nation, we are told, is engaged in a "war on drugs." No one disputes that it is the job of law enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of this method. See Boyd v. United States, 116 U. S. 616 , 116 U. S. 625 -630 (1886); see also Harris v. United States, 331 U. S. 145 , 331 U. S. 171 (1947) (Frankfurter, J., dissenting). In my view, the law enforcement technique with which we are confronted in this case -- the suspicionless police sweep of buses in intrastate or interstate travel -- bears all of the indicia of coercion and unjustified intrusion associated with the general warrant. Because I believe that the bus sweep at issue in this case violates the core values of the Fourth Amendment, I dissent. I At issue in this case is a "new and increasingly common tactic in the war on drugs": the suspicionless police sweep of buses in interstate or intrastate travel. United States v. Lewis, 287 U.S.App.D.C. 306, 307, 921 F.2d 1294, 1295 (1990); see United States v. Flowers, 912 F.2d 707, 710 (CA4 1990) (describing technique in Charlotte, North Carolina); United States v. Madison, 936 F.2d 90, 91, (CA2 1991) (describing Page 501 U. S. 441 technique in Port Authority terminal in New York City); United States v. Chandler, 744 F. Supp. 333 , 335 (DC 1990) ("[I]t has become routine to subject interstate travelers to warrantless searches and intimidating interviews while sitting aboard a bus stopped for a short layover in the Capital"); 554 So. 2d 1153 , 1156-1157 (Fla.1989) (describing Florida police policy of " working the buses'"); see also ante at 501 U. S. 431 . Typically under this technique, a group of state or federal officers will board a bus while it is stopped at an intermediate point on its route. Often displaying badges, weapons or other indicia of authority, the officers identify themselves and announce their purpose to intercept drug traffickers. They proceed to approach individual passengers, requesting them to show identification, produce their tickets, and explain the purpose of their travels. Never do the officers advise the passengers that they are free not to speak with the officers. An "interview" of this type ordinarily culminates in a request for consent to search the passenger's luggage. See generally United States v. Lewis, supra, at 308, 921 F.2d at 1296; United States v. Flowers, supra, at 708-709; United States v. Madison, supra, at 91; 554 So. 2d at 1154. These sweeps are conducted in "dragnet" style. The police admittedly act without an "articulable suspicion" in deciding which buses to board and which passengers to approach for interviewing. [ Footnote 1 ] By proceeding systematically in this Page 501 U. S. 442 fashion, the police are able to engage in a tremendously high volume of searches. See, e.g., Florida v. Kerwick, 512 So. 2d 347, 348-349 (Fla. App.1987) (single officer employing sweep technique able to search over 3,000 bags in nine-month period). The percentage of successful drug interdictions is low. See United States v. Flowers, supra, at 710 (sweep of 100 buses resulted in seven arrests). To put it mildly, these sweeps "are inconvenient, intrusive, and intimidating." United States v. Chandler, 744 F. Supp. at 335. They occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus. See, e.g., id. at 336. Because the bus is only temporarily stationed at a point short of its destination, the passengers are in no position to leave as a means of evading the officers' questioning. Undoubtedly, such a sweep holds up the progress of the bus. See United States v. Fields, 909 F.2d 470, 474 n. 2 (CA11 1990); cf. United States v. Rembert, 694 F. Supp. 163 , 175 (WDNC 1988) (reporting testimony of officer that he makes " every effort in the world not to delay the bus,'" but that the driver does not leave terminal until sweep is complete). Thus, this "new and increasingly common tactic," United States v. Lewis, supra, 287 U.S.App.D.C. at 307, 921 F.2d at 1295, burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed. See, e.g., State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 6, 663 P.2d 992 , 997 (1983) (Feldman, J., concurring) ("The thought that an American can be compelled to `show his papers' before exercising his right to walk the streets, drive the highways, or board the trains is repugnant to American institutions and ideals"). Page 501 U. S. 443 This aspect of the suspicionless sweep has not been lost on many of the lower courts called upon to review the constitutionality of this practice. Remarkably, the courts located at the heart of the "drug war" have been the most adamant in condemning this technique. As one Florida court put it: "'[T]he evidence in this cause has evoked images of other days, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers -- in short, a raison d'etre -- is foreign to any fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains ('that time permits') and check identification [and] tickets, [and] ask to search luggage -- all in the name of 'voluntary cooperation' with law enforcement. . . .'" 554 So. 2d at 1158, quoting State v. Kerwick, supra, at 348-349 (quoting trial court order). The District Court for the District of Columbia spoke in equally pointed words: "It seems rather incongruous at this point in the world's history that we find totalitarian states becoming more like our free society while we in this nation are taking on their former trappings of suppressed liberties and freedoms." * * * * "The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far. If this Court approves such 'bus stops' and allows prosecutions to be based on evidence seized as a result of such 'stops,' then we will have stripped our Page 501 U. S. 444 citizens of basic Constitutional protections. Such action would be inconsistent with what this nation has stood for during its 200 years of existence. If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and question them, then the police will be free to accost people on our streets without any reason or cause. In this 'anything goes' war on drugs, random knocks on the doors of our citizens' homes seeking 'consent' to search for drugs cannot be far away. This is not America." United States v. Lewis, 728 F. Supp. 784 , 788-789, rev'd, 287 U.S.App.D.C. 306, 921 F.2d 1294 (1990). See also United States v. Alexander, 755 F. Supp. 448 , 453 (DC 1991); United States v. Madison, 744 F. Supp. 490 , 495-497 (SDNY 1990), rev'd, 936 F.2d 90 (CA2 1991); United States v. Chandler, supra, at 335-336; United States v. Mark, 742 F. Supp. 17 , 18-19 (DC 1990); United States v. Alston, 742 F. Supp. 13 , 15 (DC 1990); United States v. Cothran, 729 F. Supp. 153 , 156-158 (DC 1990), rev'd, 287 U.S.App.D.C. 306, 921 F.2d 1294 (1990); United States v. Felder, 732 F. Supp. 204 , 209 (DC 1990). The question for this Court, then, is whether the suspicionless, dragnet-style sweep of buses in intrastate and interstate travel is consistent with the Fourth Amendment. The majority suggests that this latest tactic in the drug war is perfectly compatible with the Constitution. I disagree. II I have no objection to the manner in which the majority frames the test for determining whether a suspicionless bus sweep amounts to a Fourth Amendment "seizure." I agree that the appropriate question is whether a passenger who is approached during such a sweep "would feel free to decline the officers' requests or otherwise terminate the encounter." Page 501 U. S. 445 Ante at 501 U. S. 436 . What I cannot understand is how the majority can possibly suggest an affirmative answer to this question. The majority reverses what it characterizes as the Florida Supreme Court's " per se rule" against suspicionless encounters between the police and bus passengers, see ante at 501 U. S. 433 , 501 U. S. 435 -440, suggesting only in dictum its "doubt" that a seizure occurred on the facts of this case, see ante at 501 U. S. 437 . However, the notion that the Florida Supreme Court decided this case on the basis of any " per se rule" independent of the facts of this case is wholly a product of the majority's imagination. As the majority acknowledges, the Florida Supreme Court "stated explicitly the factual premise for its decision." Ante at 501 U. S. 431 . This factual premise contained all of the details of the encounter between respondent and the police. See 554 So. 2d at 1154; ante at 501 U. S. 431 -432. The lower court's analysis of whether respondent was seized drew heavily on these facts, and the court repeatedly emphasized that its conclusion was based on " all the circumstances " of this case. 554 So. 2d at 1157 (emphasis added); see ibid. (" Here, the circumstances indicate that the officers effectively seized' [respondent]" (emphasis added)). The majority's conclusion that the Florida Supreme Court, contrary to all appearances, ignored these facts is based solely on the failure of the lower court to expressly incorporate all of the facts into its reformulation of the certified question on which respondent took his appeal. See ante at 501 U. S. 433 . [ Footnote 2 ] The majority never explains the basis of its implausible assumption that the Florida Supreme Court intended its phrasing of the certified question to trump its opinion's careful treatment of the facts in this case. Certainly, when this Court issues an opinion, it does not intend lower courts and Page 501 U. S. 446 parties to treat as irrelevant the analysis of facts that the parties neglected to cram into the question presented in the petition for certiorari. But in any case, because the issue whether a seizure has occurred in any given factual setting is a question of law, see United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 554 -555 (1980) (opinion of Stewart, J.); United States v. Maragh, 282 U.S.App.D.C. 256, 258-259, 894 F.2d 415, 417-418 (CADC), cert. denied, 498 U.S. 880 (1990), nothing prevents this Court from deciding on its own whether a seizure occurred based on all of the facts of this case as they appear in the opinion of the Florida Supreme Court. These facts exhibit all of the elements of coercion associated with a typical bus sweep. Two officers boarded the Greyhound bus on which respondent was a passenger while the bus, en route from Miami to Atlanta, was on a brief stop to pick up passengers in Fort Lauderdale. The officers made a visible display of their badges and wore bright green "raid" jackets bearing the insignia of the Broward County Sheriff's Department; one held a gun in a recognizable weapons pouch. See 554 So. 2d at 1154, 1157. These facts alone constitute an intimidating "show of authority." See Michigan v. Chesternut, 486 U. S. 567 , 486 U. S. 575 (1988) (display of weapon contributes to coercive environment); United States v. Mendenhall, supra, 446 U.S. at 446 U. S. 554 (opinion of Stewart, J.) ("threatening presence of several officers" and "display of a weapon"); id. at 446 U. S. 555 (uniformed attire). Once on board, the officers approached respondent, who was sitting in the back of the bus, identified themselves as narcotics officers and began to question him. See 554 So. 2d at 1154. One officer stood in front of respondent's seat, partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus. See id. at 1157. As far as is revealed by facts on which the Florida Supreme Court premised its decision, the officers did not advise respondent that he was free to break off this "interview." Inexplicably, the majority repeatedly stresses the trial court's Page 501 U. S. 447 implicit finding that the police officers advised respondent that he was free to refuse permission to search his travel bag. See ante at 501 U. S. 432 , 501 U. S. 437 -438. This aspect of the exchange between respondent and the police is completely irrelevant to the issue before us. For as the State concedes, and as the majority purports to "accept," id. at 501 U. S. 433 -434, if respondent was unlawfully seized when the officers approached him and initiated questioning, the resulting search was likewise unlawful no matter how well advised respondent was of his right to refuse it. See Florida v. Royer, 460 U. S. 491 , 460 U. S. 501 , 460 U. S. 507 -508 (1983) (plurality opinion); Wong Sun v. United States, 371 U. S. 471 (1963). Consequently, the issue is not whether a passenger in respondent's position would have felt free to deny consent to the search of his bag, but whether such a passenger -- without being apprised of his rights -- would have felt free to terminate the antecedent encounter with the police. Unlike the majority, I have no doubt that the answer to this question is no. Apart from trying to accommodate the officers, respondent had only two options. First, he could have remained seated while obstinately refusing to respond to the officers' questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers' suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger's refusal to cooperate. See, e.g., United States v. Cothran, 729 F. Supp. at 156; United States v. Felder, 732 F. Supp. at 205. The majority's observation that a mere refusal to answer questions, "without more," does not give rise to a reasonable basis for seizing a passenger, ante at 437, is utterly beside the point, because a passenger unadvised of his rights and otherwise unversed in constitutional law has no reason to know that the police cannot hold his refusal to cooperate against him. Page 501 U. S. 448 Second, respondent could have tried to escape the officers' presence by leaving the bus altogether. But because doing so would have required respondent to squeeze past the gun-wielding inquisitor who was blocking the aisle of the bus, this hardly seems like a course that respondent reasonably would have viewed as available to him. [ Footnote 3 ] The majority lamely protests that nothing in the stipulated facts shows that the questioning officer " point[ed] [his] gu[n] at [respondent] or otherwise threatened him" with the weapon. Ante at 501 U. S. 437 (emphasis added). Our decisions recognize the obvious point, however, that the choice of the police to "display" their weapons during an encounter exerts significant coercive pressure on the confronted citizen. E.g., Michigan v. Chesternut, supra, 486 U.S. at 486 U. S. 575 ; United States v. Mendenhall, supra, 446 U.S. at 446 U. S. 554 . We have never suggested that the police must go so far as to put a citizen in immediate apprehension of being shot before a court can take account of the intimidating effect of being questioned by an officer with weapon in hand. Even if respondent had perceived that the officers would let him leave the bus, moreover, he could not reasonably have been expected to resort to this means of evading their intrusive questioning. For so far as respondent knew, the bus's departure from the terminal was imminent. Unlike a person approached by the police on the street, see Michigan v. Chesternut, supra, or at a bus or airport terminal after reaching his destination, see United States v. Mendenhall, supra, a passenger approached by the police at an intermediate point in a long bus journey cannot simply leave the scene and repair to a safe haven to avoid unwanted probing by law enforcement officials. The vulnerability that an intrastate or interstate traveler experiences when confronted by the police outside of his "own familiar territory" surely aggravates Page 501 U. S. 449 the coercive quality of such an encounter. See Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 247 (1973). The case on which the majority primarily relies, INS v. Delgado, 466 U. S. 210 (1984), is distinguishable in every relevant respect. In Delgado, this Court held that workers approached by law enforcement officials inside of a factory were not "seized" for purposes of the Fourth Amendment. The Court was careful to point out, however, that the presence of the agents did not furnish the workers with a reasonable basis for believing that they were not free to leave the factory, as at least some of them did. See id. at 218-219, and n. 7. Unlike passengers confronted by law enforcement officials on a bus stopped temporarily at an intermediate point in its journey, workers approached by law enforcement officials at their workplace need not abandon personal belongings and venture into unfamiliar environs in order to avoid unwanted questioning. Moreover, the workers who did not leave the building in Delgado remained free to move about the entire factory, see id. at 466 U. S. 218 , a considerably less confining environment than a bus. Finally, contrary to the officer who confronted respondent, the law enforcement officials in Delgado did not conduct their interviews with guns in hand. See id. at 466 U. S. 212 . Rather than requiring the police to justify the coercive tactics employed here, the majority blames respondent for his own sensation of constraint. The majority concedes that respondent "did not feel free to leave the bus" as a means of breaking off the interrogation by the Broward County officers. Ante at 501 U. S. 436 . But this experience of confinement, the majority explains, "was the natural result of his decision to take the bus." Ibid. (emphasis added). Thus, in the majority's view, because respondent's "freedom of movement was restricted by a factor independent of police conduct -- i.e., by his being a passenger on a bus," ante at 0436436, respondent was not seized for purposes of the Fourth Amendment. Page 501 U. S. 450 This reasoning borders on sophism, and trivializes the values that underlie the Fourth Amendment. Obviously, a person's "voluntary decision" to place himself in a room with only one exit does not authorize the police to force an encounter upon him by placing themselves in front of the exit. It is no more acceptable for the police to force an encounter on a person by exploiting his "voluntary decision" to expose himself to perfectly legitimate personal or social constraints. By consciously deciding to single out persons who have undertaken interstate or intrastate travel, officers who conduct suspicionless, dragnet-style sweeps put passengers to the choice of cooperating or of exiting their buses and possibly being stranded in unfamiliar locations. It is exactly because this "choice" is no "choice" at all that police engage this technique. In my view, the Fourth Amendment clearly condemns the suspicionless, dragnet-style sweep of intrastate or interstate buses. Withdrawing this particular weapon from the government's drug war arsenal would hardly leave the police without any means of combatting the use of buses as instrumentalities of the drug trade. The police would remain free, for example, to approach passengers whom they have a reasonable, articulable basis to suspect of criminal wrongdoing. [ Footnote 4 ] Alternatively, they could continue to confront passengers without suspicion so long as they took simple steps, like advising the passengers confronted of their right to decline to be questioned, to dispel the aura of coercion and intimidation that pervades such encounters. There is no reason to expect that such requirements would render the Nation's buses law enforcement-free zones. III The majority attempts to gloss over the violence that today's decision does to the Fourth Amendment with empty admonitions. "If th[e] [war on drugs] is to be fought," the majority Page 501 U. S. 451 intones, "those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime." Ante at 501 U. S. 439 . The majority's actions, however, speak louder than its words. I dissent. [ Footnote 1 ] That is to say, the police who conduct these sweeps decline to offer a reasonable, articulable suspicion of criminal wrongdoing sufficient to justify a warrantless "stop" or "seizure" of the confronted passenger. See Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 -22, 392 U. S. 30 -31 (1968); Florida v. Royer, 460 U. S. 491 , 460 U. S. 498 -499 (1983) (plurality opinion). It does not follow, however, that the approach of passengers during a sweep is completely random. Indeed, at least one officer who routinely confronts interstate travelers candidly admitted that race is a factor influencing his decision whom to approach. See United States v. Williams, No. 1:89CR0135 (ND Ohio. June 13, 1989), p. 3 ("Detective Zaller testified that the factors initiating the focus upon the three young black males in this case included: (1) that they were young and black. . . ."), aff'd, No. 89-4083 (CA6, Oct.19, 1990), p. 7 [916 F.2d 714 (table)] (the officers "knew that the couriers, more often than not, were young black males"), vacated and remanded, 500 U.S. 901 (1991). Thus, the basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable. [ Footnote 2 ] As reformulated, this question read: "Does an impermissible seizure result when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage?" 554 So. 2d at 1154. [ Footnote 3 ] As the majority's discussion makes plain, see ante at 501 U. S. 432 , 501 U. S. 437 , the officer questioning respondent clearly carried a weapons pouch during the interview. See also 554 So. 2d at 1 157. [ Footnote 4 ] Insisting that police officers explain their decision to single out a particular passenger for questioning would help prevent their reliance on impermissible criteria such as race. See n 1, supra.

In Florida v. Bostick (1991), the Supreme Court considered whether a person is always seized for Fourth Amendment purposes when the police ask questions on a bus. The Court held that a seizure does not occur simply because police question individuals on a bus; the appropriate test is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. The case involved a drug interdiction effort where officers routinely boarded buses at scheduled stops and asked passengers for permission to search their luggage. The Florida Supreme Court adopted a per se rule that this practice was unconstitutional, reasoning that a reasonable passenger would not feel free to leave the bus to avoid police questioning. The U.S. Supreme Court disagreed, emphasizing that a consensual encounter between police and an individual does not trigger Fourth Amendment scrutiny. The Court clarified that officers may generally ask questions, examine identification, and request consent to search luggage without suspicion of criminal activity, as long as they do not convey that compliance is required. The Court concluded that the encounter's location on a bus was just one factor in determining its coercive nature. Instead of focusing on whether a person would feel free to leave, the Court suggested that the relevant inquiry is whether a reasonable person would feel free to decline the officers' requests or end the encounter.

Search & Seizure

California v. Hodari D.

https://supreme.justia.com/cases/federal/us/499/621/

U.S. Supreme Court California v. Hodari D., 499 U.S. 621 (1991) California v. Hodari D. No. 89-1632 Argued Jan. 14, 1991 Decided April 23, 1991 499 U.S. 621 CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT Syllabus A group of youths, including respondent Hodari D., fled at the approach of an unmarked police car on an Oakland, California, street. Officer Pertoso, who was wearing a jacket with "Police" embossed on its front, left the car to give chase. Pertoso did not follow Hodari directly, but took a circuitous route that brought the two face to face on a parallel street. Hodari, however, was looking behind as he ran and did not turn to see Pertoso until the officer was almost upon him, whereupon Hodari tossed away a small rock. Pertoso tackled him, and the police recovered the rock, which proved to be crack cocaine. In the juvenile proceeding against Hodari, the court denied his motion to suppress the evidence relating to the cocaine. The State Court of Appeal reversed, holding that Hodari had been "seized" when he saw Pertoso running towards him; that this seizure was "unreasonable" under the Fourth Amendment, the State having conceded that Pertoso did not have the "reasonable suspicion" required to justify stopping Hodari; and therefore that the evidence of cocaine had to be suppressed as the fruit of the illegal seizure. Held: The only issue presented here -- whether, at the time he dropped the drugs, Hodari had been "seized" within the meaning of the Fourth Amendment -- must be answered in the negative. To answer this question, this Court looks to the common law of arrest. To constitute a seizure of the person, just as to constitute an arrest -- the quintessential "seizure of the person" under Fourth Amendment jurisprudence -- there must be either the application of physical force, however slight, or, where that is absent, submission to an officer's "show of authority" to restrain the subject's liberty. No physical force was applied in this case, since Hodari was untouched by Pertoso before he dropped the drugs. Moreover, assuming that Pertoso's pursuit constituted a "show of authority" enjoining Hodari to halt, Hodari did not comply with that injunction, and therefore was not seized until he was tackled. Thus, the cocaine abandoned while he was running was not the fruit of a seizure, cf. Brower v. Inyo County, 489 U. S. 593 , 489 U. S. 597 ; Nester v. United States, 265 U. S. 57 , 265 U. S. 58 , and his motion to exclude evidence of it was properly denied. United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 554 (opinion of Stewart, J.), and its progeny, distinguished. Pp. 499 U. S. 623 -629. Reversed and remanded. Page 499 U. S. 622 SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., joined and WHITE, BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 499 U. S. 629 . JUSTICE SCALIA delivered the opinion of the Court. Late one evening in April, 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets with "Police" embossed on both front and back. Their unmarked car proceeded west on Foothill Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or five youths huddled around a small red car parked at the curb. When the youths Page 499 U. S. 623 saw the officers' car approaching, they apparently panicked, and took flight. The respondent here, Hodari D., and one companion ran west through an alley; the others fled south. The red car also headed south, at a high rate of speed. The officers were suspicious, and gave chase. McColgin remained in the car and continued south on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was found to be crack cocaine. In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating to the cocaine. The court denied the motion without opinion. The California Court of Appeal reversed, holding that Hodari had been "seized" when he saw Officer Pertoso running towards him, that this seizure was unreasonable under the Fourth Amendment, and that the evidence of cocaine had to be suppressed as the fruit of that illegal seizure. The California Supreme Court denied the State's application for review. We granted certiorari. 498 U.S. 807 (1990). As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been "seized" within the meaning of the Fourth Amendment. [ Footnote 1 ] If Page 499 U. S. 624 so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted. (In addition, of course, Pertoso's seeing the rock of cocaine, at least if he recognized it as such, would provide reasonable suspicion for the unquestioned seizure that occurred when he tackled Hodari. Cf. Rios v. United States, 364 U. S. 253 (1960).) We have long understood that the Fourth Amendment's protection against "unreasonable . . . seizures" includes seizure of the person, see Henry v. United States, 361 U. S. 98 , 361 U. S. 100 (1959). From the time of the founding to the present, the word "seizure" has meant a "taking possession," 2 N. Webster, An American Dictionary of the English Language 67 (1828); 2 J. Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster's Third New International Dictionary 2057 (1981). For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize. Cf. 23 U. S. 10 Wheat. 312, 23 U. S. 325 -326 (1825). A res capable of manual delivery was not seized until "tak[en] into custody." Pelham v. Rose , 9 Wall. 103, 76 U. S. 106 (1870). To constitute an arrest, however -- the quintessential "seizure of the person" under our Fourth Amendment jurisprudence -- the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient. See, e.g., Whitehead v. Keyes, 85 Mass. 495, 501 (1862) ("[A]n officer effects an arrest of a person whom he has authority to arrest, by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping and holding him"); 1 Page 499 U. S. 625 Restatement of Torts § 41, Comment h (1934). As one commentator has described it: "There can be constructive detention, which will constitute an arrest, although the party is never actually brought within the physical control of the party making an arrest. This is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose, although he does not succeed in stopping or holding him even for an instant; as where the bailiff had tried to arrest one who fought him off by the fork, the court said, 'If the bailiff had touched him, that had been an arrest. . . .'" A. Cornelius, Search and Seizure 163-164 (2d ed.1930) (footnote omitted). To say that an arrest is effected by the slightest application of physical force, despite the arrestee's escape, is not to say that, for Fourth Amendment purposes, there is a continuing arrest during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest. Cf. 85 U. S. Whitman, 18 Wall. 457, 85 U. S. 471 (1874) ("A seizure is a single act, and not a continuous fact"). The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U. S. 1 , 392 U. S. 19 , n. 1 (1968) (emphasis added). Hodari contends (and we accept as true for purposes of this decision) that Pertoso's pursuit qualified as a "show of authority" Page 499 U. S. 626 calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not. The language of the Fourth Amendment, of course, cannot sustain respondent's contention. The word "seizure" readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. ("She seized the purse-snatcher, but he broke out of her grasp.") It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that continues to flee. That is no seizure. [ Footnote 2 ] Nor can the result respondent wishes to achieve be produced -- indirectly, as it were -- by suggesting that Pertoso's uncomplied-with show of authority was a common law arrest, and then appealing to the principle that all common law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority. "Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest, followed by submission of the arrestee, constitutes an arrest. There can be no arrest Page 499 U. S. 627 without either touching or submission." Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940) (footnotes omitted). We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. [ Footnote 3 ] Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones, it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command "Stop!" expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures. Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart's opinion in United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 554 (1980), and adopted by the Court in later cases, see Michigan v. Chesternut, 486 U. S. 567 , 486 U. S. 573 (1988); INS v. Delgado, 466 U. S. 210 , 466 U. S. 215 (1984): "A person has been 'seized' within the Page 499 U. S. 628 meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." 446 U.S. at 446 U. S. 554 . See also Florida v. Royer, 460 U. S. 491 , 460 U. S. 502 (1983) (opinion of WHITE, J.). In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized "only if," not that he has been seized "whenever"; it states a necessary, but not a sufficient, condition for seizure -- or, more precisely, for seizure effected through a "show of authority." Mendenhall establishes that the test for existence of a "show of authority" is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person. Application of this objective test was the basis for our decision in the other case principally relied upon by respondent, Chesternut, supra, where we concluded that the police cruiser's slow following of the defendant did not convey the message that he was not free to disregard the police and go about his business. We did not address in Chesternut, however, the question whether, if the Mendenhall test was met -- if the message that the defendant was not free to leave had been conveyed -- a Fourth Amendment seizure would have occurred. See 486 U.S. at 486 U. S. 577 (KENNEDY, J., concurring). Quite relevant to the present case, however, was our decision in Brower v. Inyo County, 489 U. S. 593 , 489 U. S. 596 (1989). In that case, police cars with flashing lights had chased the decedent for 20 miles -- surely an adequate "show of authority" -- but he did not stop until his fatal crash into a police-erected blockade. The issue was whether his death could be held to be the consequence of an unreasonable seizure in violation of the Fourth Amendment. We did not even consider the possibility that a seizure could have occurred during the course of the chase because, as we explained, that "show of authority" did not produce his stop. Id. at 489 U. S. 597 . And we discussed Page 499 U. S. 629 ibid., an opinion of Justice Holmes, involving a situation not much different from the present case, where revenue agents had picked up containers dropped by moonshiners whom they were pursuing without adequate warrant. The containers were not excluded as the product of an unlawful seizure because "[t]he defendant's own acts, and those of his associates, disclosed the jug, the jar and the bottle -- and there was no seizure in the sense of the law when the officers examined the contents of each after they had been abandoned." Nester v. United States, 265 U. S. 57 , 265 U. S. 58 (1924). The same is true here. In sum, assuming that Pertoso's pursuit in the present case constituted a "show of authority" enjoining Hodari to halt, since Hodari did not comply with that injunction, he was not seized until he was tackled. The cocaine abandoned while he was running was, in this case, not the fruit of a seizure, and his motion to exclude evidence of it was properly denied. We reverse the decision of the California Court of Appeal, and remand for further proceedings not inconsistent with this opinion. It is so ordered [ Footnote 1 ] California conceded below that Officer Pertoso did not have the "reasonable suspicion" required to justify stopping Hodari, see Terry v. Ohio, 392 U. S. 1 (1968). That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 ("The wicked flee when no man pursueth"). We do not decide that point here, but rely entirely upon the State's concession. [ Footnote 2 ] For this simple reason -- which involves neither "logic-chopping," post at 499 U. S. 646 , nor any arcane knowledge of legal history -- it is irrelevant that English law proscribed "an unlawful attempt to take a presumptively innocent person into custody." Post at 499 U. S. 631 . We have consulted the common law to explain the meaning of seizure -- and, contrary to the dissent's portrayal, to expand, rather than contract, that meaning (since one would not normally think that the mere touching of a person would suffice). But neither usage nor common law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions. [ Footnote 3 ] Nor have we ever done so. The dissent is wrong in saying that Terry v. Ohio, 392 U. S. 1 (1968) "broadened the range of encounters . . . encompassed within the term seizure,'" post at 499 U. S. 635 . Terry unquestionably involved conduct that would constitute a common law seizure; its novelty (if any) was in expanding the acceptable justification for such a seizure beyond probable cause. The dissent is correct that Katz v. United States, 389 U. S. 347 (1967) "unequivocally reject[s] the notion that the common law of arrest defines the limits of the term `seizure' in the Fourth Amendment," post at 499 U. S. 637 . But we do not assert that it defines the limits of the term "seizure"; only that it defines the limits of a seizure of the person. What Katz stands for is the proposition that items which could not be subject to seizure at common law ( e.g., telephone conversations) can be seized under the Fourth Amendment. That is quite different from saying that what constitutes an arrest (a seizure of the person) has changed. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting. The Court's narrow construction of the word "seizure" represents a significant, and in my view, unfortunate, departure from prior case law construing the Fourth Amendment. [ Footnote 2/1 ] Almost a quarter of a century ago, in two landmark cases -- one broadening the protection of individual privacy, [ Footnote 2/2 ] and the other broadening the powers of law enforcement officers [ Footnote 2/3 ] -- we rejected the method of Fourth Amendment analysis that Page 499 U. S. 630 today's majority endorses. In particular, the Court now adopts a definition of "seizure" that is unfaithful to a long line of Fourth Amendment cases. Even if the Court were defining seizure for the first time, which it is not, the definition that it chooses today is profoundly unwise. In its decision, the Court assumes, without acknowledging, that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment -- as long as he misses his target. For the purposes of decision, the following propositions are not in dispute. First, when Officer Pertoso began his pursuit of respondent, [ Footnote 2/4 ] the officer did not have a lawful basis for either stopping or arresting respondent. See App. 138-140; ante at 499 U. S. 623 , n. 1. Second, the officer's chase amounted to a "show of force" as soon as respondent saw the officer nearly upon him. See ante at 499 U. S. 625 -626, 499 U. S. 629 . Third, the act of discarding the rock of cocaine was the direct consequence of the show of force. See Pet. for Cert. 48-49, 52. Fourth, as the Court correctly demonstrates, no common law arrest occurred until the officer tackled respondent. See ante at 499 U. S. 624 -625. Thus, the Court is quite right in concluding that the abandonment of the rock was not the fruit of a common law arrest. It is equally clear, however, that, if the officer had succeeded in touching respondent before he dropped the rock -- Page 499 U. S. 631 even if he did not subdue him -- an arrest would have occurred. [ Footnote 2/5 ] See ante at 499 U. S. 624 -625, 499 U. S. 626 . In that event (assuming the touching precipitated the abandonment), the evidence would have been the fruit of an unlawful common law arrest. The distinction between the actual case and the hypothetical case is the same as the distinction between the common law torts of assault and battery -- a touching converts the former into the latter. [ Footnote 2/6 ] Although the distinction between assault and battery was important for pleading purposes, see 2 J. Chitty, Pleading *372-*376, the distinction should not take on constitutional dimensions. The Court mistakenly allows this common law distinction to define its interpretation of the Fourth Amendment. At the same time, the Court fails to recognize the existence of another, more telling, common law distinction -- the distinction between an arrest and an attempted arrest. As the Court teaches us, the distinction between battery and assault was critical to a correct understanding of the common law of arrest. See ante at 499 U. S. 626 ("An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority"). However, the facts of this case do not describe an actual arrest, but rather, an unlawful attempt to take a presumptively innocent person into custody. Such an Page 499 U. S. 632 attempt was unlawful at common law. [ Footnote 2/7 ] Thus, if the Court wants to define the scope of the Fourth Amendment based on the common law, it should look, not to the common law of arrest, but to the common law of attempted arrest, according to the facts of this case. The first question, then, is whether the common law should define the scope of the outer boundaries of the constitutional protection against unreasonable seizures. Even if, contrary to settled precedent, traditional common law analysis were controlling, it would still be necessary to decide whether the unlawful attempt to make an arrest should be considered a seizure within the meaning of the Fourth Amendment, and whether the exclusionary rule should apply to unlawful attempts. I The Court today takes a narrow view of "seizure," which is at odds with the broader view adopted by this Court almost 25 years ago. In Katz v. United States, 389 U. S. 347 (1967), the Court considered whether electronic surveillance conducted "without any trespass and without the seizure of any material object fell outside the ambit of the Constitution." Id. at 389 U. S. 353 . Over Justice Black's powerful dissent, we rejected that "narrow view" of the Fourth Amendment, and held that electronic eavesdropping is a "search and seizure" within the meaning of the Amendment. Id. at 389 U. S. 353 -354. We thus endorsed the position expounded by two of the dissenting Justices in Olmstead v. United States, 277 U. S. 438 (1928): Page 499 U. S. 633 "Time and again, this Court, in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it." Id. at 277 U. S. 476 (Brandeis, J., dissenting). "The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words." Id. at 277 U. S. 488 (Butler, J., dissenting). Writing for the Court in Katz, JUSTICE Stewart explained: "Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any 'technical trespass under . . . local property law.' Silverman v. United States, 365 U. S. 505 , 365 U. S. 511 . Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply 'areas' -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." "We conclude that the underpinnings of Olmstead and Goldman \[v. U.S. , 316 U. S. 129 (1942),] have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone Page 499 U. S. 634 booth, and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance." "The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards." 389 U.S. at 389 U. S. 353 -354. Significantly, in the Katz opinion, the Court repeatedly used the word "seizure" to describe the process of recording sounds that could not possibly have been the subject of a common law seizure. See id. at 389 U. S. 356 , 389 U. S. 357 . Justice Black's reasoning, which was rejected by the Court in 1967, is remarkably similar to the reasoning adopted by the Court today. After criticizing "language-stretching judges," 389 U.S. at 389 U. S. 366 , Justice Black wrote: "I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal construction. This principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the 'seizure' of conversations." Id. at 389 U. S. 366 -367. "Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to 'keep the Constitution up to date' or 'to bring it into harmony with the times.' It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention." Id. at 389 U. S. 373 . Page 499 U. S. 635 The expansive construction of the word "seizure" in the Katz case provided an appropriate predicate for the Court's holding in Terry v. Ohio, 392 U. S. 1 (1968), the following year. [ Footnote 2/8 ] Prior to Terry, the Fourth Amendment proscribed any seizure of the person that was not supported by the same probable cause showing that would justify a custodial arrest. [ Footnote 2/9 ] See Dunaway v. New York, 442 U. S. 200 , 442 U. S. 207 -209 (1979). Given the fact that street encounters between citizens and police officers "are incredibly rich in diversity," Terry, 392 U.S. at 392 U. S. 13 , the Court recognized the need for flexibility, and held that "reasonable" suspicion -- a quantum of proof less demanding than probable cause -- was adequate to justify a stop for investigatory purposes. Id. at 392 U. S. 21 -22. As a corollary to the lesser justification for the stop, the Court necessarily concluded that the word "seizure" in the Fourth Amendment encompasses official restraints on individual freedom that fall short of a common law arrest. Thus, Terry broadened the range of encounters between the police and the citizen encompassed within the term "seizure," while at the same time, lowering the standard of proof necessary to justify a "stop" in the newly expanded category of seizures Page 499 U. S. 636 now covered by the Fourth Amendment. [ Footnote 2/10 ] The Court explained: "Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden 'seized' Terry and whether and when he conducted a 'search.' There is some suggestion in the use of such terms as 'stop' and 'frisk' that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a 'search' or 'seizure' within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime -- 'arrests' in traditional terminology. It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Id. at 392 U. S. 16 (footnote omitted). "The distinctions of classical 'stop-and-frisk' theory thus serve to divert attention from the central inquiry under the Fourth Amendment -- the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. 'Search' and 'seizure' are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest' or a 'full-blown search.'" Id. at 392 U. S. 19 . Page 499 U. S. 637 The decisions in Katz and Terry unequivocally reject the notion that the common law of arrest defines the limits of the term "seizure" in the Fourth Amendment. In Katz, the Court abandoned the narrow view that would have limited a seizure to a material object, and instead, held that the Fourth Amendment extended to the recording of oral statements. And in Terry, the Court abandoned its traditional view that a seizure under the Fourth Amendment required probable cause, and instead, expanded the definition of a seizure to include an investigative stop made on less than probable cause. Thus, the major premise underpinning the majority's entire analysis today -- that the common law of arrest should define the term "seizure" for Fourth Amendment purposes, see ante at 499 U. S. 624 -625 -- is seriously flawed. The Court mistakenly hearkens back to common law, while ignoring the expansive approach that the Court has taken in Fourth Amendment analysis since Katz and Terry. [ Footnote 2/11 ] II The Court fares no better when it tries to explain why the proper definition of the term "seizure" has been an open question until today. In Terry, in addition to stating that a seizure occurs "whenever a police officer accosts an individual and restrains his freedom to walk away," 392 U.S. at 392 U. S. 16 , the Court noted that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. . . ." Id. at 392 U. S. 19 , n. 16. The touchstone of a seizure is the restraint of an individual's personal liberty " in some way. " Ibid. (emphasis added). [ Footnote 2/12 ] Today the Court's reaction to respondent's reliance on Terry Page 499 U. S. 638 is to demonstrate that, in "show of force" cases, no common law arrest occurs unless the arrestee submits. See ante at 499 U. S. 626 -627. That answer, however, is plainly insufficient, given the holding in Terry that the Fourth Amendment applies to stops that need not be justified by probable cause in the absence of a full-blown arrest. In United States v. Mendenhall, 446 U. S. 544 (1980), the Court "adhere[d] to the view that a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." Id. at 446 U. S. 553 . The Court looked to whether the citizen who is questioned "remains free to disregard the questions and walk away," and, if she is able to do so, then "there has been no intrusion upon that person's liberty or privacy" that would require some "particularized and objective justification" under the Constitution. Id. at 446 U. S. 554 . The test for a "seizure," as formulated by the Court in Mendenhall, was whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Ibid. Examples of seizures include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Ibid. The Court's unwillingness today to adhere to the "reasonable person" standard, as formulated by Justice Stewart in Mendenhall, marks an unnecessary departure from Fourth Amendment case law. The Court today draws the novel conclusion that even though no seizure can occur unless the Mendenhall reasonable person standard is met, see ante at 499 U. S. 628 , the fact that the standard has been met does not necessarily mean that a seizure has occurred. See ibid. ( Mendenhall "states a necessary, but not a sufficient, condition for seizure . . . effected Page 499 U. S. 639 through a show of authority' "). If it were true that a seizure requires more than whether a reasonable person felt free to leave, then the following passage from the Court's opinion in INS v. Delgado, 466 U. S. 210 (1984), is at best, seriously misleading: "As we have noted elsewhere:" "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." " Terry v. Ohio, supra, at 392 U. S. 19 , n. 16. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U. S. 200 , 442 U. S. 212 -216 (1979), the protection against unreasonable seizures also extends to 'seizures that involve only a brief detention short of traditional arrest.' United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 878 (1975). What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, 'if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' Mendenhall, supra, [446 U.S.] at 446 U. S. 554 (footnote omitted); see Florida v. Royer, 460 U. S. 491 , 460 U. S. 502 (1983) (plurality opinion)." Id. 466 U.S. at 466 U. S. 215 . More importantly, in Florida v. Royer, 460 U. S. 491 (1983), a plurality of the Court adopted Justice Stewart's formulation in Mendenhall as the appropriate standard for determining when police questioning crosses the threshold from a consensual encounter to a forcible stop. In Royer, the Court held that an illegal seizure had occurred. As a Page 499 U. S. 640 predicate for that holding, JUSTICE WHITE, in his opinion for the plurality, explained that the citizen "may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, at 446 U. S. 556 (opinion of Stewart, J.)." 460 U.S. at 460 U. S. 498 (emphasis added). The rule looks, not to the subjective perceptions of the person questioned, but rather, to the objective characteristics of the encounter that may suggest whether a reasonable person would have felt free to leave. Even though momentary, a seizure occurs whenever an objective evaluation of a police officer's show of force conveys the message that the citizen is not entirely free to leave -- in other words, that his or her liberty is being restrained in a significant way. That the Court understood the Mendenhall definition as both necessary and sufficient to describe a Fourth Amendment seizure is evident from this passage in our opinion in United States v. Jacobsen, 466 U. S. 109 (1984): "A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property.[5]" "-----" "5. See United States v. Place, 462 U. S. 696 (1983); id. at 462 U. S. 716 (BRENNAN, J., concurring in result); Texas v. Brown, 460 U. S. 730 , 460 U. S. 747 -748 (1983) (STEVENS, J., concurring in judgment); see also United States v. Chadwick, 433 U. S. 1 , 433 U. S. 13 -14, n. 8 (1977); Hale v. Henkel, 201 U. S. 43 , 201 U. S. 76 (1906). While the concept of a 'seizure' of property is not much discussed in our cases, this definition follows from our oft-repeated definition of the 'seizure' of a person within the meaning of the Fourth Amendment -- meaningful interference, however brief, with an individual's freedom of movement. See Michigan v. Summers, 452 U. S. 692 , 452 U. S. 696 (1981); Reid v. Georgia, 488 [448] U.S. 448 U. S. 438 , 448 U. S. 440 , n. (1980) (per curiam); United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 551 -554 (1980) (opinion of Stewart, J.); Brown v. Texas, 443 U. S. 47 , 443 U. S. 50 (1979); United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 878 (1975); Cupp v. Murphy, 412 U. S. 291 , 412 U. S. 294 -295 (1973); Davis v. Mississippi , Page 499 U. S. 641 394 U. S. 721 , 394 U. S. 726 -727 (1969); Terry v. Ohio, 392 U.S. at 392 U. S. 16 , 392 U. S. 19 , n. 16." Id. 466 U.S. at 466 U. S. 113 , and n. 5. Finally, it is noteworthy that, in Michigan v. Chesternut, 486 U. S. 567 (1988), the State asked us to repudiate the reasonable person standard developed in Terry, Mendenhall, Delgado, and Royer. [ Footnote 2/13 ] We decided, however, to "adhere to our traditional contextual approach," 486 U.S. at 486 U. S. 573 . In our opinion, we described Justice Stewart's analysis in Mendenhall as "a test to be applied in determining whether a person has been "seized" within the meaning of the Fourth Amendment,'" and noted that "[t]he Court has since embraced this test." Ibid. Moreover, in commenting on the virtues of the test, we explained that it focused on the police officer's conduct: "The test's objective standard -- looking to the reasonable man's interpretation of the conduct in question -- allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment." Id. at 486 U. S. 574 . Expressing his approval of the Court's rejection of Michigan's argument in Chesternut, Professor LaFave observed: "The 'free to leave' concept, in other words, has nothing to do with a particular suspect's choice to flee rather than submit or with his assessment of the probability of successful flight. Were it otherwise, police would be encouraged to utilize a very threatening but sufficiently slow chase as an evidence-gathering technique whenever they lack even the reasonable suspicion needed for a Terry stop." 3 W. LaFave, Search and Seizure § 9.2, p. 61 (2d ed.1987, Supp.1991). Page 499 U. S. 642 Whatever else one may think of today's decision, it unquestionably represents a departure from earlier Fourth Amendment case law. The notion that our prior cases contemplated a distinction between seizures effected by a touching, on the one hand, and those effected by a show of force, on the other hand, and that all of our repeated descriptions of the Mendenhall test stated only a necessary, but not a sufficient, condition for finding seizures in the latter category, is nothing if not creative lawmaking. Moreover, by narrowing the definition of the term seizure, instead of enlarging the scope of reasonable justifications for seizures, the Court has significantly limited the protection provided to the ordinary citizen by the Fourth Amendment. As we explained in Terry: "The danger in the logic which proceeds upon distinctions between a 'stop' and an 'arrest,' or 'seizure' of the person, and between a 'frisk' and a 'search,' is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation." Terry v. Ohio, 392 U.S. at 392 U. S. 17 . III In this case, the officer's show of force -- taking the form of a head-on chase -- adequately conveyed the message that respondent was not free to leave. [ Footnote 2/14 ] Whereas, in Mendenhall, there was "nothing in the record [to] sugges[t] that the respondent Page 499 U. S. 643 had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way," 446 U.S. at 446 U. S. 555 , here, respondent attempted to end "the conversation" before it began, and soon found himself literally "not free to leave" when confronted by an officer running toward him head-on who eventually tackled him to the ground. There was an interval of time between the moment that respondent saw the officer fast approaching and the moment when he was tackled, and thus brought under the control of the officer. The question is whether the Fourth Amendment was implicated at the earlier or the later moment. Because the facts of this case are somewhat unusual, it is appropriate to note that the same issue would arise if the show of force took the form of a command to "freeze," a warning shot, or the sound of sirens accompanied by a patrol car's flashing lights. In any of these situations, there may be a significant time interval between the initiation of the officer's show of force and the complete submission by the citizen. At least on the facts of this case, the Court concludes that the timing of the seizure is governed by the citizen's reaction, rather than by the officer's conduct. See ante at 499 U. S. 626 -627. One consequence of this conclusion is that the point at which the interaction between citizen and police officer becomes a seizure occurs, not when a reasonable citizen believes he or she is no longer free to go, but rather only after the officer exercises control over the citizen. In my view, our interests in effective law enforcement and in personal liberty [ Footnote 2/15 ] would be better served by adhering to a standard that "allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Page 499 U. S. 644 Amendment." Chesternut, 486 U.S. at 486 U. S. 574 . The range of possible responses to a police show of force, and the multitude of problems that may arise in determining whether, and at which moment, there has been "submission," can only create uncertainty and generate litigation. In some cases, of course, it is immediately apparent at which moment the suspect submitted to an officer's show of force. For example, if the victim is killed by an officer's gunshot, [ Footnote 2/16 ] as in Tennessee v. Garner, 471 U. S. 1 , 471 U. S. 11 (1985) ("A police officer may not seize an unarmed, nondangerous suspect by shooting him dead"), [ Footnote 2/17 ] or by a hidden roadblock, as in Brower v. Inyo County, 489 U. S. 593 (1989), the submission is unquestionably complete. But what if, for example, William James Caldwell (Brower) had just been wounded before being apprehended? Would it be correct to say that no seizure had occurred, and therefore the Fourth Amendment was not implicated even if the pursuing officer had no justification whatsoever for initiating the chase? The Court's opinion in Brower suggests that the officer's responsibility should not depend on the character of the victim's evasive action. The Court wrote: "Brower's independent decision to continue the chase can no more eliminate respondents' responsibility for the termination of his movement effected by the roadblock than Garner's independent decision to flee eliminated the Memphis police officer's responsibility for the termination of his movement effected by the bullet." Id. at 489 U. S. 595 . Page 499 U. S. 645 It seems equally clear to me that the constitutionality of a police officer's show of force should be measured by the conditions that exist at the time of the officer's action. A search must be justified on the basis of the facts available at the time it is initiated; the subsequent discovery of evidence does not retroactively validate an unconstitutional search. The same approach should apply to seizures; the character of the citizen's response should not govern the constitutionality of the officer's conduct. If an officer effects an arrest by touching a citizen, apparently the Court would accept the fact that a seizure occurred, even if the arrestee should thereafter break loose and flee. In such a case, the constitutionality of the seizure would be evaluated as of the time the officer acted. That category of seizures would then be analyzed in the same way as searches, namely, was the police action justified when it took place? It is anomalous, at best, to fashion a different rule for the subcategory of "show of force" arrests. In cases within this new subcategory, there will be a period of time during which the citizen's liberty has been restrained, but he or she has not yet completely submitted to the show of force. A motorist pulled over by a highway patrol car cannot come to an immediate stop, even if the motorist intends to obey the patrol car's signal. If an officer decides to make the kind of random stop forbidden by Delaware v. Prouse, 440 U. S. 648 (1979), and, after flashing his lights, but before the vehicle comes to a complete stop, sees that the license plate has expired, can he justify his action on the ground that the seizure became lawful after it was initiated, but before it was completed? In an airport setting, may a drug enforcement agent now approach a group of passengers with his gun drawn, announce a "baggage search," and rely on the passengers' reactions to justify his investigative stops? The holding of today's majority fails to recognize the coercive and intimidating nature of such behavior, and creates a rule that may allow such behavior to go unchecked. Page 499 U. S. 646 The deterrent purposes of the exclusionary rule focus on the conduct of law enforcement officers, and on discouraging improper behavior on their part, [ Footnote 2/18 ] and not on the reaction of the citizen to the show of force. In the present case, if Officer Pertoso had succeeded in tackling respondent before he dropped the rock of cocaine, the rock unquestionably would have been excluded as the fruit of the officer's unlawful seizure. Instead, under the Court's logic-chopping analysis, the exclusionary rule has no application, because an attempt to make an unconstitutional seizure is beyond the coverage of the Fourth Amendment, no matter how outrageous or unreasonable the officer's conduct may be. It is too early to know the consequences of the Court's holding. If carried to its logical conclusion, it will encourage unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they Page 499 U. S. 647 may still have. It is not too soon, however, to note the irony in the fact that the Court's own justification for its result is its analysis of the rules of the common law of arrest that antedated our decisions in Katz and Terry. Yet, even in those days, the common law provided the citizen with protection against an attempt to make an unlawful arrest. See nn. 499 U.S. 621 fn2/5|>5 and 499 U.S. 621 fn2/7|>7, supra. The central message of Katz and Terry was that the protection the Fourth Amendment provides to the average citizen is not rigidly confined by ancient common law precept. The message that today's literal-minded majority conveys is that the common law, rather than our understanding of the Fourth Amendment as it has developed over the last quarter of a century, defines, and limits, the scope of a seizure. The Court today defines a seizure as commencing, not with egregious police conduct, but rather with submission by the citizen. Thus, it both delays the point at which "the Fourth Amendment becomes relevant" [ Footnote 2/19 ] to an encounter and limits the range of encounters that will come under the heading of "seizure." Today's qualification of the Fourth Amendment means that innocent citizens may remain "secure in their persons . . . against unreasonable searches and seizures" only at the discretion of the police. [ Footnote 2/20 ] Some sacrifice of freedom always accompanies an expansion in the executive's unreviewable [ Footnote 2/21 ] law enforcement powers. Page 499 U. S. 648 A court more sensitive to the purposes of the Fourth Amendment would insist on greater rewards to society before decreeing the sacrifice it makes today. Alexander Bickel presciently wrote that "many actions of government have two aspects: their immediate, necessarily intended, practical effects, and their perhaps unintended or unappreciated bearing on values we hold to have more general and permanent interest." [ Footnote 2/22 ] The Court's immediate concern with containing criminal activity poses a substantial, though unintended, threat to values that are fundamental and enduring. I respectfully dissent. [ Footnote 2/1 ] The Fourth Amendment to the Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." [ Footnote 2/2 ] Katz v. United States, 389 U. S. 347 (1967). [ Footnote 2/3 ] Terry v. Ohio, 392 U. S. 1 (1968). [ Footnote 2/4 ] The Court's gratuitous quotation from Proverbs 28:1, see ante at 499 U. S. 623 , n. 1, mistakenly assumes that innocent residents have no reason to fear the sudden approach of strangers. We have previously considered, and rejected, this ivory-towered analysis of the real world for it fails to describe the experience of many residents, particularly if they are members of a minority. See generally Johnson, Race and the Decision To Detain a Suspect, 93 Yale L.J. 214 (1983). It has long been "a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as bold as a lion.'" Alberty v. United States, 162 U. S. 499 , 162 U. S. 511 (1896). [ Footnote 2/5 ] "[I]f the officer pronounces words of arrest without an actual touching and the other immediately runs away, there is no escape (in the technical sense), because there was no arrest. I t would be otherwise had the officer touched the arrestee for the purpose of apprehending him, because touching for the manifested purpose of arrest by one having lawful authority completes the apprehension, 'although he does not succeed in stopping or holding him even for an instant.'" Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940) (footnotes omitted). [ Footnote 2/6 ] "One who undertakes to make an arrest without lawful authority, or who attempts to do so in an unlawful manner, is guilty of an assault if the other is ordered to submit to the asserted authority, is guilty of battery if he lays hands on the other for this unlawful purpose. . . ." Id. at 263 (footnotes omitted). [ Footnote 2/7 ] "[E]ven without touching the other, the officer may subject himself to liability if he undertakes to make an arrest without being privileged by law to do so.[5]" "-----" "5. For example, an officer might be guilty of an assault because of an attempted arrest, without privilege, even if he did not succeed in touching the other. Furthermore, if the other submitted to such an arrest without physical contact, the officer is liable for false imprisonment. Gold v. Bissell, 1 Wend. 210 (N.Y.Sup.Ct.1828)." Id. at 201. [ Footnote 2/8 ] "We have recently held that 'the Fourth Amendment protects people, not places,' Katz v. United States, 389 U. S. 347 , 389 U. S. 351 (1967), and wherever an individual may harbor a reasonable 'expectation of privacy,' id. at 389 U. S. 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For 'what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.' Elkins v. United States, 364 U. S. 206 , 364 U. S. 222 (1960)." Terry v. Ohio, 392 U.S. at 392 U. S. 9 . [ Footnote 2/9 ] Hester v. United States, 265 U. S. 57 (1924), the case on which the majority largely relies, was decided over 40 years before Terry. In that case, the defendant did not even argue that there was a seizure of his person. The Court's holding in Hester that the abandoned moonshine whiskey had not been seized simply did not address the question whether it would have been the fruit of a constitutional violation if there had been a seizure of the person before the whiskey was abandoned. [ Footnote 2/10 ] The Court applied this principle in Brown v. Texas, 443 U. S. 47 (1979): "We have recognized that, in some circumstances, an officer may detain a suspect briefly for questioning, although he does not have 'probable cause' to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Id. at 443 U. S. 51 (citations omitted). [ Footnote 2/11 ] It is noteworthy that the Court has relied so heavily on cases and commentary that antedated Katz and Terry. [ Footnote 2/12 ] "The essential teaching of the Court's decision in Terry -- that an individual's right to personal security and freedom must be respected even in encounters with the police that fall short of full arrest -- has been consistently reaffirmed." INS v. Delgado, 466 U. S. 210 , 466 U. S. 227 (1984) (Brennan, J., concurring in part and dissenting in part). [ Footnote 2/13 ] "Petitioner argues that the Fourth Amendment is never implicated until an individual stops in response to the police's show of authority. Thus, petitioner would have us rule that a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive, as long as the police did not succeed in actually apprehending the individual." Michigan v. Chesternut, 486 U.S. at 486 U. S. 572 . [ Footnote 2/14 ] The California Court of Appeal noted: "This case involves more than a pursuit, as Officer Pertoso did not pursue [respondent], but ran in such a fashion as to cut him off and confront him head on. Under the rationale of Chesternut, this action is reasonably perceived as an intrusion upon one's freedom of movement, and as a maneuver intended to block or 'otherwise control the direction or speed' of one's movement." App. A to Pet. for Cert. 9. [ Footnote 2/15 ] "To determine the constitutionality of a seizure '[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" Tennessee v. Garner, 471 U. S. 1 , 471 U. S. 8 (1985) (citation omitted). [ Footnote 2/16 ] Even under the common law, "If an officer shoots at an arrestee when he is not privileged to do so, he is guilty of an aggravated assault. And if death results from an arrest, or attempted arrest, which was not authorized at all, . . . the arrester is guilty of manslaughter or, in extreme cases, of murder." Perkins, 25 Iowa L.Rev. at 263-264. [ Footnote 2/17 ] In Tennessee v. Garner, even the dissent agreed with the majority that the police officer who shot at a fleeing suspect had " seized' the suspect by shooting him." 471 U.S. at 471 U. S. 25 (O'CONNOR, J., dissenting). [ Footnote 2/18 ] The purpose of the Fourth Amendment is " to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" INS v. Delgado, 466 U.S. at 466 U. S. 215 (quoting United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 554 (1976)); see Mendenhall, 446 U.S. at 446 U. S. 553 -554 (same); Terry v. Ohio, 392 U.S. at 392 U. S. 12 ("Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct"); 4 W. LaFave, Search and Seizure § 11.4(j), pp. 459-460 (2d ed.1987) ("Incriminating admissions and attempts to dispose of incriminating evidence are common and predictable consequences of illegal arrests and searches, and thus to admit such evidence would encourage such Fourth Amendment violations in future cases"). Justice Brandeis wrote eloquently about the overarching purpose of the Fourth Amendment: "The makers of our Constitution . . . sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). Today's opinion has lost sight of these purposes. [ Footnote 2/19 ] Terry v. Ohio, 392 U.S. at 392 U. S. 16 . [ Footnote 2/20 ] Justice Jackson presaged this development when he wrote: "[A]n illegal search and seizure usually is a single incident, perpetrated by surprise, conducted in haste, kept purposely beyond the court's supervision, and limited only by the judgment and moderation of officers whose own interests and records are often at stake in the search. . . . The citizen's choice is quietly to submit to whatever the officers undertake or to resist at risk of arrest or immediate violence." Brinegar v. United States, 338 U. S. 160 , 338 U. S. 182 (1949) (Jackson, J., dissenting). [ Footnote 2/21 ] "[T]he right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court. . . . There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear." Id. at 338 U. S. 181 (Jackson, J., dissenting). [ Footnote 2/22 ] A. Bickel, The Least Dangerous Branch 24 (1962).

Here is a summary of the case: The Supreme Court ruled that a person is not considered "seized" under the Fourth Amendment if they are running away from the police and have not been physically touched or have submitted to an officer's "show of authority." In this case, Hodari fled from Officer Pertoso and threw away a small rock of crack cocaine before being tackled. The Court held that Hodari was not "seized" until he was tackled, and therefore the cocaine he abandoned while running was not considered the fruit of a seizure and could be used as evidence.

Gun Rights

U.S. v. Cruikshank

https://supreme.justia.com/cases/federal/us/92/542/

U.S. Supreme Court United States v. Cruikshank, 92 U.S. 542 (1875) United States v. Cruikshank 92 U.S. 542 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA Syllabus 1. Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual, as well as their collective, rights. The duty of a government to afford protection is limited always by the power it possesses for that purpose. 2. There is in our political system a government of each of the several States, and a Government of the United States. Each is distinct from the others, and has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of those governments will be different from those he has under the other. 3. The Government of the United States, although it is, within the scope of its powers, supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted or secured are left to the exclusive protection of the States. 4. The right of the people peaceably to assemble for lawful purposes, with the obligation on the part of the States to afford it protection, existed long before the adoption of the Constitution. The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone. It left the authority of the States unimpaired, added nothing to the already existing powers of the United States, and guaranteed the continuance of the right only against Congressional interference. The people, for their protection in the enjoyment of it, must therefore look to the States, where the power for that purpose was originally placed. 5. The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under the protection of and guaranteed by the United States. The very idea of a government republican in form implies that right, and an invasion of it presents a case within the sovereignty of the United States. 6. The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government. 7. Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States. 8. The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to Page 92 U. S. 543 any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty. 9. In Minor v. Hoppersett , 21 Wall. 178, this Court decided that the Constitution of the United States has not conferred the right of suffrage upon anyone, and that the United States have no voters of their own creation in the States. In United States v. Reese et al., supra, p. 92 U. S. 214 , it held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. The right to vote in the States comes from the States; but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been. 10. The counts of an indictment which charge the defendants with having banded and conspired to injure, oppress, threaten, and intimidate citizens of the United States of African descent, therein named, and which, in substance respectively allege that the defendants intended thereby to hinder and prevent such citizens in the free exercise and enjoyment of rights and privileges granted and secured to them in common with other good citizens by the Constitution and law of the United States, to hinder and prevent them in the free exercise of their right peacefully to assemble for lawful purposes, deprive them of their respective several lives and liberty of person without due process of law, prevent and hinder them in the free exercise and enjoyment of their several rights to the full and equal benefit of the law, prevent and hinder them in the free exercise and enjoyment of their several and respective rights to vote at any election to be thereafter by law had and held by the people in and of the State of Louisiana, or to put them in great fear of bodily harm and to injure and oppress them because, being and having been in all things qualified, they had voted at an election theretofore had and held according to law by the people of said State -- do not present a case within the sixth section of the Enforcement Act of May 31, 1870 (16 Stat. 141). To bring a case within the operation of that statute, it must appear that the right the enjoyment of which the conspirators intended to hinder or prevent was one granted or secured by the Constitution or laws of the United States. If it does not so appear, the alleged offence is not indictable under any act of Congress. 11. The counts of an indictment which, in general language, charge the defendants with an intent to hinder and prevent citizens of the United States of African descent, therein named, in the free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them Page 92 U. S. 544 respectively as citizens of the United States, and of the State of Louisiana, because they were persons of African descent, and with the intent to hinder and prevent them in the several and free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the Constitution and laws of the United States do not specify any particular right the enjoyment of which the conspirators intended to hinder or prevent, are too vague and general, lack the certainty and precision required by the established rules of criminal pleading, and are therefore not good and sufficient in law. 12. In criminal cases prosecuted under the laws of the United States, the accused has the constitutional right "to be informed of the nature and cause of the accusation." The indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the offence is composed must be accurately and clearly alleged. It is an elementary principle of criminal pleading that, where the definition of an offence, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition, but it must state the species -- it must descend to particulars. The object of the indictment is first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause, and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances. 13. By the act under which this indictment was found, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court. The indictment should therefore state the particulars to inform the court as well as the accused. It must appear from the indictment that the acts charged will, if proved, support a conviction for the offence alleged. This was an indictment for conspiracy under the sixth section of the act of May 30, 1870, known as the Enforcement Act (16 Stat. 140), and consisted of thirty-two counts. The first count was for banding together, with intent "unlawfully and feloniously to injure, oppress, threaten, and intimidate" two citizens of the United States, "of African descent and persons of color," "with the unlawful and felonious intent thereby" them "to hinder and prevent in their respective free Page 92 U. S. 545 exercise and enjoyment of their lawful right and privilege to peaceably assemble together with each other and with other citizens of the said United States for a peaceable and lawful purpose." The second avers an intent to hinder and prevent the exercise by the same persons of the "right to keep and bear arms for a lawful purpose." The third avers an intent to deprive the same persons "of their respective several lives and liberty of person, without due process of law." The fourth avers an intent to deprive the same persons of the "free exercise and enjoyment of the right and privilege to the full and equal benefit of all laws and proceedings for the security of persons and property" enjoyed by white citizens. The fifth avers an intent to hinder and prevent the same persons "in the exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the said United States, and as citizens of the said State of Louisiana, by reason of and for and on account of the race and color" of the said persons. The sixth avers an intent to hinder and prevent the same persons in "the free exercise and enjoyment of the several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana." The seventh avers an intent "to put in great fear of bodily harm, injure, and oppress" the same persons, "because and for the reason" that, having the right to vote, they had voted. The eighth avers an intent "to prevent and hinder" the same persons "in their several and respective free exercise and enjoyment of every, each, all, and singular and several rights and privileges granted and secured" to them "by the Constitution and laws of the United States." The next eight counts are a repetition of the first eight, except that, instead of the words "band together," the words "combine, conspire, and confederate together" are used. Three of the defendants were found guilty under the first sixteen counts, and not guilty under the remaining counts. Page 92 U. S. 546 The parties thus convicted moved in arrest of judgment on the following grounds: 1. Because the matters and things set forth and charged in the several counts, one to sixteen inclusive, do not constitute offences against the laws of the United States, and do not come within the purview, true intent, and meaning of the act of Congress, approved 31st May, 1870, entitled " An Act to enforce the right of citizens of the United States, " &c. 2. Because the matters and things in the said indictment set forth and charged do not constitute offences cognizable in the Circuit Court, and do not come within its power and jurisdiction. 3. Because the offences created by the sixth section of the act of Congress referred to, and upon which section the aforesaid sixteen counts are based, are not constitutionally within the jurisdiction of the courts of the United States, and because the matters and things therein referred to are judicially cognizable by State tribunals only, and legislative action thereon is among the constitutionally reserved rights of the several States. 4. Because the said act, in so far as it creates offences and imposes penalties, is in violation of the Constitution of the United States, and an infringement of the rights of the several States and the people. 5. Because the eighth and sixteenth counts of the indictment are too vague, general, insufficient, and uncertain, to afford the accused proper notice to plead and prepare their defence, and set forth no specific offence under the law. 6. Because the verdict of the jury against the defendants is not warranted or supported by law. On this motion, the opinions of the judges were divided, that of the presiding judge being that the several counts in question are not sufficient in law, and do not contain charges of criminal matter indictable under the laws of the United States, and that the motion in arrest of judgment should be granted. The case comes up at the instance of the United States, on certificate of this division of opinion. Sect. 1 of the Enforcement Act declares that all citizens of the United States, otherwise qualified, shall be allowed to vote at all elections, without distinction of race, color, or previous servitude. Page 92 U. S. 547 Sect. 2 provides that if, by the law of any State or Territory, a prerequisite to voting is necessary, equal opportunity for it shall be given to all, without distinction, &c., and any person charged with the duty of furnishing the prerequisite who refuses or knowingly omits to give full effect to this section shall be guilty of misdemeanor. Sect. 3 provides that an offer of performance in respect to the prerequisite, when proved by affidavit of the claimant, shall be equivalent to performance, and any judge or inspector of election who refuses to accept it shall be guilty, &c. Sect. 4 provides that any person who, by force, bribery, threats, intimidation, or other unlawful means, hinders, delays, prevents, or obstructs any citizen from qualifying himself to vote, or combines with others to do so, shall be guilty, &c. Sect. 5 provides that any person who prevents, hinders, controls, or intimidates any person from exercising the right of suffrage, to whom it is secured by the Fifteenth Amendment, or attempts to do so, by bribery or threats of violence, or deprivation of property or employment, shall be guilty, &c. The sixth section is as follows: "That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court -- the fine not to exceed $5,000 and the imprisonment not to exceed ten years -- and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States. " Page 92 U. S. 548 MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This case comes here with a certificate by the judges of the Circuit Court for the District of Louisiana that they were divided in opinion upon a question which occurred at the hearing. It presents for our consideration an indictment containing sixteen counts, divided into two series of eight counts each, based upon sect. 6 of the Enforcement Act of May 31, 1870. That section is as follows:-- "That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court -- the fine not to exceed $5,000, and the imprisonment not to exceed ten years -- and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States." 16 Stat. 141. The question certified arose upon a motion in arrest of judgment after a verdict of guilty generally upon the whole sixteen counts, and is stated to be whether "the said sixteen counts of said indictment are severally good and sufficient in law, and contain charges of criminal matter indictable under the laws of the United States." The general charge in the first eight counts is that of "banding," and in the second eight that of "conspiring" together to injure, oppress, threaten, and intimidate Levi Nelson and Alexander Tillman, citizens of the United States, of African descent and persons of color, with the intent thereby to hinder and prevent them in their free exercise and enjoyment of rights and privileges "granted and secured" to them "in common with all other good citizens of the United States by the Constitution and laws of the United States." The offences provided for by the statute in question do not consist in the mere "banding" or "conspiring" of two or Page 92 U. S. 549 more persons together, but in their banding or conspiring with the intent, or for any of the purposes, specified. To bring this case under the operation of the statute, therefore, it must appear that the right, the enjoyment of which the conspirators intended to hinder or prevent, was one granted or secured by the Constitution or laws of the United States. If it does not so appear, the criminal matter charged has not been made indictable by any act of Congress. We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases , 16 Wall. 74. Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction, but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose. Experience made the fact known to the people of the United States that they required a national government for national purposes. The separate governments of the separate States, bound together by the articles of confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the confederated States. For this reason, the people of the United States, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for Page 92 U. S. 550 the common defence, promote the general welfare, and secure the blessings of liberty" to themselves and their posterity (Const. Preamble), ordained and established the government of the United States, and defined its powers by a Constitution, which they adopted as its fundamental law, and made its rule of action. The government thus established and defined is to some extent a government of the States in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme, and above the States; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction. The people of the United States resident within any State are subject to two governments -- one State and the other National -- but there need be no conflict between the two. The powers which one possesses the other does not. They are established for different purposes, and have separate jurisdictions. Together, they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a State, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the State by the breach of peace in the assault. So, too, if one passes counterfeited coin of the United States within a State, it may be an offence against the United States and the State: the United States because it discredits the coin, and the State because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship Page 92 U. S. 551 which owes allegiance to two sovereignties and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and, within their respective spheres, must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction. The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States. We now proceed to an examination of the indictment, to ascertain whether the several rights, which it is alleged the defendants intended to interfere with, are such as had been in law and in fact granted or secured by the Constitution or laws of the United States. The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose." The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It "derives its source," to use the language of Chief Justice Marshall in Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 211 , "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The Government of the United States, when established, found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id., 22 U. S. 203 , subject to State jurisdiction. Page 92 U. S. 552 Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government. The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone. Barron v. The City of Baltimore , 7 Pet. 250; Lessee of Livingston v. Moore, id. , 551; Fox v. Ohio , 5 How. 434; Smith v. Maryland , 18 id. 76; Withers v. Buckley , 20 id. 90; Pervear v. The Commonwealth , 5 Wall. 479; Twitchell v. The Commonwealth , 7 id. 321; Edwards v. Elliott , 21 id. 557. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth , 7 Wall. 325, "the scope and application of these amendments are no longer subjects of discussion here." They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States. The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States. The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government republican in form implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in Page 92 U. S. 553 these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever. The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln , 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States. The third and eleventh counts are even more objectionable. They charge the intent to have been to deprive the citizens named, they being in Louisiana, "of their respective several lives and liberty of person without due process of law." This is nothing else than alleging a conspiracy to falsely imprison or murder citizens of the United States, being within the territorial jurisdiction of the State of Louisiana. The rights of life and personal liberty are natural rights of man. "To secure these rights," says the Declaration of Independence, "governments are instituted among men, deriving their just powers from the consent of the governed." The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these "unalienable rights with which they were endowed by their Creator." Sovereignty, for this purpose, rests alone with the States. It is no more the duty or within the power of the United States to punish for a conspiracy Page 92 U. S. 554 to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself. The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely , 4 Wheat. 244, it secures "the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." These counts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment. The fourth and twelfth counts charge the intent to have been to prevent and hinder the citizens named, who were of African descent and persons of color, in "the free exercise and enjoyment of their several right and privilege to the full and equal benefit of all laws and proceedings, then and there, before that time, enacted or ordained by the said State of Louisiana and by the United States, and then and there, at that time, being in force in the said State and District of Louisiana aforesaid, for the security of their respective persons and property, then and there, at that time enjoyed at and within said State and District of Louisiana by white persons, being citizens of said State of Louisiana and the United States, for the protection of the persons and property of said white citizens." There is no allegation that this was done because of the race or color of the persons conspired against. When stripped of its verbiage, the case as presented amounts to nothing more than that the defendants conspired to prevent certain citizens of the United States, being within the State of Louisiana, from enjoying the equal protection of the laws of the State and of the United States. The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything Page 92 U. S. 555 to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty. No question arises under the Civil Rights Act of April 9, 1866 (14 Stat. 27), which is intended for the protection of citizens of the United States in the enjoyment of certain rights, without discrimination on account of race, color, or previous condition of servitude, because, as has already been stated, it is nowhere alleged in these counts that the wrong contemplated against the rights of these citizens was on account of their race or color. Another objection is made to these counts that they are too vague and uncertain. This will be considered hereafter, in connection with the same objection to other counts. The sixth and fourteenth counts state the intent of the defendants to have been to hinder and prevent the citizens named, being of African descent, and colored, "in the free exercise and enjoyment of their several and respective right and privilege to vote at any election to be thereafter by law had and held by the people in and of the said State of Louisiana, or by the people of and in the parish of Grant aforesaid." In Minor v. Happersett , 21 Wall. 178, we decided that the Constitution of the United States has not conferred the right of suffrage upon anyone, and that the United States have no voters of their own creation in the States. In United States v. Reese et al., supra, p. 92 U. S. 214 , we hold that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is, exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. From this, it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on Page 92 U. S. 556 account of race, &c., is. The right to vote in the States comes from the States, but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been. Inasmuch, therefore, as it does not appear in these counts that the intent of the defendants was to prevent these parties from exercising their right to vote on account of their race, &c., it does not appear that it was their intent to interfere with any right granted or secured by the Constitution or laws of the United States. We may suspect that race was the cause of the hostility, but it is not so averred. This is material to a description of the substance of the offence, and cannot be supplied by implication. Everything essential must be charged positively, and not inferentially. The defect here is not in form, but in substance. The seventh and fifteenth counts are no better than the sixth and fourteenth. The intent here charged is to put the parties named in great fear of bodily harm, and to injure and oppress them, because, being and having been in all things qualified, they had voted "at an election before that time had and held according to law by the people of the said State of Louisiana, in said State, to-wit, on the fourth day of November, A.D. 1872, and at divers other elections by the people of the State, also before that time had and held according to law." There is nothing to show that the elections voted at were any other than State elections, or that the conspiracy was formed on account of the race of the parties against whom the conspirators were to act. The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State. Certainly it will not be claimed that the United States have the power or are required to do mere police duly in the States. If a State cannot protect itself against domestic violence, the United States may, upon the call of the executive, when the legislature cannot be convened, lend their assistance for that purpose. This is a guaranty of the Constitution (art. 4, sect. 4), but it applies to no case like this. We are therefore of the opinion that the first, second, third, fourth, sixth, seventh, ninth, tenth, eleventh, twelfth, fourteenth, Page 92 U. S. 557 and fifteenth counts do not contain charges of a criminal nature made indictable under the laws of the United States, and that consequently they are not good and sufficient in law. They do not show that it was the intent of the defendants, by their conspiracy, to hinder or prevent the enjoyment of any right granted or secured by the Constitution. We come now to consider the fifth and thirteenth and the eighth and sixteenth counts, which may be brought together for that purpose. The intent charged in the fifth and thirteenth is "to hinder and prevent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection granted and secured to them respectively as citizens of the United States, and as citizens of said State of Louisiana . . . for the reason that they, . . . being then and there citizens of said State and of the United States, were persons of African descent and race, and persons of color, and not white citizens thereof;" and in the eighth and sixteenth, to hinder and prevent them "in their several and respective free exercise and enjoyment of every, each, all, and singular the several rights and privileges granted and secured to them by the Constitution and laws of the United States." The same general statement of the rights to be interfered with is found in the fifth and thirteenth counts. According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all. The statute provides for the punishment of those who conspire "to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States." These counts in the indictment charge, in substance that the intent in this case was to hinder and prevent these citizens in the free exercise and enjoyment of "every, each, all, and singular" the rights granted them by the Constitution, &c. There is no specification of any particular right. The language is broad enough to cover all. In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right "to be informed Page 92 U. S. 558 of the nature and cause of the accusation." Amend. VI. In United States v. Mills , 7 Pet. 142, this was construed to mean that the indictment must set forth the offence "with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged;" and in United States v. Cook , 17 Wall. 174 that "every ingredient of which the offence is composed must be accurately and clearly alleged." It is an elementary principle of criminal pleading that, where the definition of an offence, whether it be at common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition, but it must state the species -- it must descend to particulars." 1 Arch.Cr.Pr. and Pl. 291. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances. It is a crime to steal goods and chattels, but an indictment would be bad that did not specify with some degree of certainty the articles stolen. This because the accused must be advised of the essential particulars of the charge against him, and the court must be able to decide whether the property taken was such as was the subject of larceny. So, too, it is in some States a crime for two or more persons to conspire to cheat and defraud another out of his property, but it has been held that an indictment for such an offence must contain allegations setting forth the means proposed to be used to accomplish the purpose. This because, to make such a purpose criminal, the conspiracy must be to cheat and defraud in a mode made criminal by statute; and, as all cheating and defrauding has not been made criminal, it is necessary for the indictment to state the means proposed, in order that the court Page 92 U. S. 559 may see that they are in fact illegal. State v. Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Alderman v. The People, 4 Mich. 414; State v. Roberts, 34 Me. 32. In Maine, it is an offence for two or more to conspire with the intent unlawfully and wickedly to commit any crime punishable by imprisonment in the State prison ( State v. Roberts ), but we think it will hardly be claimed that an indictment would be good under this statute which charges the object of the conspiracy to have been "unlawfully and wickedly to commit each, every, all, and singular the crimes punishable by imprisonment in the State prison." All crimes are not so punishable. Whether a particular crime be such a one or not is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect in order that he may decide whether he should present his defence by motion to quash, demurrer, or plea, and the court that it may determine whether the facts will sustain the indictment. So here, the crime is made to consist in the unlawful combination with an intent to prevent the enjoyment of any right granted or secured by the Constitution, &c. All rights are not so granted or secured. Whether one is so or not is a question of law, to be decided by the court, not the prosecutor. Therefore, the indictment should state the particulars, to inform the court as well as the accused. It must be made to appear -- that is to say, appears from the indictment, without going further -- that the acts charged will, if proved, support a conviction for the offence alleged. But it is needless to pursue the argument further. The conclusion is irresistible that these counts are too vague and general. They lack the certainty and precision required by the established rules of criminal pleading. It follows that they are not good and sufficient in law. They are so defective that no judgment of conviction should be pronounced upon them. The order of the Circuit Court arresting the judgment upon the verdict is, therefore, affirmed; and the cause remanded, with instructions to discharge the defendants. MR. JUSTICE CLIFFORD dissenting. I concur that the judgment in this case should be arrested, but for reasons quite different from those given by the court. Page 92 U. S. 560 Power is vested in Congress to enforce by appropriate legislation the prohibition contained in the Fourteenth Amendment of the Constitution, and the fifth section of the Enforcement Act provides to the effect that persons who prevent, hinder, control, or intimidate, or who attempt to prevent, hinder, control, or intimidate, any person to whom the right of suffrage is secured or guaranteed by that amendment, from exercising or in exercising such right by means of bribery or threats; of depriving such person of employment or occupation; or of ejecting such person from rented house, lands, or other property; or by threats of refusing to renew leases or contracts for labor; or by threats of violence to himself or family -- such person so offending shall be deemed guilty of a misdemeanor and, on conviction thereof, shall be fined or imprisoned, or both, as therein provided. 16 Stat. 141. Provision is also made, by sect. 6 of the same act that if two or more persons shall band or conspire together, or go in disguise, upon the public highway, or upon the premises of another, with intent to violate any provision of that act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution and laws of the United States, or because of his having exercised the same, such persons shall be deemed guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, and be further punished as therein provided. More than one hundred persons were jointly indicted at the April Term, 1873, of the Circuit Court of the United States for the District of Louisiana, charged with offences in violation of the provisions of the Enforcement Act. By the record, it appears that the indictment contained thirty-two counts, in two series of sixteen counts each; that the first series were drawn under the fifth and sixth sections of the act; and that the second series were drawn under the seventh section of the same act; and that the latter series charged that the prisoners are guilty of murder committed by them in the act of violating some of the provisions of the two preceding sections of that act. Eight of the persons named in the indictment appeared on Page 92 U. S. 561 the 10th of June, 1874, and went to trial under the plea of not guilty, previously entered at the time of their arraignment. Three of those who went to trial -- to-wit, the three defendants named in the transcript -- were found guilty by the jury on the first series of the counts of the indictment, and not guilty on the second series of the counts in the same indictment. Subsequently, the convicted defendants filed a motion for a new trial, which motion being overruled, they filed a motion in arrest of judgment. Hearing was had upon that motion and, the opinions of the judges of the Circuit Court being opposed, the matter in difference was duly certified to this Court, the question being whether the motion in arrest of judgment ought to be granted or denied. Two only of the causes of arrest assigned in the motion will be considered in answering the questions certified: (1) because the matters and things set forth and charged in the several counts in question do not constitute offences against the laws of the United States, and do not come within the purview, true intent, and meaning of the Enforcement Act; (2) because the several counts of the indictment in question are too vague, insufficient, and uncertain to afford the accused proper notice to plead and prepare their defence, and do not set forth any offence defined by the Enforcement Act. Four other causes of arrest were assigned, but, in the view taken of the case, it will be sufficient to examine the two causes above set forth. Since the questions were certified into this Court, the parties have been fully heard in respect to all the questions presented for decision in the transcript. Questions not pressed at the argument will not be considered, and, inasmuch as the counsel in behalf of the United States confined their arguments entirely to the thirteenth, fourteenth, and sixteenth counts of the first series in the indictment, the answers may well be limited to these counts, the others being virtually abandoned. Mere introductory allegations will be omitted as unimportant, for the reason that the questions to be answered relate to the allegations of the respective counts describing the offence. As described in the thirteenth count, the charge is that the Page 92 U. S. 562 defendants did, at the time and place mentioned, combine, conspire, and confederated together, between and among themselves, for and with the unlawful and felonious intent and purpose one Levi Nelson and one Alexander Tillman, each of whom being then and there a citizen of the United States, of African descent, and a person of color, unlawfully and feloniously to injure, oppress, threaten, and intimidate, with the unlawful and felonious intent thereby the said persons of color, respectively, then and there to hinder and prevent in their respective and several free exercise and enjoyment of the rights, privileges, and immunities, and protection, granted and secured to them respectively as citizens of the United States and citizens of the State, by reason of their race and color; and because that they, the said persons of color, being then and there citizens of the State and of the United States, were then and there persons of African descent and race, and persons of color, and not white citizens thereof, the same being a right or privilege granted or secured to the said persons of color respectively, in common with all other good citizens of the United States, by the Federal Constitution and the laws of Congress. Matters of law conceded, in the opinion of the Court, may be assumed to be correct without argument, and, if so, then discussion is not necessary to show that every ingredient of which an offence is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested before sentence, or be reversed on a writ of error. United States v. Cook , 17 Wall. 174. Offences created by statute, as well as offences at common law, must be accurately and clearly described in an indictment, and, if the offence cannot be so described without expanding the allegations beyond the mere words of the statute, then it is clear that the allegations of the indictment must be expanded to that extent, as it is universally true that no indictment is sufficient which does not accurately and clearly allege all the ingredients of which the offence is composed, so as to bring the accused within the true intent and meaning of the statute defining the offence. Authorities of great weight, besides those referred to by me, in the dissenting opinion just read, Page 92 U. S. 563 may be found in support of that proposition. 2 East, P.C. 1124; Dord v. People, 9 Barb. 675; Ike v. State, 23 Miss. 525; State v. Eldridge, 7 Eng. 608. Every offence consists of certain acts done or omitted under certain circumstances, and, in the indictment for the offence, it is not sufficient to charge the accused generally with having committed the offence, but all the circumstances constituting the offence must be specially set forth. Arch.Cr.Pl., 15th ed., 43. Persons born on naturalized in the United States, and subject to the jurisdiction thereof, are citizens thereof, and the Fourteenth Amendment also provides that no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Congress may, doubtless, prohibit any violation of that provision, and may provide that any person convicted of violating the same shall be guilty of an offence and be subject to such reasonable punishment as Congress may prescribe. Conspiracies of the kind described in the introductory clause of the sixth section of the Enforcement Act are explicitly forbidden by the subsequent clauses of the same section, and it may be that, if the indictment was for a conspiracy at common law, and was pending in a tribunal having jurisdiction of common law offences, the indictment in its present form might be sufficient even though it contains no definite allegation whatever of any particular overt act committed by the defendants in pursuance of the alleged conspiracy. Decided cases may doubtless be found in which it is held that an indictment for a conspiracy at common law may be sustained where there is an unlawful agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means, and authorities may be referred to which support the proposition that the indictment, if the conspiracy is well pleaded, is sufficient even though it be not alleged that any overt act had been done in pursuance of the unlawful combination. Suffice it to say, however that the authorities to that effect are opposed by another class of authorities equally respectable, and even more numerous, which decide that the indictment is Page 92 U. S. 564 bad unless it is alleged that some overt act was committed in pursuance of the intent and purpose of the alleged conspiracy; and in all the latter class of cases, it is held that the overt act, as well as the unlawful combination, must be clearly and accurately alleged. Two reasons of a conclusive nature, however, may be assigned which show beyond all doubt that it is not necessary to enter into the inquiry which class of those decisions is correct. 1. Because the common law is not a source of jurisdiction in the circuit courts, nor in any other Federal court. Circuit Courts have no common law jurisdiction of offences of any grade or description, and it is equally clear that the appellate jurisdiction of the Supreme Court does not extend to any case or any question, in a case not within the jurisdiction of the subordinate Federal courts. State v. Wheeling Bridge Co., 13 How. 503; United States v. Hudson et al. , 7 Cranch 32. 2. Because it is conceded that the offence described in the indictment is an offence created and defined by an act of Congress. Indictments for offences created and defined by statute must in all cases follow the words of the statute, and, where there is no departure from that rule, the indictment is in general sufficient, except in cases where the statute is elliptical or where, by necessary implication, other constituents are component parts of the offence, as where the words of the statute defining the offence have a compound signification or are enlarged by what immediately precedes or follows the words describing the offence, and in the same connection. Cases of the kind do arise, as where, in the dissenting opinion in United States v. Reese et al., supra, p. 92 U. S. 222 , it was held that the words offer to pay a capitation tax were so expanded by a succeeding clause of the same sentence that the word "offer" necessarily included readiness to perform what was offered, the provision being that the offer should be equivalent to actual performance if the offer failed to be carried into execution by the wrongful act or omission of the party to whom the offer was made. Two offences are in fact created and defined by the sixth section of the Enforcement Act, both of which consist of a Page 92 U. S. 565 conspiracy with an intent to perpetrate a forbidden act. They are alike in respect to the conspiracy, but differ very widely in respect to the act embraced in the prohibition. 1. Persons, two or more, are forbidden to band or conspire together, or go in disguise upon the public highway, or on the premises of another, with intent to violate any provision of the Enforcement Act, which is an act of twenty-three sections. Much discussion of that clause is certainly unnecessary, as no one of the counts under consideration is founded on it, or contains any allegations describing such an offence. Such a conspiracy with intent to injure, oppress, threaten, or intimidate any person is also forbidden by the succeeding clause of that section, if it be done with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of having exercised the same. Sufficient appears in the thirteenth count to warrant the conclusion that the grand jury intended to charge the defendants with the second offence created and defined in the sixth section of the Enforcement Act. Indefinite and vague as the description of the offence there defined, is, it is obvious that it is greatly more so as described in the allegations of the thirteenth count. By the act of Congress, the prohibition is extended to any right or privilege granted or secured by the Constitution or laws of Congress, leaving it to the pleader to specify the particular right or privilege which had been invaded in order to give the accusation that certainty which the rules of criminal pleading everywhere require in an indictment; but the pleader in this case, overlooking any necessity for any such specification, and making no attempt to comply with the rules of criminal pleading in that regard, describes the supposed offence in terms much more vague and indefinite than those employed in the act of Congress. Instead of specifying the particular right or privilege which had been invaded, the pleader proceeds to allege that the defendants, with all the others named in the indictment, did combine, conspire, and confederate together, with the unlawful intent and purpose the said persons of African descent and Page 92 U. S. 566 persons of color then and there to injure, oppress, threaten, and intimidate, and thereby then and there to hinder and prevent them in the free exercise and enjoyment of the rights, privileges, and immunities and protection granted and secured to them as citizens of the United States and citizens of the State, without any other specification of the rights, privileges, immunities, and protection which had been violated or invaded, or which were threatened except what follows -- to-wit, the same being a right or privilege granted or secured in common with all other good citizens by the Constitution and laws of the United States. Vague and indefinite allegations of the kind are not sufficient to inform the accused in a criminal prosecution of the nature and cause of the accusation against him within the meaning of the sixth amendment of the Constitution. Valuable rights and privileges almost without number are granted and secured to citizens by the Constitution and laws of Congress, none of which may be with impunity invaded in violation of the prohibition contained in that section. Congress intended by that provision to protect citizens in the enjoyment of all such rights and privileges, but, in affording such protection in the mode there provided, Congress never intended to open the door to the invasion of the rule requiring certainty in criminal pleading, which for ages has been regarded as one of the great safeguards of the citizen against oppressive and groundless prosecutions. Judge Story says the indictment must charge the time and place and nature and circumstances of the offence with clearness and certainty, so that the party may have full notice of the charge and be able to make his defence with all reasonable knowledge and ability. 2 Story, Const., sect. 1785. Nothing need be added to show that the fourteenth count is founded upon the same clause in the sixth section of the Enforcement Act as the thirteenth count, which will supersede the necessity of any extended remarks to explain the nature and character of the offence there created and defined. Enough has already been remarked to show that that particular clause of the section was passed to protect citizens in the free exercise and enjoyment of every right or privilege granted Page 92 U. S. 567 or secured to them by the Constitution and laws of Congress, and to provide for the punishment of those who band or conspire together, in the manner described, to injure, oppress, or intimidate any citizen, to prevent or hinder him from the free exercise and enjoyment of all such rights or privileges, or because of his having exercised any such right or privilege so granted or secured. What is charged in the fourteenth count is that the defendants did combine, conspire, and confederate the said citizens of African descent and persons of color to injure, oppress, threaten, and intimidate, with intent the said citizens thereby to prevent and hinder in the free exercise and enjoyment of the right and privilege to vote at any election to be thereafter had and held according to law by the people of the State, or by the people of the parish, they, the defendants, well knowing that the said citizens were lawfully qualified to vote at any such election thereafter to be had and held. Confessedly, some of the defects existing in the preceding count are avoided in the count in question -- as, for example, the description of the particular right or privilege of the said citizens which it was the intent of the defendants to invade is clearly alleged; but the difficulty in the count is that it does not allege for what purpose the election or elections were to be ordered, nor when or where the elections were to be had and held. All that is alleged upon the subject is that it was the intent of the defendants to prevent and hinder the said citizens of African descent and persons of color in the free exercise and enjoyment of the right and privilege to vote at any election thereafter to be had and held, according to law, by the people of the State, or by the people of the parish, without any other allegation whatever as to the purpose of the election, or any allegation as to the time and place when and where the election was to be had and held. Elections thereafter to be held must mean something different from pending elections; but whether the pleader means to charge that the intent and purpose of the alleged conspiracy extended only to the next succeeding elections to be held in the State or parish, or to all future elections to be held in the State or parish during the lifetime of the parties, may admit of Page 92 U. S. 568 a serious question which cannot be easily solved by anything contained in the allegations of the count. Reasonable certainty, all will agree, is required in criminal pleading; and, if so, it must be conceded, we think, that the allegation in question fails to comply with that requirement. Accused persons, as matter of common justice, ought to have the charge against them set forth in such terms that they may readily understand the nature and character of the accusation in order that they, when arraigned, may know what answer to make to it, and that they may not be embarrassed in conducting their defence; and the charge ought also to be laid in such terms that, if the party accused is put to trial, the verdict and judgment may be pleaded in bar of a second accusation for the same offence. Tested by these considerations, it is quite clear that the fourteenth count is not sufficient to warrant the conviction and sentence of the accused. Defects and imperfections of the same kind as those pointed out in the thirteenth count also exist in the sixteenth count, and of a more decided character in the latter count than in the former, conclusive proof of which will appear by a brief examination of a few of the most material allegations of the charge against the defendants. Suffice it to say without entering into details that the introductory allegations of the count are in all respects the same as in the thirteenth and fourteenth counts. None of the introductory allegations alleges that any overt act was perpetrated in pursuance of the alleged conspiracy, but the jurors proceed to present that the unlawful and felonious intent and purpose of the defendants were to prevent and hinder the said citizens of African descent and persons of color, by the means therein described, in the free exercise and enjoyment of each, every, all, and singular the several rights and privileges granted and secured to them by the Constitution and laws of the United States in common with all other good citizens, without any attempt to describe or designate any particular right or privilege which it was the purpose and intent of the defendants to invade, abridge, or deny. Descriptive allegations in criminal pleading are required to be reasonably definite and certain, as a necessary safeguard Page 92 U. S. 569 to the accused against surprise, misconception, and error in conducting his defence, and in order that the judgment in the case may be a bar to a second accusation for the same charge. Considerations of the kind are entitled to respect, but it is obvious that, if such a description of the ingredient of an offence created and defined by an act of Congress is held to be sufficient, the indictment must become a snare to the accused, as it is scarcely possible that an allegation can be framed which would be less certain, or more at variance with the universal rule that every ingredient of the offence must be clearly and accurately described so as to bring the defendant within the true intent and meaning of the provision defining the offence. Such a vague and indefinite description of a material ingredient of the offence is not a compliance with the rules of pleading in framing an indictment. On the contrary, such an indictment is insufficient, and must be held bad on demurrer or in arrest of judgment. Certain other causes for arresting the judgment are assigned in the record which deny the constitutionality of the Enforcement Act; but, having come to the conclusion that the indictment is insufficient, it is not necessary to consider that question.

The case of United States v. Cruikshank (1875) dealt with the rights of citizens and the duties of the state and federal governments to protect those rights. The Court affirmed that citizens owe allegiance to both their state and the United States governments, with distinct rights and protections under each. The Court held that the First Amendment's prohibition on Congress abridging the right to assemble and petition applied only to the federal government and not the states. Similarly, the right to bear arms is not granted by the Constitution, and the Second Amendment restricts only federal, not state, action. The Court also emphasized the importance of clear and definite allegations in criminal pleading to safeguard the accused and ensure that judgments can serve as a bar to future accusations. Ultimately, the Court found the indictment in this case insufficient and ruled in favor of Cruikshank, highlighting the separate powers and duties of the state and federal governments in protecting citizens' rights.

Health Care

Zucht v. King

https://supreme.justia.com/cases/federal/us/260/174/

U.S. Supreme Court Zucht v. King, 260 U.S. 174 (1922) Zucht v. King No. 84 Argued October 20, 1922 Decided November 13, 1922 260 U.S. 174 ERROR TO THE COURT OF CIVIL APPEALS, FOURTH SUPREME JUDICIAL DISTRICT, OF THE STATE OF TEXAS Syllabus l. A city ordinance is a law of a state within the meaning of Jud.Code, § 237. P. 260 U. S. 176 . 2. It is the duty of this Court to decline jurisdiction whenever it appears that the constitutional question upon which jurisdiction depends was not, at the time of granting the writ, a substantial question. P. 260 U. S. 176 . 3. City ordinances making vaccination a condition to attendance at public or private schools and vesting broad discretion in health authorities to determine when and under what circumstances the requirement shall be enforced are consistent with the Fourteenth Amendment, and, in view of prior decisions, a contrary contention presents no substantial constitutional question. P. 260 U. S. 176 . 4. The question whether city officials have administered a valid ordinance in such a way as to deny the plaintiff the equal protection of the laws is not one of those upon which the judgment of a state court may be brought here by writ of error. P. 260 U. S. 177 . Writ of error to review 225 S.W. 267 dismissed. Error to a judgment of the court below affirming a judgment of a trial court which dismissed the bill in a suit for injunction, mandamus, and damages. Page 260 U. S. 175 MR. JUSTICE BRANDEIS delivered the opinion of the Court. Ordinances of the City of San Antonio, Texas, provide that no child or other person shall attend a public school or other place of education without having first presented a certificate of vaccination. Purporting to act under these ordinances, public officials excluded Rosalyn Zucht from a public school because she did not have the required certificate and refused to submit to vaccination. They also caused her to be excluded from a private school. Thereupon Rosalyn brought this suit against the officials in a court of the state. The bill charges that there was then no occasion for requiring vaccination; that the ordinances deprive plaintiff of her liberty without due process of law by, in effect, making vaccination compulsory, and also that they are void because they leave to the board of health discretion to determine when and under what circumstances the requirement shall be enforced, without providing any rule by which that board is to be guided in its action and without providing any safeguards against partiality and oppression. The prayers were for an injunction against enforcing the ordinances, for a writ of mandamus to compel her admission to the public school, and for damages. A general demurrer to the bill of complaint was sustained by the trial court, and, plaintiff having declined to amend, the bill was dismissed. This judgment was affirmed by the Court of Civil Appeals for the Fourth Supreme Judicial District. 225 S.W. 267. A motion for rehearing was overruled, and an application Page 260 U. S. 176 for a writ of error to the Supreme Court of Texas was denied by that court. A petition for a writ of certiorari filed in this Court was dismissed for failure to comply with Rule 37. 257 U.S. 650. The case is now here on writ of error granted by the Chief Justice of the Court of Civil Appeals. It is assigned as error that the ordinances violate the due process and equal protection clauses of the Fourteenth Amendment, and that as administered they denied to plaintiff equal protection of the laws. The validity of the ordinances under the federal Constitution was drawn in question by objections properly taken below. A city ordinance is a law of the state within the meaning of § 237 of the Judicial Code, as amended, which provides a review by writ of error where the validity of a law is sustained by the highest court of the state in which a decision in the suit could be had. Atlantic Coast Line v. Goldsboro, 232 U. S. 548 , 232 U. S. 555 . But, although the validity of a law was formally drawn in question, it is our duty to decline jurisdiction whenever it appears that the constitutional question presented is not, and was not at the time of granting the writ, substantial in character. Sugarman v. United States, 249 U. S. 182 , 249 U. S. 184 . Long before this suit was instituted, Jacobson v. Massachusetts, 197 U. S. 11 , had settled that it is within the police power of a state to provide for compulsory vaccination. That case and others had also settled that a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 . And still others had settled that the municipality may vest in its officials broad discretion in matters affecting the application and enforcement of a health law. Lieberman v. Van de Carr, 199 U. S. 552 . A long line of decisions by this Court had also settled Page 260 U. S. 177 that, in the exercise of the police power, reasonable classification may be freely applied, and that regulation is not violative of the equal protection clause merely because it is not all-embracing. Adams v. Milwaukee, 228 U. S. 572 ; Miller v. Wilson, 236 U. S. 373 , 236 U. S. 384 . In view of these decisions, we find in the record no question as to the validity of the ordinance sufficiently substantial to support the writ of error. Unlike Yick Wo v. Hopkins, 118 U. S. 356 , these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health. The bill contains also averments to the effect that, in administering the ordinance, the official have discriminated against the plaintiff in such a way as to deny to her equal protection of the laws. These averments do present a substantial constitutional question. Neal v. Delaware, 103 U. S. 370 . But the question is not of that character which entitles a litigant to a review by this Court on writ of error. The question does not go to the validity of the ordinance, nor does it go to the validity of the authority of the officials. Compare United States v. Taft, 203 U. S. 461 ; Champion Lumber Co. v. Fisher, 227 U. S. 445 ; Yazoo & Mississippi Valley R. Co. v. Clarksdale, 257 U. S. 10 . This charge is of an unconstitutional exercise of authority under an ordinance which is valid. Compare Stadelman v. Miner, 246 U. S. 544 . Unless a case is otherwise properly here on writ of error, questions of that character can be reviewed by this Court only on petition for a writ of certiorari. Writ of error dismissed.

The Supreme Court dismissed the writ of error, finding no substantial constitutional question presented regarding the validity of city ordinances on vaccination and school attendance. The Court affirmed that vaccination requirements fall within the state's police power and that municipalities can delegate authority and exercise discretion in applying health regulations. Allegations of unequal enforcement by officials did not pertain to the validity of the ordinance or their authority and thus could not be reviewed via a writ of error.

Gun Rights

U.S. v. Miller

https://supreme.justia.com/cases/federal/us/307/174/

U.S. Supreme Court United States v. Miller, 307 U.S. 174 (1939) United States v. Miller No. 696 Argued March 30, 1939 Decided May 15, 1939 307 U.S. 174 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS Syllabus The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held: 1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506 , and Narcotic Act cases. P. 307 U. S. 177 . 2. Not violative of the Second Amendment of the Federal Constitution. P. 307 U. S. 178 . The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon. 26 F. Supp. 1002 , reversed. APPEAL under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment for violation of the National Firearms Act. Page 307 U. S. 175 MR. JUSTICE McREYNOLDS delivered the opinion of the Court. An indictment in the District Court, Western District Arkansas, charged that Jack Miller and Frank Layton "did unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4 [§ 5], 48 Stat. 1237), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 2, United States Code (June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act,' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States. [ Footnote 1 ] " Page 307 U. S. 176 A duly interposed demurrer alleged: the National Firearms Act is not a revenue measure, but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed." Page 307 U. S. 177 The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment. The cause is here by direct appeal. Considering Sonzinsky v. United States (1937), 300 U. S. 506 , 300 U. S. 513 , and what was ruled in sundry causes arising Page 307 U. S. 178 under the Harrison Narcotic Act [ Footnote 2 ] -- United States v. Jin Fuey Moy (1916), 241 U. S. 394 , United States v. Doremus (1919), 249 U. S. 86 , 249 U. S. 94 ; Linder v. United States (1925), 268 U. S. 5 ; Alston v. United States (1927), 274 U. S. 289 ; Nigro v. United States (1928), 276 U. S. 332 -- the objection that the Act usurps police power reserved to the States is plainly untenable. In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158. The Constitution, as originally adopted, granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Militia which the States were expected to maintain and train is set in contrast with Troops which they Page 307 U. S. 179 were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out "that king Alfred first settled a national militia in this kingdom," and traces the subsequent development and use of such forces. Adam Smith's Wealth of Nations, Book V, Ch. 1, contains an extended account of the Militia. It is there said: "Men of republican principles have been jealous of a standing army as dangerous to liberty." "In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character, and in this distinction seems to consist the essential difference between those two different species of military force." "The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England -- "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to Page 307 U. S. 180 cooperate in the work of defence." "The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former." "A year later [1632] it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony [Massachusetts]." Also, "Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers." The General Court of Massachusetts, January Session 1784, provided for the organization and government of the Militia. It directed that the Train Band should "contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, . . ." Also, "That every noncommissioned officer and private soldier of the said militia not under the controul of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm," etc. By an Act passed April 4, 1786, the New York Legislature directed: "That every able-bodied Male Person, being Page 307 U. S. 181 a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are hereinafter excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. . . . That every Citizen so enrolled and notified shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; . . ." The General Assembly of Virginia, October, 1785, (12 Hening's Statutes) declared, "The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty." It further provided for organization and control of the Militia, and directed that "All free male persons between the ages of eighteen and fifty years," with certain exceptions, "shall be inrolled or formed into companies." "There shall be a private muster of every company once in two months." Also that "Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutred, as follows: . . . every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good Page 307 U. S. 182 powder, and four pounds of lead, including twenty blind cartridges, and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents." Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seems to afford any material support for the challenged ruling of the court below. In the margin, some of the more important opinions and comments by writers are cited. [ Footnote 3 ] We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this cause. [ Footnote 1 ] Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C. § 1132. "That for the purposes of this Act --" "(a) The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition [The Act of April 10, 1936, c. 169, 49 Stat. 1192 added the words], but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length." "Sec. 3. (a) There shall be levied, collected, and paid upon firearms transferred in the continental United States a tax at the rate of $200 for each firearm, such tax to be paid by the transferor, and to be represented by appropriate stamps to be provided by the Commissioner, with the approval of the Secretary, and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm." "Sec. 4. (a) It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this Act: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof." "(c) Every person so transferring a firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Commissioner. The original thereof, with stamps affixed, shall be returned to the applicant." "(d) No person shall transfer a firearm which has previously been transferred on or after the effective date of this Act, unless such person, in addition to complying with subsection (c), transfers therewith the stamp-affixed order provided for in this section for each such prior transfer, in compliance with such regulations as may be prescribed under this Act for proof of payment of all taxes on such firearms." "Sec. 5. (a) Within sixty days after the effective date of this Act every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof: Provided, That no person shall be required to register under this section with respect to any firearm acquired after the effective date of, and in conformity with the provisions of, this Act." "Sec. 6. It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of section 3 or 4 of this Act." "Sec. 11. It shall be unlawful for any person who is required to register as provided in section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce." "Sec. 12. The Commissioner, with the approval of the Secretary, shall prescribe such rules and regulations as may be necessary for carrying the provisions of this Act into effect." "Sec. 14. Any person who violates or fails to comply with any of the requirements of this Act shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court." "Sec. 16. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby." "Sec. 18. This Act may be cited as the 'National Firearms Act.'" [ Footnote 2 ] Act December 17, 1914, c. 1, 38 Stat. 785; February 24, 1919, c. 18, 40 Stat. 1057. [ Footnote 3 ] Concerning The Militia -- Presser v. Illinois, 116 U. S. 252 ; Robertson v. Baldwin, 165 U. S. 275 ; Fife v. State, 31 Ark. 455; Jeffers v. Fair, 33 Ga. 347; Salina v. Blaksley, 72 Kan. 230; 83 P. 619; People v. Brown, 253 Mich. 537; 235 N.W. 245; Aymette v. State, 2 Humphr. (Tenn.) 154; State v. Duke, 42 Texas 455; State v. Workman, 35 W.Va. 367; 14 S.E. 9; Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on The Constitution, 5th Ed., Vol. 2, p. 646; Encyclopaedia of the Social Sciences, Vol. X, p. 471, 474.

The National Firearms Act, which regulates the possession and transportation of certain firearms, was challenged in the case of United States v. Miller (1939). The Supreme Court upheld the Act, ruling that it did not violate the Second Amendment as it pertained to a shotgun with a barrel less than 18 inches long. The Court found that such a weapon has no reasonable relation to the preservation or efficiency of a well-regulated militia, and therefore, the Second Amendment does not guarantee the right to keep and bear such arms.

Gun Rights

Presser v. Illinois

https://supreme.justia.com/cases/federal/us/116/252/

U.S. Supreme Court Presser v. Illinois, 116 U.S. 252 (1886) Presser v. Illinois Argued November 23-24, 1885 Decided January 4, 1886 116 U.S. 252 ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS Syllabus The doctrine that statutes constitutional in part only will be upheld as to what is constitutional if it can he separated from the unconstitutional provisions reasserted. A state statute providing that all able-bodied male citizens of the state between eighteen and forty-flue, except those exempted, shall be subject to military duty, and shall he enrolled and designated as the state militia, and prohibiting all bodies of men other than the regularly organized volunteer militia of the state and the troops of the United States from associating together as military organizations or drilling or parading with arms in any city of the state without license from the governor as to Page 116 U. S. 253 these provisions is constitutional, and does not infringe the laws of the United States, and it is sustained as to them, although the act contains other provisions, separable from the foregoing, which it was contended infringed upon the powers vested in the United States by the Constitution or upon laws enacted by Congress in pursuance thereof. The provision in the Second Amendment to the Constitution, that "The right of the people to keep and bear arms shall not be infringed" is a limitation only on the power of Congress and the national government, and not of the states. But in view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the states cannot prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security. The provision in the Fourteenth Amendment to the Constitution that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" does not prevent a state from passing such laws to regulate the privileges and immunities of its own citizens as do not abridge their privileges and immunities as citizens of the United States. Unless restrained by their own constitutions, state legislatures may enact statutes to control and regulate all organizations, drilling, and parading of military bodies and associations except those which are authorized by the militia laws of the United States. Herman Presser, the plaintiff in error, was indicted on September 24, 1879, in the Criminal Court of Cook County, Illinois, far a violation of the following sections of Art. XI of the Military Code of that state, Act of May 28, 1879, Laws of 1879, 192. "§ 5. It shall not be lawful for any body of men whatever other than the regular organized volunteer militia of this state and the troops of the United States to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town of this state without the license of the Governor thereof, which license may at any time be revoked, and provided further that students in educational institutions where military science is a part of the course of instruction may, with the consent of the Governor, drill and parade with arms in public under the superintendence of their instructors, and may take part in any regimental or brigade encampment under command of their military instructor, and while so encamped shall be governed by the provisions of this act. They shall be entitled only to transportation Page 116 U. S. 254 and subsistence, and shall report and be subject to the commandant of such encampment, provided that nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords." "§ 6. Whoever offends against the provisions of the preceding section or belongs to or parades with any such unauthorized body of men with arms shall be punished by a fine not exceeding the sum of ten dollars ($10), or by imprisonment in the common jail for a term not exceeding six months, or both." The indictment charged in substance that Presser, on September 24, 1879, in the County of Cook, in the State of Illinois, "did unlawfully belong to and did parade and drill in the City of Chicago with an unauthorized body of men with arms who had associated themselves together as a military company and organization without having a license from the governor, and not being a part of or belonging to 'the regular organized volunteer militia' of the State of Illinois or the troops of the United States." A motion to quash the indictment was overruled. Presser then pleaded not guilty, and, both parties having waived a jury, the case was tried by the court, which found Presser guilty and sentenced him to pay a fine of $10. The bill of exceptions taken upon the trial set out all the evidence, from which it appeared that Presser was thirty-one years old, a citizen of the United States and of the State of Illinois, and a voter; that he belonged to a society called the "Lehr und Wehr Verein," a corporation organized April 16, 1875, in due form, under chapter 32, Revised Statutes of Illinois, called the "General Incorporation Laws of Illinois," "for the purpose," as expressed by its certificate of association, "of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of a republic. Its members shall therefore obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in military and gymnastic exercises;" that Presser, in December, 1879, marched at the head of said company, about four hundred in number, in the streets of the City Page 116 U. S. 255 of Chicago, he riding on horseback and in command; that the company was armed with rifles, and Presser with a cavalry sword; that the company had no license from the Governor of Illinois to drill or parade as a part of the militia of the state, and was not a part of the regular organized militia of the state, nor a part of troops of the United States, and had no organization under the militia law of the United States. The evidence showed no other facts. Exceptions were reserved to the ruling of the court upon the motion to quash the indictment, to the finding of guilty, and to the judgment thereon. The case was taken to the Supreme Court of Illinois, where the judgment was affirmed. Thereupon Presser brought the present writ of error for a review of the judgment of affirmance. Page 116 U. S. 260 MR. JUSTICE WOODS delivered the opinion of the Court. After stating the facts in the language reported above, he continued: The position of the plaintiff in error in this Court was that the entire statute under which he was convicted was invalid and void because its enactment was the exercise of a power by the Legislature of Illinois forbidden to the states by the Constitution of the United States. The clauses of the Constitution of the United States referred to in the assignments of error were as follows: "Art. I, sec. 8. The Congress shall have power . . . to raise and support armies; . . . to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states, respectively, the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by Congress; . . . to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers," &c. "Art. I, sec. 10. No state shall, without the consent of Congress, keep troops . . . in time of peace." "Art. II of Amendments. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." The plaintiff in error also contended that the enactment of the 5th and 6th sections of Article XI of the Military Code Page 116 U. S. 261 was forbidden by subdivision 3 of section 9, Art. I, which declares "No bill of attainder or ex post facto law shall be passed," and by Art. XIV of Amendments, which provides that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law." The first contention of counsel for plaintiff in error is that the Congress of the United States having, by virtue of the provisions of Article I of section 8, above quoted, passed the Act of May 8, 1792, entitled "An act more effectually to provide for the national defense by establishing an uniform militia throughout the United States," 1 Stat. 271, the Act of February 28, 1795, "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions," 1 Stat. 424, and the Act of July 22, 1861, "to authorize the employment of volunteers to aid in enforcing the laws and protecting public property," 12 Stat. 268, and other subsequent acts, now forming "Title 16, The Militia," of the Revised Statutes of the United States, the Legislature of Illinois had no power to pass the act approved May 28, 1879, "to provide for the organization of the state militia," entitled the Military Code of Illinois, under the provisions of which (sections 5 and 6 of Article XI) the plaintiff in error was indicted. The argument in support of this contention is that the power of organizing, arming, and disciplining the militia being confided by the Constitution to Congress, when it acts upon the subject, and passes a law to carry into effect the constitutional provision, such action excludes the power of legislation by the state on the same subject. It is further argued that the whole scope and object of the Military Code of Illinois is in conflict with that of the law of Congress. It is said that the object of the act of Congress is to provide for organizing, arming, and disciplining all the able-bodied male citizens of the states, respectively, between certain ages, that they may be ready at all times to respond to the call of the nation to enforce its laws, suppress insurrection, and Page 116 U. S. 262 repel invasion, and thereby avoid the necessity for maintaining a large standing army, with which liberty can never be safe, and that, on the other hand, the effect if not object of the Illinois statute is to prevent such organizing, arming, and disciplining of the militia. The plaintiff in error insists that the act of Congress requires absolutely all able-bodied citizens of the state, between certain ages, to be enrolled in the militia; that the act of Illinois makes the enrollment dependent on the necessity for the use of troops to execute the laws and suppress insurrections, and then leaves it discretionary with the governor by proclamation to require such enrollment; that the act of Congress requires the entire enrolled militia of the state, with a few exemptions made by it and which may be made by state laws, to be formed into companies, battalions, regiments, brigades, and divisions; that every man shall be armed and supplied with ammunition; provides a system of discipline and field exercises for companies, regiments, &c., and subjects the entire militia of the state to the call of the President to enforce the laws, suppress insurrection, or repel invasion, and provides for the punishment of the militia officers and men who refuse obedience to his orders. On the other hand, it is said that the state law makes it unlawful for any of its able-bodied citizens, except eight thousand, called the "Illinois National Guard," to associate themselves together as a military company or to drill or parade with arms without the license of the governor, and declares that no military company shall leave the state with arms and equipments without his consent; that even the eight thousand men styled the "Illinois National Guard" are not enrolled or organized as required by the act of Congress, nor are they subject to the call of the President, but they constitute a military force sworn to serve in the military service of the state, to obey the orders of the governor, and not to leave the state without his consent, and that, if the state act is valid, the national act providing for organizing, arming, and disciplining the militia is of no force in the State of Illinois, for the Illinois act, so far from being in harmony with the act of Congress, is an insurmountable obstacle to its execution. Page 116 U. S. 263 We have not found it necessary to consider or decide the question thus raised as to the validity of the entire Military Code of Illinois, for, in our opinion, the sections under which the plaintiff in error was convicted may be valid even if the other sections of the act were invalid. For it is a settled rule "that statutes that are constitutional in part only will be upheld so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are separable." Packet Co. v. Keokuk, 95 U. S. 80 ; Penniman's Case, 103 U. S. 714 , 103 U. S. 717 ; Unity v. Burrage, 103 U. S. 459 . See also Trademark Cases, 100 U. S. 82 . We are of opinion that this rule is applicable in this case. The first two sections of Article I of the Military Code provide that all able-bodied male citizens of the state between the ages of 18 and 45 years, except those exempted, shall be subject to military duty, and be designated the "Illinois state Militia," and declare how they shall be enrolled and under what circumstances. The residue of the Code, except the two sections on which the indictment against the plaintiff in error is based, provides for a volunteer active militia, to consist of not more than eight thousand officers and men, declares how it shall be enlisted and brigaded, and the term of service of its officers and men; provides for brigade generals and their staffs, for the organization of the requisite battalions and companies and the election of company officers; provides for inspections, parades, and encampments, arms and armories, rifle practice, and courts-martial; provides for the pay of the officers and men, for medical service, regimental bands, books of instructions and maps; contains provisions for levying and collecting a military fund by taxation, and directs how it shall be expended, and appropriates $25,000 out of the Treasury, in advance of the collection of the military fund, to be used for the purposes specified in the Military Code. It is plain from this statement of the substance of the Military Code that the two sections upon which the indictment against the plaintiff in error is based may be separated from the residue of the Code and stand upon their own independent provisions. These sections might have been left out of the Page 116 U. S. 264 Military Code and put in an act by themselves, and the act thus constituted and the residue of the Military Code would have been coherent and sensible acts. If it be conceded that the entire Military Code, except these sections, is unconstitutional and invalid for the reasons stated by the plaintiff in error, these sections are separable, and, put in an act by themselves, could not be considered as forbidden by the clauses of the Constitution having reference to the militia or to the clause forbidding the states, without the consent of Congress, to keep troops in time of peace. There is no such connection between the sections which prohibit any body of men, other than the organized militia of the state and the troops of the United States, from associating as a military company and drilling with arms in any city or Town of the state, and the sections which provide for the enrollment and organization of the state militia, as makes it impossible to declare one, without declaring both, invalid. This view disposes of the objection to the judgment of the Supreme Court of Illinois, which judgment was in effect that the legislation on which the indictment is based is not invalid by reason of the provisions of the Constitution of the United States which vest Congress with power to raise and support armies, and to provide for calling out, organizing, arming, and disciplining the militia, and governing such part of them as may be employed in the service of the United States, and that provision which declares that "no state shall, without the consent of Congress, . . . keep troops . . . in time of peace." We are next to inquire whether the 5th and 6th sections of Article XI of the Military Code are in violation of the other provisions of the Constitution of the United States relied on by the plaintiff in error. The first of these is the Second Amendment, which declares: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities Page 116 U. S. 265 and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the national government, and not upon that of the state. It was so held by this Court in the case of United States v. Cruikshank, 92 U. S. 542 , 92 U. S. 553 , in which THE CHIEF JUSTICE, in delivering the judgment of the Court, said that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes to what is called in City of New York v. Miln , 11 Pet. 102, 36 U. S. 139 , the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States." See also Barron v. Baltimore , 7 Pet. 243; Fox v. State , 5 How. 410; Twitchell v. Commonwealth , 7 Wall. 321, 74 U. S. 327 ; Jackson v. Wood, 2 Cowen 819; Commonwealth v. Purchase, 2 Pick. 521; United States v. Cruikshank, 1 Woods 308; North Carolina v. Newsom, 5 Iredell 250; Andrews v. State, 3 Heiskell 165; Fife v. State, 31 Ark. 455. It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But as already stated, we think Page 116 U. S. 266 it clear that the sections under consideration do not have this effect. The plaintiff in error next insists that the sections of the Military Code of Illinois under which he was indicted are an invasion of that clause of the first section of the Fourteenth Amendment to the Constitution of the United States which declares "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States. The inquiry is therefore pertinent what privilege or immunity of a citizen of the United States is abridged by sections 5 and 6 of Article XI of the Military Code of Illinois? The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offense for which he was convicted and sentenced. The question is therefore had he a right as a citizen of the United States, in disobedience of the state law, to associate with others as a military company and to drill and parade with arms in the towns and cities of the state? If the plaintiff in error has any such privilege, he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred. For, as was said by this Court in United States v. Cruikshank, 92 U. S. 542 , 92 U. S. 551 , 92 U. S. 560 , the government of the United States, although it is "within the scope of its powers supreme and above the states, . . . can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction. . . . All that cannot be so granted or so secured are left to the exclusive protection of the state. " Page 116 U. S. 267 We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The only clause in the Constitution which upon any pretense could be said to have any relation whatever to his right to associate with others as a military company is found in the First Amendment, which declares that "Congress shall make no laws . . . abridging . . . the right of the people peaceably to assemble and to petition the government for a redress of grievances." This is a right which it was held in United States v. Cruikshank, above cited, was an attribute of national citizenship, and, as such, under the protection of and guaranteed by the United States. But it was held in the same case that the right peaceably to assemble was not protected by the clause referred to unless the purpose of the assembly was to petition the government for a redress of grievances. The right voluntarily to associate together as a military company or organization or to drill or parade with arms without and independent of an act of Congress or law of the state authorizing the same is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system, they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject. It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are Page 116 U. S. 268 authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine. In the case of New York v. Miln , 11 Pet. 102, 36 U. S. 139 , this Court said: "We choose rather to plant ourselves on what we consider impregnable positions. They are these: that a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation where that jurisdiction is not surrendered or restrained by the Constitution of the United States; that by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated," namely by the Constitution and laws of the United States. See also Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 203 ; Gilman v. Philadelphia , 3 Wall. 713; License Tax Cases , 5 Wall. 462; United States v. Dewitt , 9 Wall. 41; United States v. Cruikshank, 92 U. S. 542 . These considerations and authorities sustain the power exercised by the Legislature of Illinois in the enactment of sections 5 and 6 of Article XI of the Military Code. The argument of the plaintiff in error that the legislation mentioned deprives him of either life, liberty, or property without due process of law, or that it is a bill of attainder or ex post facto law is so clearly untenable as to require no discussion. It is next contended by the plaintiff in error that sections 5 and 6 of Article XI of the Military Code, under which he was indicted, are in conflict with the acts of Congress for the organization of the militia. But this position is based on what seems to us to be an unwarranted construction of the sections referred to. It is clear that their object was to forbid voluntary military associations, unauthorized by law, from organizing or Page 116 U. S. 269 drilling and parading with arms in the cities or towns of the state, and not to interfere with the organization, arming and drilling of the militia under the authority of the acts of Congress. If the object and effect of the sections were in irreconcilable conflict with the acts of Congress, they would, of course, be invalid. But it is a rule of construction that a statute must be interpreted so as, if possible, to make it consistent with the Constitution and the paramount law. Parsons v. Bedford , 3 Pet. 433; Grenada County Supervisors v. Brogden, 112 U. S. 261 ; Marshall v. Grimes, 41 Miss. 27. If we yielded to this contention of the plaintiff in error, we should render the sections in valid by giving them a strained construction, which would make them antagonistic to the law of Congress. We cannot attribute to the legislature, unless compelled to do so by its plain words, a purpose to pass an act in conflict with an act of Congress on a subject over which Congress is given authority by the Constitution of the United States. We are therefore of opinion that, fairly construed, the sections of the Military Code referred to do not conflict with the laws of Congress on the subject of the militia. The plaintiff in error further insists that the organization of the Lehr und Wehr Verein as a corporate body under the general corporation law of the State of Illinois was in effect a license from the governor within the meaning of section 5 of Article XI of the Military Code, and that such corporate body fell within the exception of the same section "of students in educational institutions where military science is a part of the course of instruction." In respect to these points, we have to say that they present no federal question. It is not, therefore, our province to consider or decide them. Murdock v. Memphis , 20 Wall. 590. All the federal questions presented by the record were rightly decided by the Supreme Court of Illinois. Judgment affirmed.

The U.S. Supreme Court case Presser v. Illinois (1886) dealt with the constitutionality of an Illinois state statute regulating military organizations and the bearing of arms. The Court upheld the statute, finding that it did not infringe on the Second Amendment right to keep and bear arms, as that amendment is a limitation on the national government and does not restrict state governments. The Court also found that the statute did not violate the Fourteenth Amendment, as it regulated the privileges and immunities of Illinois citizens without infringing on their rights as U.S. citizens. The case established that state legislatures have the power to enact laws controlling and regulating military organizations and the bearing of arms, except for those organizations authorized by federal militia laws. It affirmed the ability of states to pass laws regulating their citizens' privileges and immunities as long as they do not infringe on federal rights.

Health Care

Jacobson v. Massachusetts

https://supreme.justia.com/cases/federal/us/197/11/

U.S. Supreme Court Jacobson v. Massachusetts, 197 U.S. 11 (1905) Jacobson v. Massachusetts No. 70 Argued December 6, 1904 Decided February 20, 1905 197 U.S. 11 ERROR TO THE SUPREME COURT OF THE STATE OF MASSACHUSETTS Syllabus The United States does not derive any of its substantive powers from the Preamble of the Constitution. It cannot exert any power to secure the declared objects of the Constitution unless, apart from the Preamble, such power be found in, or can properly be implied from, some express delegation in the instrument. While the spirit of the Constitution is to be respected not less than its letter, the spirit is to be collected chiefly from its words. While the exclusion of evidence in the state court in a case involving the constitutionality of a state statute may not strictly present a Federal question, this court may consider the rejection of such evidence upon the ground of incompetency or immateriality under the statute as showing its scope and meaning in the opinion of the state court. The police power of a State embraces such reasonable regulations relating to matters completely within its territory, and not affecting the people of other States, established directly by legislative enactment, as will protect the public health and safety. While a local regulation, even if based on the acknowledged police power of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, the mode or manner of exercising its police power is wholly within the discretion of the State so long as the Constitution of the United States is not contravened, or any right granted or secured thereby is not infringed, or not exercised in such an arbitrary and oppressive manner as to justify the interference of the courts to prevent wrong and oppression. The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State. It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine Page 197 U. S. 12 in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health. There being obvious reasons for such exception, the fact that children, under certain circumstances, are excepted from the operation of the law does not deny the equal protection of the laws to adults if the statute is applicable equally to all adults in like condition. The highest court of Massachusetts not having held that the compulsory vaccination law of that State establishes the absolute rule that an adult must be vaccinated even if he is not a fit subject at the time or that vaccination would seriously injure his health or cause his death, this court holds that, as to an adult residing in the community, and a fit subject of vaccination, the statute is not invalid as in derogation of any of the rights of such person under the Fourteenth Amendment. This case involves the validity, under the Constitution of the United States, of certain provisions in the statutes of Massachusetts relating to vaccination. The Revised Laws of that Commonwealth, c. 75, § 137, provide that "the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars." An exception is made in favor of "children who present a certificate, signed by a registered physician that they are unfit subjects for vaccination." § 139. Proceeding under the above statutes, the Board of Health of the city of Cambridge, Massachusetts, on the twenty-seventh day of February, 1902, adopted the following regulation: "Whereas, smallpox has been prevalent to some extent in the city of Cambridge and still continues to increase; and whereas it is necessary for the speedy extermination of the disease that all persons not protected by vaccination should be vaccinated, and whereas, in the opinion of the board, the public health and safety require the vaccination or revaccination of all the inhabitants of Cambridge; be it ordered, that Page 197 U. S. 13 all the inhabitants of the city who have not been successfully vaccinated since March 1, 1897, be vaccinated or revaccinated." Subsequently, the Board adopted an additional regulation empowering a named physician to enforce the vaccination of persons as directed by the Board at its special meeting of February 27. The above regulations being in force, the plaintiff in error, Jacobson, was proceeded against by a criminal complaint in one of the inferior courts of Massachusetts. The complaint charged that, on the seventeenth day of July, 1902, the Board of Health of Cambridge, being of the opinion that it was necessary for the public health and safety, required the vaccination and revaccination of all the inhabitants thereof who had not been successfully vaccinated since the first day of March, 1897, and provided them with the means of free vaccination, and that the defendant, being over twenty-one years of age and not under guardianship, refused and neglected to comply with such requirement. The defendant, having been arraigned, pleaded not guilty. The government put in evidence the above regulations adopted by the Board of Health, and made proof tending to show that its chairman informed the defendant that, by refusing to be vaccinated, he would incur the penalty provided by the statute, and would be prosecuted therefor; that he offered to vaccinate the defendant without expense to him, and that the offer was declined, and defendant refused to be vaccinated. The prosecution having introduced no other evidence, the defendant made numerous offers of proof. But the trial court ruled that each and all of the facts offered to be proved by the defendant were immaterial, and excluded all proof of them. The defendant, standing upon his offers of proof and introducing no evidence, asked numerous instructions to the jury, among which were the following: That section 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of the rights secured to the defendant by the Preamble to the Constitution of the United Page 197 U. S. 14 States, and tended to subvert and defeat the purposes of the Constitution as declared in its Preamble; That the section referred to was in derogation of the rights secured to the defendant by the Fourteenth Amendment of the Constitution of the United States, and especially of the clauses of that amendment providing that no State shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; and That said section was opposed to the spirit of the Constitution. Each of the defendant's prayers for instructions was rejected, and he duly excepted. The defendant requested the court, but the court refused, to instruct the jury to return a verdict of not guilty. And the court instructed the jury, in substance, that, if they believed the evidence introduced by the Commonwealth and were satisfied beyond a reasonable doubt that the defendant was guilty of the offense charged in the complaint, they would be warranted in finding a verdict of guilty. A verdict of guilty was thereupon returned. The case was then continued for the opinion of the Supreme Judicial Court of Massachusetts. That court overruled all the defendant's exceptions, sustained the action of the trial court, and thereafter, pursuant to the verdict of the jury, he was sentenced by the court to pay a fine of five dollars. And the court ordered that he stand committed until the fine was paid. Page 197 U. S. 22 MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court. We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, c. 75) is in derogation of rights secured by the Preamble of the Constitution of the United States. Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom. 1 Story's Const. § 462. We also pass without discussion the suggestion that the above section of the statute is opposed to the spirit of the Constitution. Undoubtedly, as observed by Chief Justice Marshall, speaking for the court in Sturges v. Crowninshield , 4 Wheat. 122, 17 U. S. 202 , "the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words." We have no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision. What, according to the judgment of the state court, is the Page 197 U. S. 23 scope and effect of the statute? What results were intended to be accomplished by it? These questions must be answered. The Supreme Judicial Court of Massachusetts said in the present case: "Let us consider the offer of evidence which was made by the defendant Jacobson. The ninth of the propositions which he offered to prove, as to what vaccination consists of, is nothing more than a fact of common knowledge, upon which the statute is founded, and proof of it was unnecessary and immaterial. The thirteenth and fourteenth involved matters depending upon his personal opinion, which could not be taken as correct, or given effect, merely because he made it a ground of refusal to comply with the requirement. Moreover, his views could not affect the validity of the statute, nor entitle him to be excepted from its provisions. Commonwealth v. Connelly, 163 Massachusetts 539; Commonwealth v. Has, 122 Massachusetts 40; Reynolds v. United States, 98 U. S. 145 ; Regina v. Downes, 13 Cox C.C. 111. The other eleven propositions all relate to alleged injurious or dangerous effects of vaccination. The defendant 'offered to prove and show by competent evidence' these so-called facts. Each of them, in its nature, is such that it cannot be stated as a truth, otherwise than as a matter of opinion. The only 'competent evidence' that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions. It would not have been competent to introduce the medical history of individual cases. Assuming that medical experts could have been found who would have testified in support of these propositions, and that it had become the duty of the judge, in accordance with the law as stated in Commonwealth v. Anthes, 5 Gray 185, to instruct the jury as to whether or not the statute is constitutional, he would have been obliged to consider the evidence in connection with facts of common knowledge, which the court will always regard in passing upon the constitutionality of a statute. He would have considered this testimony of experts in connection with the facts, that for nearly a century, most of the members of the medical profession Page 197 U. S. 24 have regarded vaccination, repeated after intervals, as a preventive of smallpox; that, while they have recognized the possibility of injury to an individual from carelessness in the performance of it, or even, in a conceivable case, without carelessness, they generally have considered the risk of such an injury too small to be seriously weighed as against the benefits coming from the discreet and proper use of the preventive, and that not only the medical profession and the people generally have for a long time entertained these opinions, but legislatures and courts have acted upon them with general unanimity. If the defendant had been permitted to introduce such expert testimony as he had in support of these several propositions, it could not have changed the result. It would not have justified the court in holding that the legislature had transcended its power in enacting this statute on their judgment of what the welfare of the people demands." Commonwealth v. Jacobson, 183 Massachusetts 242. While the mere rejection of defendant's offers of proof does not strictly present a federal question, we may properly regard the exclusion of evidence upon the ground of its incompetency or immateriality under the statute as showing what, in the opinion of the state court, is the scope and meaning of the statute. Taking the above observations of the state court as indicating the scope of the statute -- and such is our duty, Leffingwell v. Warren , 2 Black 599, 67 U. S. 603 , Morley v. Lake Shore Railway Co., 146 U. S. 162 , 146 U. S. 167 , Tullis v. L. E. & W. R.R. Co., 175 U. S. 348 , W. W. Cargill Co. v. Minnesota, 180 U. S. 452 , 180 U. S. 466 -- we assume for the purposes of the present inquiry that its provisions require, at least as a general rule, that adults not under guardianship and remaining within the limits of the city of Cambridge must submit to the regulation adopted by the Board of Health. Is the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State? The authority of the State to enact this statute is to be Page 197 U. S. 25 referred to what is commonly called the police power -- a power which the State did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and "health laws of every description;" indeed, all laws that relate to matters completely within its territory and which do not, by their necessary operation, affect the people of other States. According to settled principles, the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 203 ; Railroad Company v. Husen, 95 U. S. 465 , 95 U. S. 470 ; Beer Company v. Massachusetts, 97 U. S. 25 ; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 , 115 U. S. 661 ; Lawton v. Steele, 152 U. S. 133 . It is equally true that the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the State, subject, of course, so far as Federal power is concerned, only to the condition that no rule prescribed by a State, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States or infringe any right granted or secured by that instrument. A local enactment or regulation, even if based on the acknowledged police powers of a State, must always yield in case of conflict with the exercise by the General Government of any power it possesses under the Constitution, or with any right which that instrument gives or secures. Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 210 ; Sinnot v. Davenport , 22 How. 227, 63 U. S. 243 ; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613 , 169 U. S. 626 . We come, then, to inquire whether any right given or secured by the Constitution is invaded by the statute as interpreted Page 197 U. S. 26 by the state court. The defendant insists that his liberty is invaded when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best, and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State, of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made so far as natural persons are concerned." Railroad Co. v. Husen, 95 U. S. 465 , 95 U. S. 471 ; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613 , 169 U. S. 628 , 169 U. S. 629 ; Thorpe v. Rutland & Burlington R.R., 27 Vermont 140, 148. In Crowley v. Christensen, 137 U. S. 86 , 137 U. S. 89 , we said: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty Page 197 U. S. 27 itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law." In the constitution of Massachusetts adopted in 1780, it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for "the common good," and that government is instituted "for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of anyone man, family or class of men." The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts. Commonwealth v. Alger, 7 Cush. 53, 84. Applying these principles to the present case, it is to be observed that the legislature of Massachusetts required the inhabitants of a city or town to be vaccinated only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety. The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body, and surely it was appropriate for the legislature to refer that question, in the first instance, to a Board of Health, composed of persons residing in the locality affected and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual nor an unreasonable or arbitrary requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that, when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge, and the disease was increasing. If such was Page 197 U. S. 28 the situation -- and nothing is asserted or appears in the record to the contrary -- if we are to attach any value whatever to the knowledge which, it is safe to affirm, is common to all civilized peoples touching smallpox and the methods most usually employed to eradicate that disease, it cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. Wisconsin &c. R.R. Co. v. Jacobson, 179 U. S. 27 , 179 U. S. 301 ; 1 Dillon Mun. Corp., 4th ed.,§§ 319 to 325, and authorities in notes; Freund's Police Power, § 63 et seq. In Railroad Company v. Husen, 95 U. S. 465 , 95 U. S. 471 -473, this court recognized the right of a State to pass sanitary laws, laws for the protection of life, liberty, heath or property within its limits, laws to prevent persons and animals suffering under contagious or infectious diseases, or convicts, from coming within its borders. But as the laws there involved went beyond the necessity of the case and under the guise of exerting a police power invaded the domain of Federal authority, and violated rights secured by the Constitution, this court deemed it to be its duty to hold such laws invalid. If the mode adopted by the Commonwealth of Massachusetts for the protection of its local communities against smallpox proved to be distressing, inconvenient or objectionable to some -- if nothing more could be reasonably Page 197 U. S. 29 affirmed of the statute in question -- the answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few. There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that, in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen, arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The liberty secured by the Fourteenth Amendment, this court has said, consists, in part, in the right of a person "to live and work where he will," Allgeyer v. Louisiana, 165 U. S. 578 , and yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one's body upon his willingness to submit to reasonable regulations established by the constituted authorities, under the Page 197 U. S. 30 sanction of the State, for the purpose of protecting the public collectively against such danger. It is said, however, that the statute, as interpreted by the state court, although making an exception in favor of children certified by a registered physician to be unfit subjects for vaccination, makes no exception in the case of adults in like condition. But this cannot be deemed a denial of the equal protection of the laws to adults, for the statute is applicable equally to all in like condition, and there are obviously reasons why regulations may be appropriate for adults which could not be safely applied to persons of tender years. Looking at the propositions embodied in the defendant's rejected offers of proof, it is clear that they are more formidable by their number than by their inherent value. Those offers, in the main, seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows, the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief and is maintained by high medical authority. We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best, known way in which to meet and suppress the Page 197 U. S. 31 evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that, "if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 ; Minnesota v. Barber, 136 U. S. 313 , 136 U. S. 320 ; Atkin v. Kansas, 191 U. S. 207 , 191 U. S. 223 . Whatever may be thought of the expediency of this statute, it cannot be affirmed to be, beyond question, in palpable conflict with the Constitution. Nor, in view of the methods employed to stamp out the disease of smallpox, can anyone confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety. Such an assertion would not be consistent with the experience of this and other countries whose authorities have dealt with the disease of smallpox. * And the principle of vaccination as a means to Page 197 U. S. 32 prevent the spread of smallpox has been enforced in many States by statutes making the vaccination of children a condition of their right to enter or remain in public schools. Blue v. Beach, 155 Indiana 121; Morris v. City of Columbus, 102 Page 197 U. S. 33 Georgia 792; State v. Hay, 126 N.Car. 999; Abeel v. Clark, 84 California 226; Bissell v. Davidson, 65 Connecticut 18; Hazen v. Strong, 2 Vermont 427; Duffield v. Williamsport School District, 162 Pa.St. 476. Page 197 U. S. 34 The latest case upon the subject of which we are aware is Viemeister v. White, President &c., decided very recently by the Court of Appeals of New York, and the opinion in which has not yet appeared in the regular reports. That case involved the validity of a statute excluding from the public schools all children who had not been vaccinated. One contention was that the statute and the regulation adopted in exercise of its provisions was inconsistent with the rights, privileges and liberties of the citizen. The contention was overruled, the court saying, among other things: "Smallpox is known of all to be a dangerous and contagious disease. If vaccination strongly tends to prevent the transmission or spread of this disease, it logically follows that children may be refused admission to the public schools until they have been vaccinated. The appellant claims that vaccination does not tend to prevent smallpox, but tends to bring about other diseases, and that it does much harm, with no good." "It must be conceded that some laymen, both learned and unlearned, and some physicians of great skill and repute, do not believe that vaccination is a preventive of smallpox. The common belief, however, is that it has a decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it. While not accepted by all, it is accepted by the mass of the people, as well as by most members of the medical profession. It has been general in our State and in most civilized nations for generations. It is Page 197 U. S. 35 generally accepted in theory and generally applied in practice, both by the voluntary action of the people and in obedience to the command of law. Nearly every State of the Union has statutes to encourage, or directly or indirectly to require, vaccination, and this is true of most nations of Europe." "A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts." "The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action; for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does, in fact, or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a republican form of government. While we do not decide and cannot decide that vaccination is a preventive of smallpox, we take judicial notice of the fact that this is the common belief of the people of the State, and, with this fact as a foundation, we hold that the statute in question is a health law, enacted in a reasonable and proper exercise of the police power." 72 N.E.Rep. 97. Since, then, vaccination, as a means of protecting a community against smallpox, finds strong support in the experience of this and other countries, no court, much less a jury, is justified in disregarding the action of the legislature simply because, in its or their opinion, that particular method was -- perhaps or possibly -- not the best either for children or adults. Did the offers of proof made by the defendant present a case which entitled him, while remaining in Cambridge, to Page 197 U. S. 36 claim exemption from the operation of the statute and of the regulation adopted by the Board of Health? We have already said that his rejected offers, in the main, only set forth the theory of those who had no faith in vaccination as a means of preventing the spread of smallpox, or who thought that vaccination, without benefiting the public, put in peril the health of the person vaccinated. But there were some offers which it is contended embodied distinct facts that might properly have been considered. Let us see how this is. The defendant offered to prove that vaccination " quite often" caused serious and permanent injury to the health of the person vaccinated; that the operation "occasionally" resulted in death; that it was "impossible" to tell "in any particular case" what the results of vaccination would be or whether it would injure the health or result in death; that "quite often," one's blood is in a certain condition of impurity when it is not prudent or safe to vaccinate him; that there is no practical test by which to determine "with any degree of certainty" whether one's blood is in such condition of impurity as to render vaccination necessarily unsafe or dangerous; that vaccine matter is "quite often" impure and dangerous to be used, but whether impure or not cannot be ascertained by any known practical test; that the defendant refused to submit to vaccination for the reason that he had, "when a child," been caused great and extreme suffering for a long period by a disease produced by vaccination, and that he had witnessed a similar result of vaccination not only in the case of his son, but in the cases of others. These offers, in effect, invited the court and jury to go over the whole ground gone over by the legislature when it enacted the statute in question. The legislature assumed that some children, by reason of their condition at the time, might not be fit subjects of vaccination, and it is suggested -- and we will not say without reason -- that such is the case with some adults. But the defendant did not offer to prove that, by reason of his then condition, he was, in fact, not a fit subject of vaccination Page 197 U. S. 37 at the time he was informed of the requirement of the regulation adopted by the Board of Health. It is entirely consistent with his offer of proof that, after reaching full age, he had become, so far as medical skill could discover, and, when informed of the regulation of the Board of Health, was, a fit subject of vaccination, and that the vaccine matter to be used in his case was such as any medical practitioner of good standing would regard as proper to be used. The matured opinions of medical men everywhere, and the experience of mankind, as all must know, negative the suggestion that it is not possible in any case to determine whether vaccination is safe. Was defendant exempted from the operation of the statute simply because of his dread of the same evil results experienced by him when a child and had observed in the cases of his son and other children? Could he reasonably claim such an exemption because, "quite often" or "occasionally," injury had resulted from vaccination, or because it was impossible, in the opinion of some, by any practical test, to determine with absolute certainty whether a particular person could be safely vaccinated? It seems to the court that an affirmative answer to these questions would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease. Such an answer would mean that compulsory vaccination could not, in any conceivable case, be legally enforced in a community, even at the command of the legislature, however widespread the epidemic of smallpox, and however deep and universal was the belief of the community and of its medical advisers, that a system of general vaccination was vital to the safety of all. We are not prepared to hold that a minority, residing or remaining in any city or town where smallpox is prevalent, and enjoying the general protection afforded by an organized local government, may thus defy the will of its constituted authorities, acting in good faith for all, under the legislative sanction of the State. If such be the privilege of a minority, Page 197 U. S. 38 then a like privilege would belong to each individual of the community, and the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual who chooses to remain a part of that population. We are unwilling to hold it to be an element in the liberty secured by the Constitution of the United States that one person, or a minority of persons, residing in any community and enjoying the benefits of its local government, should have the power thus to dominate the majority when supported in their action by the authority of the State. While this court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect. They are matters that do not ordinarily concern the National Government. So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take, and we do not perceive that this legislation has invaded any right secured by the Federal Constitution. Before closing this opinion, we deem it appropriate, in order to prevent misapprehension as to our views, to observe -- perhaps to repeat a thought already sufficiently expressed, namely -- that the police power of a State, whether exercised by the legislature or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health Page 197 U. S. 39 or body, would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it as so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. "All laws," this court has said, "should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of that character. The reason of the law in such cases should prevail over its letter." United States v. Kirby , 7 Wall. 482; Lau Ow Bew v. United States, 144 U. S. 47 , 144 U. S. 58 . Until otherwise informed by the highest court of Massachusetts, we are not inclined to hold that the statute establishes the absolute rule that an adult must be vaccinated if it be apparent or can be shown with reasonable certainty that he is not at the time a fit subject of vaccination or that vaccination, by reason of his then condition, would seriously impair his health or probably cause his death. No such case is here presented. It is the case of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease We now decide only that the statute covers the present case, and that nothing clearly appears that would justify this court in holding it to be unconstitutional and inoperative in its application to the plaintiff in error. The judgment of the court below must be affirmed. It is so ordered. MR. JUSTICE BREWER and MR. JUSTICE PECKHAM dissent. * "State supported facilities for vaccination began in England in 1808 with the National Vaccine Establishment. In 1840, vaccination fees were made payable out of the rates. The first compulsory act was passed in 1853, the guardians of the poor being entrusted with the carrying out of the law; in 1854, the public vaccinations under one year of age were 408,825 as against an average of 180,960 for several years before. In 1867, a new Act was passed, rather to remove some technical difficulties than to enlarge the scope of the former Act, and in 1871, the Act was passed which compelled the boards of guardians to appoint vaccination officers. The guardians also appoint a public vaccinator, who must be duly qualified to practice medicine and whose duty it is to vaccinate (for a fee of one shilling and sixpence) any child resident within his district brought to him for that purpose, to examine the same a week after, to give a certificate, and to certify to the vaccination officer the fact of vaccination or of insusceptibility. . . . Vaccination was made compulsory in Bavaria in 1807, and subsequently in the following countries: Denmark (1810), Sweden (1814), Wurtemburg, Hesse, and other German states (1818), Prussia (1835), Roumania (1874), Hungary (1876), and Servia (1881). It is compulsory by cantonal law in ten out of the twenty-two Swiss cantons; an attempt to pass a federal compulsory law was defeated by a plebiscite in 1881. In the following countries, there is no compulsory law, but Government facilities and compulsion on various classes more or less directly under Government control, such as soldiers, state employes, apprentices, school pupils, etc.: France, Italy, Spain, Portugal, Belgium, Norway, Austria, Turkey. . . . Vaccination has been compulsory in South Australia since 1872, in Victoria since 1874, and in Western Australia since 1878. In Tasmania, a compulsory Act was passed in 1882. In New South Wales, there is no compulsion, but free facilities for vaccination. Compulsion was adopted at Calcutta in 1880, and since then at eighty other towns of Bengal, at Madras in 1884, and at Bombay and elsewhere in the presidency a few years earlier. Revaccination was made compulsory in Denmark in 1871, and in Roumania in 1874; in Holland it was enacted for all school pupils in 1872. The various laws and administrative orders which had been for many years in force as to vaccination and revaccination in the several German states were consolidated in an imperial statute of 1874." 24 Encyclopaedia Britannica (1894), Vaccination. "In 1857, the British Parliament received answers from 552 physicians to questions which were asked them in reference to the utility of vaccination, and only two of these spoke against it. Nothing proves this utility more clearly than the statistics obtained. Especially instructive are those which Flinzer compiled respecting the epidemic in Chemitz which prevailed in 1870-71. At this time in the town, there were 64,255 inhabitants, of whom 53,891, or 83.87 percent., were vaccinated, 5,712, or 8.89 percent. were unvaccinated, and 4,652, or 7.24 percent., had had the smallpox before. Of those vaccinated, 953, or 1.77 percent., became affected with smallpox, and of the uninocculated, 2,643, or 46.3 percent., had the disease. In the vaccinated, the mortality from the disease was O.73 percent., and in the unprotected it was 9.16 percent. In general, the danger of infection is six times as great, and the mortality 68 times as great, in the unvaccinated as in the vaccinated. Statistics derived from the civil population are in general not so instructive as those derived from armies, where vaccination is usually more carefully performed and where statistics can be more accurately collected. During the Franco-German war (1870-71) there was in France a widespread epidemic of smallpox, but the German army lost during the campaign only 450 cases, or 58 men to the 100,000; in the French army, however, where vaccination was not carefully carried out, the number of deaths from smallpox was 23,400." 8 Johnson's Universal Cyclopaedia (1897), Vaccination. "The degree of protection afforded by vaccination thus became a question of great interest. Its extreme value was easily demonstrated by statistical researches. In England, in the last half of the eighteenth century, out of every 1,000 deaths, 96 occurred from smallpox; in the first half of the present century, out of every 1,000 deaths, but 35 were caused by that disease. The amount of mortality in a country by smallpox seems to bear a fixed relation to the extent to which vaccination is carried out. In all England and Wales, for some years previous to 1853, the proportional mortality by smallpox was 21.9 to 1,000 deaths from causes; in London, it was but 16 to 1,000; in Ireland, where vaccination was much less general, it was 49 to 1,000, while in Connaught it was 60 to 1,000. On the other hand, in a number of European countries where vaccination was more or less compulsory, the proportionate number of deaths from smallpox about the same time varied from 2 per 1,000 of causes in Bohemia, Lombardy, Venice, and Sweden, to 8.33 per 1,000 in Saxony. Although in many instances persons who had been vaccinated were attacked with smallpox in a more or less modified form, it was noticed that the persons so attacked had been commonly vaccinated many years previously." 16 American Cyclopedia, Vaccination (1883). "'Dr. Buchanan, the medical officer of the London Government Board, reported [1881] as the result of statistics that the smallpox death rate among adult persons vaccinated was 90 to a million, whereas, among those unvaccinated, it was 3,350 to a million; whereas among vaccinated children under 5 years of age, 42 per million; whereas among unvaccinated children of the same age it was 5,950 per million.' Hardway's Essentials of Vaccination (1881). The same author reports that among other conclusions reached by the Academie de Medicine of France, was one that, 'without vaccination, hygienic measures (isolation, disinfection, etc.) are of themselves insufficient for preservation from smallpox.'" Ib. "The Belgian Academy of Medicine appointed a committee to make an exhaustive examination of the whole subject, and among the conclusions reported by them were:" "1. Without vaccination, hygienic measures and means, whether public or private, are powerless in preserving mankind from smallpox. . . . 3. Vaccination is always an inoffensive operation when practiced with proper care on healthy subjects. . . . 4. It is highly desirable, in the interests of the health and lives of our countrymen, that vaccination should be rendered compulsory." Edwards' Vaccination (1882). The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor of England, at its head, to inquire, among other things, as to the effect of vaccination in reducing the prevalence of, and mortality from, smallpox, reported, after several years of investigation: "We think that it diminishes the liability to be attacked by the disease; that it modifies the character of the disease and renders it less fatal, of a milder and less severe type; that the protection it affords against attacks of the disease is greatest during the years immediately succeeding the operation of vaccination."

The case of Jacobson v. Massachusetts (1905) centered on the constitutionality of a state's police power to enact and enforce public health regulations, specifically a compulsory vaccination law. The United States Supreme Court upheld the state's authority to implement such measures to protect public health and safety, provided they do not infringe on federal powers or violate individual rights secured by the Constitution. The Court emphasized that the determination of the best mode for disease prevention is a legislative responsibility, and any regulatory measures must apply equally to all individuals in similar conditions. The decision set a precedent for the government's ability to enact reasonable regulations within its territory to safeguard public health and safety, as long as they do not arbitrarily or oppressively infringe on individual liberties.

Gun Rights

Lewis v. U.S.

https://supreme.justia.com/cases/federal/us/445/55/

U.S. Supreme Court Lewis v. United States, 445 U.S. 55 (1980) Lewis v. United States No. 78-1595 Argued January 7, 1980 Decided February 27, 1980 445 U.S. 55 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus Held: Even though petitioner's extant prior state court felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U. S. 335 , it could properly be used as a predicate for his subsequent conviction for possession of a firearm in violation of § 1202(a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 445 U. S. 60 -68. (a) The plain meaning of § 1202(a)(1)'s sweeping language proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State . . . of a felony," is that the fact of a felony conviction imposes firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action. Other provisions of the statute demonstrate and reinforce its broad sweep, and there is nothing in § 1202(a)(1)'s legislative history to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under § 1202(a)(1). Moreover, the fact that there are remedies available to a convicted felon -- removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding -- suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous. Pp. 445 U. S. 60 -65. (b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U. S. 109 ; United States v. Tucker, 404 U. S. 443 ; and Loper v. Beto, 405 U. S. 473 . Pp. 445 U. S. 65 -67. 591 F.2d 978, affirmed. Page 445 U. S. 56 BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and POWELL, JJ., joined, post, p. 445 U. S. 68 . MR. JUSTICE BLACKMUN delivered the opinion of the Court. This case presents the question whether a defendant's extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U. S. 335 (1963), may constitute the predicate for a subsequent conviction under § 1202(a)(1), as amended, of Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.App. § 1202(a)(1). [ Footnote 1 ] I In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state court of a felony Page 445 U. S. 57 for breaking and entering with intent to commit a misdemeanor. See Fla.Stat. § 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to possess a firearm. See 18 U.S.C.App. § 1203(2) and 18 U.S.C. § 925(c). In January, 1977, Lewis, on probable cause, was arrested in Virginia, and later was charged by indictment with having knowingly received and possessed at that time a specified firearm in violation of 18 U.S.C. App. § 1202(a)(1). [ Footnote 2 ] He waived a jury and was given a bench trial. It was stipulated that the weapon in question had been shipped in interstate commerce. The Government introduced in evidence an exemplified copy of the judgment and sentence in the 1961 Florida felony proceeding. App. 10. Shortly before the trial, petitioner's counsel informed the court that he had been advised that Lewis was not represented by counsel in the 1961 Florida proceeding. [ Footnote 3 ] He claimed that, under Gideon v. Wainwright, supra, a violation of § 1202(a)(1) Page 445 U. S. 58 could not be predicated on a prior conviction obtained in violation of petitioner's Sixth and Fourteenth Amendment rights. The court rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial with respect to petitioner's status under § 1202(a)(1) as a previously convicted felon at the time of his arrest. Petitioner, accordingly, offered no evidence as to whether, in fact, he had been convicted in 1961 without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that time. On appeal, the United States Court of Appeals for the Fourth Circuit, by a divided vote, affirmed. 591 F.2d 978 (1979). It held that a defendant, purely as a defense to a prosecution under 1292(a)(1), could not attack collaterally an outstanding prior felony conviction, and that the statutory prohibition applied irrespective of whether that prior conviction was subject to collateral attack. The Court of Appeals also rejected Lewis' constitutional argument to the effect that the use of the prior conviction as a predicate for his prosecution under § 1202(a)(1) violated his rights under the Fifth and Sixth Amendments. Because of conflict among the Courts of Appeals, [ Footnote 4 ] we granted certiorari. 442 U.S. 939 (1979). Page 445 U. S. 59 II Four cases decided by this Court provide the focus for petitioner's attack upon his conviction. The first and pivotal one is Gideon v. Wainwright, supra, where the Court held that a state felony conviction without counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U. S. 847 (1971). Page 445 U. S. 60 The second case is Burgett v. Texas, 389 U. S. 109 (1967). There, the Court held that a conviction invalid under Gideon could not be used for enhancement of punishment under a State's recidivist statute. The third is United States v. Tucker, 404 U. S. 443 (1972), where it was held that such a conviction could not be considered by a court in sentencing a defendant after a subsequent conviction. And the fourth is Loper v. Beto, 405 U. S. 473 (1972), where the Court disallowed the use of the conviction to impeach the general credibility of the defendant. The prior conviction, the plurality opinion said, "lacked reliability." Id. at 405 U. S. 484 , quoting Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 639 , and n. 20 (1965). We, of course, accept these rulings for purposes of the present case. Petitioner's position, however, is that the four cases require a reversal of his conviction under § 1202(a)(1) on both statutory and constitutional grounds. III The Court has stated repeatedly of late that, in any case concerning the interpretation of a statute, the "starting point" must be the language of the statute itself. Reiter v. Sonotone Corp., 442 U. S. 330 , 442 U. S. 337 (1979). See also Touche Ross & Co. v. Redington, 442 U. S. 560 , 442 U. S. 568 (1979); Southestern Community College v. Davis, 442 U. S. 397 , 442 U. S. 405 (1979). An examination of § 1202(a)(1) reveals that its proscription is directed unambiguously at any person who "has been convicted by a court of the United States or of a State . . . of a felony." No modifier is present, and nothing suggests any restriction on the scope of the term "convicted." "Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]." United States v. Culbert, 435 U. S. 371 , 435 U. S. 373 (1978); see United States v. Naftalin, 441 U. S. 768 , 441 U. S. 772 (1979). The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is Page 445 U. S. 61 relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury. [ Footnote 5 ] The obvious breadth of the language may well reflect the expansive legislative approach revealed by Congress' express findings and declarations, in 18 U.S.C.App. § 1201, [ Footnote 6 ] concerning the problem of firearm abuse by felons and certain specifically described persons. Other provisions of the statute demonstrate and reinforce its broad sweep. Section 1203 enumerates exceptions to Page 445 U. S. 62 1202(a)(1) (a prison inmate who by reason of his duties has expressly been entrusted with a firearm by prison authority; a person who has been pardoned and who has expressly been authorized to receive, possess, or transport a firearm). In addition, § 1202(c)(2) defines "felony" to exclude certain state crimes punishable by no more than two years' imprisonment. No exception, however, is made for a person whose outstanding felony conviction ultimately might turn out to be invalid for any reason. On its face, therefore, § 1202(a)(1) contains nothing by way of restrictive language. It thus stands in contrast with other federal statutes that explicitly permit a defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony. See, e.g., 18 U.S.C. § 3575(e) (dangerous special offender) and 21 U.S.C. § 851(c)(2) (recidivism under the Comprehensive Drug Abuse Prevention and Control Act of 1970). When we turn to the legislative history of § 1202(a)(1), we find nothing to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under § 1202(a)(1). The section was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Acts of 1968, 82 Stat. 236. It was added by way of a floor amendment to the Act, and thus was not a subject of discussion in the legislative reports. See United States v. Batchelder, 442 U. S. 114 , 442 U. S. 120 (1979); Scarborough v. United States, 431 U. S. 563 , 431 U. S. 569 -570 (1977); United States v. Bass, 404 U. S. 336 , 404 U. S. 344 , and n. 11 (1971). What little legislative history there is that is relevant reflects an intent to impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed: "So, under Title VII, every citizen could possess a gun Page 445 U. S. 63 until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and had been expressedly authorized by his pardon to possess a firearm." 114 Cong.Rec. 14773 (1968). See also id. at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight. Simpson v. United States, 435 U. S. 6 , 435 U. S. 13 (1978). It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960's. See, e.g., S.Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H.R.Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S.Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed: "The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly -- to keep guns out of the hands of those who have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.'" Scarborough v. United States, 431 U.S. at 431 U. S. 572 . The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional challenge, to the broad statutory scheme enacted by Congress. Section 1202(a) was a sweeping prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require the Government to prove the validity of the predicate conviction. The very structure of the Omnibus Act's Title IV, enacted Page 445 U. S. 64 simultaneously with Title VII, reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from transporting or receiving firearms. See 18 U.S.C. §§ 922(g) and (h). Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from "any person . . . who has been convicted" of a felony, although the definition of "felony" differs somewhat in the respective statutes. But to limit the scope of §§ 922(g)(1) and (h)(1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon, but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to a firearm. Finally, it is important to note that a convicted felon is not without relief. As has been observed above, the Omnibus Act, in §§ 1203(2) and 925(c), states that the disability may be removed by a qualifying pardon or the Secretary's consent. Also, petitioner, before obtaining his firearm, could have challenged his prior conviction in an appropriate proceeding in the Florida state courts. See Fla.Const., Art. 5, § 5(3); L'Hommedieu v. State, 362 So. 2d 72 (Fla.App. 1978); Weir v. State, 319 So. 2d 80 (Fla.App. 1975). See also United States v. Morgan, 346 U. S. 502 (1954). [ Footnote 7 ] It seems fully apparent to us that the existence of these remedies, two of which are expressly contained in the Omnibus Act itself, suggests that Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose "broadly to keep firearms away Page 445 U. S. 65 from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United States, 423 U. S. 212 , 423 U. S. 218 (1976). With the face of the statute and the legislative history so clear, petitioner's argument that the statute nevertheless should be construed so as to avoid a constitutional issue is inapposite. That course is appropriate only when the statute provides a fair alternative construction. This statute could not be more plain. Swain v. Pressley, 430 U. S. 372 , 430 U. S. 378 , and n. 11 (1977); United States v. Batchelder, 442 U.S. at 422 U. S. 122 -123. Similarly, any principle of lenity, see Rewis v. United States, 401 U. S. 808 , 401 U. S. 812 (1971), has no application. The touchstone of that principle is statutory ambiguity. Huddleston v. United States, 415 U. S. 814 , 415 U. S. 832 (1974); United States v. Batchelder, 442 U.S. at 442 U. S. 121 -122. There is no ambiguity here. We therefore hold that § 1202(a)(1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds. IV The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some 'rational basis' for the statutory distinctions made . . . or . . . they 'have some relevance to the purpose for which the classification is made.'" Marshall v. United States, 414 U. S. 417 , 414 U. S. 422 (1974), quoting from McGinnis v. Royster, 410 U. S. 263 , 410 U. S. 270 (1973), and Baxstrom v. Herold, 383 U. S. 107 , 383 U. S. 111 (1966). See Vance v. Bradley, 440 U. S. 93 , 440 U. S. 97 (1979). [ Footnote 8 ] Page 445 U. S. 66 Section 1202(a)(1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII reveals, 18 U.S.C. App § 1201, was concerned that the receipt and possession of a firearm by a felon constitutes a threat, among other things, to the continued and effective operation of the Government of the United States. The legislative history of the gun control laws discloses Congress' worry about the easy availability of firearms, especially to those persons who pose a threat to community peace. And Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record. 114 Cong.Rec. 13220-(1968) (remarks of Sen. Tydings); id. at 16298 (remarks of Rep. Pollock). Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. See, e.g., United States v. Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. denied, 424 U.S. 944 (1976). This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U. S. 24 (1974) (disenfranchisement); De Veau v. Braisted, 363 U. S. 144 (1960) (proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U. S. 189 (1898) (prohibition against the practice of medicine). We recognize, of course, that, under the Sixth Amendment, an uncounseled felony conviction cannot be used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never suggested that an uncounseled conviction Page 445 U. S. 67 is invalid for all purposes. See Scott v. Illinois, 440 U. S. 367 (1979); Loper v. Beto, 405 U.S. at 405 U. S. 482 , n. 11 (plurality opinion). Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction or even indictment, in order to keep firearms away from potentially dangerous persons. Congress' judgment that a convicted felon -- even one whose conviction was allegedly uncounseled -- is among the class of persons who should be disabled from dealing in or possessing firearms because of potential dangerousness is rational. [ Footnote 9 ] Enforcement of that essentially civil disability through a criminal sanction does not "support guilt or enhance punishment." See Burgett, 389 U.S. at 389 U. S. 115 , on the basis of a conviction that is unreliable when one considers Congress' broad purpose. Moreover, unlike the situation in Burgett, the sanction imposed by § 1202(a)(1) attaches immediately upon the defendant's first conviction. Again, it is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms prosecution does not open the predicate conviction to a new form of collateral attack. See Note, Prior Convictions and the Gun Control Act of 1968, Page 445 U. S. 68 76 Colum.L.Rev. 326, 338-339 (1976). Cf. Walker v. City of Birmingham, 388 U. S. 307 (1967). The judgment of the Court of Appeals is affirmed. It is so ordered. [ Footnote 1 ] Section 1202(a) reads in full: "Any person who -- " "(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or" "(2) has been discharged from the Armed Forces under dishonorable conditions, or" "(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or" "(4) having been a citizen of the United States has renounced his citizenship, or" "(5) being an alien is illegally or unlawfully in the United States," "and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both." [ Footnote 2 ] The indictment also charged petitioner With a violation of 18 U.S.C. § 922(h)(1). That statute reads in pertinent part: "It shall be unlawful for any person -- " "(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;" " * * * *" "to receive any firearm . . . which has been shipped or transported in interstate . . . commerce." Petitioner was acquitted on the § 922(h)(1) charge, and it is not before us here. [ Footnote 3 ] Petitioner's counsel stated that a Florida attorney had advised him that the court records in that State showed affirmatively that Lewis had no lawyer. He noted also that Lewis had been charged with the same offense as had the defendant in Gideon v. Wainwright, 372 U. S. 335 (1963), and that petitioner had been tried in the same State about six months before Gideon was tried. App. 2-3. [ Footnote 4 ] Compare United States v. Lufman, 457 F.2d 165 (CA7 1972) (use of an underlying felony conviction unconstitutionally obtained to support a conviction under § 1202(a)(1) is reversible error), with the Fourth Circuit's ruling in the present case, and with United States v. Maggard, 573 F.2d 926 (CA6 1978); and United States v. Graves, 554 F.2d 65 (CA3 1977) (en banc) (claim of constitutional error in the underlying conviction may not be raised). The Ninth Circuit has distinguished between a claim of constitutional invalidity in the underlying conviction, which it has held may be raised, and a claim that the underlying conviction has been, or should be, reversed on other grounds. Compare United States v. O'Neal, 545 F.2d 85 (1976), and United States v. Pricepaul, 540 F.2d 417 (1976), with United States v. Liles, 432 F.2d 18 (1970). See also United States v. Herrell, 588 F.2d 711 (CA9 1978), cert. denied, 440 U.S. 964 (1979) (underlying conviction in a prosecution under 18 U.S.C. § 922(h)(1) may not be challenged on nonconstitutional grounds). The identical issue that is presented in this case has also arisen in the context of challenges to convictions under 18 U.S.C. § 922 (g)(1) (proscribing shipping or transport of a firearm in interstate or foreign commerce by a person under indictment for, or convicted of, a felony) and 922(h)(1) (proscribing receipt of a firearm shipped in interstate or foreign commerce by such a person). Compare United States v. Scales, 599 F.2d 78 (CA5 1979); Dameron v. United States, 488 F.2d 724 (CA5 1974); Pasterchik v. United States, 466 F.2d 1367 (CA9 1972); and United States v. DuShane, 435 F.2d 187 (CA2 1970) (underlying conviction may be attacked as unconstitutional), with Barker v. United States, 579 F.2d 1219, 1226 (CA10 1978) (underlying conviction may not be so challenged in prosecution under § 922 (h)(1)). The Courts of Appeals have treated the issue somewhat differently in prosecutions under 18 U.S.C. § 922(a)(6) (prohibiting the falsification of one's status as a convicted felon in purchasing a firearm). Nonuniformity has prevailed nonetheless on the question whether a defendant charged with violating that statute may challenge the constitutionality of the underlying felony conviction. Compare United States v. O'Neal, supra, and United States v. Pricepaul, supra, (permitting the challenge), with United States v. Allen, 556 F.2d 720 (CA4 1977); United States v. Graves, supra; and Cassity v. United States, 521 F.2d 1320 (CA6 1975) (holding that the challenge may not be made). The Eighth Circuit has stated that it will not permit a challenge to the constitutionality of the underlying conviction where the defendant is charged under § 922(a)(6), while reserving the question under § 1202(a)(1) and §§ 922(g)(1) and (h)(1). United States v. Edwards, 568 F.2d 68, 70-72, and n. 3 (1977). See also United States v. Graves, 554 F.2d at 83-88 (Garth, J., and Seitz, C.J., concurring in part and dissenting in part) (the Government need not prove the validity of the underlying conviction in a prosecution brought under § 922(a)(6), but it must do so in a prosecution under § 1202(a)(1)). [ Footnote 5 ] One might argue, of course, that the language is so sweeping that it includes in its proscription even a person whose predicate conviction in the interim had been finally reversed on appeal, and thus no longer was outstanding. The Government, however, does not go so far, Tr. of Oral Arg. 29-30, 37-40, and though we have no need to pursue that extreme argument in this case, we reject it. We are not persuaded that the mere possibility of making that argument renders the statute, as petitioner suggests, unconstitutionally vague. And unlike the dissent, post at 445 U.S. 69 , we view the language Congress chose as consistent with the common sense notion that a disability based upon one's status as a convicted felon should cease only when the conviction upon which that status depends has been vacated. We note, nonetheless, that the disability effected by § 1202(a)(1) would apply while a felony conviction was pending on appeal. See Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum.L.Rev. 326, 334, and n. 42 (1976). [ Footnote 6 ] "The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes -- " "(1) a burden on commerce or threat affecting the free flow of commerce," "(2) a threat to the safety of the President of the United States and Vice President of the United States," "(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and" "(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV of the Constitution." [ Footnote 7 ] This being so, § 1202(a)(1) does not attach "what may amount to lifelong sanctions to a mere finding of probable cause," as has been argued by one commentator. See Comment, 92 Harv.L.Rev. 1790, 1795 (1979). [ Footnote 8 ] These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174 , 307 U. S. 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm t.hat does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding, respectively, that § 1202(a)(1), § 922(g), and § 922(a)(6) do not violate the Second Amendment). [ Footnote 9 ] The dissent's assertion that Congress' judgment in this regard cannot rationally be supported, post at 445 U. S. 72 , is one we do not share. Moreover, such an assertion seems plainly inconsistent with the deference that a reviewing court should give to a legislative determination that, in essence, predicts a potential for future criminal behavior. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR. JUSTICE POWELL join, dissenting. In disagreement with every other Court of Appeals that has addressed the issue. [ Footnote 2/1 ] the Court of Appeals for the Fourth Circuit held, by a divided vote, that an uncounseled and hence unconstitutional felony conviction may form the predicate for conviction under § 1202(a)(1) of the Omnibus Crime Control and Safe Streets Act of 1968. Today, the Court affirms that judgment, but by an analysis that cannot be squared with either the literal language of the statute or controlling decisions of this Court. I respectfully dissent. I Two longstanding principles of statutory construction independently mandate reversal of petitioner's conviction. The first is the precept that, "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C.I.T. Corp., 344 U. S. 218 , 344 U. S. 221 -222 (1952). The Court has repeatedly reaffirmed this "rule of lenity." See, e.g., Simpson v. United States, 435 U. S. 6 , 435 U. S. 14 ; United States v. Bass, 404 U. S. 336 , 404 U. S. 347 -349 (1971); Rewis v. United States, 401 U. S. 808 , 401 U. S. 812 (1971); Ladner v. United States , 355 U. S. 169 , Page 445 U. S. 69 355 U. S. 177 (1958); Bell v. United States, 349 U. S. 81 (1955). Indeed, the principle that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity" has previously been invoked in interpreting the very provision at issue in this case. See United States v. Bass, supra. The Court declines to apply this established rule of construction in this case because, in its view, "[t]here is no ambiguity here." Ante at 445 U. S. 65 . In light of the gloss the Court places on the literal language of the statute, I find this to be a curious conclusion. By its own terms, § 1202(a)(1) reaches "[a]ny person who has been convicted . . . of a felony." The provision, on its face, admits of no exception to its sweeping proscription. Yet, despite the absence of any qualifying phrase, the Court concedes -- as it must -- that the statute cannot be interpreted so as to include those persons whose predicate convictions have been vacated or reversed on appeal. Ante at 445 U. S. 60 -61, and n. 5. It thus appears that the plain words of § 1202(a)(1) are not so clear after all, and we therefore must determine the section's reach. Two alternative constructions are offered: the first is the Government's -- that § 1202(a)(1) may be read to permit only outstanding felony convictions to serve as the basis for prosecution. Tr. of Oral Arg. 29-30. The second is petitioner's -- that the predicate conviction must be not only outstanding, but also constitutionally valid. Because either interpretation fairly comports with the statutory language, surely the principle of lenity requires us to resolve any doubts against the harsher alternative, and to read the statute to prohibit the possession of firearms only by those who have been constitutionally convicted of a felony. The Court nevertheless adopts the Government's construction, relying on a supposed legislative resolve to enact a sweeping measure against the misuse of firearms. But however expansive § 1202 was meant to be, we are not faithful to "our duty to protect the rights of the individual," Dalia v. United States, 441 U. S. 238 , 441 U. S. 263 (1979)(STEVENS, J., dissenting), Page 445 U. S. 70 when we are so quick to ascribe to Congress the intent to punish the possession of a firearm by a person whose predicate felony conviction was obtained in violation of the right to the assistance of counsel, "one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty." Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 462 (1938). Petitioner has once already been imprisoned in violation of the Constitution. In the absence of any clear congressional expression of its intent, I cannot accept a construction of § 1202(a)(1) that reflects such an indifference to petitioner's plight and such a derogation of the principles of Gideon v. Wainwright, 372 U. S. 335 (1963). [ Footnote 2/2 ] Page 445 U. S. 71 II The second maxim of statutory construction that compels a narrow reading of § 1202(a)(1) is the "cardinal principle" that, "if a serious doubt of constitutionality is raised, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932). Accord, Schneider v. Smith, 390 U. S. 17 , 390 U. S. 26 (1968); United States v. Rumely, 345 U. S. 41 , 345 U. S. 45 (1953); United States v. CIO, 335 U. S. 106 , 335 U. S. 120 -121, and n. 20 (1948). And doubts as to the constitutionality of a statute that could predicate criminal liability solely on the existence of a previous uncounseled felony conviction are indeed serious, for a trilogy of this Court's decisions would seem to prohibit precisely such a result. Burgett v. Texas, 389 U. S. 109 (1967), held that a prior uncounseled felony conviction was void, and thus inadmissible in a prosecution under a Texas recidivist statute. Burgett stated: "To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused, in effect, suffers anew from the deprivation of that Sixth Amendment right." Id. at 389 U. S. 115 (citation omitted). United States v. Tucker, 404 U. S. 443 (1972), and Loper v. Beto, 405 U. S. 473 (1972), respectively, prohibited the use of uncounseled felony convictions as a factor to be considered in sentencing, and to impeach the defendant's credibility. Burgett and its progeny appear to control the result in this case. The clear teaching of those decisions is that an uncounseled Page 445 U. S. 72 felony conviction can never be used "to support guilt or enhance punishment for another offense." Here, petitioner could not have been tried and convicted for violating § 1202(a)(1) in the absence of his previous felony conviction. It could not be plainer that his constitutionally void conviction was therefore used "to support guilt" for the current offense. The Court's bald assertion to the contrary is simply inexplicable. The Court's attempt to distinguish Burgett, Tucker, and Loper on the ground that the validity of the subsequent convictions or sentences in those cases depended on the reliability of the prior uncounseled felony convictions, while, in the present case, the law focuses on the mere fact of the prior conviction, is unconvincing. The fundamental rationale behind those decisions was the concern that according any credibility to an uncounseled felony conviction would seriously erode the protections of the Sixth Amendment. Congress' decision to include convicted felons within the class of persons prohibited from possessing firearms can rationally be supported only if the historical fact of conviction is indeed a reliable indicator of potential dangerousness. As we have so often said, denial of the right to counsel impeaches "the very integrity of the factfinding process." Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 639 (1965). Accord, Lakeside v. Oregon, 435 U. S. 333 , 435 U. S. 341 (1978); Argersinger v. Hamlin, 407 U. S. 25 , 407 U. S. 31 (1972). And the absence of counsel impairs the reliability of a felony conviction just as much when used to prove potential dangerousness as when used as direct proof of guilt. Cf. Loper v. Beto, supra, at 405 U. S. 483 (opinion of STEWART, J.). III Finally, it is simply irrelevant that petitioner could have challenged the validity.of his prior conviction in appropriate proceedings in the state courts. Nor can the existence of such a remedy prohibit him from raising the unconstitutionality of that conviction as a defense to the present charge. Page 445 U. S. 73 In the first place, neither Burgett nor Loper imposed any requirement that a defendant collaterally attack his uncounseled conviction before he faces prosecution under § 1202(a)(1); in both cases, the Court held the use of the prior invalid convictions impermissible even though the defendants had taken no affirmative steps to have them overturned. More to the point, however, where the very defect in the initial proceedings was that the accused did not have the assistance of counsel in defending the felony charges against him, it simply defies reason and sensibility to suggest that the defendant must be regarded as having waived his defense to the § 1202(a)(1) prosecution because he failed first to retain counsel to seek an extraordinary writ of coram nobis. [ Footnote 2/1 ] See, e.g., Dameron v. United States, 488 F.2d 724 (CA5 1974); United States v. Lufman, 457 F.2d 165 (CA7 1972); United States v. DuShane, 435 F.2d 187 (CA2 1970); United States v. Thoresen, 428 F.2d 654 (CA9 1970). See generally Comment, 92 Harv.L.Rev. 1790 (1979). [ Footnote 2/2 ] As the Court has previously observed, § 1202 "was hastily passed, with little discussion, no hearings, and no report." United States v. Bass, 404 U. S. 336 , 404 U. S. 344 (1971). "In short, 'the legislative history of [the] Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will.'" Id. at 404 U. S. 346 (quoting Universal Camera Corp. v. NLRB, 340 U. S. 474 , 340 U. S. 483 (1951)). It is thus little wonder that the Court finds no explicit support in the statute's legislative history for petitioner's construction. Nor do the few signposts that do exist in the history and structure of Title VII point unambiguously to the Court's conclusion. That Congress included provisions within the Omnibus Act whereby a convicted felon could have his disability removed by a qualifying pardon or the Secretary's consent, see §§ 1203(2) and 925(c), does not mean that Congress intended them to be exclusive remedies. Indeed, these provisions were clearly designed only to provide a mechanism for those persons with valid felony convictions to seek relief from the prohibitions of § 1202. Similarly, a comparison between the scope of Title IV and Title VII is unenlightening on the question before us. Simply because the former Title imposes a disability on any person under a felony indictment, it by no means follows, a fortiori or otherwise, that Congress intended by the latter Title to impose a somewhat harsher disability on those persons with unconstitutional felony convictions. Cf. ante at 445 U. S. 64 . Significantly, the restrictions attaching to an individual under indictment are necessarily temporary, while those imposed on the basis of a previous conviction are indefinite in duration. Moreover, Congress' failure to include persons "under indictment" within the proscriptions of § 1202 more plausibly signals its desire to demand a greater indication of potential dangerousness than would be provided by the mere fact of indictment -- or, for that matter, by an uncounseled felony conviction. In fact, in a slightly different context, Congress has expressly rejected the proposition that an invalid prior conviction is a reliable indicator of "dangerousness." See 18 U.S.C. § 3575(e) (dangerous special offender).

The Supreme Court held that an existing prior state court felony conviction, even if it could be challenged under Gideon v. Wainwright, could still be used as the basis for a subsequent conviction for possessing a firearm as a felon under federal law. The Court found that the plain language of the federal statute prohibiting firearm possession by felons was broad and did not allow for exceptions, and that Congress intended to keep firearms away from potentially dangerous individuals. The Court also concluded that the firearm regulatory scheme did not violate equal protection, as any felony conviction could be a basis for prohibiting firearm possession.

Health Care

Prince v. Massachusetts

https://supreme.justia.com/cases/federal/us/321/158/

U.S. Supreme Court Prince v. Massachusetts, 321 U.S. 158 (1944) Prince v. Massachusetts No. 98 Argued December 14, 1943 Decided January 31, 1944 321 U.S. 158 APPEAL FROM THE SUPERIOR COURT OF MASSACHUSETTS PLYMOUTH COUNTY Syllabus 1. A state statute provides that no minor (boy under 12 or girl under 18) shall sell, or offer for sale, upon the streets or in other public places, any newspapers, magazines, periodicals, or other articles of merchandise. The statute makes it unlawful for any person to furnish to a minor any article which he knows the minor intends to sell in violation of the law, and for any parent or guardian to permit a minor to work in violation of the law. Held -- as applied Page 321 U. S. 159 to a guardian who furnished a minor ward with religious literature and permitted the minor to distribute the same on the streets, although the guardian accompanied the minor and both were -- acting in accord with their religious beliefs -- not violative of freedom of religion, nor a denial of the equal protection of the laws, under the Fourteenth Amendment of the Federal Constitution. P. 321 U. S. 167 . 2. Whether there was a "sale" or "offer to sell," and whether what the minor was doing was "work," within the meaning of the State statute, were question of local law upon which, on this record, the decision of the state court is binding here. P. 321 U. S. 163 . 3. With respect to the public proclaiming of religion in streets and other public place, as in the case of other freedoms, the power of the State to control the conduct of children is broader than its power over adults. P. 321 U. S. 170 . 4. There is no denial of equal protection of the laws in excluding children of a particular sect from such use of the streets as is barred also to all other children. P. 321 U. S. 170 . 313 Mass. 223, 46 N.E.2d 755, affirmed. APPEAL from a judgment entered on a rescript from the highest court of the State, which sustained convictions on two of three complaints for violations of a state statute. MR. JUSTICE RUTLEDGE delivered the opinion of the Court. The case brings for review another episode in the conflict between Jehovah's Witnesses and state authority. This time Sarah Prince appeals from convictions for violating Massachusetts' child labor laws, by acts said to be a rightful exercise of her religious convictions. When the offenses were committed, she was the aunt and custodian of Betty M. Simmons, a girl nine years of age. Originally, there were three separate complaints. They Page 321 U. S. 160 were, shortly, for (1) refusal to disclose Betty's identity and age to a public officer whose duty was to enforce the statutes; (2) furnishing her with magazines, knowing she was to sell them unlawfully, that is, on the street, and (3) as Betty's custodian, permitting her to work contrary to law. The complaints were made, respectively, pursuant to §§ 79, 80 and 81 of Chapter 149, Gen.Laws of Mass. (Ter. Ed.). The Supreme Judicial Court reversed the conviction under the first complaint on state grounds, [ Footnote 1 ] but sustained the judgments founded on the other two. [ Footnote 2 ] 313 Mass. 223, 46 N.E.2d 755. They present the only questions for our decision. These are whether §§ 80 and 81, as applied, contravene the Fourteenth Amendment by denying or abridging appellant's freedom of religion and by denying to her the equal protection of the laws. Sections 80 and 81 form parts of Massachusetts' comprehensive child labor law. [ Footnote 3 ] They provide methods for enforcing the prohibitions of § 69, which is as follows: "No boy under twelve and no girl under eighteen shall sell, expose or offer for sale any newspapers, magazines, periodicals or any other articles of merchandise of any Page 321 U. S. 161 description, or exercise the trade of bootblack or scavenger, or any other trade, in any street or public place." Sections 80 and 81, so far as pertinent, read: "Whoever furnishes or sells to any minor any article of any description with the knowledge that the minor intends to sell such article in violation of any provision of sections sixty-nine to seventy-three, inclusive, or after having received written notice to this effect from any officer charged with the enforcement thereof, or knowingly procures or encourages any minor to violate any provisions of said sections, shall be punished by a fine of not less than ten nor more than two hundred dollars or by imprisonment for not more than two months, or both." § 80. "Any parent, guardian or custodian having a minor under his control who compels or permits such minor to work in violation of any provision of sections sixty to seventy-four, inclusive, . . . shall for a first offense be punished by a fine of not less than two nor more than ten dollars or by imprisonment for not more than five days, or both; . . ." § 81. The story told by the evidence has become familiar. It hardly needs repeating, except to give setting to the variations introduced through the part played by a child of tender years. Mrs. Prince, living in Brockton, is the mother of two young sons. She also has legal custody of Betty Simmons, who lives with them. The children, too, are Jehovah's Witnesses, and both Mrs. Prince and Betty testified they were ordained ministers. The former was accustomed to go each week on the streets of Brockton to distribute "Watchtower" and "Consolation," according to the usual plan. [ Footnote 4 ] She had permitted the children to Page 321 U. S. 162 engage in this activity previously, and had been warned against doing so by the school attendance officer, Mr. Perkins. But, until December 18, 1941, she generally did not take them with her at night. That evening, as Mrs. Prince was preparing to leave her home, the children asked to go. She at first refused. Child-like, they resorted to tears; and, mother-like, she yielded. Arriving downtown, Mrs. Prince permitted the children "to engage in the preaching work with her upon the sidewalks." That is, with specific reference to Betty, she and Mrs. Prince took positions about twenty feet apart near a street intersection. Betty held up in her hand, for passers-by to see, copies of "Watch Tower" and "Consolation." From her shoulder hung the usual canvas magazine bag, on which was printed: "Watchtower and Consolation 5� per copy." No one accepted a copy from Betty that evening, and she received no money. Nor did her aunt. But on other occasions, Betty had received funds and given out copies. Mrs. Prince and Betty remained until 8:45 p.m. A few minutes before this, Mr. Perkins approached Mrs. Prince. A discussion ensued. He inquired, and she refused to give Betty's name. However, she stated the child attended the Shaw School. Mr. Perkins referred to his previous warnings, and said he would allow five minutes for them to get off the street. Mrs. Prince admitted she supplied Betty with the magazines, and said, "[N]either you nor anybody else can stop me . . . This child is exercising her God-given right and her constitutional right to preach the gospel, and no creature has a right to interfere with God's commands." However, Mrs. Prince and Betty departed. She remarked as she went, "I'm not going through this any more. We've been through it time and time again. I'm going home and put the little girl to bed." It may be added that testimony, by Betty, her aunt, and others was offered at the trials, and was excluded, Page 321 U. S. 163 to show that Betty believed it was her religious duty to perform this work, and failure would bring condemnation "to everlasting destruction at Armageddon." As the case reaches us, the questions are no longer open whether what the child did was a "sale" or an "offer to sell" within § 69 [ Footnote 5 ] or was "work" within § 81. The state court's decision has foreclosed them adversely to appellant as a matter of state law. [ Footnote 6 ] The only question remaining therefore is whether, as constituted and applied, the statute is valid. Upon this, the court said: "We think that freedom of the press and of religion is subject to incidental regulation to the slight degree involved in the prohibition of the selling of religious literature in streets and public places by boys under twelve and girls under eighteen, and in the further statutory provisions herein considered, which have been adopted as means of enforcing Page 321 U. S. 164 that prohibition." 313 Mas. 223, 229, 46 N.E.2d 755, 758. Appellant does not stand on freedom of the press. Regarding it as secular, she concedes it may be restricted as Massachusetts has done. [ Footnote 7 ] Hence, she rests squarely on freedom of religion under the First Amendment, applied by the Fourteenth to the states. She buttresses this foundation, however, with a claim of parental right as secured by the due process clause of the latter Amendment. [ Footnote 8 ] Cf. Meyer v. Nebraska, 262 U. S. 390 . These guaranties, she thinks, guard alike herself and the child in what they have done. Thus, two claimed liberties are at stake. One is the parent's, to bring up the child in the way he should go, which, for appellant, means to teach him the tenets and the practices of their faith. The other freedom is the child's, to observe these, and among them is "to preach the gospel . . . by public distribution" of "Watchtower" and "Consolation," in conformity with the scripture: "A little child shall lead them." If, by this position, appellant seeks for freedom of conscience a broader protection than for freedom of the mind, it may be doubted that any of the great liberties insured by the First Article can be given higher place than the others. All have preferred position in our basic scheme. Schneider v. State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 . All are interwoven there together. Differences there are, in them and in the modes appropriate for their exercise. But they have unity in the charter's prime place because they have unity in their human sources and Page 321 U. S. 165 functionings. Heart and mind are not identical. Intuitive faith and reasoned judgment are not the same. Spirit is not always thought. But, in the everyday business of living, secular or otherwise, these variant aspects of personality find inseparable expression in a thousand ways. They cannot be altogether parted in law more than in life. To make accommodation between these freedoms and an exercise of state authority always is delicate. It hardly could be more so than in such a clash as this case presents. On one side is the obviously earnest claim for freedom of conscience and religious practice. With it is allied the parent's claim to authority in her own household and in the rearing of her children. The parent's conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children, and the state's assertion of authority to that end, made here in a manner conceded valid if only secular things were involved. The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well developed men and citizens. Between contrary pulls of such weight, the safest and most objective recourse is to the lines already marked out, not precisely but for guides, in narrowing the no man's land where this battle has gone on. The rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief, as against preponderant sentiment and assertion of state power voicing it, have had recognition here, most recently in West Virginia State Board of Education v. Barnette , 319 U.S. Page 321 U. S. 166 624. Previously, in Pierce v. Society of Sisters, 268 U. S. 510 , this Court had sustained the parent's authority to provide religious with secular schooling, and the child's right to receive it, as against the state's requirement of attendance at public schools. And in Meyer v. Nebraska, 262 U. S. 390 , children's rights to receive teaching in languages other than the nation's common tongue were guarded against the state's encroachment. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Pierce v. Society of Sisters, supra. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. But the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 . And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth's wellbeing, the state, as parens patriae, may restrict the parent's control by requiring school attendance, [ Footnote 9 ] regulating or prohibiting the child's labor [ Footnote 10 ] and in many other ways. [ Footnote 11 ] Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. [ Footnote 12 ] The right to practice religion freely does not include liberty to expose the community or the child Page 321 U. S. 167 to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. [ Footnote 13 ] The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare, and that this includes, to some extent, matters of conscience and religious conviction. But it is said the state cannot do so here. This, first, because when state action impinges upon a claimed religious freedom, it must fall unless shown to be necessary for or conducive to the child's protection against some clear and present danger, cf. Schenck v. United States, 249 U. S. 47 ; and, it is added, there was no such showing here. The child's presence on the street, with her guardian, distributing or offering to distribute the magazines, it is urged, was in no way harmful to her, nor, in any event, more so than the presence of many other children at the same time and place, engaged in shopping and other activities not prohibited. Accordingly, in view of the preferred position the freedoms of the First Article occupy, the statute in its present application must fall. It cannot be sustained by any presumption of validity. Cf. Schneider v. State, 308 U. S. 147 . And, finally, it is said, the statute is, as to children, an absolute prohibition, not merely a reasonable regulation, of the denounced activity. Concededly a statute or ordinance identical in terms with § 69, except that it is applicable to adults or all persons generally, would be invalid. Young v. California, 308 U. S. 147 ; Nichols v. Massachusetts, 308 U. S. 147 ; Jamison v. Texas, 318 U. S. 413 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Martin v. City of Struthers, 319 U. S. 141 . [ Footnote 14 ] Page 321 U. S. 168 But the mere fact a state could not wholly prohibit this form of adult activity, whether characterized locally as a "sale" or otherwise, does not mean it cannot do so for children. Such a conclusion granted would mean that a state could impose no greater limitation upon child labor than upon adult labor. Or, if an adult were free to enter dance halls, saloons, and disreputable places generally, in order to discharge his conceived religious duty to admonish or dissuade persons from frequenting such places, so would be a child with similar convictions and objectives, if not alone, then in the parent's company, against the state's command. The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, well rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, [ Footnote 15 ] more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. [ Footnote 16 ] It is too late now to doubt Page 321 U. S. 169 that legislation appropriately designed to reach such evils is within the state's police power, whether against the parent's claim to control of the child or one that religious scruples dictate contrary action. It is true children have rights, in common with older people, in the primary use of highways. But even in such use, streets afford dangers for them not affecting adults. And in other uses, whether in work or in other things, this difference may be magnified. This is so not only when children are unaccompanied, but certainly to some extent when they are with their parents. What may be wholly permissible for adults therefore may not be so for children, either with or without their parents' presence. Street preaching, whether oral or by handing out literature, is not the primary use of the highway, even for adults. While for them it cannot be wholly prohibited, it can be regulated within reasonable limits in accommodation to the primary and other incidental uses. [ Footnote 17 ] But, for obvious reasons, notwithstanding appellant's contrary view, [ Footnote 18 ] the validity of such a prohibition applied to children not accompanied by an older person hardly would seem on to question. The case reduces itself therefore to the question whether the presence of the child's guardian puts a limit to the state's power. That fact may lessen the likelihood that some evils the legislation seeks to avert will occur. But it cannot forestall all of them. The zealous though lawful exercise of the right to engage in propagandizing the community, whether in religious, political or other matters, may, and at times does, create situations Page 321 U. S. 170 difficult enough for adults to cope with and wholly inappropriate for children, especially of tender years, to face. Other harmful possibilities could be stated, of emotional excitement and psychological or physical injury. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent's supervision may reduce, but cannot eliminate entirely, the ill effects of the prohibited conduct. We think that, with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case. In so ruling, we dispose also of appellant's argument founded upon denial of equal protection. It falls with that based on denial of religious freedom, since, in this instance, the one is but another phrasing of the other. Shortly, the contention is that the street, for Jehovah's Witnesses and their children, is their church, since their conviction makes it so, and to deny them access to it for religious purposes, as was done here, has the same effect as excluding altar boys, youthful choristers, and other children from the edifices in which they practice their religious beliefs and worship. The argument hardly needs more than statement, after what has been said, to refute it. However Jehovah's Witnesses may conceive them, the public highways have not become their religious property Page 321 U. S. 171 merely by their assertion. And there is no denial of equal protection in excluding their children from doing there what no other children may do. Our ruling does not extend beyond the facts the case presents. We neither lay the foundation "for any [that is, every] state intervention in the indoctrination and participation of children in religion" which may be done "in the name of their health and welfare" nor give warrant for "every limitation on their religious training and activities." The religious training and indoctrination of children may be accomplished in many ways, some of which, as we have noted, have received constitutional protection through decisions of this Court. These and all others except the public proclaiming of religion on the streets, if this may be taken as either training or indoctrination of the proclaimer, remain unaffected by the decision. The judgment is Affirmed. [ Footnote 1 ] The court found there was no evidence that appellant was asked Betty's age. It then held that conviction for refusal to disclose the child's name, based on the charge under § 79, would violate Article 12 of the Declaration of Rights of the Commonwealth, which provides in part: "No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself." [ Footnote 2 ] Appellant received moderate fines on each complaint, first in the District Court of Brockton, then on pleas of not guilty by trial de novo without a jury in the Superior Court for Plymouth County. Motions to dismiss and quash the complaints, for directed findings, and for rulings, were made seasonably and denied by the Superior Court. [ Footnote 3 ] Mass.Gen.Laws (Ter. Ed.) c. 149, as amended by Acts and Resolves of 1939, c. 461. [ Footnote 4 ] Cf. the facts as set forth in Jamison v. Texas, 318 U. S. 413 ; Largent v. Texas, 318 U. S. 418 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Busey v. District of Columbia, 75 U.S.App.D.C. 352, 129 F.2d 24. A common feature is that specified small sums are generally asked and received, but the publications may be had without the payment if so desired. [ Footnote 5 ] In this respect, the Massachusetts decision is contrary to the trend in other states. Compare State v. Mead, 230 Iowa 1217, 300 N.W. 523; State v. Meredith, 197 S.C. 351, 15 S.E.2d 678; State ex rel. Semansky v. Stark, 196 La. 307, 199 So. 129; Shreveport v. Teague, 200 La. 679, 8 So. 2d 640; People v. Barber, 289 N.Y. 378, 46 N.E.2d 329; Thomas v. Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418. Contra: McSparran v. Portland (Circuit Court, Multnomah County, Oregon, June 8, 1942), cert. denied, 318 U.S. 768. [ Footnote 6 ] The court's opinion said: "The judge could find that, if a passer-by should hand over five cents in accordance with the sign on the bag and should receive a magazine in return, a sale would be effected. The judge was not required to accept the defendant's characterization of that transaction as a 'contribution.' He could believe that selling the literature played a more prominent part in the enterprise than giving it away. He could find that the defendant furnished the magazines to Betty, knowing that the latter intended to sell them, if she could, in violation of § 69. . . . The judge could find that the defendant permitted Betty to 'work' in violation of § 81. . . . [W]e cannot say that the evils at which the statutes were directed attendant upon the selling by children of newspapers, magazines, periodicals, and other merchandise in streets and public places do not exist where the publications are of a religious nature." 313 Mass. 223, 227-228. [ Footnote 7 ] Appellant's brief says: "The purpose of the legislation is to protect children from economic exploitation and keep them from the evils of such enterprises that contribute to the degradation of children." And at the argument counsel stated the prohibition would be valid as against a claim of freedom of the press as a nonreligious activity. [ Footnote 8 ] The due process claim, as made and perhaps necessarily, extends no further than that to freedom of religion, since, in the circumstances, all that is comprehended in the former is included in the latter. [ Footnote 9 ] State v. Bailey, 157 Ind. 324, 61 N.E. 730; compare Meyer v. Nebraska, 262 U. S. 390 ; Pierce v. Society of Sisters, 268 U. S. 510 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 . [ Footnote 10 ] Sturges & Burn Mfg. Co. v. Beauchamp, 231 U. S. 320 ; compare Muller v. Oregon, 208 U. S. 412 . [ Footnote 11 ] Cf. People v. Ewer, 141 N.Y. 129, 36 N.E. 4. [ Footnote 12 ] Jacobson v. Massachusetts, 197 U. S. 11 . [ Footnote 13 ] See also State v. Chenoweth, 163 Ind. 94, 71 N.E. 197; Owens v. State, 6 Okla.Cr. 110, 116 P. 345. [ Footnote 14 ] Pertinent also are the decisions involving license features: Lovell v. City of Griffin, 303 U. S. 444 ; Schneider v. State, 308 U. S. 147 ; Hague v. Committee for Industrial Organization, 307 U. S. 496 . [ Footnote 15 ] See, e.g., Volumes 1-4, 6-8, 14, 18, Report on Condition of Women and Child Wage Earners in the United States, Sen.Doc. No. 645, 61st Cong., 2d Sess.; The Working Children of Boston, U.S. Dept. of Labor, Children's Bureau Publication No. 89 (1922); Fuller, The Meaning of Child Labor (1922); Fuller and Strong, Child Labor in Massachusetts (1926). [ Footnote 16 ] See, e.g., Clopper, Child Labor in City Streets (1912); Children in Street Work, U.S. Dept. of Labor, Children's Bureau Publication No. 183 (1928); Children Engaged in Newspaper and Magazine Selling and Delivering, U.S. Dept. of Labor, Children's Bureau Publication No. 227 (1935). [ Footnote 17 ] Cox v. New Hampshire, 312 U. S. 569 ; Chaplinsky v. New Hampshire, 315 U. S. 568 . [ Footnote 18 ] Although the argument points to the guardian's presence as showing the child's activities here were not harmful, it is nowhere conceded in the briefs that the statute could be applied, consistently with the guaranty of religious freedom, if the facts had been altered only by the guardian's absence. MR. JUSTICE MURPHY, dissenting: This attempt by the state of Massachusetts to prohibit a child from exercising her constitutional right to practice her religion on the public streets cannot, in my opinion, be sustained. The record makes clear the basic fact that Betty Simmons, the nine-year old child in question, was engaged in a genuine religious, rather than commercial, activity. She was a member of Jehovah's Witnesses, and had been taught the tenets of that sect by her guardian, the appellant. Such tenets included the duty of publicly distributing religious tracts on the street and from door to door. Pursuant to this religious duty and in the company of the appellant, Betty Simmons on the night of December 18, 1941, was standing on a public street corner and offering to distribute Jehovah's Witness literature to passersby. There was no expectation of pecuniary profit to Page 321 U. S. 172 herself or to appellant. It is undisputed, furthermore, that she did this of her own desire, and with appellant's consent. She testified that she was motivated by her love of the Lord, and that He commanded her to distribute this literature; this was, she declared, her way of worshipping God. She was occupied, in other words, in "an age-old form of missionary evangelism" with a purpose "as evangelical as the revival meeting." Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 , 109. Religious training and activity, whether performed by adult or child, are protected by the Fourteenth Amendment against interference by state action, except insofar as they violate reasonable regulations adopted for the protection of the public health, morals and welfare. Our problem here is whether a state, under the guise of enforcing its child labor laws, can lawfully prohibit girls under the age of eighteen and boys under the age of twelve from practicing their religious faith insofar as it involves the distribution or sale of religious tracts on the public streets. No question of freedom of speech or freedom of press is present, and we are not called upon to determine the permissible restraints on those rights. Nor are any truancy or curfew restrictions in issue. The statutes in question prohibit all children within the specified age limits from selling or offering to sell "any newspapers, magazines, periodicals or any other articles of merchandise of any description . . . in any street or public place." Criminal sanctions are imposed on the parents and guardians who compel or permit minors in their control to engage in the prohibited transactions. The state court has construed these statutes to cover the activities here involved, cf. State v. Richardson, 92 N.H. 178, 27 A.2d 94, thereby imposing an indirect restraint through the parents and guardians on the free exercise by minors of their religious beliefs. This indirect restraint is no less effective than a direct one. A square conflict between the constitutional Page 321 U. S. 173 guarantee of religious freedom and the state's legitimate interest in protecting the welfare of its children is thus presented. As the opinion of the Court demonstrates, the power of the state lawfully to control the religious and other activities of children is greater than its power over similar activities of adults. But that fact is no more decisive of the issue posed by this case than is the obvious fact that the family itself is subject to reasonable regulation in the public interest. We are concerned solely with the reasonableness of this particular prohibition of religious activity by children. In dealing with the validity of statutes which directly or indirectly infringe religious freedom and the right of parents to encourage their children in the practice of a religious belief, we are not aided by any strong presumption of the constitutionality of such legislation. United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 , note 4. On the contrary, the human freedoms enumerated in the First Amendment and carried over into the Fourteenth Amendment are to be presumed to be invulnerable, and any attempt to sweep away those freedoms is prima facie invalid. It follows that any restriction or prohibition must be justified by those who deny that the freedoms have been unlawfully invaded. The burden was therefore on the state of Massachusetts to prove the reasonableness and necessity of prohibiting children from engaging in religious activity of the type involved in this case. The burden in this instance, however, is not met by vague references to the reasonableness underlying child labor legislation in general. The great interest of the state in shielding minors from the evil vicissitudes of early life does not warrant every limitation on their religious training and activities. The reasonableness that justifies the prohibition of the ordinary distribution of literature in the public streets by children is not necessarily the reasonableness Page 321 U. S. 174 that justifies such a drastic restriction when the distribution is part of their religious faith. Murdock v. Pennsylvania, supra, 319 U. S. 111 . If the right of a child to practice its religion in that manner is to be forbidden by constitutional means, there must be convincing proof that such a practice constitutes a grave and immediate danger to the state or to the health, morals or welfare of the child. West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 . The vital freedom of religion, which is "of the very essence of a scheme of ordered liberty," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 , cannot be erased by slender references to the state's power to restrict the more secular activities of children. The state, in my opinion, has completely failed to sustain its burden of proving the existence of any grave or immediate danger to any interest which it may lawfully protect. There is no proof that Betty Simmons' mode of worship constituted a serious menace to the public. It was carried on in an orderly, lawful manner at a public street corner. And "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word." Jamison v. Texas, 318 U. S. 413 , 318 U. S. 416 . The sidewalk, no less than the cathedral or the evangelist's tent, is a proper place, under the Constitution, for the orderly worship of God. Such use of the streets is as necessary to the Jehovah's Witnesses, the Salvation Army and others who practice religion without benefit of conventional shelters as is the use of the streets for purposes of passage. It is claimed, however, that such activity was likely to affect adversely the health, morals and welfare of the child. Reference is made in the majority opinion to "the crippling effects of child employment, more especially in public Page 321 U. S. 175 places, and the possible harms arising from other activities subject to all the diverse influences of the street." To the extent that they flow from participation in ordinary commercial activities, these harms are irrelevant to this case. And the bare possibility that such harms might emanate from distribution of religious literature is not, standing alone, sufficient justification for restricting freedom of conscience and religion. Nor can parents or guardians be subjected to criminal liability because of vague possibilities that their religious teachings might cause injury to the child. The evils must be grave, immediate, substantial. Cf. Bridges v. California, 314 U. S. 252 , 314 U. S. 262 . Yet there is not the slightest indication in this record, or in sources subject to judicial notice, that children engaged in distributing literature pursuant to their religious beliefs have been or are likely to be subject to any of the harmful "diverse influences of the street." Indeed, if probabilities are to be indulged in, the likelihood is that children engaged in serious religious endeavor are immune from such influences. Gambling, truancy, irregular eating and sleeping habits, and the more serious vices are not consistent with the high moral character ordinarily displayed by children fulfilling religious obligations. Moreover, Jehovah's Witness children invariably make their distributions in groups subject at all times to adult or parental control, as was done in this case. The dangers are thus exceedingly remote, to say the least. And the fact that the zealous exercise of the right to propagandize the community may result in violent or disorderly situations difficult for children to face is no excuse for prohibiting the exercise of that right. No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against Page 321 U. S. 176 those who dare to express or practice unorthodox religious beliefs. And the Jehovah's Witnesses are living proof of the fact that, even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered brutal beatings; their property has been destroyed; they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes. See Mulder and Comisky, "Jehovah's Witnesses Mold Constitutional Law," 2 Bill of Rights Review, No. 4, p. 262. To them, along with other present-day religious minorities, befalls the burden of testing our devotion to the ideals and constitutional guarantees of religious freedom. We should therefore hesitate before approving the application of a statute that might be used as another instrument of oppression. Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger. MR. JUSTICE JACKSON: The novel feature of this decision is this: the Court holds that a state may apply child labor laws to restrict or prohibit an activity of which, as recently as last term, it held: "This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion." ". . . the mere fact that the religious literature is 'sold' by itinerant preachers, rather than 'donated.' does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project. The constitutional right of those spreading their religious beliefs through the spoken Page 321 U. S. 177 and printed word are not to be gauged by standards governing retailers or wholesalers of books." Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 109 , 111. It is difficult for me to believe that going upon the streets to accost the public is the same thing for application of public law as withdrawing to a private structure for religious worship. But if worship in the churches and the activity of Jehovah's Witnesses on the streets "occupy the same high estate" and have the "same claim to protection," it would seem that child labor laws may be applied to both if to either. If the Murdock doctrine stands along with today's decision, a foundation is laid for any state intervention in the indoctrination and participation of children in religion, provided it is done in the name of their health or welfare. This case brings to the surface the real basis of disagreement among members of this Court in previous Jehovah's Witness cases. Murdock v. Pennsylvania, 319 U. S. 105 ; Martin v. Struthers, 319 U. S. 141 ; Jones v. Opelika, 316 U. S. 584 , 316 U. S. 319 U.S. 103; Douglas v. Jeannette, 319 U. S. 157 . Our basic difference seems to be as to the method of establishing limitations which of necessity bound religious freedom. My own view may be shortly put: I think the limits begin to operate whenever activities begin to affect or collide with liberties of others or of the public. Religious activities which concern only members of the faith are and ought to be free -- as nearly absolutely free as anything can be. But beyond these, many religious denominations or sects engage in collateral and secular activities intended to obtain means from unbelievers to sustain the worshippers and their leaders. They raise money not merely by passing the plate to those who voluntarily attend services or by contributions by their own people, but by solicitations and drives addressed to the public by holding public dinners and entertainments, by various kinds Page 321 U. S. 178 of sales and Bingo games and lotteries. All such money-raising activities on a public scale are, I think, Caesar's affairs, and may be regulated by the state so long as it does not discriminate against one because he is doing them for a religious purpose and the regulation is not arbitrary and capricious, in violation of other provisions of the Constitution. The Court in the Murdock case rejected this principle of separating immune religious activities from secular ones in declaring the disabilities which the Constitution imposed on local authorities. Instead, the Court now draws a line based on age that cuts across both true exercise of religion and auxiliary secular activities. I think this is not a correct principle for defining the activities immune from regulation on grounds of religion, and Murdock overrules the grounds on which I think affirmance should rest. I have no alternative but to dissent from the grounds of affirmance of a judgment which I think was rightly decided, and upon right grounds, by the Supreme Judicial Court of Massachusetts. 313 Mass. 223. MR. JUSTICE ROBERTS and MR. JUSTICE FRANKFURTER join in this opinion.

In *Prince v. Massachusetts*, the Supreme Court upheld a Massachusetts child labor law that prohibited minors from selling newspapers or other items on public streets. The case involved a member of Jehovah's Witnesses who allowed her nine-year-old niece to sell religious literature on the street, in violation of the law. The Court ruled that the state's interest in protecting the welfare of children justified the restriction on the child's religious activities in public places. The Court also found no violation of equal protection, as the law applied equally to all children, regardless of their religious affiliation.

Gun Rights

District of Columbia v. Heller

https://supreme.justia.com/cases/federal/us/554/570/

OPINION OF THE COURT DISTRICT OF COLUMBIA V. HELLER 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-290 DISTRICT OF COLUMBIA, et al., PETITIONERS v. DICK ANTHONY HELLER on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 26, 2008]    Justice Scalia delivered the opinion of the Court.    We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution. I    The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§22–4504(a), 22–4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See §7–2507.02.[ Footnote 1 ]    Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” App. 59a. The District Court dismissed respondent’s complaint, see Parker v. District of Columbia , 311 F. Supp. 2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense,[ Footnote 2 ] reversed, see Parker v. District of Columbia , 478 F. 3d 370, 401 (2007). It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. See id. , at 395, 399–401. The Court of Appeals directed the District Court to enter summary judgment for respondent.    We granted certiorari. 552 U. S. ___ (2007). II    We turn first to the meaning of the Second Amendment. A    The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague , 282 U. S. 716 , 731 (1931); see also Gibbons v. Ogden , 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.    The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post , at 1 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4.    The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).    Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).[ Footnote 3 ] “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks , 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.[ Footnote 4 ] 1. Operative Clause. a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.[ Footnote 5 ] Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.[ Footnote 6 ] What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez , 494 U. S. 259 , 265 (1990): “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.” Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays , &c. and not bear other arms.” See also, e.g. , An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke , 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added). Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g. , Reno v. American Civil Liberties Union , 521 U. S. 844 , 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g. , Kyllo v. United States , 533 U. S. 27 , 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist … shall or may have or keep in his House … any Arms … ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16–17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.[ Footnote 7 ] At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States , 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id. , at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” [ Footnote 8 ] It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id. , at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.[ Footnote 9 ] These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post , at 11 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country … .”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18–23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice Ginsburg’s opinion in Muscarello said. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque. Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context—the same mistake they made with respect to “keep arms.” It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms”—though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev. 237, 261 (2004). The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e.g. , 30 Journals of Continental Congress 349–351 (J. Fitzpatrick ed. 1934). Other legal sources frequently used “bear arms” in nonmilitary contexts.[ Footnote 10 ] Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays , &c. and not bear other arms”). And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J. L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers.ssrn.com/abstract=1086176 (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period). Justice Stevens points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post , at 12–13, n. 9; Linguists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “ ‘bear arms … for the purpose of killing game’ ” because those uses are “expressly qualified.” Linguists’ Brief 24. (Justice Stevens uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post , at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.[ Footnote 11 ] Justice Stevens places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. See post , at 26. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.[ Footnote 12 ] In any case, what Justice Stevens would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense … must sometimes have been almost overwhelming.” P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103–104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those “scrupling the use of arms ”—a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders eds. 1898) (emphasis added). Thus, the most natural interpretation of Madison’s deleted text is that those opposed to carrying weapons for potential violent confrontation would not be “compelled to render military service,” in which such carrying would be required.[ Footnote 13 ] Finally, Justice Stevens suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice Stevens believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment’s calling it a “right” (singular) rather than “rights” (plural). See post , at 16. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.” See, e.g. , Pa. Declaration of Rights §§IX, XII, XVI, in 5 Thorpe 3083–3084; Ohio Const., Arts. VIII, §§11, 19 (1802), in id. , at 2910–2911.[ Footnote 14 ] And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as “a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bearing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion. Id. , at 467–468.[ Footnote 15 ] c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank , 92 U. S. 542 , 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”[ Footnote 16 ] Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id. , at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979). By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine , 527 U. S. 706 , 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id. , at 139, and “the right of having and using arms for self-preservation and defence,” id. , at 140; see also 3 id. , at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g. , Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g. , United States v. Williams , 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose . Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. 2. Prefatory Clause. The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .” a. “Well-Regulated Militia.” In United States v. Miller , 307 U. S. 174 , 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g. , Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”). Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise … Armies”; “to provide … a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence . Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid. , cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”). b. “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story §208; see also 3 id. , §1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g. , 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—“each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution. There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226 , 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. 3. Relationship between Prefatory Clause and    Operative Clause We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g. , Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g. , A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id. , at 280, 281; A Citizen of America, (Oct. 10, 1787) in id. , at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id. , at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post , at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself. Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin , 165 U. S. 275 , 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.[ Footnote 17 ] That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation. B Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves , and the state … .” §XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, §15, in 6 id. , at 3741. North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State … .” Declaration of Rights §XVII, in id. , at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia—but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See §§14, 18, 35, in 5 id., 2789, 2791, 2793. Many colonial statutes required individual arms-bearing for public-safety reasons—such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137–139 (A. Candler ed. 1911 (pt. 2)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly , 3 Ired. 418, 422–423. The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence… .” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding , 20 Mass. 304, 313–314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts never read “common defence” to limit the use of weapons to militia service). We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].”[ Footnote 18 ] 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950)). Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra . Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid . Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id ., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State , 5 Yer. 356, 360 (Tenn. 1833). The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause. C Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record. It is true, as Justice Stevens says, that there was concern that the Federal Government would abolish the institution of the state militia. See post , at 20. That concern found expression, however, not in the various Second Amendment precursors proposed in the State conventions, but in separate structural provisions that would have given the States concurrent and seemingly nonpre-emptible authority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed. 1836) (reprinted 1941) (North Carolina proposal); see also 2 Documentary Hist. 624 (Pennsylvania minority’s proposal). The Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) State constitutions. The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists’ view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals’ liberty to keep and carry arms, did nothing to assuage Antifederalists’ concerns about federal control of the militia. See, e.g. , Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712. Justice Stevens thinks it significant that the Virginia, New York, and North Carolina Second Amendment proposals were “embedded … within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies. Post , at 22. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 624. Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hampshire’s proposal, the Pennsylvania minority’s proposal, and Samuel Adams’ proposal in Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino eds. 2000) (Samuel Adams’ proposal). Justice Stevens’ view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties. D We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. Before proceeding, however, we take issue with Justice Stevens’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. See post , at 27, n. 28. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “Postenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do. 1. Post-ratification Commentary Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty … . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” Ibid ; see also 2 id. , at 143, and nn. 40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused … .” 1 id. , at App. 357. It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.[ Footnote 19 ] In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: “The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent… . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.[ Footnote 20 ] Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See id. , 122–123. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Id. , at 140. Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose”—statements that make no sense if the right does not extend to any individual purpose. Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice Stevens suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post , at 34. That is wrong. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. 3 Story §1858. He then equated the English right with the Second Amendment: “§1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.) This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended … and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Andrews v. State , 50 Tenn. 165, 183 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story §1890, n. 2; §1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States §450 (reprinted in 1986). Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117–118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed: “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19–20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606–607 (2006). We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary. “The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832). 2. Pre-Civil War Case Law The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In Houston v. Moore , 5 Wheat. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that States could “organize, discipline, and arm” the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id. , at 51–53. Of course, if the Amendment simply “protect[ed] the right of the people of each of the several States to maintain a well-regulated militia,” post , at 1 (Stevens, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the States’ power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely “confirms and illustrates” the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins , 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.” Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth , 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.[ Footnote 21 ] See also Waters v. State , 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon , in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever. In Nunn v. State , 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “ natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!” Likewise, in State v. Chandler , 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State , 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protect[ion of] the public liberty” and “keep[ing] in awe those in power,” id. , at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews , 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment). 3. Post-Civil War Legislation. In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae . Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed .” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried: “in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton). The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19. Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated: “[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . ” 14 Stat. 176–177. The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis). Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty … under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id. , at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. 4. Post-Civil War Commentators. Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: “Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms… . The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.” Id., at 350. That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. The Second Amendment, he said, “was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people.” Id. , at 270. In a section entitled “The Right in General,” he continued: “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.” Id. , at 271. All other post-Civil War 19th-century sources we have found concurred with Cooley. One example from each decade will convey the general flavor: “[The purpose of the Second Amendment is] to secure a well-armed militia… . But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms… . The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.” J. Pomeroy, An Introduction to the Constitutional Law of the United States 152–153 (1868) (hereinafter Pomeroy). “As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons , be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873) (hereinafter Kent). “Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence.” B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott). “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. … [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.” J. Ordronaux, Constitutional Legislation in the United States 241–242 (1891). E We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment. United States v. Cruikshank , 92 U. S. 542 , in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment … means no more than that it shall not be infringed by Congress.” 92 U. S., at 553 . States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”[ Footnote 22 ] and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.[ Footnote 23 ] Presser v. Illinois , 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id. , at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups. Justice Stevens presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Presser ’s brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice Stevens’ argument, that later portion deals with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff’s nonmembership in the militia was relevant. Thus, Justice Stevens’ statement that Presser “suggested that… nothing in the Constitution protected the use of arms outside the context of a militia,” post , at 40, is simply wrong. Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations. Justice Stevens places overwhelming reliance upon this Court’s decision in United States v. Miller , 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post , at 2, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself … would prevent most jurists from endorsing such a dramatic upheaval in the law,” post , at 4. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post , at 2. Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post , at 2 . Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument .” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post , at 42–43, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Justice Stevens claims, post , at 42, that the opinion reached its conclusion “[a]fter reviewing many of the same sources that are discussed at greater length by the Court today.” Not many, which was not entirely the Court’s fault. The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court’s consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller , 3 N. Y. U. J. L. & Liberty 48, 65–68 (2008). The Government’s brief spent two pages discussing English legal sources, concluding “that at least the carrying of weapons without lawful occasion or excuse was always a crime” and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) “the early English law did not guarantee an unrestricted right to bear arms.” Brief for United States, O. T. 1938, No. 696, at 9–11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State , 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12–18. The final section of the brief recognized that “some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property,” and launched an alternative argument that “weapons which are commonly used by criminals,” such as sawed-off shotguns, are not protected. See id. , at 18–21. The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment—and the Court was presented with no counterdiscussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id. , at 178–182. Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.[ Footnote 24 ] We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’ s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller ) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller ’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler , 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.[ Footnote 25 ] We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson , 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty. , 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan , 376 U. S. 254 (1964). It is demonstrably not true that, as Justice Stevens claims, post , at 41–42, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself. III Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g. , Sheldon , in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g. , State v. Chandler , 5 La. Ann., at 489–490; Nunn v. State , 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[ Footnote 26 ] We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford , 10 N. C. 381, 383–384 (1824); O’Neill v. State , 16 Ala. 65, 67 (1849); English v. State , 35 Tex. 473, 476 (1871); State v. Lanier , 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. IV We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[ Footnote 27 ] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State , the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State , the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid . See also State v. Reid , 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”). It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms ( i.e. , long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56–57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel … , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D. C. Code §7–2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington , 395 A. 2d 744, 755–756 (1978).[ Footnote 28 ] Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement “in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license.” App. 59a. The Court of Appeals did not invalidate the licensing requirement, but held only that the District “may not prevent [a handgun] from being moved throughout one’s house.” 478 F. 3d, at 400. It then ordered the District Court to enter summary judgment “consistent with [respondent’s] prayer for relief.” Id. , at 401. Before this Court petitioners have stated that “if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,” by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not “have a problem with … licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement. Justice Breyer has devoted most of his separate dissent to the handgun ban. He says that, even assuming the Second Amendment is a personal guarantee of the right to bear arms, the District’s prohibition is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws in the colonial period. These demonstrate, in his view, that the District’s law “imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.” Post , at 2. Of the laws he cites, only one offers even marginal support for his assertion. A 1783 Massachusetts law forbade the residents of Boston to “take into” or “receive into” “any Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building” loaded firearms, and permitted the seizure of any loaded firearms that “shall be found” there. Act of Mar. 1, 1783, ch. 13, 1783 Mass. Acts p. 218. That statute’s text and its prologue, which makes clear that the purpose of the prohibition was to eliminate the danger to firefighters posed by the “depositing of loaded Arms” in buildings, give reason to doubt that colonial Boston authorities would have enforced that general prohibition against someone who temporarily loaded a firearm to confront an intruder (despite the law’s application in that case). In any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home. The other laws Justice Breyer cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post , at 6–7. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Justice Breyer points to other founding-era laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia and New York. Post , at 4 (citing Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year’s Eve and the first two days of January, and was aimed at preventing the “great Damages … frequently done on [those days] by persons going House to House, with Guns and other Firearms and being often intoxicated with Liquor.” 5 Colonial Laws of New York 244–246 (1894). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. The Pennsylvania law to which Justice Breyer refers levied a fine of 5 shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the governor. See Act of Aug. 26, 1721, §4, in 3 Stat. at Large 253–254. Given Justice Wilson’s explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. Justice Breyer cites a Rhode Island law that simply levied a 5-shilling fine on those who fired guns in streets and taverns , a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other town in this Government, 1731, Rhode Island Session Laws. Finally, Justice Breyer points to a Massachusetts law similar to the Pennsylvania law, prohibiting “discharg[ing] any Gun or Pistol charged with Shot or Ball in the Town of Boston .” Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay 208. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to “the indiscreet firing of Guns.” Ibid. (preamble) (emphasis added). A broader point about the laws that Justice Breyer cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.[ Footnote 29 ] They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do Not Walk” sign in order to flee an attacker, or that the Government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D. C. Code §7–2507.06. Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post , at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie , 432 U. S. 43 (1977) (per curiam) . The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post , at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States , 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. *  *  * We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. We affirm the judgment of the Court of Appeals. It is so ordered. Footnote 1 There are minor exceptions to all of these prohibitions, none of which is relevant here. Footnote 2 That construction has not been challenged here. Footnote 3 As Sutherland explains, the key 18th-century English case on the effect of preambles, Copeman v. Gallant , 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict the effect of the words of the purview.” J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” Ibid . Justice Stevens says that we violate the general rule that every clause in a statute must have effect. Post , at 8. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues. Footnote 4 Justice Stevens criticizes us for discussing the prologue last. Post , at 8. But if a prologue can be used only to clarify an ambiguous operative provision, surely the first step must be to determine whether the operative provision is ambiguous. It might be argued, we suppose, that the prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous—but that would cause the prologue to be used to produce ambiguity rather than just to resolve it. In any event, even if we considered the prologue along with the operative provision we would reach the same result we do today, since (as we explain) our interpretation of “the right of the people to keep and bear arms” furthers the purpose of an effective militia no less than (indeed, more than) the dissent’s interpretation. See infra , at 26–27. Footnote 5 Justice Stevens is of course correct, post , at 10, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And Justice Stevens is dead wrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDonald v. Smith , 472 U. S. 479 , 482–484 (1985) (describing historical origins of right to petition). Footnote 6 If we look to other founding-era documents, we find that some state constitutions used the term “the people” to refer to the people collectively, in contrast to “citizen,” which was used to invoke individual rights. See Heyman, Natural Rights and the Second Amendment, in The Second Amendment in Law and History 179, 193–195 (C. Bogus ed. 2000) (hereinafter Bogus). But that usage was not remotely uniform. See, e.g. , N. C. Declaration of Rights §XIV (1776), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 2787, 2788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (jury trial); Md. Declaration of Rights §XVIII (1776), in 3 id. , at 1686, 1688 (vicinage requirement); Vt. Declaration of Rights ch. 1, §XI (1777), in 6 id. , at 3737, 3741 (searches and seizures); Pa. Declaration of Rights §XII (1776), in 5 id. , at 3081, 3083 (free speech). And, most importantly, it was clearly not the terminology used in the Federal Constitution, given the First, Fourth, and Ninth Amendments. Footnote 7 See, e.g. , 3 A Compleat Collection of State-Tryals 185 (1719) (“Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?”); T. Wood, A New Institute of the Imperial or Civil Law 282 (1730) (“Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale …”); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) (“Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, &c.”); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) (“if [papists] keep arms in their houses, such arms may be seized by a justice of the peace”); Some Considerations on the Game Laws 54 (1796) (“Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece … ?”); 3 B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right: “This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own person’ ”); W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with reference to colonists’ English rights: “The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation”); 3 R. Burn, Justice of the Peace and the Parish Officer 88 (1815) (“It is, however, laid down by Serjeant Hawkins, … that if a lessee, after the end of the term, keep arms in his house to oppose the entry of the lessor, …”); State v. Dempsey , 31 N. C. 384, 385 (1849) (citing 1840 state law making it a misdemeanor for a member of certain racial groups “to carry about his person or keep in his house any shot gun or other arms”). Footnote 8 See Pa. Declaration of Rights §XIII, in 5 Thorpe 3083 (“That the people have a right to bear arms for the defence of themselves and the state… ”); Vt. Declaration of Rights §XV, in 6 id. , at 3741 (“That the people have a right to bear arms for the defence of themselves and the State…”); Ky. Const., Art. XII, cl. 23 (1792), in 3 id. , at 1264, 1275 (“That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”); Ohio Const., Art. VIII, §20 (1802), in 5 id. , at 2901, 2911 (“That the people have a right to bear arms for the defence of themselves and the State … ”); Ind. Const., Art. I, §20 (1816), in 2 id. , at 1057, 1059 (“That the people have a right to bear arms for the defense of themselves and the State… ”); Miss. Const., Art. I, §23 (1817), in 4 id. , at 2032, 2034 (“Every citizen has a right to bear arms, in defence of himself and the State”); Conn. Const., Art. I, §17 (1818), in 1 id. , at 536, 538 (“Every citizen has a right to bear arms in defence of himself and the state”); Ala. Const., Art. I, §23 (1819), in 1 id. , at 96, 98 (“Every citizen has a right to bear arms in defence of himself and the State”); Mo. Const., Art. XIII, §3 (1820), in 4 id. , at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves and of the State cannot be questioned”). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006). Footnote 9 See Bliss v. Commonwealth , 2 Litt. 90, 91–92 (Ky. 1822); State v. Reid , 1 Ala. 612, 616–617 (1840); State v. Schoultz , 25 Mo. 128, 155 (1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting similar provision with “common defence” purpose); State v. Huntly , 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State , 1 Ga. 243, 250–251 (1846) (construing Second Amendment); State v. Chandler , 5 La. Ann. 489, 489–490 (1850) (same). Footnote 10 See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs”); J. Bond, A Compleat Guide to Justices of the Peace 43 (1707) (“Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear arms”); 1 An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for “Arms”: “And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms” (quoting 1 Geo. 1, c. 54, §1)); Statute Law of Scotland Abridged 132–133 (2d ed. 1769) (“Acts for disarming the highlands” but “exempting those who have particular licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”); E. Roche, Proceedings of a Court-Martial, Held at the Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With having held traitorous conferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of the King’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in force in Kentucky 482 (1822) (“[I]n this country the constitution guaranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily”). Footnote 11 Justice Stevens contends, post , at 15, that since we assert that adding “against” to “bear arms” gives it a military meaning we must concede that adding a purposive qualifying phrase to “bear arms” can alter its meaning. But the difference is that we do not maintain that “against” alters the meaning of “bear arms” but merely that it clarifies which of various meanings (one of which is military) is intended. Justice Stevens, however, argues that “[t]he term ‘bear arms’ is a familiar idiom; when used unadorned by any additional words, its meaning is ‘to serve as a soldier, do military service, fight.’ ” Post , at 11. He therefore must establish that adding a contradictory purposive phrase can alter a word’s meaning. Footnote 12 Justice Stevens finds support for his legislative history inference from the recorded views of one Antifederalist member of the House. Post , at 26 n. 25. “The claim that the best or most representative reading of the [language of the] amendments would conform to the understanding and concerns of [the Antifederalists] is … highly problematic.” Rakove, The Second Amendment: The Highest Stage of Originalism, Bogus 74, 81. Footnote 13 The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: “That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. 1836) (reprinted 1941). Certainly their second use of the phrase (“bear arms in his stead”) refers, by reason of context, to compulsory bearing of arms for military duty. But their first use of the phrase (“any person religiously scrupulous of bearing arms”) assuredly did not refer to people whose God allowed them to bear arms for defense of themselves but not for defense of their country. Footnote 14 Faced with this clear historical usage, Justice Stevens resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established. Post , at 16, n. 13. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution of the United States” is not a whit different from a promise “to support and defend the Constitution of the United States.” Footnote 15 Cf. 3 Geo., 34, §3, in 7 Eng. Stat. at Large 126 (1748) (“That the Prohibition contained … in this Act, of having, keeping, bearing, or wearing any Arms or Warlike Weapons … shall not extend … to any Officers or their Assistants, employed in the Execution of Justice …”). Footnote 16 Contrary to Justice Stevens’ wholly unsupported assertion, post , at 17, there was no pre-existing right in English law “to use weapons for certain military purposes” or to use arms in an organized militia. Footnote 17 Article I, §8, cl. 16 of the Constitution gives Congress the power “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” It could not be clearer that Congress’s “organizing” power, unlike its “governing” power, can be invoked even for that part of the militia not “employed in the Service of the United States.” Justice Stevens provides no support whatever for his contrary view, see post , at 19 n. 20. Both the Federalists and Anti-Federalists read the provision as it was written, to permit the creation of a “select” militia. See The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961); Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712. Footnote 18 Justice Stevens says that the drafters of the Virginia Declaration of Rights rejected this proposal and adopted “instead” a provision written by George Mason stressing the importance of the militia. See post , at 24, and n. 24. There is no evidence that the drafters regarded the Mason proposal as a substitute for the Jefferson proposal. Footnote 19 Justice Stevens quotes some of Tucker’s unpublished notes, which he claims show that Tucker had ambiguous views about the Second Amendment. See post , at 31, and n. 32. But it is clear from the notes that Tucker located the power of States to arm their militias in the Tenth Amendment, and that he cited the Second Amendment for the proposition that such armament could not run afoul of any power of the federal government (since the amendment prohibits Congress from ordering disarmament). Nothing in the passage implies that the Second Amendment pertains only to the carrying of arms in the organized militia. Footnote 20 Rawle, writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833), believed that the Second Amendment could be applied against the States. Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service. Footnote 21 Justice Stevens suggests that this is not obvious because free blacks in Virginia had been required to muster without arms. See post , at 28, n. 29 (citing Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But that could not have been the type of law referred to in Aldridge , because that practice had stopped 30 years earlier when blacks were excluded entirely from the militia by the First Militia Act. See Siegel, supra , at 498, n. 120. Justice Stevens further suggests that laws barring blacks from militia service could have been said to violate the “right to bear arms.” But under Justice Stevens’ reading of the Second Amendment (we think), the protected right is the right to carry arms to the extent one is enrolled in the militia, not the right to be in the militia . Perhaps Justice Stevens really does adopt the full-blown idiomatic meaning of “bear arms,” in which case every man and woman in this country has a right “to be a soldier” or even “to wage war.” In any case, it is clear to us that Aldridge ’s allusion to the existing Virginia “restriction” upon the right of free blacks “to bear arms” could only have referred to “laws prohibiting blacks from keeping weapons,” Siegel, supra, at 497–498. Footnote 22 Justice Stevens’ accusation that this is “not accurate,” post , at 39, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “The second amendment declares that it [ i.e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U. S., at 553. Footnote 23 With respect to Cruikshank ’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois , 116 U. S. 252 , 265 (1886) and Miller v. Texas , 153 U. S. 535 , 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government. Footnote 24 As for the “hundreds of judges,” post , at 2, who have relied on the view of the Second Amendment Justice Stevens claims we endorsed in Miller : If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right . Footnote 25 Miller was briefly mentioned in our decision in Lewis v. United States , 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller … (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued. Footnote 26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive. Footnote 27 Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post , at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g. , Engquist v . Oregon Dept. of Agriculture , 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co. , 304 U. S. 144 , 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [ i.e. , narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect. Footnote 28 McIntosh upheld the law against a claim that it violated the Equal Protection Clause by arbitrarily distinguishing between residences and businesses. See 395 A. 2d, at 755. One of the rational bases listed for that distinction was the legislative finding “that for each intruder stopped by a firearm there are four gun-related accidents within the home.” Ibid . That tradeoff would not bear mention if the statute did not prevent stopping intruders by firearms. Footnote 29 The Supreme Court of Pennsylvania described the amount of five shillings in a contract matter in 1792 as “nominal consideration.” Morris’s Lessee v. Smith , 4 Dall. 119, 120 (Pa. 1792). Many of the laws cited punished violation with fine in a similar amount; the 1783 Massachusetts gunpowder-storage law carried a somewhat larger fine of 10 (200 shillings) and forfeiture of the weapon. STEVENS, J., DISSENTING DISTRICT OF COLUMBIA V. HELLER 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-290 DISTRICT OF COLUMBIA, et al., PETITIONERS v. DICK ANTHONY HELLER on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 26, 2008]    Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.    The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.    Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller , 307 U. S. 174 (1939), provide a clear answer to that question.    The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.    In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.[ Footnote 1 ] Upholding a conviction under that Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller , 307 U. S., at 178. The view of the Amendment we took in Miller— that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.    Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;[ Footnote 2 ] we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55 , 65–66, n. 8 (1980).[ Footnote 3 ] No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.    The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.    Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600 , 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.[ Footnote 4 ] As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).    In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes. I    The text of the Second Amendment is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”    Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects. “A well regulated Militia, being necessary to the security of a free State” The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.[ Footnote 5 ] Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.[ Footnote 6 ] While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers. The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); §43 of the Declaration assured that “the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear arms” was on military uses of firearms, which they viewed in the context of service in state militias.    The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).    The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 5. That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Ante, at 4.[ Footnote 7 ] Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow. “The right of the people” The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment—“the term unambiguously refers to all members of the political community, not an unspecified subset.” Ante, at 6. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 63. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.    The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.    Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.     As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials.    It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment. For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment. Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia. “To keep and bear Arms” Although the Court’s discussion of these words treats them as two “phrases”—as if they read “to keep” and “to bear”—they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities. As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v. District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of confrontation.” Ante, at 19. No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.    The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma] .” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “weapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of the English Language (1755), and another contemporaneous source explained that “[b]y arms , we understand those instruments of offence generally made use of in war; such as firearms, swords, & c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794).[ Footnote 8 ] Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.[ Footnote 9 ] The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.[ Footnote 10 ] But when discussing these words, the Court simply ignores the preamble.    The Court argues that a “qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass.” Ante, at 15. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text.[ Footnote 11 ] The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare ante , at 10 (defining “bear arms” to mean “carrying [a weapon] for a particular purpose—confrontation”), with ante , at 12 (“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against.’ ” (citations and some internal quotation marks omitted)).    The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble. To the contrary, a number of state militia laws in effect at the time of the Second Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary. The Virginia military law, for example, ordered that “every one of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.” Act for Regulating and Disciplining the Militia, 1785 Va. Acts ch. 1, §3, p. 2 (emphasis added).[ Footnote 12 ] “[K]eep and bear arms” thus perfectly describes the responsibilities of a framing-era militia member.    This reading is confirmed by the fact that the clause protects only one right, rather than two. It does not describe a right “to keep arms” and a separate right “to bear arms.” Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary.[ Footnote 13 ] Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment. *  *  *    When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.[ Footnote 14 ] And the Court’s emphatic reliance on the claim “that the Second Amendment … codified a pre-existing right,” ante, at 19, is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.    Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 63. II    The proper allocation of military power in the new Nation was an issue of central concern for the Framers. The compromises they ultimately reached, reflected in Article I’s Militia Clauses and the Second Amendment, represent quintessential examples of the Framers’ “splitting the atom of sovereignty.” [ Footnote 15 ]    Two themes relevant to our current interpretive task ran through the debates on the original Constitution. “On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Perpich v. Department of Defense, 496 U. S. 334 , 340 (1990).[ Footnote 16 ] Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members “as the primary means of providing for the common defense,” Perpich, 496 U. S., at 340; during the Revolutionary War, “[t]his force, though armed, was largely untrained, and its deficiencies were the subject of bitter complaint.” Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 182 (1940).[ Footnote 17 ] In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and support a national Army[ Footnote 18 ] and Navy, and also to organize, arm, discipline, and provide for the calling forth of “the Militia.” U. S. Const., Art. I, §8, cls. 12–16. The President, at the same time, was empowered as the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Art. II, §2. But, with respect to the militia, a significant reservation was made to the States: Although Congress would have the power to call forth,[ Footnote 19 ] organize, arm, and discipline the militia, as well as to govern “such Part of them as may be employed in the Service of the United States,” the States respectively would retain the right to appoint the officers and to train the militia in accordance with the discipline prescribed by Congress. Art. I, §8, cl. 16.[ Footnote 20 ]    But the original Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s dis armament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution: “The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.    This sentiment was echoed at a number of state ratification conventions; indeed, it was one of the primary objections to the original Constitution voiced by its opponents. The Anti-Federalists were ultimately unsuccessful in persuading state ratification conventions to condition their approval of the Constitution upon the eventual inclusion of any particular amendment. But a number of States did propose to the first Federal Congress amendments reflecting a desire to ensure that the institution of the militia would remain protected under the new Government. The proposed amendments sent by the States of Virginia, North Carolina, and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies. New Hampshire sent a proposal that differed significantly from the others; while also invoking the dangers of a standing army, it suggested that the Constitution should more broadly protect the use and possession of weapons, without tying such a guarantee expressly to the maintenance of the militia. The States of Maryland, Pennsylvania, and Massachusetts sent no relevant proposed amendments to Congress, but in each of those States a minority of the delegates advocated related amendments. While the Maryland minority proposals were exclusively concerned with standing armies and conscientious objectors, the unsuccessful proposals in both Massachusetts and Pennsylvania would have protected a more broadly worded right, less clearly tied to service in a state militia. Faced with all of these options, it is telling that James Madison chose to craft the Second Amendment as he did.    The relevant proposals sent by the Virginia Ratifying Convention read as follows: “17th, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and be governed by the civil power.” Elliot 659.    “19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Ibid. North Carolina adopted Virginia’s proposals and sent them to Congress as its own, although it did not actually ratify the original Constitution until Congress had sent the proposed Bill of Rights to the States for ratification. 2 Schwartz 932–933; see The Complete Bill of Rights 182–183 (N. Cogan ed. 1997) (hereinafter Cogan).    New York produced a proposal with nearly identical language. It read:    “That the people have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural, and safe defence of a free State… . That standing Armies, in time of Peace, are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be kept under strict Subordination to the civil Power.” 2 Schwartz 912.    Notably, each of these proposals used the phrase “keep and bear arms,” which was eventually adopted by Madison. And each proposal embedded the phrase within a group of principles that are distinctly military in meaning.[ Footnote 21 ]    By contrast, New Hampshire’s proposal, although it followed another proposed amendment that echoed the familiar concern about standing armies,[ Footnote 22 ] described the protection involved in more clearly personal terms. Its proposal read: “Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Id., at 758, 761.    The proposals considered in the other three States, although ultimately rejected by their respective ratification conventions, are also relevant to our historical inquiry. First, the Maryland proposal, endorsed by a minority of the delegates and later circulated in pamphlet form, read:    “4. That no standing army shall be kept up in time of peace, unless with the consent of two thirds of the members present of each branch of Congress. .     .     .     .     .    “10. That no person conscientiously scrupulous of bearing arms in any case, shall be compelled personally to serve as a soldier.” Id., at 729, 735.    The rejected Pennsylvania proposal, which was later incorporated into a critique of the Constitution titled “The Address and Reasons of Dissent of the Pennsylvania Minority of the Convention of the State of Pennsylvania to Their Constituents (1787),” signed by a minority of the State’s delegates (those who had voted against ratification of the Constitution), id., at 628, 662, read:    7. “That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.” Id., at 665.    Finally, after the delegates at the Massachusetts Ratification Convention had compiled a list of proposed amendments and alterations, a motion was made to add to the list the following language: “[T]hat the said Constitution never be construed to authorize Congress to … prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Cogan 181. This motion, however, failed to achieve the necessary support, and the proposal was excluded from the list of amendments the State sent to Congress. 2 Schwartz 674–675.    Madison, charged with the task of assembling the proposals for amendments sent by the ratifying States, was the principal draftsman of the Second Amendment.[ Footnote 23 ] He had before him, or at the very least would have been aware of, all of these proposed formulations. In addition, Madison had been a member, some years earlier, of the committee tasked with drafting the Virginia Declaration of Rights. That committee considered a proposal by Thomas Jefferson that would have included within the Virginia Declaration the following language: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].” 1 Papers of Thomas Jefferson 363 (J. Boyd ed. 1950). But the committee rejected that language, adopting instead the provision drafted by George Mason.[ Footnote 24 ]    With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. Rather, his original draft repeated the essence of the two proposed amendments sent by Virginia, combining the substance of the two provisions succinctly into one, which read: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Cogan 169.    Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.    Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the military character of both. The objections voiced to the conscientious-objector clause only confirm the central meaning of the text. Although records of the debate in the Senate, which is where the conscientious-objector clause was removed, do not survive, the arguments raised in the House illuminate the perceived problems with the clause: Specifically, there was concern that Congress “can declare who are those religiously scrupulous, and prevent them from bearing arms.”[ Footnote 25 ] The ultimate removal of the clause, therefore, only serves to confirm the purpose of the Amendment—to protect against congressional disarmament, by whatever means, of the States’ militias.    The Court also contends that because “Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever,” ante, at 17, the inclusion of a conscientious-objector clause in the original draft of the Amendment does not support the conclusion that the phrase “bear arms” was military in meaning. But that claim cannot be squared with the record. In the proposals cited supra, at 21–22, both Virginia and North Carolina included the following language: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead ” (emphasis added).[ Footnote 26 ] There is no plausible argument that the use of “bear arms” in those provisions was not unequivocally and exclusively military: The State simply does not compel its citizens to carry arms for the purpose of private “confrontation,” ante, at 10, or for self-defense.    The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.[ Footnote 27 ] As we explained in Miller: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” 307 U. S., at 178. The evidence plainly refutes the claim that the Amendment was motivated by the Framers’ fears that Congress might act to regulate any civilian uses of weapons. And even if the historical record were genuinely ambiguous, the burden would remain on the parties advocating a change in the law to introduce facts or arguments “ ‘newly ascertained,’ ” Vasquez, 474 U. S., at 266; the Court is unable to identify any such facts or arguments. III    Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history.[ Footnote 28 ] All of these sources shed only indirect light on the question before us, and in any event offer little support for the Court’s conclusion.[ Footnote 29 ] The English Bill of Rights The Court’s reliance on Article VII of the 1689 English Bill of Rights—which, like most of the evidence offered by the Court today, was considered in Miller[ Footnote 30 ]— is misguided both because Article VII was enacted in response to different concerns from those that motivated the Framers of the Second Amendment, and because the guarantees of the two provisions were by no means coextensive. Moreover, the English text contained no preamble or other provision identifying a narrow, militia-related purpose.    The English Bill of Rights responded to abuses by the Stuart monarchs; among the grievances set forth in the Bill of Rights was that the King had violated the law “[b]y causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” Article VII of the Bill of Rights was a response to that selective disarmament; it guaranteed that “the Subjects which are Protestants may have Armes for their defence, Suitable to their condition and as allowed by Law.” L. Schwoerer, The Declaration of Rights, 1689 (App. 1, pp. 295, 297) (1981). This grant did not establish a general right of all persons, or even of all Protestants, to possess weapons. Rather, the right was qualified in two distinct ways: First, it was restricted to those of adequate social and economic status (“suitable to their Condition”); second, it was only available subject to regulation by Parliament (“as allowed by Law”).[ Footnote 31 ]    The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right—adopted in a different historical and political context and framed in markedly different language—tells us little about the meaning of the Second Amendment. Blackstone’s Commentaries The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “ ‘the natural right of resistance and self-preservation,’ ” ante , at 20, and “ ‘the right of having and using arms for self-preservation and defence’ ” ibid., referred specifically to Article VII in the English Bill of Rights . The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment . What is important about Blackstone is the instruction he provided on reading the sort of text before us today. Blackstone described an interpretive approach that gave far more weight to preambles than the Court allows. Counseling that “[t]he fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable,” Blackstone explained that “[i]f words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament.” 1 Commentaries on the Laws of England 59–60 (1765) (hereinafter Blackstone). In light of the Court’s invocation of Blackstone as “ ‘the preeminent authority on English law for the founding generation,’ ” ante, at 20 (quoting Alden v. Maine , 527 U. S. 706 , 715 (1999)), its disregard for his guidance on matters of interpretation is striking. Postenactment Commentary The Court also excerpts, without any real analysis, commentary by a number of additional scholars, some near in time to the framing and others post-dating it by close to a century. Those scholars are for the most part of limited relevance in construing the guarantee of the Second Amendment: Their views are not altogether clear,[ Footnote 32 ] they tended to collapse the Second Amendment with Article VII of the English Bill of Rights, and they appear to have been unfamiliar with the drafting history of the Second Amendment.[ Footnote 33 ] The most significant of these commentators was Joseph Story. Contrary to the Court’s assertions, however, Story actually supports the view that the Amendment was designed to protect the right of each of the States to maintain a well-regulated militia. When Story used the term “palladium” in discussions of the Second Amendment, he merely echoed the concerns that animated the Framers of the Amendment and led to its adoption. An excerpt from his 1833 Commentaries on the Constitution of the United States—the same passage cited by the Court in Miller[ Footnote 34 ]— merits reproducing at some length: “The importance of [the Second Amendment] will scarcely be doubted by any persons who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by the clause of our national bill of rights.” 2 J. Story, Commentaries on the Constitution of the United States §1897, pp. 620–621 (4th ed. 1873) (footnote omitted).    Story thus began by tying the significance of the Amendment directly to the paramount importance of the militia. He then invoked the fear that drove the Framers of the Second Amendment—specifically, the threat to liberty posed by a standing army. An important check on that danger, he suggested, was a “well-regulated militia,” id., at 621, for which he assumed that arms would have to be kept and, when necessary, borne. There is not so much as a whisper in the passage above that Story believed that the right secured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense.    After extolling the virtues of the militia as a bulwark against tyranny, Story went on to decry the “growing indifference to any system of militia discipline.” Ibid. When he wrote, “[h]ow it is practicable to keep the people duly armed without some organization it is difficult to see,” ibid ., he underscored the degree to which he viewed the arming of the people and the militia as indissolubly linked. Story warned that the “growing indifference” he perceived would “gradually undermine all the protection intended by this clause of our national bill of rights,” ibid. In his view, the importance of the Amendment was directly related to the continuing vitality of an institution in the process of apparently becoming obsolete.    In an attempt to downplay the absence of any reference to nonmilitary uses of weapons in Story’s commentary, the Court relies on the fact that Story characterized Article VII of the English Declaration of Rights as a “ ‘similar provision,’ ” ante, at 36. The two provisions were indeed similar, in that both protected some uses of firearms. But Story’s characterization in no way suggests that he believed that the provisions had the same scope. To the contrary, Story’s exclusive focus on the militia in his discussion of the Second Amendment confirms his understanding of the right protected by the Second Amendment as limited to military uses of arms.    Story’s writings as a Justice of this Court, to the extent that they shed light on this question, only confirm that Justice Story did not view the Amendment as conferring upon individuals any “self-defense” right disconnected from service in a state militia. Justice Story dissented from the Court’s decision in Houston v. Moore, 5 Wheat. 1, 24 (1820), which held that a state court “had a concurrent jurisdiction” with the federal courts “to try a militia man who had disobeyed the call of the President, and to enforce the laws of Congress against such delinquent.” Id., at 31–32. Justice Story believed that Congress’ power to provide for the organizing, arming, and disciplining of the militia was, when Congress acted, plenary; but he explained that in the absence of congressional action, “I am certainly not prepared to deny the legitimacy of such an exercise of [state] authority.” Id., at 52. As to the Second Amendment, he wrote that it “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id. , at 52–53. The Court contends that had Justice Story understood the Amendment to have a militia purpose, the Amendment would have had “enormous and obvious bearing on the point.” Ante, at 38. But the Court has it quite backwards: If Story had believed that the purpose of the Amendment was to permit civilians to keep firearms for activities like personal self-defense, what “confirm[ation] and illustrat[ion],” Houston, 5 Wheat., at 53, could the Amendment possibly have provided for the point that States retained the power to organize, arm, and discipline their own militias? Post-Civil War Legislative History The Court suggests that by the post-Civil War period, the Second Amendment was understood to secure a right to firearm use and ownership for purely private purposes like personal self-defense. While it is true that some of the legislative history on which the Court relies supports that contention, see ante, at 41–44, such sources are entitled to limited, if any, weight. All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation.    What is more, much of the evidence the Court offers is decidedly less clear than its discussion allows. The Court notes that “[b]lacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms.” Ante, at 42. The Court hastily concludes that “[n]eedless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia,” ibid. But some of the claims of the sort the Court cites may have been just that. In some Southern States, Reconstruction-era Republican governments created state militias in which both blacks and whites were permitted to serve. Because “[t]he decision to allow blacks to serve alongside whites meant that most southerners refused to join the new militia,” the bodies were dubbed “Negro militia[s].” S. Cornell, A Well-Regulated Militia 176–177 (2006). The “arming of the Negro militias met with especially fierce resistance in South Carolina… . The sight of organized, armed freedmen incensed opponents of Reconstruction and led to an intensified campaign of Klan terror. Leading members of the Negro militia were beaten or lynched and their weapons stolen.” Id., at 177.    One particularly chilling account of Reconstruction-era Klan violence directed at a black militia member is recounted in the memoir of Louis F. Post, A “Carpetbagger” in South Carolina, 10 Journal of Negro History 10 (1925). Post describes the murder by local Klan members of Jim Williams, the captain of a “Negro militia company,” id., at 59, this way: “[A] cavalcade of sixty cowardly white men, completely disguised with face masks and body gowns, rode up one night in March, 1871, to the house of Captain Williams … in the wood [they] hanged [and shot] him … [and on his body they] then pinned a slip of paper inscribed, as I remember it, with these grim words: ‘Jim Williams gone to his last muster.’ ” Id., at 61.    In light of this evidence, it is quite possible that at least some of the statements on which the Court relies actually did mean to refer to the disarmament of black militia members. IV    The brilliance of the debates that resulted in the Second Amendment faded into oblivion during the ensuing years, for the concerns about Article I’s Militia Clauses that generated such pitched debate during the ratification process and led to the adoption of the Second Amendment were short lived.    In 1792, the year after the Amendment was ratified, Congress passed a statute that purported to establish “an Uniform Militia throughout the United States.” 1 Stat. 271. The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good musket or firelock” and other specified weaponry.[ Footnote 35 ] Ibid. The statute is significant, for it confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service. The statute they enacted, however, “was virtually ignored for more than a century,” and was finally repealed in 1901. See Perpich, 496 U. S., at 341.    The postratification history of the Second Amendment is strikingly similar. The Amendment played little role in any legislative debate about the civilian use of firearms for most of the 19th century, and it made few appearances in the decisions of this Court. Two 19th-century cases, however, bear mentioning.    In United States v. Cruikshank, 92 U. S. 542 (1876), the Court sustained a challenge to respondents’ convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “ ‘any right or privilege granted or secured to him by the constitution or laws of the United States.’ ” Id., at 548. The Court wrote, as to counts 2 and 10 of respondents’ indictment: “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Id., at 553.    The majority’s assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘ “bearing arms for a lawful purpose,” ’ ” ante, at 47 (quoting Cruikshank, 92 U. S., at 553), is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment’s description of the right.    Moreover, it is entirely possible that the basis for the indictment’s counts 2 and 10, which charged respondents with depriving the victims of rights secured by the Second Amendment, was the prosecutor’s belief that the victims—members of a group of citizens, mostly black but also white, who were rounded up by the Sheriff, sworn in as a posse to defend the local courthouse, and attacked by a white mob—bore sufficient resemblance to members of a state militia that they were brought within the reach of the Second Amendment. See generally C. Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008).    Only one other 19th-century case in this Court, Presser v. Illinois, 116 U. S. 252 (1886), engaged in any significant discussion of the Second Amendment. The petitioner in Presser was convicted of violating a state statute that prohibited organizations other than the Illinois National Guard from associating together as military companies or parading with arms. Presser challenged his conviction, asserting, as relevant, that the statute violated both the Second and the Fourteenth Amendments. With respect to the Second Amendment, the Court wrote: “We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.” Id., at 264–265. And in discussing the Fourteenth Amendment, the Court explained: “The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.” Id., at 266. Presser, therefore, both affirmed Cruikshank ’s holding that the Second Amendment posed no obstacle to regulation by state governments, and suggested that in any event nothing in the Constitution protected the use of arms outside the context of a militia “authorized by law” and organized by the State or Federal Government.[ Footnote 36 ]    In 1901 the President revitalized the militia by creating “ ‘the National Guard of the several States,’ ” Perpich, 496 U. S., at 341, and nn. 9–10; meanwhile, the dominant understanding of the Second Amendment’s inapplicability to private gun ownership continued well into the 20th century. The first two federal laws directly restricting civilian use and possession of firearms—the 1927 Act prohibiting mail delivery of “pistols, revolvers, and other firearms capable of being concealed on the person,” Ch. 75, 44 Stat. 1059, and the 1934 Act prohibiting the possession of sawed-off shotguns and machine guns—were enacted over minor Second Amendment objections dismissed by the vast majority of the legislators who participated in the debates.[ Footnote 37 ] Members of Congress clashed over the wisdom and efficacy of such laws as crime-control measures. But since the statutes did not infringe upon the military use or possession of weapons, for most legislators they did not even raise the specter of possible conflict with the Second Amendment.    Thus, for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.[ Footnote 38 ] Indeed, the Second Amendment was not even mentioned in either full House of Congress during the legislative proceedings that led to the passage of the 1934 Act. Yet enforcement of that law produced the judicial decision that confirmed the status of the Amendment as limited in reach to military usage. After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U. S., at 178.    The key to that decision did not, as the Court belatedly suggests, ante, at 49–51, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?    Perhaps in recognition of the weakness of its attempt to distinguish Miller , the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellee in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opinion). But, as our decision in Marbury v. Madison, 1 Cranch 137, in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court. See Bloch, Marbury Redux, in Arguing Marbury v. Madison 59, 63 (M. Tushnet ed. 2005). Of course, if it can be demonstrated that new evidence or arguments were genuinely not available to an earlier Court, that fact should be given special weight as we consider whether to overrule a prior case. But the Court does not make that claim, because it cannot. Although it is true that the drafting history of the Amendment was not discussed in the Government’s brief, see ante, at 51, it is certainly not the drafting history that the Court’s decision today turns on. And those sources upon which the Court today relies most heavily were available to the Miller Court. The Government cited the English Bill of Rights and quoted a lengthy passage from Aymette detailing the history leading to the English guarantee, Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp 12–13; it also cited Blackstone, id., at 9, n. 2, Cooley, id., at 12, 15, and Story, id., at 15 . The Court is reduced to critiquing the number of pages the Government devoted to exploring the English legal sources. Only two (in a brief 21 pages in length)! Would the Court be satisfied with four? Ten?    The Court is simply wrong when it intones that Miller contained “ not a word ” about the Amendment’s history. Ante, at 52. The Court plainly looked to history to construe the term “Militia,” and, on the best reading of Miller, the entire guarantee of the Second Amendment. After noting the original Constitution’s grant of power to Congress and to the States over the militia, the Court explained: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.    “The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.    “The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.” Miller, 307 U. S., at 178–179. The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years. V    The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution. Ante, at 64 . But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. The majority’s exegesis has utterly failed to establish that as a matter of text or history, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment. Ante, at 64.    Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Ante, at 64. Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.[ Footnote 39 ]    I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.    The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.    For these reasons, I respectfully dissent. Footnote 1 There was some limited congressional activity earlier: A 10% federal excise tax on firearms was passed as part of the Revenue Act of 1918, 40 Stat. 1057, and in 1927 a statute was enacted prohibiting the shipment of handguns, revolvers, and other concealable weapons through the United States mails. Ch. 75, 44 Stat. 1059–1060 (hereinafter 1927 Act). Footnote 2 Until the Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203 (2001) , every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F. 3d 1161, 1164–1166 (CA10 2001); United States v. Napier, 233 F. 3d 394, 402–404 (CA6 2000); Gillespie v. Indianapolis, 185 F. 3d 693, 710–711 (CA7 1999); United States v. Scanio, No. 97–1584, 1998 WL 802060, *2 (CA2, Nov. 12, 1998) (unpublished opinion); United States v. Wright, 117 F. 3d 1265, 1271–1274 (CA11 1997); United States v. Rybar, 103 F. 3d 273, 285–286 (CA3 1996); Hickman v. Block, 81 F. 3d 98, 100–103 (CA9 1996); United States v. Hale, 978 F. 2d 1016, 1018–1020 (CA8 1992); Thomas v. City Council of Portland, 730 F. 2d 41, 42 (CA1 1984) (per curiam); United States v. Johnson, 497 F. 2d 548, 550 (CA4 1974) (per curiam); United States v. Johnson , 441 F. 2d 1134, 1136 (CA5 1971); see also Sandidge v. United States, 520 A. 2d 1057, 1058–1059 (DC App. 1987). And a number of courts have remained firm in their prior positions, even after considering Emerson. See, e.g., United States v. Lippman, 369 F. 3d 1039, 1043–1045 (CA8 2004); United States v. Parker, 362 F. 3d 1279, 1282–1284 (CA10 2004); United States v. Jackubowski, 63 Fed. Appx. 959, 961 (CA7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F. 3d 1052, 1060–1066 (CA9 2002); United States v. Milheron, 231 F. Supp. 2d 376, 378 (Me. 2002); Bach v. Pataki, 289 F. Supp. 2d 217, 224–226 (NDNY 2003); United States v. Smith, 56 M. J. 711, 716 (C. A. Armed Forces 2001). Footnote 3 Our discussion in Lewis was brief but significant. Upholding a conviction for receipt of a firearm by a felon, we wrote: “These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they entrench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174 , 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” 445 U. S., at 65, n. 8. Footnote 4 See Vasquez v. Hillery, 474 U. S. 254 , 265, 266 (1986) (“ [Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393 , 412 (1932) (Brandeis, J., dissenting)”); Pollock v. Farmers’ Loan & Trust Co. , 157 U. S. 429 , 652 (1895) (White, J., dissenting) (“The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity and let it be felt that on great constitutional questions this Court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people”). Footnote 5 The Virginia Declaration of Rights ¶13 (1776), provided: “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 B. Schwartz, The Bill of Rights 235 (1971) (hereinafter Schwartz). Maryland’s Declaration of Rights, Arts. XXV–XXVII (1776), provided: “That a well-regulated militia is the proper and natural defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature”; “That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.” 1 Schwartz 282. Delaware’s Declaration of Rights, §§18–20 (1776), provided: “That a well regulated militia is the proper, natural, and safe defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature”; “That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power.” 1 Schwartz 278. Finally, New Hampshire’s Bill of Rights, Arts. XXIV–XXVI (1783), read: “A well regulated militia is the proper, natural, and sure defence of a state”; “Standing armies are dangerous to liberty, and ought not to be raised or kept up without consent of the legislature”; “In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power.” 1 Schwartz 378. It elsewhere provided: “No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.” Id., at 377 (Art. XIII). Footnote 6 The language of the Amendment’s preamble also closely tracks the language of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. Georgia’s 1778 militia statute, for example, began, “[w]hereas a well ordered and disciplined Militia, is essentially necessary, to the Safety, peace and prosperity, of this State.” Act of Nov. 15, 1778, 19 Colonial Records of the State of Georgia 103 (Candler ed. 1911 (pt. 2)). North Carolina’s 1777 militia statute started with this language: “Whereas a well regulated Militia is absolutely necessary for the defending and securing the Liberties of a free State.” N. C. Sess. Laws ch. 1, §I, p. 1. And Connecticut’s 1782 “Acts and Laws Regulating the Militia” began, “Whereas the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End designed.” Conn. Acts and Laws p. 585 (hereinafter 1782 Conn. Acts). These state militia statutes give content to the notion of a “well-regulated militia.” They identify those persons who compose the State’s militia; they create regiments, brigades, and divisions; they set forth command structures and provide for the appointment of officers; they describe how the militia will be assembled when necessary and provide for training; and they prescribe penalties for nonappearance, delinquency, and failure to keep the required weapons, ammunition, and other necessary equipment. The obligation of militia members to “keep” certain specified arms is detailed further, n. 14, infra , and accompanying text. Footnote 7 The sources the Court cites simply do not support the proposition that some “logical connection” between the two clauses is all that is required. The Dwarris treatise, for example, merely explains that “[t]he general purview of a statute is not … necessarily to be restrained by any words introductory to the enacting clauses.” F. Dwarris, A General Treatise on Statutes 268 (P. Potter ed. 1871) (emphasis added). The treatise proceeds to caution that “the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.” Id., at 269. Sutherland makes the same point. Explaining that “[i]n the United States preambles are not as important as they are in England,” the treatise notes that in the United States “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms .” 2A N. Singer, Sutherland on Statutory Construction §47.04, p. 146 (rev. 5th ed. 1992) (emphasis added). Surely not even the Court believes that the Amendment’s operative provision, which, though only 14 words in length, takes the Court the better part of 18 pages to parse, is perfectly “clear and unambiguous.” Footnote 8 The Court’s repeated citation to the dissenting opinion in Muscarello v. United States, 524 U. S. 125 (1998), ante, at 10, 13, as illuminating the meaning of “bear arms,” borders on the risible. At issue in Muscarello was the proper construction of the word “carries” in 18 U. S. C. §924(c) (2000 ed. and Supp. V); the dissent in that case made passing reference to the Second Amendment only in the course of observing that both the Constitution and Black’s Law Dictionary suggested that something more active than placement of a gun in a glove compartment might be meant by the phrase “ ‘carries a firearm.’ ” 524 U. S., at 143. Footnote 9 Amici professors of Linguistics and English reviewed uses of the term “bear arms” in a compilation of books, pamphlets, and other sources disseminated in the period between the Declaration of Independence and the adoption of the Second Amendment. See Brief for Professors of Linguistics and English as Amici Curiae 23–25. Amici determined that of 115 texts that employed the term, all but five usages were in a clearly military context, and in four of the remaining five instances, further qualifying language conveyed a different meaning. The Court allows that the phrase “bear Arms” did have as an idiomatic meaning, “ ‘to serve as a soldier, do military service, fight,’ ” ante, at 12, but asserts that it “ unequivocally bore that idiomatic meaning only when followed by the preposition ‘against,’ which was in turn followed by the target of the hostilities,” ante, at 12–13. But contemporary sources make clear that the phrase “bear arms” was often used to convey a military meaning without those additional words. See, e.g., To The Printer, Providence Gazette, (May 27, 1775) (“By the common estimate of three millions of people in America, allowing one in five to bear arms, there will be found 600,000 fighting men”); Letter of Henry Laurens to the Mass. Council (Jan. 21, 1778), in Letters of Delegates to Congress 1774–1789, p. 622 (P. Smith ed. 1981) (“Congress were yesterday informed … that those Canadians who returned from Saratoga … had been compelled by Sir Guy Carleton to bear Arms”); Of the Manner of Making War among the Indians of North-America, Connecticut Courant (May 23, 1785) (“The Indians begin to bear arms at the age of fifteen, and lay them aside when they arrive at the age of sixty. Some nations to the southward, I have been informed, do not continue their military exercises after they are fifty”); 28 Journals of the Continental Congress 1030 (G. Hunt ed. 1910) (“That hostages be mutually given as a security that the Convention troops and those received in exchange for them do not bear arms prior to the first day of May next”); H. R. J., 9th Cong., 1st Sess., 217 (Feb. 12, 1806) (“Whereas the commanders of British armed vessels have impressed many American seamen, and compelled them to bear arms on board said vessels, and assist in fighting their battles with nations in amity and peace with the United States”); H. R. J., 15th Cong., 2d Sess., 182–183 (Jan. 14, 1819) (“[The petitioners] state that they were residing in the British province of Canada, at the commencement of the late war, and that owing to their attachment to the United States, they refused to bear arms, when called upon by the British authorities …”). Footnote 10 Aymette v. State, 21 Tenn. 154, 156 (1840), a case we cited in Miller, further confirms this reading of the phrase. In Aymette , the Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that “ ‘the free white men of this State, have a right to keep and bear arms for their common defence.’ ” Explaining that the provision was adopted with the same goals as the Federal Constitution’s Second Amendment, the court wrote: “The words ‘bear arms’ … have reference to their military use, and were not employed to mean wearing them about the person as part of the dress.  As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence , so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” 21 Tenn., at 158. The court elaborated: “[W]e may remark, that the phrase ‘bear arms’ is used in the Kentucky Constitution as well as our own, and implies, as has already been suggested, their military use… . A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.” Id., at 161. Footnote 11 As lucidly explained in the context of a statute mandating a sentencing enhancement for any person who “uses” a firearm during a crime of violence or drug trafficking crime: “To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i.e. , as a weapon. To be sure, one can use a firearm in a number of ways, including as an article of exchange, just as one can ‘use’ a cane as a hall decoration—but that is not the ordinary meaning of ‘using’ the one or the other. The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used.” Smith v. United States , 508 U. S. 223 , 242 (1993) (Scalia, J., dissenting) (some internal marks, footnotes, and citations omitted). Footnote 12 See also Act for the regulating, training, and arraying of the Militia, … of the State, 1781 N. J. Laws, ch. XIII, §12, p. 43 (“And be it Enacted, That each Person enrolled as aforesaid, shall also keep at his Place of Abode one Pound of good merchantable Gunpowder and three Pounds of Ball sized to his Musket or Rifle” (emphasis added)); An Act for establishing a Militia, 1785 Del. Laws §7, p. 59 (“ And be it enacted, That every person between the ages of eighteen and fifty … shall at his own expense, provide himself … with a musket or firelock, with a bayonet, a cartouch box to contain twenty three cartridges, a priming wire, a brush and six flints, all in good order, on or before the first day of April next, under the penalty of forty shillings, and shall keep the same by him at all times, ready and fit for service, under the penalty of two shillings and six pence for each neglect or default thereof on every muster day” (second emphasis added)); 1782 Conn. Acts 590 (“And it shall be the duty of the Regional Quarter-Master to provide and keep a sufficient quantity of Ammunition and warlike stores for the use of their respective regiments, to be kept in such place or places as shall be ordered by the Field Officers” (emphasis added)). Footnote 13 The Court notes that the First Amendment protects two separate rights with the phrase “the ‘right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ ” Ante , at 18. But this only proves the point: In contrast to the language quoted by the Court, the Second Amendment does not protect a “right to keep and to bear arms,” but rather a “right to keep and bear arms.” The state constitutions cited by the Court are distinguishable on the same ground. Footnote 14 The Court’s atomistic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the elephant, famously set in verse by John Godfrey Saxe. The Poems of John Godfrey Saxe 135–136 (1873). In the parable, each blind man approaches a single elephant; touching a different part of the elephant’s body in isolation, each concludes that he has learned its true nature. One touches the animal’s leg, and concludes that the elephant is like a tree; another touches the trunk and decides that the elephant is like a snake; and so on. Each of them, of course, has fundamentally failed to grasp the nature of the creature. Footnote 15 By “ ‘split[ting] the atom of sovereignty,’ ” the Framers created “ ‘two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’ ” Saenz v. Roe, 526 U. S. 489 , 504, n. 17 (1999) (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 , 838 (1995) (Kennedy, J., concurring)). Footnote 16 Indeed, this was one of the grievances voiced by the colonists: Paragraph 13 of the Declaration of Independence charged of King George, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” Footnote 17 George Washington, writing to Congress on September 24, 1776, warned that for Congress “[t]o place any dependance upon Militia, is, assuredly, resting upon a broken staff.” 6 Writings of George Washington 106, 110 (J. Fitzpatrick ed. 1932). Several years later he reiterated this view in another letter to Congress: “Regular Troops alone are equal to the exigencies of modern war, as well for defence as offence … . No Militia will ever acquire the habits necessary to resist a regular force… . The firmness requisite for the real business of fighting is only to be attained by a constant course of discipline and service.” 20 id., at 49, 49–50 (Sept. 15, 1780). And Alexander Hamilton argued this view in many debates. In 1787, he wrote: “Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. . . . War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.” The Federalist No. 25, p. 166 (C. Rossiter ed. 1961). Footnote 18 “[B]ut no Appropriation of Money to that Use [raising and supporting Armies] shall be for a longer Term than two Years.” U. S. Const., Art I, §8, cl. 12 Footnote 19 This “calling forth” power was only permitted in order for the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Id., Art. I, §8, cl. 15. Footnote 20 The Court assumes—incorrectly, in my view—that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante , at 27. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to “organiz[e], ar[m], and disciplin[e], the Militia,” Art. I, §8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States’ power to create their own militias provides an easy answer to the Court’s complaint that the right as I have described it is empty because it merely guarantees “citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” Ante, at 28. Footnote 21 In addition to the cautionary references to standing armies and to the importance of civil authority over the military, each of the proposals contained a guarantee that closely resembled the language of what later became the Third Amendment. The 18th proposal from Virginia and North Carolina read “That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the law directs.” Elliott 659. And New York’s language read: “That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.” 2 Schwartz 912. Footnote 22 “Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses with out the consent of the Owners.” Footnote 23 Madison explained in a letter to Richard Peters, Aug. 19, 1789, the paramount importance of preparing a list of amendments to placate those States that had ratified the Constitution in reliance on a commitment that amendments would follow: “In many States the [Constitution] was adopted under a tacit compact in [favor] of some subsequent provisions on this head. In [Virginia]. It would have been certainly rejected, had no assurances been given by its advocates that such provisions would be pursued. As an honest man I feel my self bound by this consideration.” Creating the Bill of Rights 281, 282 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit). Footnote 24 The adopted language, Virginia Declaration of Rights ¶13 (1776), read as follows: “That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 Schwartz 234. Footnote 25 Veit 182. This was the objection voiced by Elbridge Gerry, who went on to remark, in the next breath: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…. Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” Ibid. Footnote 26 The failed Maryland proposals contained similar language. See supra, at 23. Footnote 27 The Court suggests that this historical analysis casts the Second Amendment as an “odd outlier,” ante, at 30; if by “outlier,” the Court means that the Second Amendment was enacted in a unique and novel context, and responded to the particular challenges presented by the Framers’ federalism experiment, I have no quarrel with the Court’s characterization. Footnote 28 The Court’s fixation on the last two types of sources is particularly puzzling, since both have the same characteristics as postenactment legislative history, which is generally viewed as the least reliable source of authority for ascertaining the intent of any provision’s drafters. As has been explained: “The legislative history of a statute is the history of its consideration and enactment. ‘Subsequent legislative history’—which presumably means the post- enactment history of a statute’s consideration and enactment—is a contradiction in terms. The phrase is used to smuggle into judicial consideration legislators’ expression not of what a bill currently under consideration means (which, the theory goes, reflects what their colleagues understood they were voting for), but of what a law previously enacted means. … In my opinion, the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed.” Sullivan v. Finkelstein, 496 U. S. 617 , 631–632 (1990) (Scalia, J., concurring in part). Footnote 29 The Court stretches to derive additional support from scattered state-court cases primarily concerned with state constitutional provisions. See ante, at 38–41. To the extent that those state courts assumed that the Second Amendment was coterminous with their differently worded state constitutional arms provisions, their discussions were of course dicta. Moreover, the cases on which the Court relies were decided between 30 and 60 years after the ratification of the Second Amendment, and there is no indication that any of them engaged in a careful textual or historical analysis of the federal constitutional provision. Finally, the interpretation of the Second Amendment advanced in those cases is not as clear as the Court apparently believes. In Aldridge v. Commonwealth , 2 Va. Cas. 447 (Gen. Ct. 1824), for example, a Virginia court pointed to the restriction on free blacks’ “right to bear arms” as evidence that the protections of the State and Federal Constitutions did not extend to free blacks. The Court asserts that “[t]he claim was obviously not that blacks were prevented from carrying guns in the militia .” Ante , at 39. But it is not obvious at all. For in many States, including Virginia, free blacks during the colonial period were prohibited from carrying guns in the militia, instead being required to “muste[r] without arms”; they were later barred from serving in the militia altogether. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 477, 497–498, and n. 120 (1998). But my point is not that the Aldridge court endorsed my view of the Amendment—plainly it did not, as the premise of the relevant passage was that the Second Amendment applied to the States. Rather, my point is simply that the court could have understood the Second Amendment to protect a militia-focused right, and thus that its passing mention of the right to bear arms provides scant support for the Court’s position. Footnote 30 The Government argued in its brief that: “[I]t would seem that the early English law did not guarantee an unrestricted right to bear arms. Such recognition as existed of a right in the people to keep and bear arms appears to have resulted from oppression by rulers who disarmed their political opponents and who organized large standing armies which were obnoxious and burdensome to the people. This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense.” Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp. 11–12 (citations omitted). The Government then cited at length the Tennessee Supreme Court’s opinion in Aymette, 21 Tenn. 154, which further situated the English Bill of Rights in its historical context. See n. 10, supra . Footnote 31 Moreover, it was the Crown, not Parliament, that was bound by the English provision; indeed, according to some prominent historians, Article VII is best understood not as announcing any individual right to unregulated firearm ownership (after all, such a reading would fly in the face of the text), but as an assertion of the concept of parliamentary supremacy. See Brief for Jack N. Rakove et al. as Amici Curiae 6–9. Footnote 32 For example, St. George Tucker, on whom the Court relies heavily, did not consistently adhere to the position that the Amendment was designed to protect the “Blackstonian” self-defense right, ante, at 33. In a series of unpublished lectures, Tucker suggested that the Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendments: “If a State chooses to incur the expense of putting arms into the Hands of its own Citizens for their defense, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alleged indeed that this might be done for the purpose of resisting the laws of the federal Government, or of shaking off the union: to which the plainest answer seems to be, that whenever the States think proper to adopt either of these measures, they will not be with-held by the fear of infringing any of the powers of the federal Government. But to contend that such a power would be dangerous for the reasons above maintained would be subversive of every principle of Freedom in our Government; of which the first Congress appears to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become part of it, viz., ‘That a well regulated militia being necessary to the Security of a free State, the right of the people to keep and bear arms shall not be infringed.’ To this we may add that this power of arming the militia, is not one of those prohibited to the States by the Constitution, and, consequently, is reserved to them under the twelfth Article of the ratified aments.” S. Tucker, Ten Notebooks of Law Lectures, 1790’s, Tucker-Coleman Papers, pp. 127–128 (College of William and Mary). See also Cornell, St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006). Footnote 33 The Court does acknowledge that at least one early commentator described the Second Amendment as creating a right conditioned upon service in a state militia. See ante, at 37–38 (citing B. Oliver, The Rights of an American Citizen (1832)). Apart from the fact that Oliver is the only commentator in the Court’s exhaustive survey who appears to have inquired into the intent of the drafters of the Amendment, what is striking about the Court’s discussion is its failure to refute Oliver’s description of the meaning of the Amendment or the intent of its drafters; rather, the Court adverts to simple nose-counting to dismiss his view. Footnote 34 Miller, 307 U. S., at 182, n. 3. Footnote 35 The additional specified weaponry included: “a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle and a quarter of a pound of powder.” 1 Stat. 271. Footnote 36 In another case the Court endorsed, albeit indirectly, the reading of Miller that has been well settled until today. In Burton v. Sills, 394 U. S. 812 (1969) (per curiam), the Court dismissed for want of a substantial federal question an appeal from a decision of the New Jersey Supreme Court upholding, against a Second Amendment challenge, New Jersey’s gun control law. Although much of the analysis in the New Jersey court’s opinion turned on the inapplicability of the Second Amendment as a constraint on the States, the court also quite correctly read Miller to hold that “Congress, though admittedly governed by the second amendment, may regulate interstate firearms so long as the regulation does not impair the maintenance of the active, organized militia of the states.” Burton v. Sills, 53 N. J. 86, 98, 248 A. 2d 521, 527 (1968). Footnote 37 The 1927 statute was enacted with no mention of the Second Amendment as a potential obstacle, although an earlier version of the bill had generated some limited objections on Second Amendment grounds; see 66 Cong. Rec. 725–735 (1924). And the 1934 Act featured just one colloquy, during the course of lengthy Committee debates, on whether the Second Amendment constrained Congress’ ability to legislate in this sphere; see Hearings on House Committee on Ways and Means H. R. 9006, before the 73d Cong., 2d Sess., p. 19 (1934). Footnote 38 The majority appears to suggest that even if the meaning of the Second Amendment has been considered settled by courts and legislatures for over two centuries, that settled meaning is overcome by the “reliance of millions of Americans” “upon the true meaning of the right to keep and bear arms.” Ante, at 52, n. 24. Presumably by this the Court means that many Americans own guns for self-defense, recreation, and other lawful purposes, and object to government interference with their gun ownership. I do not dispute the correctness of this observation. But it is hard to see how Americans have “relied,” in the usual sense of the word, on the existence of a constitutional right that, until 2001, had been rejected by every federal court to take up the question. Rather, gun owners have “relied” on the laws passed by democratically elected legislatures, which have generally adopted only limited gun-control measures. Indeed, reliance interests surely cut the other way: Even apart from the reliance of judges and legislators who properly believed, until today, that the Second Amendment did not reach possession of firearms for purely private activities, “millions of Americans,” have relied on the power of government to protect their safety and well-being, and that of their families. With respect to the case before us, the legislature of the District of Columbia has relied on its ability to act to “reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia,” H. Con. Res. 694, 94th Cong., 2d Sess., 25 (1976); see post , at 14–17 (Breyer, J., dissenting); so, too have the residents of the District. Footnote 39 It was just a few years after the decision in Miller that Justice Frankfurter (by any measure a true judicial conservative) warned of the perils that would attend this Court’s entry into the “political thicket” of legislative districting. Colegrove v. Green, 328 U. S. 549 , 556 (1946) (plurality opinion). The equally controversial political thicket that the Court has decided to enter today is qualitatively different from the one that concerned Justice Frankfurter: While our entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts, no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control. What impact the Court’s unjustified entry into this thicket will have on that ongoing debate—or indeed on the Court itself—is a matter that future historians will no doubt discuss at length. It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today. BREYER, J., DISSENTING DISTRICT OF COLUMBIA V. HELLER 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-290 DISTRICT OF COLUMBIA, et al., PETITIONERS v. DICK ANTHONY HELLER on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 26, 2008]    Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.    We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not. I    The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.    The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.    In respect to the first independent reason, I agree with Justice Stevens, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.    Thus I here assume that one objective (but, as the majority concedes, ante , at 26, not the primary objective) of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted. In these circumstances, the District’s law falls within the zone that the Second Amendment leaves open to regulation by legislatures. II    The Second Amendment says that: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:    (1) The Amendment protects an “individual” right— i.e. , one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g. , ante , at 22 (opinion of the Court); ante , at 1 (Stevens, J., dissenting).    (2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller , 307 U. S. 174 , 178 (1939); see ante , at 26 (opinion of the Court); ante , at 1 (Stevens, J., dissenting).    (3) The Amendment “must be interpreted and applied with that end in view.” Miller , supra , at 178.    (4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin , 165 U. S. 275 , 281–282 (1897); ante , at 22, 54 (opinion of the Court).    My approach to this case, while involving the first three points, primarily concerns the fourth. I shall, as I said, assume with the majority that the Amendment, in addition to furthering a militia-related purpose, also furthers an interest in possessing guns for purposes of self-defense, at least to some degree. And I shall then ask whether the Amendment nevertheless permits the District handgun restriction at issue here.    Although I adopt for present purposes the majority’s position that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars. The majority, which presents evidence in favor of the former proposition, does not, because it cannot, convincingly show that the Second Amendment seeks to maintain the latter in pristine, unregulated form.    To the contrary, colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home.    Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree. See Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007); Dept. of Commerce, Bureau of Census, C. Gibson, Population of the 100 Largest Cities and Other Urban Places in the United States: 1790 to 1990 (1998) (Table 2), online at http://www.census.gov/ population/documentation/twps0027/tab02.txt (all Internet materials as visited June 19, 2008, and available in Clerk of Court’s case file). Boston in 1746 had a law prohibiting the “discharge” of “any Gun or Pistol charged with Shot or Ball in the Town” on penalty of 40 shillings, a law that was later revived in 1778. See Act of May 28, 1746, ch. 10; An Act for Reviving and Continuing Sundry Laws that are Expired, and Near Expiring, 1778 Massachusetts Session Laws, ch. 5, pp. 193, 194. Philadelphia prohibited, on penalty of 5 shillings (or two days in jail if the fine were not paid), firing a gun or setting off fireworks in Philadelphia without a “governor’s special license.” See Act of Aug. 26, 1721, §4, in 3 Mitchell, Statutes at Large of Pennsylvania 253–254. And New York City banned, on penalty of a 20-shilling fine, the firing of guns (even in houses) for the three days surrounding New Year’s Day. 5 Colonial Laws of New York, ch. 1501, pp. 244–246 (1894); see also An Act to Suppress the Disorderly Practice of Firing Guns, & c., on the Times Therein Mentioned, 8 Statutes at Large of Pennsylvania 1770–1776, pp. 410–412 (1902) (similar law for all “inhabited parts” of Pennsylvania). See also An Act for preventing Mischief being done in the Town of Newport , or in any other Town in this Government, 1731, Rhode Island Session Laws (prohibiting, on penalty of 5 shillings for a first offense and more for subsequent offenses, the firing of “any Gun or Pistol … in the Streets of any of the Towns of this Government, or in any Tavern of the same, after dark, on any Night whatsoever”).    Furthermore, several towns and cities (including Philadelphia, New York, and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a necessary component of an operational firearm. See Cornell & DeDino, A Well Regulated Right, 73 Fordham L. Rev. 487, 510–512 (2004). Boston’s law in particular impacted the use of firearms in the home very much as the District’s law does today. Boston’s gunpowder law imposed a 10 fine upon “any Person” who “shall take into any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building, within the Town of Boston, any … Fire-Arm, loaded with, or having Gun-Powder.” An Act in Addition to the several Acts already made for the prudent Storage of Gun-Powder within the Town of Boston, ch. XIII, 1783 Mass. Acts 218–219; see also 1 S. Johnson, A Dictionary of the English Language 751 (4th ed. 1773) (defining “firearms” as “[a]rms which owe their efficacy to fire; guns”). Even assuming, as the majority does, see ante , at 59–60, that this law included an implicit self-defense exception, it would nevertheless have prevented a homeowner from keeping in his home a gun that he could immediately pick up and use against an intruder. Rather, the homeowner would have had to get the gunpowder and load it into the gun, an operation that would have taken a fair amount of time to perform. See Hicks, United States Military Shoulder Arms, 1795–1935, 1 Am. Military Hist. Foundation 23, 30 (1937) (experienced soldier could, with specially prepared cartridges as opposed to plain gunpowder and ball, load and fire musket 3-to-4 times per minute); id. , at 26–30 (describing the loading process); see also Grancsay, The Craft of the Early American Gunsmith, 6 Metropolitan Museum of Art Bulletin 54, 60 (1947) (noting that rifles were slower to load and fire than muskets).    Moreover, the law would, as a practical matter, have prohibited the carrying of loaded firearms anywhere in the city, unless the carrier had no plans to enter any building or was willing to unload or discard his weapons before going inside. And Massachusetts residents must have believed this kind of law compatible with the provision in the Massachusetts Constitution that granted “the people … a right to keep and to bear arms for the common defence”—a provision that the majority says was interpreted as “secur[ing] an individual right to bear arms for defensive purposes.” Art. XVII (1780), in 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1888, 1892 (F. Thorpe ed. 1909) (hereinafter Thorpe); ante , at 28–29 (opinion of the Court).    The New York City law, which required that gunpowder in the home be stored in certain sorts of containers, and laws in certain Pennsylvania towns, which required that gunpowder be stored on the highest story of the home, could well have presented similar obstacles to in-home use of firearms. See Act of April 13, 1784, ch. 28, 1784 N. Y. Laws p. 627; An Act for Erecting the Town of Carlisle, in the County of Cumberland, into a Borough, ch. XIV, §XLII, 1782 Pa. Laws p. 49; An Act for Erecting the Town of Reading, in the County of Berks, into a Borough, ch. LXXVI, §XLII, 1783 Pa. Laws p. 211. Although it is unclear whether these laws, like the Boston law, would have prohibited the storage of gunpowder inside a firearm, they would at the very least have made it difficult to reload the gun to fire a second shot unless the homeowner happened to be in the portion of the house where the extra gunpowder was required to be kept. See 7 United States Encyclopedia of History 1297 (P. Oehser ed. 1967) (“Until 1835 all small arms [were] single-shot weapons, requiring reloading by hand after every shot”). And Pennsylvania, like Massachusetts, had at the time one of the self-defense-guaranteeing state constitutional provisions on which the majority relies. See ante , at 28 (citing Pa. Declaration of Rights, Art. XIII (1776), in 5 Thorpe 3083).    The majority criticizes my citation of these colonial laws. See ante , at 59–62. But, as much as it tries, it cannot ignore their existence. I suppose it is possible that, as the majority suggests, see ante , at 59–61, they all in practice contained self-defense exceptions. But none of them expressly provided one, and the majority’s assumption that such exceptions existed relies largely on the preambles to these acts—an interpretive methodology that it elsewhere roundly derides. Compare ibid. (interpreting 18th-century statutes in light of their preambles), with ante , at 4–5, and n. 3 (contending that the operative language of an 18th-century enactment may extend beyond its preamble). And in any event, as I have shown, the gunpowder-storage laws would have burdened armed self-defense, even if they did not completely prohibit it.    This historical evidence demonstrates that a self-defense assumption is the beginning , rather than the end , of any constitutional inquiry. That the District law impacts self-defense merely raises questions about the law’s constitutionality. But to answer the questions that are raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives—in a word, the details. There are no purely logical or conceptual answers to such questions. All of which to say that to raise a self-defense question is not to answer it. III    I therefore begin by asking a process-based question: How is a court to determine whether a particular firearm regulation (here, the District’s restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect?    The question matters. The majority is wrong when it says that the District’s law is unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Ante , at 56. How could that be? It certainly would not be unconstitutional under, for example, a “rational basis” standard, which requires a court to uphold regulation so long as it bears a “rational relationship” to a “legitimate governmental purpose.” Heller v. Doe , 509 U. S. 312 , 320 (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving objective. And nothing in the three 19th-century state cases to which the majority turns for support mandates the conclusion that the present District law must fall. See Andrews v. State , 50 Tenn. 165, 177, 186–187, 192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban on a carrying a broad class of weapons, insofar as it applied to revolvers); Nunn v. State , 1 Ga. 243, 246, 250–251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States); State v. Reid , 1 Ala. 612, 614–615, 622 (1840) ( upholding a concealed-weapon ban against a state constitutional challenge). These cases were decided well (80, 55, and 49 years, respectively) after the framing; they neither claim nor provide any special insight into the intent of the Framers; they involve laws much less narrowly tailored that the one before us; and state cases in any event are not determinative of federal constitutional questions, see, e.g. , Garcia v. San Antonio Metropolitan Transit Authority , 469 U. S. 528 , 549 (1985) (citing Martin v. Hunter’s Lessee , 1 Wheat. 304 (1816)).    Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson , 521 U. S. 74 , 82 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear. See ante , at 54.    Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of every government—a concern for the safety and indeed the lives of its citizens.” United States v. Salerno , 481 U. S. 739 , 755 (1987). The Court has deemed that interest, as well as “the Government’s general interest in preventing crime,” to be “compelling,” see id., at 750, 754, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see e.g. , Brandenburg v. Ohio , 395 U. S. 444 , 447 (1969) (per curiam) (First Amendment free speech rights); Sherbert v. Verner , 374 U. S. 398 , 403 (1963) (First Amendment religious rights); Brigham City v. Stuart , 547 U. S. 398 , 403–404 (2006) (Fourth Amendment protection of the home); New York v. Quarles , 467 U. S. 649 , 655 (1984) (Fifth Amendment rights under Miranda v. Arizona , 384 U. S. 436 (1966)); Salerno , supra , at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.    I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 402 (2000) (Breyer, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante , at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. See 528 U. S., at 403 (citing examples where the Court has taken such an approach); see also, e.g. , Thompson v. Western States Medical Center , 535 U. S. 357 , 388 (2002) (Breyer, J., dissenting) (commercial speech); Burdick v. Takushi , 504 U. S. 428 , 433 (1992) (election regulation); Mathews v. Eldridge , 424 U. S. 319 , 339–349 (1976) (procedural due process); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 , 568 (1968) (government employee speech).    In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity. See Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 , 195–196 (1997); see also Nixon , supra, at 403 (Breyer, J., concurring). Nonetheless, a court, not a legislature, must make the ultimate constitutional conclusion, exercising its “independent judicial judgment” in light of the whole record to determine whether a law exceeds constitutional boundaries. Randall v. Sorrell , 548 U. S. 230 , 249 (2006) (opinion of Breyer, J.) (citing Bose Corp. v. Consumers Union of United States, Inc. , 466 U. S. 485 , 499 (1984)).    The above-described approach seems preferable to a more rigid approach here for a further reason. Experience as much as logic has led the Court to decide that in one area of constitutional law or another the interests are likely to prove stronger on one side of a typical constitutional case than on the other. See, e.g. , United States v. Virginia , 518 U. S. 515 , 531–534 (1996) (applying heightened scrutiny to gender-based classifications, based upon experience with prior cases); Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483 , 488 (1955) (applying rational-basis scrutiny to economic legislation, based upon experience with prior cases). Here, we have little prior experience. Courts that do have experience in these matters have uniformly taken an approach that treats empirically-based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 687, 716–718 (2007) (describing hundreds of gun-law decisions issued in the last half-century by Supreme Courts in 42 States, which courts with “surprisingly little variation,” have adopted a standard more deferential than strict scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e.g. , Bartkus v. Illinois , 359 U. S. 121 , 134 (1959) (looking to the “experience of state courts” as informative of a constitutional question). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest. IV    The present suit involves challenges to three separate District firearm restrictions. The first requires a license from the District’s Chief of Police in order to carry a “pistol,” i.e. , a handgun, anywhere in the District. See D. C. Code §22–4504(a) (2001); see also §§22–4501(a), 22–4506. Because the District assures us that respondent could obtain such a license so long as he meets the statutory eligibility criteria, and because respondent concedes that those criteria are facially constitutional, I, like the majority, see no need to address the constitutionality of the licensing requirement. See ante , at 58–59.    The second District restriction requires that the lawful owner of a firearm keep his weapon “unloaded and disassembled or bound by a trigger lock or similar device” unless it is kept at his place of business or being used for lawful recreational purposes. See §7–2507.02. The only dispute regarding this provision appears to be whether the Constitution requires an exception that would allow someone to render a firearm operational when necessary for self-defense ( i.e. , that the firearm may be operated under circumstances where the common law would normally permit a self-defense justification in defense against a criminal charge). See Parker v. District of Columbia , 478 F. 3d 370, 401 (2007) (case below); ante , at 57–58 (opinion of the Court); Brief for Respondent 52–54. The District concedes that such an exception exists. See Brief for Petitioners 56–57. This Court has final authority (albeit not often used) to definitively interpret District law, which is, after all, simply a species of federal law. See, e.g. , Whalen v. United States , 445 U. S. 684 , 687–688 (1980); see also Griffin v. United States , 336 U. S. 704 , 716–718 (1949). And because I see nothing in the District law that would preclude the existence of a background common-law self-defense exception, I would avoid the constitutional question by interpreting the statute to include it. See Ashwander v. TVA , 297 U. S. 288 , 348 (1936) (Brandeis, J., concurring).    I am puzzled by the majority’s unwillingness to adopt a similar approach. It readily reads unspoken self-defense exceptions into every colonial law, but it refuses to accept the District’s concession that this law has one. Compare ante , at 59–61, with ante , at 57–58. The one District case it cites to support that refusal, McIntosh v. Washington , 395 A. 2d 744, 755–756 (1978), merely concludes that the District Legislature had a rational basis for applying the trigger-lock law in homes but not in places of business. Nowhere does that case say that the statute precludes a self-defense exception of the sort that I have just described. And even if it did, we are not bound by a lower court’s interpretation of federal law.    The third District restriction prohibits (in most cases) the registration of a handgun within the District. See §7–2502.02(a)(4). Because registration is a prerequisite to firearm possession, see §7–2502.01(a), the effect of this provision is generally to prevent people in the District from possessing handguns. In determining whether this regulation violates the Second Amendment, I shall ask how the statute seeks to further the governmental interests that it serves, how the statute burdens the interests that the Second Amendment seeks to protect, and whether there are practical less burdensome ways of furthering those interests. The ultimate question is whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate. See Nixon , 528 U. S., at 402 (Breyer, J., concurring). A    No one doubts the constitutional importance of the statute’s basic objective, saving lives. See, e.g. , Salerno , 481 U. S., at 755. But there is considerable debate about whether the District’s statute helps to achieve that objective. I begin by reviewing the statute’s tendency to secure that objective from the perspective of (1) the legislature (namely, the Council of the District of Columbia) that enacted the statute in 1976, and (2) a court that seeks to evaluate the Council’s decision today. 1    First, consider the facts as the legislature saw them when it adopted the District statute. As stated by the local council committee that recommended its adoption, the major substantive goal of the District’s handgun restriction is “to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.” Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694, Ser. No. 94–24, p. 25 (1976) (herinafter DC Rep.) (reproducing, inter alia, the Council committee report). The committee concluded, on the basis of “extensive public hearings” and “lengthy research,” that “[t]he easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” Id., at 24, 25. It reported to the Council “startling statistics,” id., at 26, regarding gun-related crime, accidents, and deaths, focusing particularly on the relation between handguns and crime and the proliferation of handguns within the District. See id., at 25–26.    The committee informed the Council that guns were “responsible for 69 deaths in this country each day,” for a total of “[a]pproximately 25,000 gun-deaths … each year,” along with an additional 200,000 gun-related injuries. Id., at 25. Three thousand of these deaths, the report stated, were accidental. Ibid. A quarter of the victims in those accidental deaths were children under the age of 14. Ibid. And according to the committee, “[f]or every intruder stopped by a homeowner with a firearm, there are 4 gun-related accidents within the home.” Ibid. In respect to local crime, the committee observed that there were 285 murders in the District during 1974—a record number. Id., at 26. The committee also stated that, “[c]ontrary to popular opinion on the subject, firearms are more frequently involved in deaths and violence among relatives and friends than in premeditated criminal activities.” Ibid. Citing an article from the American Journal of Psychiatry, the committee reported that “[m]ost murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion or intoxication, and where the killer and victim are acquainted.” Ibid. “Twenty-five percent of these murders,” the committee informed the Council, “occur within families.” Ibid. The committee report furthermore presented statistics strongly correlating handguns with crime. Of the 285 murders in the District in 1974, 155 were committed with handguns. Ibid. This did not appear to be an aberration, as the report revealed that “handguns [had been] used in roughly 54% of all murders” (and 87% of murders of law enforcement officers) nationwide over the preceding several years. Ibid. Nor were handguns only linked to murders, as statistics showed that they were used in roughly 60% of robberies and 26% of assaults. Ibid. “A crime committed with a pistol,” the committee reported, “is 7 times more likely to be lethal than a crime committed with any other weapon.” Id. , at 25. The committee furthermore presented statistics regarding the availability of handguns in the United States, ibid. , and noted that they had “become easy for juveniles to obtain,” even despite then-current District laws prohibiting juveniles from possessing them, id., at 26.    In the committee’s view, the current District firearms laws were unable “to reduce the potentiality for gun-related violence,” or to “cope with the problems of gun control in the District” more generally. Ibid. In the absence of adequate federal gun legislation, the committee concluded, it “becomes necessary for local governments to act to protect their citizens, and certainly the District of Columbia as the only totally urban statelike jurisdiction should be strong in its approach.” Id., at 27. It recommended that the Council adopt a restriction on handgun registration to reflect “a legislative decision that, at this point in time and due to the gun-control tragedies and horrors enumerated previously” in the committee report, “pistols … are no longer justified in this jurisdiction.” Id., at 31; see also ibid. (handgun restriction “denotes a policy decision that handguns … have no legitimate use in the purely urban environment of the District”).    The District’s special focus on handguns thus reflects the fact that the committee report found them to have a particularly strong link to undesirable activities in the District’s exclusively urban environment. See id., at 25–26. The District did not seek to prohibit possession of other sorts of weapons deemed more suitable for an “urban area.” See id., at 25. Indeed, an original draft of the bill, and the original committee recommendations, had sought to prohibit registration of shotguns as well as handguns, but the Council as a whole decided to narrow the prohibition. Compare id., at 30 (describing early version of the bill), with D. C. Code §7–2502.02). 2    Next, consider the facts as a court must consider them looking at the matter as of today. See, e.g. , Turner , 520 U. S., at 195 (discussing role of court as factfinder in a constitutional case). Petitioners, and their amici, have presented us with more recent statistics that tell much the same story that the committee report told 30 years ago. At the least, they present nothing that would permit us to second-guess the Council in respect to the numbers of gun crimes, injuries, and deaths, or the role of handguns.    From 1993 to 1997, there were 180,533 firearm-related deaths in the United States, an average of over 36,000 per year. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz & K. Strom, Firearm Injury and Death from Crime, 1993–97, p. 2 (Oct. 2000), online at http:// www.ojp.usdoj.gov/bjs/pub/pdf/fidc9397.pdf (hereinafter Firearm Injury and Death from Crime). Fifty-one percent were suicides, 44% were homicides, 1% were legal interventions, 3% were unintentional accidents, and 1% were of undetermined causes. See ibid. Over that same period there were an additional 411,800 nonfatal firearm-related injuries treated in U. S. hospitals, an average of over 82,000 per year. Ibid. Of these, 62% resulted from assaults, 17% were unintentional, 6% were suicide attempts, 1% were legal interventions, and 13% were of unknown causes. Ibid. The statistics are particularly striking in respect to children and adolescents. In over one in every eight firearm-related deaths in 1997, the victim was someone under the age of 20. American Academy of Pediatrics, Firearm-Related Injuries Affecting the Pediatric Population, 105 Pediatrics 888 (2000) (hereinafter Firearm-Related Injuries). Firearm-related deaths account for 22.5% of all injury deaths between the ages of 1 and 19. Ibid. More male teenagers die from firearms than from all natural causes combined. Dresang, Gun Deaths in Rural and Urban Settings, 14 J. Am. Bd. Family Practice 107 (2001). Persons under 25 accounted for 47% of hospital-treated firearm injuries between June 1, 1992 and May 31, 1993. Firearm-Related Injuries 891.    Handguns are involved in a majority of firearm deaths and injuries in the United States. Id., at 888. From 1993 to 1997, 81% of firearm-homicide victims were killed by handgun. Firearm Injury and Death from Crime 4; see also Dept. of Justice, Bureau of Justice Statistics, C. Perkins, Weapon Use and Violent Crime, p. 8 (Sept. 2003), (Table 10), http://www.ojp.usdoj.gov/bjs/pub/pdf/wuvc01. pdf (hereinafter Weapon Use and Violent Crime) (statistics indicating roughly the same rate for 1993–2001). In the same period, for the 41% of firearm injuries for which the weapon type is known, 82% of them were from handguns. Firearm Injury and Death From Crime 4. And among children under the age of 20, handguns account for approximately 70% of all unintentional firearm-related injuries and deaths. Firearm-Related Injuries 890. In particular, 70% of all firearm-related teenage suicides in 1996 involved a handgun. Id., at 889; see also Zwerling, Lynch, Burmeister, & Goertz, The Choice of Weapons in Firearm Suicides in Iowa, 83 Am. J. Public Health 1630, 1631 (1993) (Table 1) (handguns used in 36.6% of all firearm suicides in Iowa from 1980–1984 and 43.8% from 1990–1991).    Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates who were armed during the crime for which they were incarcerated, 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun. See Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Firearm Use by Offenders, p. 3 (Nov. 2001), online at http:// www.ojp.usdoj.gov/bjs/pub/pdf/fuo.pdf; see also Weapon Use and Violent Crime 2 (Table 2) (statistics indicating that handguns were used in over 84% of nonlethal violent crimes involving firearms from 1993 to 2001). And handguns are not only popular tools for crime, but popular objects of it as well: the FBI received on average over 274,000 reports of stolen guns for each year between 1985 and 1994, and almost 60% of stolen guns are handguns. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz, Guns Used in Crime, p. 3 (July 1995), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf. Department of Justice studies have concluded that stolen handguns in particular are an important source of weapons for both adult and juvenile offenders. Ibid. Statistics further suggest that urban areas, such as the District, have different experiences with gun-related death, injury, and crime, than do less densely populated rural areas. A disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime. See Dept. of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimization, 1993–98, pp. 1, 9 (Oct. 2000), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/ usrv98.pdf. Homicide appears to be a much greater issue in urban areas; from 1985 to 1993, for example, “half of all homicides occurred in 63 cities with 16% of the nation’s population.” Wintemute, The Future of Firearm Violence Prevention, 282 JAMA 475 (1999). One study concluded that although the overall rate of gun death between 1989 and 1999 was roughly the same in urban than rural areas, the urban homicide rate was three times as high; even after adjusting for other variables, it was still twice as high. Branas, Nance, Elliott, Richmond, & Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Public Health 1750, 1752 (2004); see also ibid. (noting that rural areas appear to have a higher rate of firearm suicide). And a study of firearm injuries to children and adolescents in Pennsylvania between 1987 and 2000 showed an injury rate in urban counties 10 times higher than in nonurban counties. Nance & Branas, The Rural-Urban Continuum, 156 Archives of Pediatrics & Adolescent Medicine 781, 782 (2002).    Finally, the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas. “[S]tudies to date generally support the hypothesis that the greater number of rural gun deaths are from rifles or shotguns, whereas the greater number of urban gun deaths are from handguns.” Dresang, supra , at 108. And the Pennsylvania study reached a similar conclusion with respect to firearm injuries—they are much more likely to be caused by handguns in urban areas than in rural areas. See Nance & Branas, supra , at 784. 3    Respondent and his many amici for the most part do not disagree about the figures set forth in the preceding subsection, but they do disagree strongly with the District’s predictive judgment that a ban on handguns will help solve the crime and accident problems that those figures disclose. In particular, they disagree with the District Council’s assessment that “freezing the pistol … population within the District,” DC Rep., at 26, will reduce crime, accidents, and deaths related to guns. And they provide facts and figures designed to show that it has not done so in the past, and hence will not do so in the future.    First, they point out that, since the ban took effect, violent crime in the District has increased, not decreased. See Brief for Criminologists et al. as Amici Curiae 4–8, 3a (hereinafter Criminologists’ Brief); Brief for Congress of Racial Equality as Amicus Curiae 35–36; Brief for National Rifle Assn. et al. as Amici Curiae 28–30 (hereinafter NRA Brief). Indeed, a comparison with 49 other major cities reveals that the District’s homicide rate is actually substantially higher relative to these other cities than it was before the handgun restriction went into effect. See Brief for Academics as Amici Curiae 7–10 (hereinafter Academics’ Brief); see also Criminologists’ Brief 6–9, 3a–4a, 7a. Respondent’s amici report similar results in comparing the District’s homicide rates during that period to that of the neighboring States of Maryland and Virginia (neither of which restricts handguns to the same degree), and to the homicide rate of the Nation as a whole. See Academics’ Brief 11–17; Criminologists’ Brief 6a, 8a.    Second, respondent’s amici point to a statistical analysis that regresses murder rates against the presence or absence of strict gun laws in 20 European nations. See Criminologists’ Brief 23 (citing Kates & Mauser, Would Banning Firearms Reduce Murder and Suicide? 30 Harv. J. L. & Pub. Pol’y 649, 651–694 (2007)). That analysis concludes that strict gun laws are correlated with more murders, not fewer. See Criminologists’ Brief 23; see also id., at 25–28. They also cite domestic studies, based on data from various cities, States, and the Nation as a whole, suggesting that a reduction in the number of guns does not lead to a reduction in the amount of violent crime. See id., at 17–20. They further argue that handgun bans do not reduce suicide rates, see id., at 28–31, 9a, or rates of accidents, even those involving children, see Brief for International Law Enforcement Educators and Trainers Assn. et al. as Amici Curiae App. 7–15 (hereinafter ILEETA Brief).    Third, they point to evidence indicating that firearm ownership does have a beneficial self-defense effect. Based on a 1993 survey, the authors of one study estimated that there were 2.2-to-2.5 million defensive uses of guns (mostly brandishing, about a quarter involving the actual firing of a gun) annually. See Kleck & Gertz, Armed Resistance to Crime, 86 J. Crim. L. & C. 150, 164 (1995); see also ILEETA Brief App. 1–6 (summarizing studies regarding defensive uses of guns). Another study estimated that for a period of 12 months ending in 1994, there were 503,481 incidents in which a burglar found himself confronted by an armed homeowner, and that in 497,646 (98.8%) of them, the intruder was successfully scared away. See Ikida, Dahlberg, Sacks, Mercy, & Powell, Estimating Intruder-Related Firearms Retrievals in U. S. Households, 12 Violence & Victims 363 (1997). A third study suggests that gun-armed victims are substantially less likely than non-gun-armed victims to be injured in resisting robbery or assault. Barnett & Kates, Under Fire, 45 Emory L. J. 1139, 1243–1244, n. 478 (1996). And additional evidence suggests that criminals are likely to be deterred from burglary and other crimes if they know the victim is likely to have a gun. See Kleck, Crime Control Through the Private Use of Armed Force, 35 Social Problems 1, 15 (1988) (reporting a substantial drop in the burglary rate in an Atlanta suburb that required heads of households to own guns); see also ILEETA Brief 17–18 (describing decrease in sexual assaults in Orlando when women were trained in the use of guns).    Fourth, respondent’s amici argue that laws criminalizing gun possession are self-defeating, as evidence suggests that they will have the effect only of restricting law-abiding citizens, but not criminals, from acquiring guns. See, e.g. , Brief for President Pro Tempore of Senate of Pennsylvania as Amicus Curiae 35, 36, and n. 15. That effect, they argue, will be especially pronounced in the District, whose proximity to Virginia and Maryland will provide criminals with a steady supply of guns. See Brief for Heartland Institute as Amicus Curiae 20.    In the view of respondent’s amici , this evidence shows that other remedies—such as less restriction on gun ownership, or liberal authorization of law-abiding citizens to carry concealed weapons—better fit the problem. See, e.g. , Criminologists’ Brief 35–37 (advocating easily obtainable gun licenses); Brief for Southeastern Legal Foundation, Inc. et al. as Amici Curiae 15 (hereinafter SLF Brief) (advocating “widespread gun ownership” as a deterrent to crime); see also J. Lott, More Guns, Less Crime (2d ed. 2000). They further suggest that at a minimum the District fails to show that its remedy, the gun ban, bears a reasonable relation to the crime and accident problems that the District seeks to solve. See, e.g. , Brief for Respondent 59–61.    These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.    What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer.    Further, suppose that respondent’s amici are right when they say that householders’ possession of loaded handguns help to frighten away intruders. On that assumption, one must still ask whether that benefit is worth the potential death-related cost. And that is a question without a directly provable answer.    Finally, consider the claim of respondent’s amici that handgun bans cannot work; there are simply too many illegal guns already in existence for a ban on legal guns to make a difference. In a word, they claim that, given the urban sea of pre-existing legal guns, criminals can readily find arms regardless. Nonetheless, a legislature might respond, we want to make an effort to try to dry up that urban sea, drop by drop. And none of the studies can show that effort is not worthwhile.    In a word, the studies to which respondent’s amici point raise policy-related questions. They succeed in proving that the District’s predictive judgments are controversial. But they do not by themselves show that those judgments are incorrect; nor do they demonstrate a consensus, academic or otherwise, supporting that conclusion.    Thus, it is not surprising that the District and its amici support the District’s handgun restriction with studies of their own. One in particular suggests that, statistically speaking, the District’s law has indeed had positive life-saving effects. See Loftin, McDowall, Weirsema, & Cottey, Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia, 325 New England J. Med. 1615 (1991) (hereinafter Loftin study). Others suggest that firearm restrictions as a general matter reduce homicides, suicides, and accidents in the home. See, e.g. , Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001); Kellerman, Somes, Rivara, Lee, & Banton, Injuries and Deaths Due to Firearms in the Home, 45 J. Trauma, Infection & Critical Care 263 (1998); Miller, Azrael, & Hemenway, Household Firearm Ownership and Suicide Rates in the United States, 13 Epidemiology 517 (2002). Still others suggest that the defensive uses of handguns are not as great in number as respondent’s amici claim. See, e.g. , Brief for American Public Health Assn. et al. as Amici Curiae 17–19 (hereinafter APHA Brief) (citing studies).    Respondent and his amici reply to these responses; and in doing so, they seek to discredit as methodologically flawed the studies and evidence relied upon by the District. See, e.g. , Criminologists’ Brief 9–17, 20–24; Brief for Assn. Am. Physicians and Surgeons, Inc. as Amicus Curiae 12–18; SLF Brief 17–22; Britt, Kleck, & Bordua, A Reassessment of the D.C. Gun Law, 30 Law & Soc. Rev. 361 (1996) (criticizing the Loftin study). And, of course, the District’s amici produce counter-rejoinders, referring to articles that defend their studies. See, e.g. , APHA Brief 23, n. 5 (citing McDowall, Loftin, & Wiersema et al., Using Quasi-Experiments to Evaluate Firearm Laws, 30 Law & Soc. Rev. 381 (1996)).    The upshot is a set of studies and counterstudies that, at most, could leave a judge uncertain about the proper policy conclusion. But from respondent’s perspective any such uncertainty is not good enough. That is because legislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact. And, given that constitutional allocation of decisionmaking responsibility, the empirical evidence presented here is sufficient to allow a judge to reach a firm legal conclusion.    In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner , 520 U. S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”    There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon , 528 U. S., at 402 (Breyer, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc. , 535 U. S. 425 , 440 (2002) (plurality opinion) (“[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems”); cf. DC Rep., at 67 (statement of Rep. Gude) (describing District’s law as “a decision made on the local level after extensive debate and deliberations”). Different localities may seek to solve similar problems in different ways, and a “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” Renton v. Playtime Theatres, Inc. , 475 U. S. 41 , 52 (1986) (internal quotation marks omitted). “The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.” Garcia v. San Antonio Metropolitan Transit Authority , 469 U. S. 528 , 575, n. 18 (1985) (Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J. Cooke ed. 1961) (A. Hamilton)). We owe that democratic process some substantial weight in the constitutional calculus. For these reasons, I conclude that the District’s statute properly seeks to further the sort of life-preserving and public-safety interests that the Court has called “compelling.” Salerno , 481 U. S., at 750, 754. B I next assess the extent to which the District’s law burdens the interests that the Second Amendment seeks to protect. Respondent and his amici , as well as the majority, suggest that those interests include: (1) the preservation of a “well regulated Militia”; (2) safeguarding the use of firearms for sporting purposes, e.g. , hunting and marksmanship; and (3) assuring the use of firearms for self-defense. For argument’s sake, I shall consider all three of those interests here. 1 The District’s statute burdens the Amendment’s first and primary objective hardly at all. As previously noted, there is general agreement among the Members of the Court that the principal (if not the only) purpose of the Second Amendment is found in the Amendment’s text: the preservation of a “well regulated Militia.” See supra , at 3. What scant Court precedent there is on the Second Amendment teaches that the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces” and “must be interpreted and applied with that end in view.” Miller , 307 U. S., at 178. Where that end is implicated only minimally (or not at all), there is substantially less reason for constitutional concern. Compare ibid. (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument”). To begin with, the present case has nothing to do with actual military service. The question presented presumes that respondent is “ not affiliated with any state-regulated militia.” 552 U. S. __ (2007) (emphasis added). I am aware of no indication that the District either now or in the recent past has called up its citizenry to serve in a militia, that it has any inkling of doing so anytime in the foreseeable future, or that this law must be construed to prevent the use of handguns during legitimate militia activities. Moreover, even if the District were to call up its militia, respondent would not be among the citizens whose service would be requested. The District does not consider him, at 66 years of age, to be a member of its militia. See D. C. Code §49–401 (2001) (militia includes only male residents ages 18 to 45); App. to Pet. for Cert. 120a (indicating respondent’s date of birth). Nonetheless, as some amici claim, the statute might interfere with training in the use of weapons, training useful for military purposes. The 19th-century constitutional scholar, Thomas Cooley, wrote that the Second Amendment protects “learning to handle and use [arms] in a way that makes those who keep them ready for their efficient use” during militia service. General Principles of Constitutional Law 271 (1880); ante , at 45 (opinion of the Court); see also ante , at 45–46 (citing other scholars agreeing with Cooley on that point). And former military officers tell us that “private ownership of firearms makes for a more effective fighting force” because “[m]ilitary recruits with previous firearms experience and training are generally better marksmen, and accordingly, better soldiers.” Brief for Retired Military Officers as Amici Curiae 1–2 (hereinafter Military Officers’ Brief). An amicus brief filed by retired Army generals adds that a “well-regulated militia—whether ad hoc or as part of our organized military—depends on recruits who have familiarity and training with firearms—rifles, pistols, and shotguns.” Brief for Major General John D. Altenburg, Jr., et al. as Amici Curiae 4 (hereinafter Generals’ Brief). Both briefs point out the importance of handgun training. Military Officers’ Brief 26–28; Generals’ Brief 4. Handguns are used in military service, see id., at 26, and “civilians who are familiar with handgun marksmanship and safety are much more likely to be able to safely and accurately fire a rifle or other firearm with minimal training upon entering military service,” id., at 28. Regardless, to consider the military-training objective a modern counterpart to a similar militia-related colonial objective and to treat that objective as falling within the Amendment’s primary purposes makes no difference here. That is because the District’s law does not seriously affect military training interests. The law permits residents to engage in activities that will increase their familiarity with firearms. They may register (and thus possess in their homes) weapons other than handguns, such as rifles and shotguns. See D. C. Code §§7–2502.01, 7–2502.02(a) (only weapons that cannot be registered are sawed-off shotguns, machine guns, short-barreled rifles, and pistols not registered before 1976); compare Generals’ Brief 4 (listing “ rifles , pistols, and shotguns ” as useful military weapons; emphasis added). And they may operate those weapons within the District “for lawful recreational purposes.” §7–2507.02; see also §7–2502.01(b)(3) (nonresidents “participating in any lawful recreational firearm-related activity in the District, or on his way to or from such activity in another jurisdiction” may carry even weapons not registered in the District). These permissible recreations plainly include actually using and firing the weapons, as evidenced by a specific D. C. Code provision contemplating the existence of local firing ranges. See §7–2507.03. And while the District law prevents citizens from training with handguns within the District , the District consists of only 61.4 square miles of urban area. See Dept. of Commerce, Bureau of Census, United States: 2000 (pt. 1), p. 11 (2002) (Table 8). The adjacent States do permit the use of handguns for target practice, and those States are only a brief subway ride away. See Md. Crim. Law Code Ann. §4–203(b)(4) (Lexis Supp. 2007) (general handgun restriction does not apply to “the wearing, carrying, or transporting by a person of a handgun used in connection with,” inter alia, “a target shoot, formal or informal target practice, sport shooting event, hunting, [or] a Department of Natural Resources-sponsored firearms and hunter safety class”); Va. Code Ann. §18.2–287.4 (Lexis Supp. 2007) (general restriction on carrying certain loaded pistols in certain public areas does not apply “to any person actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest”); Washington Metropolitan Area Transit Authority, Metrorail System Map, http://www.wmata.com/ metrorail/systemmmap.cfm. Of course, a subway rider must buy a ticket, and the ride takes time. It also costs money to store a pistol, say, at a target range, outside the District. But given the costs already associated with gun ownership and firearms training, I cannot say that a subway ticket and a short subway ride (and storage costs) create more than a minimal burden. Compare Crawford v. Marion County Election Bd. , 553 U. S. ___, ___ (2008) (slip op., at 3) (Breyer, J., dissenting) (acknowledging travel burdens on indigent persons in the context of voting where public transportation options were limited). Indeed, respondent and two of his coplaintiffs below may well use handguns outside the District on a regular basis, as their declarations indicate that they keep such weapons stored there. See App. to Pet. for Cert. 77a (respondent); see also id., at 78a, 84a (coplaintiffs). I conclude that the District’s law burdens the Second Amendment’s primary objective little, or not at all. 2 The majority briefly suggests that the “right to keep and bear Arms” might encompass an interest in hunting. See, e.g. , ante , at 26. But in enacting the present provisions, the District sought “to take nothing away from sportsmen.” DC Rep., at 33. And any inability of District residents to hunt near where they live has much to do with the jurisdiction’s exclusively urban character and little to do with the District’s firearm laws. For reasons similar to those I discussed in the preceding subsection—that the District’s law does not prohibit possession of rifles or shotguns, and the presence of opportunities for sporting activities in nearby States—I reach a similar conclusion, namely, that the District’s law burdens any sports-related or hunting-related objectives that the Amendment may protect little, or not at all. 3 The District’s law does prevent a resident from keeping a loaded handgun in his home. And it consequently makes it more difficult for the householder to use the handgun for self-defense in the home against intruders, such as burglars. As the Court of Appeals noted, statistics suggest that handguns are the most popular weapon for self defense. See 478 F. 3d, at 400 (citing Kleck & Gertz, 86 J. Crim. L. & C., at 182–183). And there are some legitimate reasons why that would be the case: Amici suggest (with some empirical support) that handguns are easier to hold and control (particularly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, and that a person using one will still have a hand free to dial 911. See ILEETA Brief 37–39; NRA Brief 32–33; see also ante , at 57. But see Brief for Petitioners 54–55 (citing sources preferring shotguns and rifles to handguns for purposes of self-defense). To that extent the law burdens to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further. C In weighing needs and burdens, we must take account of the possibility that there are reasonable, but less restrictive alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions? See Nixon , 528 U. S., at 402 (Breyer, J., concurring) (“existence of a clearly superior, less restrictive alternative” can be a factor in determining whether a law is constitutionally proportionate). Here I see none. The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns. It does not help respondent’s case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use. See Brief for American Academy of Pediatrics et al. as Amici Curiae 19 (“[C]hildren as young as three are able to pull the trigger of most handguns”). That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery. See Weapon Use and Violent Crime 2 (Table 2). That they are small and light makes them easy to steal, see supra , at 19, and concealable, cf. ante , at 54 (opinion of the Court) (suggesting that concealed-weapon bans are constitutional). This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence. See supra , at 18 (handguns prevalent in suicides); Brief for National Network to End Domestic Violence et al. as Amici Curiae 27 (handguns prevalent in domestic violence). If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive , less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban. Licensing restrictions would not similarly reduce the handgun population, and the District may reasonably fear that even if guns are initially restricted to law-abiding citizens, they might be stolen and thereby placed in the hands of criminals. See supra , at 19. Permitting certain types of handguns, but not others, would affect the commercial market for handguns, but not their availability. And requiring safety devices such as trigger locks, or imposing safe-storage requirements would interfere with any self-defense interest while simultaneously leaving operable weapons in the hands of owners (or others capable of acquiring the weapon and disabling the safety device) who might use them for domestic violence or other crimes. The absence of equally effective alternatives to a complete prohibition finds support in the empirical fact that other States and urban centers prohibit particular types of weapons. Chicago has a law very similar to the District’s, and many of its suburbs also ban handgun possession under most circumstances. See Chicago, Ill., Municipal Code §§8–20–030(k), 8–20–40, 8–20–50(c) (2008); Evanston, Ill., City Code §9–8–2 (2007); Morton Grove, Ill., Village Code §6–2–3(C) (2008); Oak Park, Ill., Village Code §27–2–1 (2007); Winnetka, Ill., Village Ordinance §9.12.020(B) (2008); Wilmette, Ill., Ordinance §12–24(b) (2008). Toledo bans certain types of handguns. Toledo, Ohio, Municipal Code, ch. 549.25 (2007). And San Francisco in 2005 enacted by popular referendum a ban on most handgun possession by city residents; it has been precluded from enforcing that prohibition, however, by state-court decisions deeming it pre-empted by state law. See Fiscal v. City and County of San Francisco , 158 Cal. App. 4th 895, 900–901, 70 Cal. Rptr. 3d 324, 326–328 (2008). (Indeed, the fact that as many as 41 States may pre-empt local gun regulation suggests that the absence of more regulation like the District’s may perhaps have more to do with state law than with a lack of locally perceived need for them. See Legal Community Against Violence, Regulating Guns in America 14 (2006), http://www. lcav.org/Library/reports_analyses/National_Audit_Total_ 8.16.06.pdf. In addition, at least six States and Puerto Rico impose general bans on certain types of weapons, in particular assault weapons or semiautomatic weapons. See Cal. Penal Code §12280(b) (West Supp. 2008); Conn. Gen. Stat. §§53–202c (2007); Haw. Rev. Stat. §134–8 (1993); Md. Crim. Law Code Ann. §4–303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, §131M (West 2006); N. Y. Penal Law Ann. §265.02(7) (West Supp. 2008); 25 Laws P. R. Ann. §456m (Supp. 2006); see also 18 U. S. C. §922(o) (federal machinegun ban). And at least 14 municipalities do the same. See Albany, N. Y., Municipal Code §193–16(A) (2005); Aurora, Ill., Ordinance §29–49(a) (2007); Buffalo, N. Y., City Code §180–1(F) (2000); Chicago, Ill., Municipal Code §8–24–025(a), 8–20–030(h); Cincinnati, Ohio, Admin. Code §708–37(a) (Supp. 2008); Cleveland, Ohio, Ordinance §628.03(a) (2008); Columbus, Ohio, City Code §2323.31 (2007); Denver, Colo., Municipal Code §38–130(e) (2008); Morton Grove, Ill., Village Code §6–2–3(B); N. Y. C. Admin. Code §10–303.1 (2007); Oak Park, Ill., Village Code §27–2-1; Rochester, N. Y., Code §47–5(f) (2008); South Bend, Ind., Ordinance §§13–97(b), 13–98 (2008); Toledo, Ohio, Municipal Code §549.23(a). These bans, too, suggest that there may be no substitute to an outright prohibition in cases where a governmental body has deemed a particular type of weapon especially dangerous. D The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the “permissible regulation” question: Does the District’s law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not. First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban. Cf. Lorillard Tobacco Co. v. Reilly , 533 U. S. 525 , 563 (2001) (varied effect of statewide speech restriction in “rural, urban, or suburban” locales “demonstrates a lack of narrow tailoring”). That urban area suffers from a serious handgun-fatality problem. The District’s law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks. Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a “Militia,” says nothing of “self-defense.” As Justice Stevens points out, the Second Amendment’s drafting history shows that the language reflects the Framers’ primary, if not exclusive, objective. See ante , at 17–28 (dissenting opinion). And the majority itself says that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right . . . was codified in a written Constitution.” Ante , at 26 (emphasis added). The way in which the Amendment’s operative clause seeks to promote that interest—by protecting a right “to keep and bear Arms”—may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller , 307 U. S., at 178 (“With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,” and the amendment “must be interpreted and applied with that end in view”). Further, any self-defense interest at the time of the Framing could not have focused exclusively upon urban-crime related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways. See Dept. of Commerce, Bureau of Census, Population: 1790 to 1990 (1998) (Table 4), online at http://www.census.gov/ population/censusdata/table-4.pdf (of the 3,929,214 Americans in 1790, only 201,655—about 5%—lived in urban areas). Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not. See supra , at 4–7. They are unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the amendment’s more basic protective ends. See, e.g. , Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1206–1207 (1999) (professional urban police departments did not develop until roughly the mid-19th century). Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late 18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular. See Miller , 307 U. S., at 180–182 (reproducing colonial militia laws). Respondent points out in his brief that the Federal Government and two States at the time of the founding had enacted statutes that listed handguns as “acceptable” militia weapons. Brief for Respondent 47. But these statutes apparently found them “acceptable” only for certain special militiamen (generally, certain soldiers on horseback), while requiring muskets or rifles for the general infantry. See Act of May 8, 1792, ch. XXXIII, 1 Stat. 271; Laws of the State of North Carolina 592 (1791); First Laws of the State of Connecticut 150 (1784); see also 25 Journals of the Continental Congress, pp. 1774–1789 741–742 (1922). Third, irrespective of what the Framers could have thought, we know what they did think. Samuel Adams, who lived in Boston, advocated a constitutional amendment that would have precluded the Constitution from ever being “construed” to “prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection. And he doubtless knew that Massachusetts law prohibited Bostonians from keeping loaded guns in the house. So how could Samuel Adams have advocated such protection unless he thought that the protection was consistent with local regulation that seriously impeded urban residents from using their arms against intruders? It seems unlikely that he meant to deprive the Federal Government of power (to enact Boston-type weapons regulation) that he know Boston had and (as far as we know) he would have thought constitutional under the Massachusetts Constitution. Indeed, since the District of Columbia (the subject of the Seat of Government Clause, U. S. Const., Art. I, §8, cl. 17) was the only urban area under direct federal control, it seems unlikely that the Framers thought about urban gun control at all. Cf. Palmore v. United States , 411 U. S. 389 , 397–398 (1973) (Congress can “legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it”). Of course the District’s law and the colonial Boston law are not identical. But the Boston law disabled an even wider class of weapons (indeed, all firearms). And its existence shows at the least that local legislatures could impose (as here) serious restrictions on the right to use firearms. Moreover, as I have said, Boston’s law, though highly analogous to the District’s, was not the only colonial law that could have impeded a homeowner’s ability to shoot a burglar. Pennsylvania’s and New York’s laws could well have had a similar effect. See supra , at 6–7. And the Massachusetts and Pennsylvania laws were not only thought consistent with an unwritten common-law gun-possession right, but also consistent with written state constitutional provisions providing protections similar to those provided by the Federal Second Amendment. See supra , at 6–7. I cannot agree with the majority that these laws are largely uninformative because the penalty for violating them was civil, rather than criminal. Ante , at 61–62. The Court has long recognized that the exercise of a constitutional right can be burdened by penalties far short of jail time. See, e.g. , Murdock v. Pennsylvania , 319 U. S. 105 (1943) (invalidating $7 per week solicitation fee as applied to religious group); see also Forsyth County v. Nationalist Movement , 505 U. S. 123 , 136 (1992) (“A tax based on the content of speech does not become more constitutional because it is a small tax”). Regardless, why would the majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge? After all, insofar as we look to history to discover how we can constitutionally regulate a right to self-defense, we must look, not to what 18th-century legislatures actually did enact, but to what they would have thought they could enact. There are innumerable policy-related reasons why a legislature might not act on a particular matter, despite having the power to do so. This Court has “frequently cautioned that it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” United States v. Wells , 519 U. S. 482 , 496 (1997). It is similarly “treacherous” to reason from the fact that colonial legislatures did not enact certain kinds of legislation an unalterable constitutional limitation on the power of a modern legislature cannot do so. The question should not be whether a modern restriction on a right to self-defense duplicates a past one, but whether that restriction, when compared with restrictions originally thought possible, enjoys a similarly strong justification. At a minimum that similarly strong justification is what the District’s modern law, compared with Boston’s colonial law, reveals. Fourth, a contrary view, as embodied in today’s decision, will have unfortunate consequences. The decision will encourage legal challenges to gun regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. See ante , at 54, and n. 26. And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time. As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District “a variety of tools for combating” such problems. Ante , at 64. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order. V The majority derides my approach as “judge-empowering.” Ante , at 62. I take this criticism seriously, but I do not think it accurate. As I have previously explained, this is an approach that the Court has taken in other areas of constitutional law. See supra , at 10–11. Application of such an approach, of course, requires judgment, but the very nature of the approach—requiring careful identification of the relevant interests and evaluating the law’s effect upon them—limits the judge’s choices; and the method’s necessary transparency lays bare the judge’s reasoning for all to see and to criticize. The majority’s methodology is, in my view, substantially less transparent than mine. At a minimum, I find it difficult to understand the reasoning that seems to underlie certain conclusions that it reaches. The majority spends the first 54 pages of its opinion attempting to rebut Justice Stevens’ evidence that the Amendment was enacted with a purely militia-related purpose. In the majority’s view, the Amendment also protects an interest in armed personal self-defense, at least to some degree. But the majority does not tell us precisely what that interest is. “Putting all of [the Second Amendment’s] textual elements together,” the majority says, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Ante , at 19. Then, three pages later, it says that “we do not read the Second Amendment to permit citizens to carry arms for any sort of confrontation.” Ante, at 22. Yet, with one critical exception, it does not explain which confrontations count. It simply leaves that question unanswered. The majority does, however, point to one type of confrontation that counts, for it describes the Amendment as “elevat[ing] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante , at 63. What is its basis for finding that to be the core of the Second Amendment right? The only historical sources identified by the majority that even appear to touch upon that specific matter consist of an 1866 newspaper editorial discussing the Freedmen’s Bureau Act, see ante , at 43, two quotations from that 1866 Act’s legislative history, see ante , at 43–44, and a 1980 state court opinion saying that in colonial times the same were used to defend the home as to maintain the militia, see ante , at 52. How can citations such as these support the far-reaching proposition that the Second Amendment’s primary concern is not its stated concern about the militia, but rather a right to keep loaded weapons at one’s bedside to shoot intruders? Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante , at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante , at 57; see also ante, at 54–55. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does , in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning. I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”; (2) “prohibitions on the possession of firearms by felons”; (3) “prohibitions on the possession of firearms by … the mentally ill”; (4) “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”; and (5) government “conditions and qualifications” attached “to the commercial sale of arms.” Ante , at 54. Why these? Is it that similar restrictions existed in the late 18th century? The majority fails to cite any colonial analogues. And even were it possible to find analogous colonial laws in respect to all these restrictions, why should these colonial laws count, while the Boston loaded-gun restriction (along with the other laws I have identified) apparently does not count? See supra , at 5–6, 38–39. At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated? Assume, for argument’s sake, that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire, see supra , at 5–7) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment—judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those questions by combining inconclusive historical research with judicial ipse dixit . The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas. VI For these reasons, I conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it. And, for these reasons as well as the independently sufficient reasons set forth by Justice Stevens, I would find the District’s measure consistent with the Second Amendment’s demands. With respect, I dissent.

The Supreme Court ruled that the District of Columbia's ban on handgun possession in the home violates the Second Amendment, which protects an individual's right to keep and bear arms. The Court found that the amendment guarantees the right to possess firearms and struck down the city's total ban on handguns, as well as its requirement that firearms in the home be kept non-functional. The Court's decision has broader implications for gun laws across the United States and sets a precedent for future judicial interpretations of the Second Amendment.

Government Agencies

Crowell v. Benson

https://supreme.justia.com/cases/federal/us/285/22/

U.S. Supreme Court Crowell v. Benson, 285 U.S. 22 (1932) Crowell v. Benson No. 19 Argued October 20, 21, 1931 Decided February 23, 1932 285 U.S. 22 ast|>* 285 U.S. 22 CERTIORARI TO THE CIRCUIT COURT OF APPEAL FOR THE FIFTH CIRCUIT Syllabus 1. In virtue of its power to alter or revise the maritime law, Congress may provide that, where employees in maritime employment are disabled or die from accidental injuries arising out of or in the course of their employment upon the navigable waters of the United States, their employers shall pay reasonable compensation, without regard to fault as the cause of injury, and be thereby relieved from other liability. P. 285 U. S. 39 . 2. The Longshoremen's and Harbor Workers' Compensation Act, which provides a scheme for compensation in the class of cases above described, applicable if recovery "through workmen's compensation proceedings may not validly be provided by State law," upheld as to substantive provisions. P. 285 U. S. 22 . 3. The classifications of disabilities and beneficiaries and the amounts of compensation provided in the Act not being unreasonable, the Act in those respects is consistent with the due process clause of the Fifth Amendment. Pp. 285 U. S. 41 -42. 4. The difficulty of ascertaining actual damages justifies the fixing of standard compensation in such an Act at figures reasonably approximating probable damages. Id. 5. Considerations respecting the relation of master and servant, which sustain workmen's compensation laws of the States against objections under the due process clause of the Fourteenth Amendment, are applicable to the substantive provisions of this Act of Congress, tested by the due process clause of the Fifth Amendment. Id. 6. Claims for compensation under the above-mentioned Act are filed with administrative officers called deputy commissioners, who "shall have full power and authority to hear and determine all questions in respect of such claim." They may issue subpoenas which are enforceable through contempt proceedings in federal courts. In investigating Page 285 U. S. 23 and hearing claims they, are not to be bound by the common law or statutory rules of evidence, except as provided in the Act, but are to proceed in such manner "as to best ascertain the rights of the parties." Hearings are to be public and reported stenographically, and records are to be made for which the Commission created by the Act must provide by regulation. Orders for compensation are to become final in 30 days. When compensation ordered is not paid, a supplementary order may be made declaring the amount in default, and judgment for that amount may be entered in a federal court if the order "is in accordance with law." Review of such judgment may be had as in suits for damages at common law. The Act further provides that, if a compensation order is "not in accordance with law," it may be suspended or set aside, in whole or in part, through injunction proceedings against the deputy commissioner who made it; and also that beneficiaries of such an order, or the deputy commissioner, may have it enforced in a federal court if the court determines that the order " was made and served in accordance with law." Held: (1) As the claims are governed by the maritime law and within the admiralty jurisdiction, trial by jury is not required by the Seventh Amendment. P. 285 U. S. 45 . (2) The Act reserves to the admiralty courts full power to pass upon all questions of law, including the power to deny effect to an administrative finding which is without evidence or contrary to the indisputable character of the evidence, or where the hearing was inadequate, unfair, or arbitrary. In this respect it, satisfies due process and attempts no interference with the judicial power in admiralty and maritime cases. Pp. 285 U. S. 46 , 285 U. S. 49 . (3) As regards questions of fact, the Act does not expressly preclude the court, in proceedings to set aside an order as not in accordance with law, from making its own examination and determination of facts whenever that is deemed necessary to enforce constitutional rights; and, as the Act is to be construed to support, rather than to defeat it, no such limitation should be implied. P. 285 U. S. 46 . (4) Apart from constitutional rights to be enforced in court, the Act contemplates that, in cases within its purview, the findings of a deputy commissioner on questions of fact respecting injuries to employees shall be final if supported by evidence. P. 285 U. S. 46 . (5) So limited, the use of the administrative method for determining facts (assuming due notice and opportunity to be heard and that findings are based upon evidence) is consistent with due process Page 285 U. S. 24 and is not an unconstitutional invasion of the judicial power. Pp. 285 U. S. 47 , 285 U.S. 51 . (6) The Act requires a public hearing, and that all proceedings upon a particular claim shall be shown in the record and open to challenge and opposing evidence; facts known to the deputy commissioner but not put in evidence will not support a compensation order. P. 285 U. S. 48 . (7) The provision that the deputy commissioner shall not be bound by the rules of evidence applicable in a court or by technical rules of procedure is compatible with due process provided the substantial rights of the parties be not infringed. Id. (8) Equipping the admiralty courts with power of injunction, for enforcing the standards of maritime law as defined by the Act, is consistent with Art. III of the Constitution. P. 285 U. S. 49 . (9) Where the question of fact relates to either of the two fundamental and jurisdictional conditions of the statute, viz., (a) occurrence of the injury upon navigable waters of the United States, and (b) existence of the relation of master and servant, the finding of the deputy commissioner is not conclusive, but the question is determinable de novo by the court on full pleadings and proofs in a suit for an injunction, in which the court is not confined to the evidence taken and record made before the deputy commissioner. The statute is susceptible of this construction, and must be so construed to avoid unconstitutionality. Pp. 285 U. S. 54 , 285 U. S. 62 . (10) In amending and revising the maritime law, Congress can not reach beyond the constitutional limits of the admiralty and maritime jurisdiction. P. 285 U. S. 55 . (11) Congress has no general authority to amend the maritime law so as to establish liability without fault in maritime cases regardless of particular circumstances or relations -- in this instance, the relation of master and servant. P. 285 U. S. 56 . 7. As respects the power of Congress to provide for determinations of fact otherwise than through the exercise of the judicial power reposed by the Constitution in the courts of the United States, a clear distinction exists between cases arising between the Government and other persons which, by their nature, do not require judicial determination (though they may be susceptible of it) and cases of private right, that is, of the liability of one individual to another under the law as defined. P. 285 U. S. 50 . 8. Proper maintenance of the federal judicial power in enforcing constitutional restrictions precludes a power in Congress to substitute for constitutional courts, in which the judicial power of the United Page 285 U. S. 25 States is vested, an administrative agency for the final determination of facts upon which the enforcement of the constitutional rights of the citizen depend. P. 285 U. S. 56 . 9. A State, on the other hand, may distribute its powers as it sees fit, provided only that it acts consistently with the essential demands of due process and does not transgress restrictions of the Federal Constitution applicable to state authority. P. 285 U. S. 57 . 10. The power of Congress to change the procedure of the courts of admiralty would not justify lodging in an administrative officer final decision of facts upon which the constitutional rights of individuals are dependent. P. 285 U. S. 61 . 11. In deciding upon the validity of an Act of Congress, regard must be had to substance, rather than form. P. 285 U. S. 53 . 12. Where the validity of an Act of Congress is drawn in question or where a serious doubt of its constitutionality is raised, it is a cardinal principle that the court will first ascertain whether a construction of the Act is fairly possible by which the question may be avoided. P. 285 U. S. 62 . 13. A declaration in a statute that if any of its provisions, or the application thereof to any persons or circumstances, shall be found unconstitutional, the validity of the remainder of the statute and the applicability of its provisions to other persons or circumstances shall not be affected evidences an intention that no implication from the terms of the Act which would render them invalid should be indulged. P. 285 U. S. 63 . 45 F.2d 66, affirmed. Certiorari, 283 U.S. 814, to review a decree which affirmed a decree of the District Court, 33 F.2d 137 ; 38 id. 306, enjoining the enforcement of an award of compensation made by a deputy commissioner under the Longshoremen's and Harbor Workers' Compensation Act. Page 285 U. S. 36 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. This suit was brought in the District Court to enjoin the enforcement of an award made by petitioner Crowell, as Deputy Commissioner of the United States Employees' Compensation Commission, in favor of the petitioner Knudsen and against the respondent Benson. The award was made under the Longshoremen's and Harbor Workers' Compensation Act (Act of March 4, 1927, c. 509, 44 Stat. 1424, U.S.C. Tit. 33, §§ 901-950), and rested upon Page 285 U. S. 37 the finding of the deputy commissioner that Knudsen was injured while in the employ of Benson and performing service upon the navigable waters of the United States. The complainant alleged that the award was contrary to law for the reason that Kundsen was not at the time of his injury an employee of the complainant, and his claim was not "within the jurisdiction" of the Deputy Commissioner. An amended complaint charged that the Act was unconstitutional upon the grounds that it violated the due process clause of the Fifth Amendment, the provision of the Seventh Amendment as to trial by jury, that of the Fourth Amendment as to unreasonable search and seizure, and the provisions of Article III with respect to the judicial power of the United States. The District Judge denied motions to dismiss and granted a hearing de novo upon the facts and the law, expressing the opinion that the Act would be invalid if not construed to permit such a hearing. The case was transferred to the admiralty docket, answers were filed presenting the issue as to the fact of employment, and, the evidence of both parties having been heard, the District Court decided that Knudsen was not in the employ of the petitioner and restrained the enforcement of the award. 33 F.2d 137 ; 38 F.2d 306. The decree was affirmed by the Circuit Court of Appeals (45 F.2d 66) and this Court granted writs of certiorari. 283 U.S. 814. The question of the validity of the Act may be considered in relation to (1) its provisions defining substantive rights and (2) its procedural requirements. First. The Act has two limitations that are fundamental. It deals exclusively with compensation in respect of disability or death resulting "from an injury occurring upon the navigable waters of the United States" if recovery "through workmen's compensation proceedings Page 285 U. S. 38 may not validly be provided by State law," and it applies only when the relation of master and servant exists. § 3. [ Footnote 1 ] "Injury," within the statute, "means accidental injury or death arising out of and in the course of employment," and the term "employer" means one "any of whose employees are employed in maritime employment, in whole or in part," upon such navigable waters. § 2(2)(4). Employers are made liable for the payment to their employees of prescribed compensation "irrespective of fault as a cause for the injury." § 4. The liability is exclusive, unless the employer fails to secure payment of the compensation. § 5. The employer is required to furnish appropriate medical and other treatment. § 7. The compensation for temporary or permanent disability, total or partial, according to the statutory classification, and, in case of the death of the employee, is fixed, being based upon prescribed percentages of average weekly wages, and the persons to whom payments are to be made are designated. §§ 6, 8, 9, 10. Employers must secure the payment Page 285 U. S. 39 of compensation by procuring insurance or by becoming self-insurers in the manner stipulated. § 32. Failure to provide such security is a misdemeanor. § 38 (33 USCA § 938). As the Act relates solely to injuries occurring upon the navigable waters of the United States, it deals with the maritime law, applicable to matters that fall within the admiralty and maritime jurisdiction (Const. Art. 3, § 2; Nogueira v. N.Y., N.H. & H.R. Co., 281 U. S. 128 , 281 U. S. 138 ), and the general authority of the Congress to alter or revise the maritime law which shall prevail throughout the country is beyond dispute. [ Footnote 2 ] In limiting the application of the Act to cases where recovery "through workmen's compensation proceedings may not validly be provided by State law," the Congress evidently had in view the decisions of this Court with respect to the scope of the exclusive authority of the national legislature. [ Footnote 3 ] The propriety Page 285 U. S. 40 of providing by federal statute for compensation of employees in such cases had been expressly recognized by this Court, [ Footnote 4 ] and, within its sphere, the statute was designed to accomplish the same general purpose as the Workmen's Compensation Laws of the states. [ Footnote 5 ] In defining Page 285 U. S. 41 substantive rights, the Act provides for recovery in the absence of fault, classifies disabilities resulting from injuries, fixes the range of compensation in case of disability or death, and designates the classes of beneficiaries. In view of federal power to alter and revise the maritime law, there appears to be no room for objection on constitutional grounds to the creation of these rights, unless it can be found in the due process clause of the Fifth Amendment. But it cannot be said that either the classifications of the statute or the extent of the compensation provided are unreasonable. In view of the difficulties which inhere in the ascertainment of actual damages, the Congress was entitled to provide for the payment of amounts which would reasonably approximate the probable damages. See Chicago, B. & Q. R. Co. v. Cram, 228 U. S. 70 , 228 U. S. 84 ; compare Missouri Pacific R. Co. v. Tucker, 230 U. S. 346 , 230 U. S. 348 . Liability without fault is not unknown to the maritime law, [ Footnote 6 ] and, Page 285 U. S. 42 apart from this fact, considerations are applicable to the substantive provisions of this legislation, with respect to the relation of master and servant, similar to those which this Court has found sufficient to sustain workmen's compensation laws of the states against objections under the due process clause of the Fourteenth Amendment. New York Central R. Co. v. White, 243 U. S. 188 ; Mountain Timber Company v. Washington, 243 U. S. 219 ; Ward & Gow v. Krinsky, 259 U. S. 503 ; Lower Vein Coal Co. v. Industrial Board, 255 U. S. 144 ; Madera Sugar Pine Company v. Industrial Accident Commission, 262 U. S. 499 , 262 U. S. 501 , 262 U. S. 502 ; Sheehan Company v. Shuler, 265 U. S. 371 ; Dahlstrom Metallic Door Company v. Industrial Board, 284 U.S. 594. See Nogueira v. N.Y., N.H. & H.R. Co., supra, at pp. 281 U. S. 136 , 281 U. S. 137 . Second. The objections to the procedural requirements of the Act relate to the extent of the administrative authority which it confers. The administration of the Act -- "except as otherwise specifically provided" -- was given to the United States Employees' Compensation Commission, [ Footnote 7 ] which was authorized to establish compensation districts, appoint deputy commissioners, and make regulations. §§ 39, 40. Claimants must give written notice to the deputy commissioner and to the employer of the injury or death within thirty days thereafter; the deputy commissioner may excuse failure to give such notice for satisfactory reasons. § 12. If the employer contests the right to compensation, he is to file notice to that effect. § 14(d). A claim for compensation must be filed with Page 285 U. S. 43 the deputy commissioner within a prescribed period, and it is provided that the deputy commissioner shall have full authority to hear and determine all questions in respect to the claim. §§ 13, 19(a). Within ten days after the claim is filed, the deputy commissioner, in accordance with regulations prescribed by the Commission, must notify the employer and any other person who is considered by the deputy commissioner to be an interested party. The deputy commissioner is required to make, or cause to be made, such investigations as he deems to be necessary, and upon application of any interested party must order a hearing, upon notice, at which the claimant and the employer may present evidence. Employees claiming compensation must submit to medical examination. § 19. In conducting investigations and hearings, the deputy commissioner is not bound by common law or statutory rules of evidence, or by technical or formal rules or procedure, except as the Act provides, but he is to proceed in such manner "as to best ascertain the rights of the parties." § 23(a). He may issue subpoenas, administer oaths, compel the attendance and testimony of witnesses, the production of documents or other evidence or the taking of depositions, and may do all things conformable to law which may be necessary to enable him effectively to discharge his duties. Proceedings may be brought before the appropriate federal court to punish for misbehavior or contumacy as in case of contempt. § 27. Hearings before the deputy commissioner are to be public and reported stenographically, and the Commission is to provide by regulation for the preparation of a record. § 23(b). [ Footnote 8 ] Compensation orders are to be filed in the office of the deputy commissioner, and copies must be sent Page 285 U. S. 44 to the claimant and employer. § 19. The Act provides that it shall be presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of the Act, that sufficient notice of claim has been given, that the injury was not occasioned solely by the intoxication of the injured employee, or by the willful intention of such employee to injure or kill himself or another. § 20. A compensation order becomes effective when filed, and, unless proceedings are instituted to suspend it or set it aside, it becomes final at the expiration of thirty days. § 21(a). If there is a change in conditions, the order may be modified or a new order made. § 22. In case of default for thirty days in the payment of compensation, application may be made to the deputy commissioner for a supplementary order declaring the amount in default. Such an order is to be made after investigation, notice, and hearing, as in the case of claims. Upon filing a certified copy of the supplementary order with the clerk of the federal court, as stated, judgment is to be entered for the amount declared in default, if such supplementary order "is in accordance with law." Review of the judgment may be had as in civil suits for damages at common law, and the judgment may be enforced by writ of execution. § 18. The Act further provides that, if a compensation order is "not in accordance with law," it "may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest" against the deputy commissioner making the order and instituted in the federal District Court for the judicial district in which the injury occurred. [ Footnote 9 ] Payment is not to be stayed pending such proceedings unless, on hearing after notice, the court allows the stay on evidence Page 285 U. S. 45 showing that the employer would otherwise suffer irreparable damage. § 21(b). Beneficiaries of awards or the deputy commissioner may apply for enforcement to the federal District Court, and, if the court determines that the order "was made and served in accordance with law," obedience may be compelled by writ of injunction or other proper process. § 21(c). [ Footnote 10 ] As the claims which are subject to the provisions of the Act are governed by the maritime law as established by the Congress, and are within the admiralty jurisdiction, the objection raised by the respondent's pleading as to the right to a trial by jury under the Seventh Amendment is unavailing ( Waring v. Clarke , 5 How. 441, 46 U. S. 459 , 46 U. S. 460 ), and that, under the Fourth Amendment, is neither explained nor urged. The other objections as to procedure invoke the due process clause and the provision as to the judicial power of the United States. (1) The contention under the due process clause of the Fifth Amendment relates to the determination of questions of fact. Rulings of the deputy commissioner upon questions of law are without finality. So far as Page 285 U. S. 46 the latter are concerned, full opportunity is afforded for their determination by the federal courts through proceedings to suspend or to set aside a compensation order, 21(b), by the requirement that judgment is to be entered on a supplementary order declaring default only in case the order follows the law (§ 18), and by the provision that the issue of injunction or other process in a proceeding by a beneficiary to compel obedience to a compensation order is dependent upon a determination by the court that the order was lawfully made and served. § 21(c). Moreover, the statute contains no express limitation attempting to preclude the court, in proceedings to set aside an order as not in accordance with law, from making its own examination and determination of facts whenever that is deemed to be necessary to enforce a constitutional right properly asserted. See Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 , 253 U. S. 289 ; Ng Fung Ho. v. White, 259 U. S. 276 , 259 U. S. 284 , 259 U. S. 285 ; Prendergast v. New York Telephone Co., 262 U. S. 43 , 262 U. S. 50 ; Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 443 , 280 U. S. 444 ; Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 600 . As the statute is to be construed so as to support, rather than to defeat it, no such limitation is to be implied. Panama Railroad Co. v. Johnson, 264 U. S. 375 , 264 U. S. 390 . Apart from cases involving constitutional rights to be appropriately enforced by proceedings in court, there can be no doubt that the Act contemplates that as to questions of fact, arising with respect to injuries to employees within the purview of the Act, the findings of the deputy commissioner, supported by evidence and within the scope of his authority, shall be final. To hold otherwise would be to defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert, and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task. Page 285 U. S. 47 The object is to secure within the prescribed limits of the employer's liability an immediate investigation and a sound practical judgment, and the efficacy of the plan depends upon the finality of the determinations of fact with respect to the circumstances, nature, extent, and consequences of the employee's injuries and the amount of compensation that should be awarded. And this finality may also be regarded as extending to the determination of the question of fact whether the injury "was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another." While the exclusion of compensation in such cases is found in what are called "coverage" provisions of the Act (§ 3), the question of fact still belongs to the contemplated routine of administration, for the case is one of employment within the scope of the Act, and the cause of the injury sustained by the employee as well as its character and effect must be ascertained in applying the provisions for compensation. The use of the administrative method for these purposes, assuming due notice, proper opportunity to be heard, and that findings are based upon evidence, falls easily within the principle of the decisions sustaining similar procedure against objections under the due process clauses of the Fifth and Fourteenth Amendments. [ Footnote 11 ] The statute provides for notice and hearing, and an award made without proper notice, or suitable opportunity Page 285 U. S. 48 to be heard, may be attacked and set aside as without validity. The objection is made that, as the deputy commissioner is authorized to prosecute such inquiries as he may consider necessary, the award may be based wholly or partly upon an ex parte investigation and upon unknown sources of information, and that the hearing may be merely a formality. The statute, however, contemplates a public hearing, and regulations are to require "a record of the hearings and other proceedings before the deputy commissioners." § 23(b). This implies that all proceedings by the deputy commissioner upon a particular claim shall be appropriately set forth, and that whatever facts he may ascertain and their sources shall be shown in the record and be open to challenge and opposing evidence. Facts conceivably known to the deputy commissioner, but not put in evidence so as to permit scrutiny and contest, will not support a compensation order. Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88 , 227 U. S. 93 ; The Chicago Junction Case, 264 U. S. 258 , 264 U. S. 263 ; United States v. Abilene & Southern Railway Co., 265 U. S. 274 , 265 U. S. 288 . An award not supported by evidence in the record is not in accordance with law. But the fact that the deputy commissioner is not bound by the rules of evidence which would be applicable to trials in court or by technical rules of procedure (§ 23(a)), does not invalidate the proceeding, provided substantial rights of the parties are not infringed. Interstate Commerce Commission v. Baird, 194 U. S. 25 , 194 U. S. 44 ; Interstate Commerce Commission v. Louisville & Nashville R. Co., supra; Spiller v. Atchison, T. & S.F. Ry. Co., 253 U. S. 117 , 253 U. S. 131 ; United States v. Abilene & Southern Railway Co., supra; Tagg Bros. & Moorhead v. United States, supra, at p. 280 U. S. 442 . (2) The contention based upon the judicial power of the United States, as extended "to all Cases of admiralty Page 285 U. S. 49 and maritime jurisdiction" (Const. Art. III), presents a distinct question. In Murray's Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 59 U. S. 284 , this Court, speaking through Mr. Justice Curtis, said: "To avoid misconstruction upon so grave a subject, we think it proper to state that we do not consider congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination." The question in the instant case, in this aspect, can be deemed to relate only to determinations of fact. The reservation of legal questions is to the same court that has jurisdiction in admiralty, and the mere fact that the court is not described as such is unimportant. Nor is the provision for injunction proceedings, § 21(b), open to objection. The Congress was at liberty to draw upon another system of procedure to equip the court with suitable and adequate means for enforcing the standards of the maritime law as defined by the Act. The Genesee Chief , 12 How. 443, 53 U. S. 459 , 53 U. S. 460 . Compare Panama R. Co. v. Johnson, supra, at p. 264 U. S. 388 . By statute and rules, courts of admiralty may be empowered to grant injunctions, as in the case of limitation of liability proceedings. Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U. S. 207 , 273 U. S. 218 . See also Marine Transit Corporation v. Dreyfus, 284 U. S. 263 , decided January 4, 1932. The Congress did not attempt to define questions of law, and the generality of the description leaves no doubt of the intention to reserve to the Federal court full authority to pass upon all matters which this Court had held to fall within that category. There is thus no attempt to interfere with, but rather provision is made to facilitate, the exercise by the court of its jurisdiction Page 285 U. S. 50 to deny effect to any administrative finding which is without evidence, or "contrary to the indisputable character of the evidence," or where the hearing is "inadequate," or "unfair," or arbitrary in any respect. Interstate Commerce Commission v. Louisville R. Co., supra, at pp. 227 U. S. 91 , 227 U. S. 92 ; Tagg Bros. & Moorhead v. United States, supra. As to determinations of fact, the distinction is at once apparent between cases of private right and those which arise between the government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments. The Court referred to this distinction in Murray's Lessee v. Hoboken Land & Improvement Co., supra, pointing out that "there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper." Thus the Congress, in exercising the powers confided to it, may establish "legislative" courts (as distinguished from "constitutional courts in which the judicial power conferred by the Constitution can be deposited") which are to form part of the government of territories or of the District of Columbia, [ Footnote 12 ] or to serve as special tribunals "to examine and determine various matters, arising between the government and others, which, from their nature, do not require judicial determination and yet are susceptible of it." But "the mode of determining matters of this class is completely within congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals." Ex Page 285 U. S. 51 parte Bakelite Corporation, 279 U. S. 438 , 279 U. S. 451 . Familiar illustrations of administrative agencies created for the determination of such matters are found in connection with the exercise of the congressional power as to interstate and foreign commerce, taxation, immigration, the public lands, public health, the facilities of the post office, pensions, and payments to veterans. [ Footnote 13 ] The present case does not fall within the categories just described, but is one of private right, that is, of the liability of one individual to another under the law as defined. But, in cases of that sort, there is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges. On the common law side of the federal courts, the aid of juries is not only deemed appropriate, but is required by the Constitution itself. In cases of equity and admiralty, it is historic practice to call to the assistance of the courts, without the consent of the parties, masters, and commissioners or assessors, to pass upon certain classes of questions, as, for example, to take and state an account or to find the amount of damages. While the reports of masters and commissioners in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, [ Footnote 14 ] Page 285 U. S. 52 and the parties have no right to demand that the court shall redetermine the facts thus found. In admiralty, juries were anciently in use not only in criminal cases, but apparently in civil cases also. [ Footnote 15 ] The Act of February 26, 1845 (c. 20, 5 Stat. 726), purporting to extend the admiralty jurisdiction of the federal District Courts to certain cases arising on the Great Lakes, gave the right to "trial by jury of all facts put in issue in such suits, where either party shall require it." After the decision in the case of The Genesee Chief, supra, holding that the federal District Courts possessed general jurisdiction in admiralty over the lakes, and navigable waters connecting them, under the Constitution and the Judiciary Act of 1789 (chapter 20, § 9, 1 Stat. pp. 76, 77), this Court regarded the Enabling Act of 1845 as "obsolete and of no effect, with the exception of the clause which gives to either party the right of trial by jury when requested." The Eagle , 8 Wall. 15, 75 U. S. 25 . And this provision, the court said, was "rather a mode of exercising jurisdiction than any substantial part of it." See R.S. 566, U.S.C., Tit. 28, § 770. [ Footnote 16 ] Chief Justice Taney, in delivering the opinion of the court in the case of The Genesee Chief, supra, referring to this requirement, thus broadly stated the authority of Congress to change the procedure in courts of admiralty: Page 285 U. S. 53 "The power of Congress to change the mode of proceeding in this respect in its courts of admiralty will, we suppose, hardly be questioned. The Constitution declares that the judicial power of the United States shall extend to 'all cases of admiralty and maritime jurisdiction.' But it does not direct that the court shall proceed according to ancient and established forms, or shall adopt any other form or mode of practice. The grant defines the subjects to which the jurisdiction may be extended by Congress. But the extent of the power, as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts of the United States, are subject to the regulation of Congress, except where that power is limited by the terms of the Constitution, or by necessary implication from its language. In admiralty and maritime cases, there is no such limitation as to the mode of proceeding, and Congress may therefore, in cases of that description, give either party right of trial by jury, or modify the practice of the court in any other respect that it deems more conducive to the administration of justice." It may also be noted that while, on an appeal in admiralty cases, "the facts, as well as the law, would be subjected to review and retrial," this Court has recognized the power of the Congress "to limit the effect of an appeal to a review of the law as applicable to facts finally determined below." The Francis Wright, 105 U. S. 381 , 105 U. S. 386 ; The Connemara, 108 U. S. 352 , 108 U. S. 359 . Compare Luckenbach S.S. Co. v. United States, 272 U. S. 533 , 272 U. S. 536 , 272 U. S. 537 . In deciding whether the Congress, in enacting the statute under review, has exceeded the limits of its authority to prescribe procedure in cases of injury upon navigable waters, regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form, but to the substance of what is required. Page 285 U. S. 54 The statute has a limited application, being confined to the relation of master and servant, and the method of determining the questions of fact, which arise in the routine of making compensation awards to employees under the Act, is necessary to its effective enforcement. The Act itself, where it applies, establishes the measure of the employer's liability, thus leaving open for determination the questions of fact as to the circumstances, nature, extent, and consequences of the injuries sustained by the employee for which compensation is to be made in accordance with the prescribed standards. Findings of fact by the deputy commissioner upon such questions are closely analogous to the findings of the amount of damages that are made according to familiar practice by commissioners or assessors, and the reservation of full authority to the court to deal with matters of law provides for the appropriate exercise of the judicial function in this class of cases. For the purposes stated, we are unable to find any constitutional obstacle to the action of the Congress in availing itself of a method shown by experience to be essential in order to apply its standards to the thousands of cases involved, thus relieving the courts of a most serious burden while preserving their complete authority to insure the proper application of the law. (3) What has been said thus far relates to the determination of claims of employees within the purview of the Act. A different question is presented where the determinations of fact are fundamental or "jurisdictional" [ Footnote 17 ] in the sense that their existence is a condition precedent to the operation of the statutory scheme. These fundamental Page 285 U. S. 55 requirements are that the injury occurs upon the navigable waters of the United States, and that the relation of master and servant exists. These conditions are indispensable to the application of the statute not only because the Congress has so provided explicitly (§ 3), but also because the power of the Congress to enact the legislation turns upon the existence of these conditions. In amending and revising the maritime law, [ Footnote 18 ] the Congress cannot reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. [ Footnote 19 ] Unless the injuries to which the Act relates occur upon the navigable waters of the United States, they fall outside that jurisdiction. [ Footnote 20 ] Not only is navigability itself a question of fact, as waters that are navigable in fact are navigable in law, [ Footnote 21 ] but, where navigability is not in dispute, the locality of the injury, that is, whether it has occurred upon the navigable waters of the United States, determines the existence of the congressional power to create the liability prescribed by the statute. [ Footnote 22 ] Again, it Page 285 U. S. 56 cannot be maintained that the Congress has any general authority to amend the maritime law so as to establish liability without fault in maritime cases, regardless of particular circumstances or relations. It is unnecessary to consider what circumstances or relations might permit the imposition of such a liability by amendment of the maritime law, but it is manifest that some suitable selection would be required. In the present instance, the Congress has imposed liability without fault only where the relation of master and servant exists in maritime employment, and, while we hold that the Congress could do this, the fact of that relation is the pivot of the statute, and, in the absence of any other justification, underlies the constitutionality of this enactment. If the person injured was not an employee of the person sought to be held, or if the injury did not occur upon the navigable waters of the United States, there is no ground for an assertion that the person against whom the proceeding was directed could constitutionally be subjected, in the absence of fault upon his part, to the liability which the statute creates. In relation to these basic facts, the question is not the ordinary one as to the propriety of provision for administrative determinations. Nor have we simply the question of due process in relation to notice and hearing. It is, rather, a question of the appropriate maintenance of the federal judicial power in requiring the observance of constitutional restrictions. It is the question whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency -- in this instance, a single deputy commissioner [ Footnote 23 ] -- for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend. The recognition of Page 285 U. S. 57 the utility and convenience of administrative agencies for the investigation and finding of facts within their proper province, and the support of their authorized action, does not require the conclusion that there is no limitation of their use, and that the Congress could completely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instrumentalities or in the executive department. That would be to sap the judicial power as it exists under the federal Constitution, and to establish a government of a bureaucratic character alien to our system wherever fundamental rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law. In this aspect of the question, the irrelevancy of state statutes and citations from state courts as to the distribution of state powers is apparent. A state may distribute its powers as it sees fit, provided only that it acts consistently with the essential demands of due process and does not transgress those restrictions of the Federal Constitution which are applicable to state authority. [ Footnote 24 ] In relation to the federal government, we have already noted the inappositeness to the present inquiry of decisions with respect to determinations of fact, upon evidence and within the authority conferred, made by administrative agencies which have been created to aid in the performance of governmental functions, and where the mode of determination is within the control of the Congress, as, e.g., in the proceedings of the Land Office pursuant to provisions for the disposition of public lands, of the authorities of the Post Office in relation to postal privileges, of the Bureau of Internal Revenue with respect to taxes, and of the Labor Department as to the Page 285 U. S. 58 admission and deportation of aliens. Ex parte Bakelite Corporation, supra. [ Footnote 25 ] Similar considerations apply to decisions with respect to determinations of fact by boards and commissions created by the Congress to assist it in its legislative process in governing various transactions subject to its authority, as, for example, the rates and practices of interstate carriers, the legislature thus being able to apply its standards to a host of instances which it is impracticable to consider and legislate upon directly and the action being none the less legislative in character because taken through a subordinate body. [ Footnote 26 ] And where administrative bodies have been appropriately created to meet the exigencies of certain classes of cases and their action is of a judicial character, the question of the conclusiveness of their administrative findings of fact generally arises where the facts are clearly not jurisdictional [ Footnote 27 ] and the scope of review as to such facts has been determined by the applicable legislation. None of the decisions of this sort touch the question which is presented where the facts involved are jurisdictional, [ Footnote 28 ] or where the question concerns the proper exercise of the judicial power of the United States in enforcing constitutional limitations. Even where the subject lies within the general authority of the Congress, the propriety of a challenge by judicial proceedings of the determinations of fact deemed to be jurisdictional, as underlying the authority of executive officers, has been recognized. When proceedings are taken against a person under the military law, and enlistment is denied, the issue has been tried and determined de novo upon habeas corpus. In re Grimley, 137 U. S. 147 , 137 U. S. 154 , Page 285 U. S. 59 137 U. S. 155 . See also In re Morrissey, 137 U. S. 157 , 137 U. S. 158 ; Givens v. Zerbst, 255 U. S. 11 , 155 U. S. 20 . While, in the administration of the public land system, questions of fact are for the consideration and judgment of the Land Department and its decision of such questions is conclusive, it is equally true that, if lands "never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them." This Court has held that "matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases, the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act." Smelting Co. v. Kemp, 104 U. S. 636 , 104 U. S. 641 . In such a case, the invalidity of the patent may be shown in a collateral proceeding. Polk v. Wendell , 9 Cranch. 87; Patterson v. Winn , 11 Wheat. 380; Minter v. Crommelin , 18 How. 87; Morton v. Nebraska , 21 Wall 660, 88 U. S. 675 ; Noble v. Union River Logging Railroad, 147 U. S. 165 , 147 U. S. 174 . The question whether a publication is a "book" or a "periodical" has been reviewed upon the evidence received in a suit brought to restrain the Postmaster General from acting beyond his authority in excluding the publication from carriage as second class mail matter. Hitchcock v. Smith, 34 App. D. C. 521, 530-533; id., 266 U.S. 54, 59 [argument of counsel -- omitted]. [ Footnote 29 ] Page 285 U. S. 60 In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function. The case of confiscation is illustrative, the ultimate conclusion almost invariably depending upon the decisions of questions of fact. This court has held the owner to be entitled to "a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts." Ohio Valley Water Co. v. Ben Avon Borough, supra. See also Prendergast v. New York Telephone Co., 262 U. S. 43 , 262 U. S. 50 ; Tagg Bros. & Moorhead v. United States, supra; Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 600 . Jurisdiction in the executive to order deportation exists only if the person arrested is an alien, and while, if there were jurisdiction, the findings of fact of the executive department would be conclusive, the claim of citizenship "is thus a denial of an essential jurisdictional fact," both in the statutory and the constitutional sense, and a writ of habeas corpus will issue "to determine the status." Persons claiming to be citizens of the United States "are entitled to a judicial determination of their claims," said this Court in Ng Fung Ho v. White, supra, at p. 259 U. S. 285 , and, in that case, the cause was remanded to the Federal District Court "for trial in that court of the question of citizenship." In the present instance, the argument that the Congress has constituted the deputy commissioner a factfinding tribunal is unavailing, as the contention makes the untenable assumption that the constitutional courts may be Page 285 U. S. 61 deprived in all cases of the determination of facts upon evidence even though a constitutional right may be involved. Reference is also made to the power of the Congress to change the procedure in courts of admiralty, a power to which we have alluded in dealing with the function of the deputy commissioner in passing upon the compensation claims of employees. But when fundamental rights are in question, this Court has repeatedly emphasized "the difference in security of judicial over administrative action." Ng Fung Ho v. White, supra. Even where issues of fact are tried by juries in the federal courts, such trials are under the constant superintendence of the trial judge. In a trial by jury in a federal court, the judge is "not a mere moderator," but "is the governor of the trial" for the purpose of assuring its proper conduct as well as of determining questions of law. Herron v. Southern Pacific Co., 283 U. S. 91 , 283 U. S. 95 . In the federal courts, trial by jury "is a trial by a jury of 12 men in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence." Capital Traction Co. v. Hof, 174 U. S. 1 , 1 174 U. S. 3 , 174 U. S. 14 . Where testimony in an equity cause is not taken before the court, the proceeding is still constantly subject to the court's control. And while the practice of obtaining the assistance of masters in chancery and commissioners in admiralty may be regarded, as we have pointed out, as furnishing a certain analogy in relation to the normal authority of the deputy commissioner in making what is virtually an assessment of damages, the proceedings of such masters and commissioners are always subject to the direction of the court, and their reports are essentially advisory, a distinction of controlling importance when questions of a fundamental character are in issue. Page 285 U. S. 62 When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. [ Footnote 30 ] We are of the opinion that such a construction is permissible, and should be adopted in the instant case. The Congress has not expressly provided that the determinations by the deputy commissioner of the fundamental or jurisdictional facts as to the locality of the injury and the existence of the relation of master and servant shall be final. The finality of such determinations of the deputy commissioner is predicated primarily upon the provision, § 19(a), that he "shall have full power and authority to hear and determine all questions in respect of such claim." But "such claim" is the claim for compensation under the Act, and, by its explicit provisions, is that of an "employee," as defined in the Act, against his "employer." The fact of employment is an essential condition precedent to the right to make the claim. The other provision upon which the argument rests is that which authorizes the federal court to set aside a compensation order if it is "not in accordance with law." § 21(b). In the absence of any provision as to the finality of the determination by the deputy commissioner of the jurisdictional fact of employment, the statute is open to the construction that the court, in determining whether a compensation order is in accordance with law, may determine the fact of employment which underlies the operation of the statute. And, to remove the question as to validity, we think that the statute should be so construed. Further, the Act expressly requires that, Page 285 U. S. 63 if any of its provisions is found to be unconstitutional, "or the applicability thereof to any person or circumstances" is held invalid, the validity of the remainder of the Act and "the applicability of such provision to other persons and circumstances" shall not be affected. § 50. We think that this requirement clearly evidences the intention of the Congress not only that an express provision found to be unconstitutional should be disregarded without disturbing the remainder of the statute, but also that any implication from the terms of the Act which would render them invalid should not be indulged. This provision also gives assurance that there is no violation of the purpose of the Congress in sustaining the determinations of fact of the deputy commissioner where he acts within his authority in passing upon compensation claims while denying finality to his conclusions as to the jurisdictional facts upon which the valid application of the statute depends. Assuming that the federal court may determine for itself the existence of these fundamental or jurisdictional facts, we come to the question: upon what record is the determination to be made? There is no provision of the statute which seeks to confine the court in such a case to the record before the deputy commissioner or to the evidence which he has taken. The remedy which the statute makes available is not by an appeal or by a writ of certiorari for a review of his determination upon the record before him. The remedy is "through injunction proceedings mandatory or otherwise." § 21(b). The question in the instant case is not whether the deputy commissioner has acted improperly or arbitrarily as shown by the record of his proceedings in the course of administration in cases contemplated by the statute, but whether he has acted in a case to which the statute is inapplicable. By providing for injunction proceedings, the Congress evidently contemplated a suit as in equity, and, in such Page 285 U. S. 64 a suit, the complainant would have full opportunity to plead and prove either that the injury did not occur upon the navigable waters of the United States or that the relation of master and servant did not exist, and hence that the case lay outside the purview of the statute. As the question is one of the constitutional authority of the deputy commissioner as an administrative agency, the court is under no obligation to give weight to his proceedings pending the determination of that question. If the court finds that the facts existed which gave the deputy commissioner jurisdiction to pass upon the claim for compensation, the injunction will be denied insofar as these fundamental questions are concerned; if, on the contrary, the court is satisfied that the deputy commissioner had no jurisdiction of the proceedings before him, that determination will deprive them of their effectiveness for any purpose. We think that the essential independence of the exercise of the judicial power of the United States in the enforcement of constitutional rights requires that the federal court should determine such an issue upon its own record and the facts elicited before it. The argument is made that there are other facts besides the locality of the injury and the fact of employment which condition the action of the deputy commissioner. That contention in any aspect could not avail to change the result in the instant case. But we think that there is a clear distinction between cases where the locality of the injury takes the case out of the admiralty and maritime jurisdiction, or where the fact of employment being absent there is lacking under this statute any basis for the imposition of liability without fault, and those cases which fall within the admiralty and maritime jurisdiction and where the relation of master and servant in maritime employment exists. It is in the latter field that the provisions for compensation apply, and that, for the reasons stated in the earlier part of this opinion, the determination Page 285 U. S. 65 of the facts relating to the circumstances of the injuries received, as well as their nature and consequences, may appropriately be subjected to the scheme of administration for which the Act provides. It cannot be regarded as an impairment of the intended efficiency of an administrative agency that it is confined to its proper sphere, but it may be observed that the instances which permit of a challenge to the application of the statute, upon the grounds we have stated, appear to be few. Out of the many thousands of cases which have been brought before the deputy commissioners throughout the country, a review by the courts has been sought in only a small number, [ Footnote 31 ] and an inconsiderable proportion of these appear to have involved the question whether the injury occurred within the maritime jurisdiction or whether the relation of employment existed. We are of the opinion that the District Court did not err in permitting a trial de novo on the issue of employment. Upon that issue, the witnesses who had testified before the deputy commissioner and other witnesses were heard by the District Court. The writ of certiorari was not granted to review the particular facts, but to pass upon the question of principle. With respect to the facts, the two courts below are in accord, and we find no reason to disturb their decision. Decree affirmed. * Together with No. 20, Crowell, Deputy Commissioner, and Knudsen v. Benson. [ Footnote 1 ] Section three of the Act as to "Coverage" provides: "Sec. 3. (a) Compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any drydock) and if recovery for the disability or death through workmen's compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of --" "(1) A master or member of a crew of any vessel nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or" "(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof." "(b) No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another." [ Footnote 2 ] Waring v. Clarke , 5 How. 441, 46 U. S. 457 , 46 U. S. 458 ; The Lottawanna , 21 Wall. 558, 88 U. S. 577 ; Butler v. Boston & Savannah Steamship Co., 130 U. S. 527 , 130 U. S. 556 , 130 U. S. 557 ; In re Garnett, 141 U. S. 1 , 14 U. S. 14 ; The Hamilton, 207 U. S. 398 , 207 U. S. 404 ; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52 , 234 U. S. 62 ; Southern Pacific Co. v. Jensen, 244 U. S. 205 , 244 U. S. 214 , 244 U. S. 215 ; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 , 253 U. S. 160 ; State of Washington v. Dawson, 264 U. S. 219 , 264 U. S. 227 , 264 U. S. 228 ; Panama R. Co. v. Johnson, 264 U. S. 375 , 264 U. S. 386 , 264 U. S. 38 . Important illustrations of the exercise of this authority are the Limitation of Liability Act of 1851 (9 Stat. 635; Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U. S. 207 , 273 U. S. 213 -215); the Seamen's Act of 1915 (38 Stat. 1185; Chelentis v. Luckenbach Steamship Co., 247 U. S. 372 , 247 U. S. 381 , 247 U. S. 384 ); the Ship Mortgage Act of 1920 (41 Stat. 1000; Morse Drydock & Repair Co. v. Northern Star, 271 U. S. 552 , 271 U. S. 555 , 271 U. S. 556 ); and the Merchant Marine Act of 1920 (41 Stat. 988), incorporating, in relation to seamen, the Federal Employers' Liability Act into the maritime law of the United States. 41 Stat. 1007; Panama R. Co. v. Johnson, supra; Engel v. Davenport, 271 U. S. 33 , 271 U. S. 35 ; Panama R. Co. v. Vasquez , 271 U. S. 557 , 271 U. S. 559 , 271 U. S. 560 ; Northern Coal & Dock Co. v. Strand, 278 U. S. 142 , 278 U. S. 147 . See U.S.C., titles 33 and 46. [ Footnote 3 ] Southern Pacific Co. v. Jensen, 244 U. S. 205 ; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 ; Washington v. Dawson, 264 U. S. 219 ; Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449 . For decisions since the passage of the Act in question, see Messel v. Foundation Co., 274 U. S. 427 ; Northern Coal & Dock Co. v. Strand, 278 U. S. 142 ; London Guarantee & Accident Co. v. Industrial Commission, 279 U. S. 109 , 279 U. S. 125 ; Baizley Iron Works v. Span, 281 U. S. 222 . The application of state Workmen's Compensation Acts has been sustained where the work of the employee has been deemed to have no direct relation to navigation or commerce, and the operation of the local law "would work no material prejudice to the essential features of the general maritime law." Western Fuel Co. v. Garcia, 257 U. S. 233 , 257 U. S. 242 ; Grant Smith-Porter Co. v. Rohde, 257 U. S. 469 , 257 U. S. 477 ; Millers' Indemnity Underwriters v. Braud, 270 U. S. 59 , 270 U. S. 64 ; Sultan Railway & Timber Co. v. Department of Labor, 277 U. S. 135 , 277 U. S. 137 ; Baizley Iron Works v. Span, supra, at pp. 281 U. S. 230 , 281 U. S. 231 . See also Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109 . [ Footnote 4 ] Washington v. Dawson, 264 U. S. 219 , 264 U. S. 227 , where the court said: "Without doubt, Congress has power to alter, amend, or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enactment of a general Employers' Liability Law or general provisions for compensating injured employees, but it may not be delegated to the several states." [ Footnote 5 ] The Committee on the Judiciary of the Senate, in reporting upon the proposed measure, said (Sen.Rep. No. 973, 69th Cong., 1st Sess., p. 16): "The committee deems it unnecessary to comment upon the modern change in the relation between employers and employees establishing systems of compensation as distinguished from liability. Nearly every State in the Union has a compensation law through which employees are compensated for injuries occurring in the course of their employment without regard to negligence on the part of the employer or contributory negligence on the part of the employee. If longshoremen could avail themselves of the benefits of State compensation laws, there would be no occasion for this legislation; but, unfortunately, they are excluded from these laws by reason of the character of their employment; and they are not only excluded, but the Supreme Court has more than once held that Federal legislation cannot, constitutionally, be enacted that will apply State laws to this occupation. ( Southern Pacific Co. v. Jensen, 244 U. S. 205 ; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 ; Washington v. Dawson, 264 U. S. 219 .)" The House Committee, in its report, made the following statement (House Rep. No. 1767, 69th Cong., 2d Sess., p. 20): "The principle of workmen's compensation has become so firmly established that simple justice would seem to require that this class of maritime workers should be included in this legislation. . . ." "The bill as amended, therefore, will enable Congress to discharge its obligation to the maritime workers placed under their jurisdiction by the Constitution of the United States by providing for them a law whereby they may receive the benefits of workmen's compensation and thus afford them the same remedies that have been provided by legislation for those killed or injured in the course of their employment in nearly every State in the Union." [ Footnote 6 ] See, e.g., The Osceola, 189 U. S. 158 , 189 U. S. 169 ; The Iroquois, 194 U. S. 240 , 194 U. S. 241 , 194 U. S. 242 . In Chicago, R. I. & P. R. Co. v. Zernecke, 183 U. S. 582 , 183 U. S. 586 , the Court said: "Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in admiralty law is another." See Holmes, "The Common Law," pp. 26-29; The China , 7 Wall. 53, 74 U. S. 67 , 74 U. S. 68 ; Sherlock v. Alling, 93 U. S. 99 , 93 U. S. 105 -108; Homer Ramsdell Transp. Co. v. La Compagnie Generale Transatlantique, 182 U. S. 406 , 182 U. S. 413 , 182 U. S. 414 . As to the basis of general average contribution, see Ralli v. Troop, 157 U. S. 386 , 157 U. S. 394 , 157 U. S. 395 . [ Footnote 7 ] This Commission was created by the Act of September 7, 1916, c. 458, § 28, 39 Stat. 748, U.S.C., Tit. 5, § 778. [ Footnote 8 ] In the regulations promulgated by the Commission in the form of instructions to deputy commissioners, provision was made for findings of fact. Report, United States Employees' Compensation Commission, for fiscal year ending June 30, 1930, p. 64. See Howard v. Monahan, 33 F.2d 220. [ Footnote 9 ] In the District of Columbia, the proceedings are to be instituted in the Supreme Court of the District. [ Footnote 10 ] The United States Employees' Compensation Commission estimates that the number of employees who at times are engaged in employments covered by the Act is in excess of 300,000. Report for fiscal year ending June 30, 1931, p. 66. The Commission states that 138,788 cases have been closed during the four years that the law has been in operation. Id., p. 69. During the last fiscal year, the injuries reported under the Act numbered 28,861, of which 156 were "fatal" cases. The total number of cases disposed of during that year, including those brought forward from the preceding years, was 30,489, of which there were 13,261 "nonfatal" cases which caused no loss of time, and 4,067 of such cases in which the duration of disability did not exceed seven days. Compensation payments were completed in 11,776 cases. Hearings held by deputy commissioners during the fiscal year number 1,217, of which 905 involved compensation payments. At the end of the fiscal year, there were 102 cases pending in federal District Courts wherein the plaintiffs asked review of compensation orders. Id., 68-70. [ Footnote 11 ] Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 , 166 U. S. 695 ; Crane v. Hahlo, 258 U. S. 142 , 258 U. S. 147 ; Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568 , 260 U. S. 580 ; Silberschein v. United States, 266 U. S. 221 , 266 U. S. 225 ; Virginian Railway Co. v. United States, 272 U. S. 658 , 272 U. S. 663 ; Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 442 ; International Shoe Co. v. Federal Trade Commission, 280 U. S. 291 , 280 U. S. 297 ; Dohany v. Rogers, 281 U. S. 362 , 281 U. S. 369 ; Phillips v. Commissioner, 283 U. S. 589 , 281 U. S. 600 . See also Hardware Dealers Mutual Fire Insurance Co. v. Glidden, 284 U. S. 151 ; New York Central R. Co. v. White, supra, at pp. 243 U. S. 194 , 243 U. S. 207 , 243 U. S. 208 ; Mountain Timber Co. v. Washington, supra, at p. 343 U. S. 233 . [ Footnote 12 ] American Insurance Co. v. Canter , 1 Pet. 511, 26 U. S. 546 ; Keller v. Potomac Electric Power Co., 261 U. S. 428 , 261 U. S. 442 -444; Postum Cereal Co. v. California Fig Nut Co., 272 U. S. 693 , 272 U. S. 700 . [ Footnote 13 ] Virginian Railway Co. v. United States, supra; Tagg Bros. & Moorhead v. United States, supra; International Shoe Co. v. Federal Trade Commission, supra; Phillips v. Commissioner, supra; United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 263 ; United States v. Babcock, 250 U. S. 328 , 250 U. S. 331 ; Burfenning v. Chicago, St. P., M. & O. Ry. Co., 163 U. S. 321 , 163 U. S. 323 ; Bates & Guild Co. v. Payne, 194 U. S. 106 , 104 U. S. 109 ; Houston v. St. Louis Packing Co., 249 U. S. 479 , 249 U. S. 484 ; Passavant v. United States, 148 U. S. 214 , 148 U. S. 219 ; Silberschein v. United States, 266 U. S. 221 , 266 U. S. 225 . [ Footnote 14 ] As to masters in chancery, see Tilghman v. Proctor, 125 U. S. 136 , 125 U. S. 149 , 125 U. S. 150 ; Callaghan v. Myers, 128 U. S. 617 , 128 U. S. 666 , 128 U. S. 667 ; Kimberly v. Arms, 129 U. S. 512 , 129 U. S. 523 , 129 U. S. 524 ; Davis v. Schwartz, 155 U. S. 631 , 155 U. S. 636 . As to commissioners in admiralty, see The Cayuga (C.C.A. 6th), 59 F. 483, 488; La Bourgogne (C.C.A. 2d), 144 F. 781, 782, 783; The North Star (C.C.A. 2d), 151 F. 168, 177; Western Transit Co. v. Davidson S.S. Co. (C.C.A. 6th), 212 F. 696, 701; P. Sanford Ross, Inc. v. Public Service Corp. (C.C.A. 3d), 42 F.2d 79, 80. [ Footnote 15 ] 4 Chr. Robinson's Admiralty Reports, p. 74, note; Black Book of the Admiralty (Twiss' Ed.) vol. 1, pp. 49, 53, 245; 1 Abbott on Shipping (5th Am. Ed.) pp. 283, 284; 1 Benedict's Admiralty (5th Ed.) p. 304, note. [ Footnote 16 ] As to the effect of the verdict of the jury in such cases, see The Western States, 159 F. 354, 358, 359; Sweeting v. The Western States, 210 U.S. 433; The Nyack, 199 F. 383, 389; 1 Benedict's Admiralty (5th Ed.) p. 305. [ Footnote 17 ] The term "jurisdictional," although frequently used, suggests analogies which are not complete when the reference is to administrative officials or bodies. See Interstate Commerce Commission v. Humboldt Steamship Co., 224 U. S. 474 , 224 U. S. 484 . In relation to administrative agencies, the question in a given case is whether it falls within the scope of the authority validly conferred. [ Footnote 18 ] This power is distinct from the authority to regulate interstate or foreign commerce, and is not limited to cases arising in that commerce. The Genesee Chief v. Fitzhugh , 12 How. 443, 53 U. S. 452 ; The Commerce , 1 Black 574, 66 U. S. 578 , 66 U. S. 579 ; The Belfast , 7 Wall. 624, 74 U. S. 640 , 74 U. S. 641 ; Ex parte Boyer, 109 U. S. 629 , 109 U. S. 632 ; In re Garnett, 141 U. S. 1 , 141 U. S. 15 ; London Guarantee & Accident Co. v. Industrial Commission, 279 U. S. 109 , 279 U. S. 124 . [ Footnote 19 ] The Belfast, supra; Panama R. Co. v. Johnson, supra; The Genesee Chief, supra, at p. 459 of 12 How., 13 L. Ed. 1058; 1 Benedict's Admiralty (5th Ed.) § 32, p. 47. [ Footnote 20 ] Cleveland Terminal & V. R. Co. v. Cleveland Steamship Co., 208 U. S. 316 ; Atlantic Transport Co. v. Imbrovek, supra, at pp. 234 U. S. 59 , 234 U. S. 60 ; Industrial Commission v. Nordenholt Co., 259 U. S. 263 , 259 U. S. 273 ; Washington v. Dawson, supra, at pp. 264 U. S. 227 , 264 U. S. 235 ; Nogueira v. N.Y., N.H. & H.R. Co., 281 U. S. 128 , 281 U. S. 133 , 281 U. S. 138 . [ Footnote 21 ] The Daniel Ball , 10 Wall. 557, 77 U. S. 563 ; United States v. Holt State Bank, 270 U. S. 49 , 270 U. S. 56 ; United States v. Utah, 283 U. S. 64 , 283 U. S. 76 , 283 U. S. 77 ; Arizona v. California, 283 U. S. 423 , 283 U. S. 452 . [ Footnote 22 ] Industrial Commission v. Nordenholt Co., supra; Washington v. Dawson, supra; Nogueira v. N.Y., N.H. & H.R. Co., supra; 1 Benedict's Admiralty, 5th ed., § 29, pp. 41, 42, note. [ Footnote 23 ] See Report of United States Employees' Compensation Commission for fiscal year ending June 30, 1931, pp. 108, 109. [ Footnote 24 ] Prentis v. Atlantic Coast Line, 211 U. S. 210 , 211 U. S. 225 ; Chicago, Rock Island & Pacific Ry. Co. v. Cole, 251 U. S. 54 , 251 U. S. 56 ; Missouri ex rel. Hurwitz v. North, 271 U. S. 40 , 271 U. S. 42 . [ Footnote 25 ] Supra, note 13 [ Footnote 26 ] See Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 284 U. S. 370 . [ Footnote 27 ] Freund, "Administrative Powers Over Persons and Property," § 154, p. 293. [ Footnote 28 ] Id., § 153, pp. 291-293. [ Footnote 29 ] Where the doctrine of personal liability of an officer for acting without jurisdiction is applied, courts have received evidence to show the jurisdictional defect. Thus in Miller v. Horton, 152 Mass. 540, 26 N.E. 100, an action was brought against the members of a town board of health who had killed a horse in obedience to an order of the commissioners on contagious diseases among domestic animals, acting under the alleged authority of the state Legislature. The order recited that the animal had been examined and was adjudged to have the glanders. The judge before whom the case was tried "found the horse had not the glanders," but declined to rule against the defendants. The Supreme Judicial Court sustained exceptions, holding that "The fact as to the horse having the disease was open to investigation in the present action, and, on the finding that it did not have it, the plaintiff was entitled to a ruling that the defendants had failed to make out their justification." Id., p. 548. See also Pearson v. Zehr, 138 Ill. 48, 51, 52, 29 N.E. 854. [ Footnote 30 ] Panama R. Co. v. Johnson, supra, at p. 264 U. S. 390 ; Missouri Pacific R. Co. v. Boone, 270 U. S. 466 , 270 U. S. 471 , 270 U. S. 472 ; Richmond Screw Anchor Co. v. United States, 275 U. S. 331 , 275 U. S. 346 ; Blodgett v. Holden, 275 U. S. 142 , 275 U. S. 148 ; Lucas v. Alexander, 279 U. S. 573 , 279 U. S. 577 . [ Footnote 31 ] Supra, note 10 fmx MR. JUSTICE BRANDEIS, dissenting. Knudsen filed a claim against Benson under § 19(a) of the Longshoremen's and Harbor Workers' Compensation Act, March 4, 1927, c. 509, 44 Stat. 1424. Benson's answer denied, among other things, that the relation of employer and employee existed between him and the claimant. The evidence introduced before the deputy Page 285 U. S. 66 commissioner, which occupies 78 pages of the printed record, was directed largely to that issue, and was conflicting. The deputy commissioner found that the claimant was in Benson's employ at the time of the injury, and filed an order for compensation under § 21(a). Benson brought this proceeding under § 21(b) to set aside the order. The District Judge transferred the suit to the admiralty side of the court and held a trial de novo , refusing to consider upon any aspect of the case the record before the deputy commissioner. On the evidence introduced in court, he found that the relation of employer and employee did not exist, and entered a decree setting aside the compensation order. 33 F.2d 137 , 38 F.2d 306. The Circuit Court of Appeals affirmed the decree. 45 F.2d 66. This Court granted certiorari. 283 U.S. 814. In my opinion, the decree should be reversed, because Congress did not authorize a trial de novo. The primary question for consideration is not whether Congress provided, or validly could provide, that determinations of fact by the deputy commissioner should be conclusive upon the District Court. The question is: upon what record shall the District Court's review of the order of the deputy commissioner be based? The courts below held that the respondent was entitled to a trial de novo; that all the evidence introduced before the deputy commissioner should go for naught; and that respondent should have the privilege of presenting new, and even entirely different, evidence in the District Court. Unless that holding was correct, the judgment below obviously cannot be affirmed. First. The initial question is one of construction of the Longshoremen's Act. The Act does not, in terms, declare whether there may be a trial de novo either as to the issue whether the relation of employer and employee existed at the time of the injury or as to any other issue, tried or triable, before the deputy commissioner. It provides, by § 19(a), that "the deputy commissioner shall Page 285 U. S. 67 have full power and authority to hear and determine all questions in respect of" a claim; by § 21(a), that the compensation order made by the deputy commissioner "shall become effective" when filed in his office, and, "unless proceedings for the suspension or setting aside of such order are instituted as provided in subdivision (b) of this §, shall become final . . . ;" and, by § 21(b), that, "if not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings . . . instituted in the Federal district court. . . ." The phrase in § 21(b) providing that the order may be set aside "if not in accordance with law" was adopted from the statutory provision, enacted by the same Congress, for review by the Circuit Courts of Appeals of decisions of the Board of Tax Appeals. [ Footnote 2/1 ] This Court has settled that the phrase, as used in the tax statute, means a review upon the record made before the Board. Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 600 . The Compensation Commission has consistently construed the Longshoremen's Act as providing for finality of the deputy commissioners' findings on all questions of fact; [ Footnote 2/2 ] and care Page 285 U. S. 68 has been taken to provide for formal hearings appropriate to that intention. Compare Brown v. United States, 113 U. S. 568 , 113 U. S. 571 ; Mason v. Routzahn, 275 U. S. 175 , 275 U. S. 178 . The lower federal courts, except in the case at bar, have uniformly construed the Act as denying a trial de novo of any issue determined by the deputy commissioner; have held that, in respect to those issues, the review afforded must be held upon the record made before the deputy commissioner; and that the deputy commissioner's findings of fact must be accepted as conclusive if supported by evidence, unless there was some irregularity in the proceeding before him. [ Footnote 2/3 ] Nearly all the state Page 285 U. S. 69 courts have construed the state workmen's compensation laws, as limiting the judicial review to matters of law. [ Footnote 2/4 ] Provisions in other federal statutes, similar to Page 285 U. S. 70 those here in question, creating, various administrative tribunals, have likewise been treated as not conferring the right to a judicial trial de novo. [ Footnote 2/5 ] Page 285 U. S. 71 The safeguards with which Congress has surrounded the proceedings before the deputy commissioner would be without meaning if those proceedings were to serve merely as an inquiry preliminary to a contest in the courts. [ Footnote 2/6 ] Specific provisions of the Longshoremen's Act make clear that it was the aim of Congress to expedite the relief afforded. With a view to obviating the delays incident to judicial proceedings, the Act substitutes an administrative tribunal for the court, and, besides providing for notice and opportunity to be heard, endows the proceedings before the deputy commissioner with the customary incidents of a judicial hearing. It prescribes that the parties in interest may be represented by counsel, § 19(d); that the attendance of witnesses and the Page 285 U. S. 72 production of documents may be compelled, § 27(a); that the hearings shall be public, and that they shall be stenographically reported, § 23(b); that there shall be made "a record of the hearings and other proceedings before the deputy commissioners," § 23(b); that "the deputy commissioner shall have full power and authority to hear and determine all questions in respect of" a claim, § 19(a); and that his order shall become final after thirty days, unless a proceeding is filed under § 21(b), charging that it is "not in accordance with law." Procedure of this character, instead of expediting relief, would entail useless expense and delay if the proceedings before the deputy commissioner were to be repeated in court and the case tried from the beginning, at the option of either party. The conclusion that Congress did not so intend is confirmed by reference to the legislative history of the Act. [ Footnote 2/7 ] Compare Caminetti v. United States, 242 U. S. 470 , 242 U. S. 490 . Page 285 U. S. 73 Second. Nothing in the statute warrants the construction that the right to a trial de novo which Congress has concededly denied as to most issues of fact determined by the deputy commissioner has been granted in respect to the issue of the existence of the employer-employee relation. The language which is held sufficient to foreclose the right to such a trial on some issues forecloses it as to all. Whether the peculiar relation which the fact of employment is asserted to bear to the scheme of the statute and to the constitutional authority under which it was passed might conceivably have induced Congress to provide a special method of review upon that question, it is not necessary to inquire. For Congress expressly declared its intention to put, for purposes of review, all the issues of fact on the same basis, by conferring upon the deputy commissioner "full power to hear and determine all questions in respect of such claim," subject only to the power of the court to set aside his order "if not in accordance with law." The suggestion that "such claim" may be construed to mean only a claim within the purview of the Act seems to me without substance. Logically applied, the suggestion would leave the deputy commissioner powerless to hear or determine any issue of asserted nonliability under the Act. For nonexistence of the employer employee relation is only one of many grounds of nonliability. Thus, there is no liability if the injury was occasioned solely by the intoxication of the employee; or if the injury was due to the willful intention of the employee to Page 285 U. S. 74 injure or kill himself or another; or if it did not arise "out of or in the course of employment"; or if the employer was not engaged in maritime employment in whole or in part; or if the injured person was the employee of a subcontractor who has secured payment of compensation; or if the proceeding is brought against the wrong person as employer; or if the disability or death is that of a master or a member of the crew of any vessel; or if it is that of a person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or if it is that of an officer or employee of the United States or any agency thereof; or if it is that of an officer or employee of any state, or foreign government, or any political subdivision thereof; or if recovery for the disability or death through workmen's compensation proceedings may be validly provided by state law. And obviously there is no liability if there was in fact neither disability nor death. It is not reasonable to suppose that Congress intended to set up a factfinding tribunal of first instance, shorn of power to find a portion of the facts required for any decision of the case; or that, in enacting legislation designed to withdraw from litigation the great bulk of maritime accidents, it contemplated a procedure whereby the same facts must be twice litigated before a longshoreman could be assured the benefits of compensation. The circumstance that Congress provided, in § 21(b), of the Act, for review of orders of the deputy commissioner by injunction proceedings is urged as indicative of an intention that in such proceedings the complainant should have full opportunity to plead and prove any facts showing that the case lay outside the purview of the statute. But by this reasoning, again, many other questions besides those referred to by the Court would be open to retrial upon new, and different, evidence. The simple answer is that on bills in equity to set aside orders of a federal Page 285 U. S. 75 administrative board there is no trial de novo of issues of fact determined by that tribunal. As stated in Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 443 , concerning orders of the Secretary of Agriculture under the Packers and Stockyards Act: "A proceeding under § 316 of the Packers and Stockyards Act is a judicial review, not a trial de novo. The validity of an order of the Secretary, like that of an order of the Interstate Commerce Commission, must be determined upon the record of the proceedings before him -- save as there may be an exception of issues presenting claims of constitutional right, a matter which need not be considered or decided now. [ Footnote 2/8 ]" In the review of the quasi judicial decisions of these federal administrative tribunals the bill in equity serves the purpose which at common law, and under the practice of many of the states, is performed by writs of certiorari. [ Footnote 2/9 ] It presents to the reviewing court the record of the proceedings before the administrative tribunal in order that determination may be made, among other things, whether the authority conferred has been properly exercised. [ Footnote 2/10 ] Neither upon bill in equity in the federal Page 285 U. S. 76 courts nor writ of certiorari in the states is it the practice to permit fresh evidence to be offered in the reviewing court. There is no foundation for the suggestion that Congress intended to provide otherwise in the Longshoremen's Act. Third. It is said that the provision for a trial de novo of the existence of the employer employee relation should be read into the Act in order to avoid a serious constitutional doubt. It is true that, where a statute is equally susceptible of two constructions, under one of which it is clearly valid and under the other of which it may be unconstitutional, the court will adopt the former construction. Presser v. Illinois, 116 U. S. 252 , 116 U. S. 269 ; Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197 , 187 U. S. 205 ; Carey v. South Dakota, 250 U. S. 118 , 250 U. S. 122 ; Missouri Pacific R. Co. v. Boone, 270 U. S. 466 , 270 U. S. 471 , 270 U. S. 472 . But this Act is not equally susceptible to two constructions. The court may not, in order to avoid holding a statute unconstitutional, engraft upon it an exception or other provision. Butts v. Merchants' & Miners' Transportation Co., 230 U. S. 126 , 230 U. S. 133 ; The Employers' Liability Cases, 207 U. S. 463 , 207 U. S. 500 -502; Trade-Mark Cases, 100 U. S. 82 , 100 U. S. 99 ; United States v. Fox, 95 U. S. 670 , 95 U. S. 672 , 95 U. S. 673 ; United States Page 285 U. S. 77 v. Reese, 92 U. S. 214 , 92 U. S. 221 . Compare Illinois Central R. Co. v. McKendree, 203 U. S. 514 , 203 U. S. 529 ; Cella Commission Co. v. Bohlinger, 147 F. 419, 423, 424. Neither may it do so to avoid having to resolve a constitutional doubt. To hold that Congress conferred the right to a trial de novo on the issue of the employer employee relation seems to me a remaking of the statute and not a construction of it. Fourth. Trial de novo of the issue of the existence of the employer employee relation is not required by the due process clause. That clause ordinarily does not even require that parties shall be permitted to have a judicial tribunal pass upon the weight of the evidence introduced before the administrative body. See Dahlstrom Metallic Door Co. v. Industrial Board, 284 U.S. 594. The findings of fact of the deputy commissioner, the Court now decides, are conclusive as to most issues if supported by evidence. Yet, as to the issue of employment, the Court holds not only that such findings may not be declared final, but that it would create a serious constitutional doubt to construe the Act as committing to the deputy commissioner the simple function of collecting the evidence upon which the court will ultimately decide the issue. It is suggested that this exception is required as to issues of fact involving claims of constitutional right. For reasons which I shall later discuss, I cannot believe that the issue of employment is one of constitutional right. But even assuming it to be so, the conclusion does not follow that trial of the issue must therefore be upon a record made in the District Court. That the function of collecting evidence may be committed to an administrative tribunal is settled by a host of cases, [ Footnote 2/11 ] and Page 285 U. S. 78 supported by persuasive analogies, none of which justify a distinction between issues of constitutional right and any others. Resort to administrative remedies may be made a condition precedent to a judicial hearing. Northern Pacific Ry. Co. v. Solum, 247 U. S. 477 , 247 U. S. 483 , 247 U. S. 484 ; First National Bank of Greeley v. Board of County Commissioners, 264 U. S. 450 , 264 U. S. 454 , 264 U. S. 455 ; United States Navigation Co. v. Cunard S.S. Co., 284 U. S. 474 . This is so even though a party is asserting deprivation of rights secured by the Federal Constitution. First National Bank of Greeley v. Board of County Commissioners, supra. In federal equity suits, the taking of evidence on any issue in open court did not become common until 1913, [ Footnote 2/12 ] compare 224 U. S. Page 285 U. S. 79 Corp, v. James, 272 U. S. 701 ; and in admiralty, it was not required by the rules of this Court until 1921. [ Footnote 2/13 ] Compare The P. R.R. No. 35, 48 F.2d 122. On appeals in admiralty, further proof is now taken by a commission. [ Footnote 2/14 ] As was said concerning a similar tribunal in Washington ex rel. Oregon Railroad & Navigation Co. v. Fairchild, 224 U. S. 510 , 224 U. S. 527 , the function of the deputy commissioner is like that of a master in chancery who has been required to take testimony and report his findings of fact and conclusions of law. Compare Los Angeles Brush Corporation v. James, supra; Kimberly v. Arms, 129 U. S. 512 , 129 U. S. 524 , 129 U. S. 525 ; Armstrong v. Belding Bros. & Co., 297 F. 728, 729. The holding that the difference between the procedure prescribed by the Longshoremen's Act and these historic methods of hearing evidence transcends the limits of congressional power when applied to the issue of the existence of a relation of employment, as distinguished from that of the circumstances of an injury or the existence of a relation of dependency, seems to me without foundation in reality. Certainly there is no difference to the litigant. Page 285 U. S. 80 Even in respect to the question, discussed by the Court, of the finality to be accorded administrative findings of fact in a civil case involving pecuniary liability, I see no reason for making special exception as to issues of constitutional right unless it be that, under certain circumstances, there may arise difficulty in reaching conclusions of law without consideration of the evidence as well as the findings of fact. See Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 443 . Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 . The adequacy of that reason need not be discussed. For, as to the issue of employment, no such difficulty can be urged. Two decades of experience in the states testify to the appropriateness of the administrative process as applied to this issue, as well as all others, in workmen's compensation controversies. Fifth. Trial de novo of the existence of the employer employee relation is not required by the Judiciary Article of the Constitution. The mere fact that the Act deals only with injuries arising on navigable waters, and that, independently of legislation, such injuries can be redressed only in courts of admiralty, [ Footnote 2/15 ] obviously does not preclude Congress from denying a trial de novo. For the Court holds that it is compatible with the grant of power under Article III to deny a trial de novo as to most of the facts Page 285 U. S. 81 upon which rest the allowance of a claim and the amount of compensation. Its holding that the Constitution requires a trial de novo of the issue of the employer employee relation is based on the relation which that fact bears to the statutory scheme propounded by Congress, and to the constitutional authority under which the Act was passed. The argument is that existence of the relation of employer and employee is, as a matter of substantive law, indispensable to the application of the statute, because the power of Congress to enact the legislation turns upon its existence, and that, whenever the question of constitutional power depends upon an issue of fact, that issue must, as a matter of procedure, be determinable independently upon evidence freshly introduced in a court. [ Footnote 2/16 ] Neither proposition seems to me well founded. Whether the power of Congress to provide compensation for injuries occurring on navigable waters is limited to cases in which the employer employee relation exists has not heretofore been passed upon by this Court, and was not argued in this case. I see no justification for assuming, under those circumstances, that it is so limited. Page 285 U. S. 82 Without doubt the word "employee" was used in the Longshoremen's Act in the sense in which the common law defines it. But that definition is not immutable, and no provision of the Constitution confines the application of liability without fault to instances where the relation of employment, as so defined, exists. [ Footnote 2/17 ] Compare Louis Pisitz Dry Goods Co. v. Yeldell, 274 U. S. 112 , 274 U. S. 116 . Whether an individual is an employer or an independent contractor depends upon criteria often subtle and uncertain of application, [ Footnote 2/18 ] criteria which have been developed, by processes Page 285 U. S. 83 of judicial exclusion and inclusion, largely since the adoption of the Constitution [ Footnote 2/19 ] and with reference, for the most part, to considerations foreign to industrial accident litigation. It is not to be assumed that Congress, having power to amend and revise the maritime law, is prevented from modifying those criteria and enlarging the liability imposed by this Act so as to embrace all persons who are engaged or engage themselves in the work of another, including those now designated as independent contractors. In the Longshoremen's Act itself, Congress, far from declaring the relation of master and servant indispensable in all cases to the application of the statute, provided expressly that a contractor shall be liable to employees of a subcontractor who has failed to secure payment of compensation. § 4(a) of the Act. State Workmen's Compensation Laws almost invariably contain provisions for liability either to independent contractors or to their employees, sometimes absolute and sometimes conditioned upon default by the immediate employer; [ Footnote 2/20 ] and these provisions Page 285 U. S. 84 appear to have been uniformly upheld. [ Footnote 2/21 ] I cannot doubt that, even upon the view of the evidence taken by the District Court, Congress might have made Benson liable to Knudsen for the injury which he sustained. Sixth. Even if the constitutional power of Congress to provide compensation is limited to cases in which the Page 285 U. S. 85 employer-employee relation exists, I see no basis for a contention that the denial of the right to a trial de novo upon the issue of employment is in any manner subversive of the independence of the federal judicial power. Nothing in the Constitution, or in any prior decision of this Court to which attention has been called, lends support to the doctrine that a judicial finding of any fact involved in any civil proceeding to enforce a pecuniary liability may not be made upon evidence introduced before a properly constituted administrative tribunal, or that a determination so made may not be deemed an independent judicial determination. Congress has repeatedly exercised authority to confer upon the tribunals which it creates, be they administrative bodies or courts of limited jurisdiction, the power to receive evidence concerning the facts upon which the exercise of federal power must be predicated, and to determine whether those facts exist. The power of Congress to provide by legislation for liability under certain circumstances subsumes the power to provide for the determination of the existence of those circumstances. It does not depend upon the absolute existence in reality of any fact. It is true that, so far as Knudsen is concerned, proof of the existence of the employer employee relation is essential to recovery under the Act. But under the definition laid down in Noble v. Union River Logging R. Co., 147 U. S. 165 , 147 U. S. 173 , 147 U. S. 174 , that fact is not jurisdictional. It is quasi jurisdictional. The existence of a relation of employment is a question going to the applicability of the substantive law, not to the jurisdiction of the tribunal. Jurisdiction is the power to adjudicate between the parties concerning the subject-matter. Compare Reynolds v. Stockton, 140 U. S. 254 , 140 U. S. 268 . Obviously, the deputy commissioner had not only the power but the duty to determine whether the employer employee relation existed. When a duly constituted tribunal has jurisdiction Page 285 U. S. 86 of the parties and of the subject matter, that jurisdiction is not impaired by errors, however grave, in applying the substantive law. Dennison v. Payne, 293 F. 333, 341. Compare Chicago, Rock Island & Pacific Ry. Co. v. Schendel, 270 U. S. 611 , 270 U. S. 617 ; Marin v. Augedahl, 247 U. S. 142 , 247 U. S. 149 ; Binderup v. Pathe Exchange, 263 U. S. 291 , 263 U. S. 305 -307. This is true of tribunals of special as well as of those of general jurisdiction. It is true of administrative, as well as of judicial, tribunals. If errors in the application of law may not be made the basis of collateral attack upon the decision of an administrative tribunal, once that decision has become final, no "jurisdictional" defect can compel the independent reexamination in court, upon direct review, of the facts affecting such applicability. The "judicial power" of Article III of the Constitution is the power of the federal government, and not of any inferior tribunal. There is in that article nothing which requires any controversy to be determined as of first instance in the federal District Courts. The jurisdiction of those courts is subject to the control of Congress. [ Footnote 2/22 ] Matters Page 285 U. S. 87 which may be placed within their jurisdiction may instead be committed to the state courts. If there be any controversy to which the judicial power extends that may not be subjected to the conclusive determination of administrative bodies or federal legislative courts, it is not because of any prohibition against the diminution of the jurisdiction of the federal District Courts as such, but because, under certain circumstances, the constitutional requirement of due process is a requirement of judicial process. An accumulation of precedents, already referred to, [ Footnote 2/23 ] has established that in civil proceedings involving Page 285 U. S. 88 property rights determination of facts may constitutionally be made otherwise than judicially; and, necessarily, that evidence as to such facts may be taken outside of a court. I do not conceive that Article III has properly any bearing upon the question presented in this case. Seventh. The cases cited by the Court in support of its conclusion that the statute would be invalid if construed to deny a trial de novo of issues of fact affecting the existence of the employer employee relation seem to me irrelevant. Most of those decisions dealt with tribunals exercising functions generically different from the function which Congress has assigned to the deputy commissioners under the Longshoremen's Act, and no question arose analogous to that now presented. By the Longshoremen's Act, Congress created factfinding and fact-gathering tribunals, supplementing the courts and intrusted with power to make initial determinations in matters within, and not outside, ordinary judicial purview. The purpose of these administrative bodies is to withdraw from the courts, subject to the power of judicial review, a class of controversy which experience has shown can be more effectively and expeditiously handled in the first instance by a special and expert tribunal. The proceedings of the deputy commissioners are endowed with every substantial safeguard of a judicial hearing. Their conclusions are, as a matter of right, open to reexamination in the courts on all questions of law; and, we assume for the purposes of this discussion, may be open even on all questions of the weight of the evidence. The administrative bodies in the cases referred to by the Court, on the contrary, are in no sense fact-gathering Page 285 U. S. 89 or factfinding tribunals of first instance. They are tribunals of final resort within the scope of their authority. Their concern is with matters ordinarily outside of judicial competence -- the deportation of aliens, the enforcement of military discipline, the granting of land patents, and the use of the mails -- matters which are within the power of Congress to commit to conclusive executive determination. Compare Ex parte Bakelite Corporation, 279 U. S. 438 , 279 U. S. 451 . Their procedure may be summary and frequently is. [ Footnote 2/24 ] With respect to them, the function of the courts is not one of review but essentially of control-the function of keeping them within their statutory authority. [ Footnote 2/25 ] Page 285 U. S. 90 No method of judicial review of the administrative action had been provided by Congress in any of the cases cited, and the question of the power to confine review to the administrative record accordingly did not arise. In each case, the Court held that, if the administrative officer had acted outside his authority, the unwritten law supplied a remedy, and that relief could be had, according to the nature of the case, on bill in equity or habeas corpus. [ Footnote 2/26 ] Page 285 U. S. 91 The question decided in each case was that Congress should not be taken, in the absence of specific provision, to have intended to subject the individual to the uncontrolled action of a public administrative officer. See American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 , 187 U. S. 110 . No comparable issue is presented here. Reliance is also placed, as illustrative of the necessary independence of the federal judicial power, upon the decision in Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 . [ Footnote 2/27 ] That case, however, involved only the question Page 285 U. S. 92 of the scope of review, upon the administrative record, in confiscation cases. It held that the reviewing court must have power to weigh the evidence upon which the administrative tribunal entered the order. It decided nothing concerning the right to a trial de novo in court, and the opinion made no reference to such a trial. It could not have decided anything as to the effect of Article III of the Constitution. For the case came here from the highest court of the state, arose under the Fourteenth Amendment, and did not relate to the jurisdiction of the lower federal courts. Moreover, in no event, can the issues presented in the review of rate orders alleged to be confiscatory, which involve difficult questions of mixed law and fact, be deemed parallel to those presented in the review of workmen's compensation awards. [ Footnote 2/28 ] Compare the issues in Ohio Valley Water Co. v. Ben Avon Borough, supra, with that in Dahlstrom Metallic Door Co. v. Industrial Board, 284 U.S. 594. Whatever may be the propriety of the rule permitting special reexamination in a trial court of so-called "jurisdictional Page 285 U. S. 93 facts" passed upon by administrative bodies having otherwise final jurisdiction over matters properly committed to them, I find no warrant for extending the doctrine to other and different administrative tribunals whose very function is to hear evidence and make initial determinations concerning those matters which it is sought to reexamine. Such a doctrine has never been applied to tribunals properly analogous to the deputy commissioners, such as the Interstate Commerce Commission, the Federal Trade Commission, the Secretary of Agriculture acting under the Packers and Stockyards Act, and the like. [ Footnote 2/29 ] Logically applied, it would seriously impair the entire administrative process. [ Footnote 2/30 ] Eighth. No good reason is suggested why all the evidence which Benson presented to the District Court in this cause could not have been presented before the deputy commissioner, nor why he should have been permitted to try his case provisionally before the administrative tribunal and then to retry it in the District Court upon additional evidence theretofore withheld. To permit him to do so violates the salutary principle that administrative remedied must first be exhausted before resorting to the court, imposes unnecessary and burdensome expense upon the other party, and cripples the effective administration of the Act. Under the prevailing practice, by which the judicial review has been confined to questions of law, the proceedings before the deputy commissioners Page 285 U. S. 94 have proved for the most part noncontroversial, [ Footnote 2/31 ] and relatively few cases have reached the courts. [ Footnote 2/32 ] To permit a contest de novo in the District Court of an issue tried, or triable, before the deputy commissioner will, I fear, gravely hamper the effective administration of the Act. The prestige of the deputy commissioner will necessarily be lessened by the opportunity of relitigating facts in the courts. The number of controverted cases may be largely increased. Persistence in controversy will be encouraged. And since the advantage of prolonged litigation lies with the party able to bear heavy expenses, the purpose of the Act will be in part defeated. [ Footnote 2/33 ] In my opinion, the judgment of the Circuit Court of Appeal should be reversed, and the case remanded to the District Court, sitting as a court of equity, for consideration and decision upon the record made before the deputy commissioner. MR. JUSTICE STONE and MR. JUSTICE ROBERTS join in this opinion. [ Footnote 2/1 ] Revenue Act of 1926, 44 Stat. 110: "Sec. 1003. (a) The Circuit Courts of Appeals and the Court of Appeals of the District of Columbia shall have exclusive jurisdiction to review the decisions of the board. . . ." "(b) Upon such review, such courts shall have power to affirm or, if the decision of the board is not in accordance with law, to modify or reverse the decision of the board, with or without remanding the case for a rehearing as justice may require." [ Footnote 2/2 ] This opinion was expressed in regulations promulgated by the Commission, under authority conferred by § 39(a), in the form of instructions to deputy commissioners, dated September 28, 1927; and it was repeated in the Commission's report at the close of the first year of its administration of the Act. Report of United States Employees' Compensation Commission, for fiscal year ending June 30, 1928, p. 33. See also id., June 30, 1929, p. 77; id., June 30, 1930, pp. 63-64; id., June 30, 1931, p. 71. The instructions to deputy commissioners, elaborated December 10, 1927, and May 15, 1928, required that the record of proceedings and findings of fact be prepared, and the proceedings be conducted, in consonance with this view of the law. [ Footnote 2/3 ] The question of judicial review under the Act has been passed upon by the First, Second, Third, Fourth, and Ninth Circuit Courts of Appeals, as well as the Fifth; by a District Court in the Sixth Circuit; and by the Court of Appeals of the District of Columbia, under the Act of May 17, 1928, c. 612, 45 Stat. 600. Pocahontas Fuel Co. v. Monahan, 41 F.2d 48, 49 (C.C.A. 1st), affirming 34 F.2d 549, 551, 1929 A.M.C. 1336 (D.C.Me.); Joyce v. United States Deputy Commissioner, 33 F.2d 218 , 219 (D.C.Me.); Jarka Corporation v. Monahan, 48 F.2d 283, 284 (D.C.Mass.); Booth v. Monahan, 56 F.2d 168 (D.C.Me.); Wilson & Co., Inc. v. Locke, 50 F.2d 81, 82 (C.C.A. 2d); Travelers Insurance Co. v. Locke, 56 F.2d 443 (D.C.S.D.N.Y.); Calabrese v. Locke, 56 F.2d 458 (D.C.S.D.N.Y.); W. J. McCahan Sugar Refining & Molasses Co. v. Norton, 43 F.2d 505, 506 (C.C.A. 3d), affirming 34 F.2d 499 (D.C.E.D.Pa.); Independent Pier Co. v. Norton, 54 F.2d 734 (C.C.A. 3d); Baltimore & Carolina S.S. Co. v. Norton, 40 F.2d 271 , 272 (D.C.E.D.Pa.); Merchants' & Miners' Transp. Co. v. Norton, 32 F.2d 513 , 515 (D.C.E.D.Pa.); Jarka Corporation v. Norton, 56 F.2d 287 (D.C.E.D.Pa.); Frank Marra Co. v. Norton, 56 F.2d 246 (D.C.E.D.Pa.); Wheeling Corrugating Co. v. McManigal, 41 F.2d 593, 594, 595 (C.C.A. 4th); Obrecht-Lynch Corporation v. Clark, 30 F.2d 144 , 146 (D.C.Md.); Keyway Stevedoring Co. v. Clark, 43 F.2d 983 (D.C.Md.); Kranski v. Atlantic Coast Shipping Co., 56 F.2d 166 (D.C.Md.); Chesapeake Ship Ceiling Co. v. Clark (D.C.Md.), decided May 22, 1930 (oral opinion); Goble v. Clark, 56 F.2d 170 (D.C.Md.); Michigan Transit Corporation v. Brown, 56 F.2d 200 (D.C.W.D.Mich.); Northwestern Stevedoring Co. v. Marshall, 41 F.2d 28, 29 (C.C.A. 9th); Gunther v. United States Employees' Compensation Commission, 41 F.2d 151, 153 (C.C.A. 9th); Grays Harbor Stevedore Co. v. Marshall, 36 F.2d 814 , 815 (D.C.W.D.Wash.); Zurich General Accident & Liability Ins. Co. v. Marshall, 42 F.2d 1010, 1011 (D.C.W.D.Wash.); Tood Dry Docks, Inc. v. Marshall, 49 F.2d 621, 623 (D.C.W.D.Wash.); Grays Harbor Stevedore Co. v. Marshall, 36 F.2d 814 (D.C.W.D.Wash.); Rothschild & Co. v. Marshall, 56 F.2d 415 (D.C.W.D.Wash.), reversed on other grounds, 44 F.2d 546 (C.C.A. 9th); Lea Mathew Shipping Corporation v. Marshall, 56 F.2d 860 (D.C.W.D.Wash.); Griffiths & Sprague Stevedoring Co. v. Marshall, 56 F.2d 665 (D.C.W.D.Wash.); W. R. Grace & Co. v. Marshall, 56 F.2d 441 (D.C.W.D.Wash.); Nelson v. Marshall, 56 F.2d 654 (D.C.W.D.Wash.); Grant v. Marshall, 56 F.2d 654 (D.C.W.D.Wash.); Zurich General Accident & Liability Co. v. Marshall, 56 F.2d 652 (D.C.W.D.Wash.); Ocean Accident & Guarantee Corporation v. Solberg, 56 F.2d 607 (D.C.W.D.Wash.). Compare Lake Washington Shipyards v. Brueggeman, 56 F.2d 655 (D.C.W.D.Wash.); New Amsterdam Casualty Co. v. Hoage, 46 F.2d 837 (App.D.C.); Hoage v. Murch Bros. Const. Co., 50 F.2d 983, 984 (App.D.C.). See also the following decisions by district courts in the Fifth Circuit: Showers v. Crowell, 46 F.2d 361 (W.D.La.); Howard v. Monahan, 31 F.2d 480, 481 (S.D.Tex.); id., 33 F.2d 220, 221 (S.D.Tex.). Compare T. J. Moss Tie Co. v. Tanner, 44 F.2d 928 (C.C.A. 5th); Houston Ship Channel Stevedoring Co. v. Sheppeard, 57 F.2d 259, 1931 A.M.C. 1605 (S.D.Tex.). [ Footnote 2/4 ] The Court has been referred to no case arising under the state Workmen's Compensation Laws recognizing a right to trial de novo in court. Numerous decisions declare administrative findings of fact to be conclusive. The following decisions all dealt with controversies concerning the existence of a relation of employment. Hillen v. Industrial Accident Commission, 199 Cal. 577, 580, 250 P. 570; York Junction Transfer & Storage Co. v. Industrial Accident Commissioners, 202 Cal. 517, 521, 261 P. 704; Index Mines Corporation v. Industrial Commission, 82 Colo. 272, 275, 259 P. 1036; Ocean Accident & Guarantee Corp. v. Wilson, 36 Ga. App. 784, 138 S.E. 246; Taylor v. Blackwell Lumber Co., 37 Idaho, 707, 721, 218 P. 356; Cinofsky v. Industrial Commission, 290 Ill. 521, 525 125 N.E. 286; Franklin Coal Co. v. Industrial Commission, 296 Ill. 329, 334, 129 N.E. 811; A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 425, 141 N.E. 227; Murphy v. Shipley, 200 Iowa, 857, 859, 205 N.W. 497; Churchill's Case, 265 Mass. 117, 119, 164 N.E. 68; Hill's Case, 268 Mass. 491, 493, 167 N.E. 914; Matter of Dale v. Saunders Brothers, 218 N.Y. 59, 63, 112 N.E. 571; Federal Mining & Smelting Co. v. Thomas, 99 Okl. 24, 26, 225 P. 967; Oklahoma Pipe Line Co. v. Lindsey, 113 Okl. 296, 298, 241 P. 1092; Belmonte v. Connor, 263 Pa. 470, 472, 106 A. 787. [ Footnote 2/5 ] (a) Interstate Commerce Commission: Act of June 18, 1910, c. 309, § 1, 36 Stat. 539; see Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88 , 227 U. S. 92 ; United States v. Louisville & Nashville R. Co., 235 U. S. 314 , 235 U. S. 320 , 235 U. S. 321 ; Louisville & Nashville R. Co. v. United States, 245 U. S. 463 , 245 U. S. 466 , and other cases collected in I. L. Sharfman, "The Interstate Commerce Commission II," pp. 384-393, 417 et seq.; Act of June 18, 1910, c. 309, § 13, 36 Stat. 539, 555; Act of March 1, 1913; c. 92, 37 Stat. 701, 703. See Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 444 n. (b) Federal Trade Commission: Act of September 26, 1914, c. 311, § 5, 38 Stat. 717, 719, 720; see Federal Trade Commission v. Curtis Publishing Co., 260 U. S. 568 , 260 U. S. 579 , 260 U. S. 580 ; Federal Trade Commission v. Pacific States Paper Trade Assn., 273 U. S. 52 , 273 U. S. 63 ; Arkansas Wholesale Grocers' Assn. v. Federal Trade Commission, 18 F.2d 866, 870, 871; Gregory Hankin, "Conclusiveness of the Federal Trade Commission's Findings as to Facts," 23 Mich.L.Rev. 233, 262-267; Act of October 15, 1914, c. 323, § 11, 38 Stat. 730, 735 (applicable also in appropriate cases to Interstate Commerce Commission and Federal Reserve Board); see Federal Trade Commission v. Curtis Publishing Co., supra; International Shoe Co. v. Federal Trade Commission, 280 U. S. 291 , 280 U. S. 297 . (c) Federal Power Commission: Act of June 10, 1920, c. 285, § 20, 41 Stat. 1063, 1074. (d) United States Shipping Board: Act of September 7, 1916, c. 451, §§ 29, 31, 39 Stat. 728, 737, 738; see Isthmian Steamship Co. v. United States (S.D.N.Y.), 53 F.2d 251, decided December 7, 1931; compare United States Nav. Co. v. Cunard S.S. Co., 284 U. S. 474 , decided February 15, 1932. (e) Secretary of Agriculture: Act of August 15, 1921, c. 64, §§ 315, 316, 42 Stat. 159, 168; see Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 443 , 280 U. S. 444 ; Stafford v. Wallace, 258 U. S. 495 , 258 U. S. 512 ; Act of August 15, 1921, c. 64, § 204, 42 Stat. 159, 162; Act of June 10, 1930, c. 436, §§ 10, 11, 46 Stat. 531, 535. (f) Board of Tax Appeals: Act of February 26, 1926, c. 27, § 1003(a), 44, Stat. 9, 110; see Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 600 . (g) Grain Futures Commission: Act of September 21, 1922, c. 369, § 6(b), 42 Stat. 998, 1002. (h) District of Columbia Rent Commission: Act of October 22, 1919, c. 80, Title 2, § 108, 41 Stat. 297, 301; see Block v. Hirsh, 256 U. S. 135 , 256 U. S. 158 ; Killgore v. Zinkhan, 51 App.D.C. 60, 274, F. 140, 142. In instances in which Congress intended to permit the introduction of additional evidence in the District Court, it has so provided in express terms. See, e.g., Act of February 18, 1922, c. 57, § 2, 42 Stat. 388, 389 (7 USCA § 292). Compare the provision for review of reparation orders of the Interstate Commerce Commission, Act of June 18, 1910, c. 309, 313, 36 Stat. 539, 554, and of orders for the payment of money by the Shipping Board. Act of September 7, 1916, c. 451, § 30, 39 Stat. 728, 737. [ Footnote 2/6 ] Compare Freund, "Administrative Powers Over Persons and Property," p. 279. [ Footnote 2/7 ] Two bills providing workmen's compensation for longshoremen and harbor workers were before the Congress at the same time. H.R. 9498, which was first reported favorably to the House, declared in terms, §§ 22, 24, that "the decision of the deputy commissioner shall be final as to all questions of fact and except as provided in § 24 as to all questions of law." This bill was abandoned by the House in favor of S. 3170, in order that some legislation on the subject, under what was regarded as an emergency, might be passed at that session. H.D., 69th Cong., 1st Sess., ser. 16, pt. 2, pp. 139-141. Although the differences between the two bills were minutely examined in the hearings before the House Committee on the Judiciary, no reference was made to any change in the provisions for review of compensation orders, but, on the contrary, it was affirmatively stated the Senate bill likewise enacted administrative finality upon questions of fact. Id., pt. 2, p. 200. The same statement was made in the Senate hearings. Id., pt. 1, pp. 53, 66. The bill was reported to the House as having been amended to "conform substantially" to the bill theretofore reported. H.Rep., No. 1767, 69th Cong., 1st Sess. Both in this report and in the brief debates in both houses, the bill was described as designed to prevent the delay and injustice incident to litigation, and as affording to maritime workers the same remedies as those provided in state workmen's compensation laws. See 67 Cong. Rec. 10614; 68 Cong. Rec. 5410-5414, 5908. The state Workmen's Compensation Statutes have, almost universally, been construed to provide for final administrative determination of questions of fact, including the fact of the existence of an employment. See 285 U.S. 22 fn2/4|>note 4, supra. [ Footnote 2/8 ] Congress has incorporated by reference the provisions for review of orders of the Interstate Commerce Commission in authorizing judicial review of certain orders of the Federal Power Commission and the Shipping Board, as it did in the Packers and Stockyards Act. See 285 U.S. 22 fn2/5|>note 5, supra. [ Footnote 2/9 ] In People ex rel. New York & Queens Gas Co. v. McCall, 219 N.Y. 84, 88, 90, 113 N.E. 795, it was held that the scope of the review on certiorari of an order of the Public Service Commission was the same as that of the federal court on bill in equity of the orders of the Interstate Commerce Commission as declared in Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S. 452 , 215 U. S. 470 . Compare Vanfleet, "Collateral Attack on Judicial Proceedings," §§ 2, 3. [ Footnote 2/10 ] Certiorari is the historic writ for determining whether the action of an inferior tribunal has been taken within its jurisdiction, and it has sometimes been held that the writ lies only to determine this question. Compare Jackson v. People, 9 Mich. 111. But, although there is considerable divergence is the practice of the various states as to the scope of the review, the proceeding, apart from extraordinary statutory provisions, is universally upon the record and the evidence before the inferior tribunal, and not a trial de novo.. Fore v. Fore, 44 Ala. 478, 484; City of Los Angeles v. Young, 118 Cal. 295, 298, 50 P. 534; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 185, 186, 149 P. 35; Uphoff v. Industrial Board, 271 Ill. 312, 111 N.E. 128; Tiedt v. Carstensen, 61 Iowa, 334, 336, 16 N.W. 214; Lord v. County Commissioners, 105 Me. 556, 561, 75 A. 126; Jackson v. People, 9 Mich. 111, 119, 120; Wait v. Krewson, 59 N.J.Law, 71, 75, 35 A. 742; Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 641, 642, 150 N.W. 998. It was so at common law. See Freund, "Administrative Powers Over Persons and Property," pp. 267-269. [ Footnote 2/11 ] See the statutes and cases cited in 285 U.S. 22 fn2/5|>note 5, supra. Similar decisions have been repeatedly made, under the Fourteenth Amendment, in cases coming from the state courts. This court has recently decided that a state Workmen's Compensation Act may validly provide for judicial review upon matters of law only. Dahlstrom Metallic Door Co. v. Industrial Board, 284 U.S. 594. See also New York Central R. Co. v. White, 243 U. S. 188 , 243 U. S. 207 , 243 U. S. 208 . In Missouri ex rel. Hurwitz v. North, 271 U. S. 40 , 271 U. S. 42 , , it was held that a state board of health might be empowered, upon reasonable notice, specification of charges, and opportunity to be heard, to revoke a physician's license, subject only to review in the courts upon certiorari. In Washington ex rel. Oregon Railroad & Navigation Co. v. Fairchild, 224 U. S. 510 , 224 U. S. 527 , a statute was upheld which confined the court upon review of a public service commission's order to the evidence introduced before the commission. See also Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651 , 235 U. S. 661 ; New York ex rel. New York & Queens Gas Co. v. McCall, 245 U. S. 345 , 245 U. S. 348 , 245 U. S. 349 ; Napa Valley Electric Co. v. Railroad Commission, 251 U. S. 366 , 251 U. S. 370 ; Northern Pacific Ry. Co. v. Department of Public Works, 268 U. S. 39 , 268 U. S. 42 . In Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685 , 166 U. S. 695 , it was held that the findings of fact by commissioners in assessing damages in condemnation proceedings might be made final, leaving open to the court only the question whether there was any error in the basis of appraisal, or otherwise. See also Crane v. Hahlo, 258 U. S. 142 , 258 U. S. 147 ; Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., 284 U. S. 151 . Compare Pacific Live Stock Co. v. Lewis, 241 U. S. 440 , 241 U. S. 451 , 241 U. S. 452 . [ Footnote 2/12 ] See Griswold and Mitchell, "The Narrative Record in Federal Equity Appeals," 42 Harv.L.Rev. 483, 488, 491; Lane, "One Year Under the New Federal Equity Rules," 27 Harv.L.Rev. 629, 639. Compare 2 Daniell, "Chancery Practice" (2d Ed.) 1045, 1046, 1053, 1054, 1069 et seq. [ Footnote 2/13 ] Admiralty Rule 46, 254 U.S. 698. Subsequent to 1842, when the procedure in admiralty became subject to rules promulgated by this Court, and prior to 1921, no rule specifically required that evidence be taken orally in open court, and the practice in some districts appears to have been to take proofs by a commission. Compare Admiralty Rules 44, 46, 210 U.S. 558; The Guy C. Goss, 53 F. 826, 827; The Wavelet, 25 F. 733, 734. See also The Sun, 271 F. 953, 954. Under the present rules, the District Court may still, upon proper circumstances, refer causes in admiralty to a commissioner, without the consent of the parties, to hear the testimony and report conclusions on issues of fact and law. The P. R.R. No. 35, 48 F.2d 122; Sorenson & Co. v. Liverpool, Brazil & River Plate Steam Nav. Co., 47 F.2d 332 . Compare The City of Washington, 92 U. S. 31 , 92 U. S. 39 ; Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701 . The commissioner's findings of fact are not disturbed unless clearly erroneous. The La Bourgogne, 144 F. 781, 783, affirmed, 210 U. S. 210 U.S. 95; Anderson v. Alaska S.S. Co., 22 F.2d 532, 535. [ Footnote 2/14 ] See Admiralty Rule 45, 254 U.S. 698; Supreme Court Rule 15, 275 U.S. 607. [ Footnote 2/15 ] The decision of the District Court, acquiesced in by the Circuit Court of Appeals and this Court, that the remedy under § 21(b) of the Longshoreman's Act is in admiralty, seems to me unfounded. The provision in that section for suspending or setting aside a compensation order by injunction clearly implies a proceeding upon bill in equity. Congress may authorize actions for maritime torts to be brought on the law side of the federal District Courts, Panama R. Co. v. Johnson, 264 U. S. 375 , 264 U. S. 385 ; or in the state courts, Engel v. Davenport, 271 U. S. 33 , 271 U. S. 37 . See also Chelentis v. Luckenbach S.S. Co., 247 U. S. 372 , 247 U. S. 384 . No constitutional objection can exist, therefore, to giving effect to the remedy in equity provided in this Act. [ Footnote 2/16 ] The opinion of the Court suggests that, upon similar reasoning, the issue whether the injury occurred on navigable waters must likewise be open to independent redetermination, upon the facts as well as the law, in the District Court. The question whether any peculiar significance attaches to such a controversy, entitling it to be twice tried, is not before us. It has never been decided that the power of Congress to provide compensation for injuries to workmen received in the course of maritime employment depends upon the injury having occurred upon navigable waters. See Benedict, "The American Admiralty" (5th Ed.) § 25. Compare Soper v. Hammond Lumber Co. 4 F.2d 872 ; State Industrial Commission v. Nordenholt Corp., 259 U. S. 263 . The Longshoremen's Act undertakes to cover only the field of admiralty jurisdiction within which the decisions of this Court have held uniformity to be required. See Stanley Morrison, "Workmen's Compensation and the Maritime Law," 38 Yale L.J. 472, 500. [ Footnote 2/17 ] That Legislatures may abolish defenses recognized at common law and create new causes of action not so recognized is beyond question. So also is the power, under proper circumstances, to provide for liability without fault. Compare St. Louis & San Francisco Ry. Co. v. Mathews, 165 U. S. 1 ; Chicago, Rock Island & Pacific Ry. Co. v. Zernecke, 183 U. S. 582 ; St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281 ; New York Central R. Co. v. White, 243 U. S. 188 . Congress may provide that a carrier shall be liable for loss or damage to goods occurring beyond its own lines. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186 , 219 U. S. 203 . See also Atlantic Coast Line R. Co. v. Glenn, 239 U. S. 388 , 239 U. S. 393 . "The rule," said the Court, "is adapted to secure the rights of the shipper by securing unity of transportation with unity of responsibility." That Congress might not similarly secure unity of responsibility for injuries to all persons working upon the same enterprise, irrespective of the particular relation existing of contract or employment, is not to be assumed without argument and in the absence of circumstances presenting the question. The logic upon which workmen's compensation acts have been sustained does not require insistence upon a technical master and servant relation. Compare Ward & Gow v. Krinsky, 259 U. S. 503 . See also Jeremiah Smith, "Sequel to Workmen's Compensation Acts," 27 Harv.L.Rev. 235, 344. The common law, of course, holds many examples of liability to third persons for injury sustained at the hands of an independent contractor or his servant. E.g., Ellis v. Sheffield Co., 2 E. & B. 767; Pickard v. Smith, 10 C.B. (N. S.) 470; Doll v. Ribetti, 203 F. 593. [ Footnote 2/18 ] See the analysis and criticism in William O. Douglas, "Vicarious Liability and Administration of Risk," 38 Yale L.J. 584, 594-604. Compare O. W. Holmes, "Agency," 5 Harv.L.Rev. 1, 14-16. [ Footnote 2/19 ] See Baty, "Vicarious Liability," passim; Francis Bowes Sayre, "Criminal Responsibility for Acts of Another," 43 Harv.L.Rev. 689, 691-694; O. W. Holmes, "Agency," 4 Harv.L.Rev. 345, 5 Id. 1. The first textbook on Agency did not appear until 1812. Paley, "The Law of Principal and Agent." [ Footnote 2/20 ] See the digests of the statutes in L. V. Hill and Ralph H. Wilkin, "Workmen's Compensation Statute Law"; and F. Robertson Jones, "Digest of Workmen's Compensation Laws" (10th Ed.). The provision in the New York Workmen's Compensation Act (Consol. Laws, c. 67), § 56, is illustrative: "A contractor, the subject of whose contract is, involves or includes a hazardous employment, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any employee injured. . . ." In 1927, in recommending the extension of this provision to include owners or lessees as well as general contractors, the State Industrial Commissioner said: "From the point of view of making sure of compensation to injured workers, all the reasons for the existing obligations put upon a general contractor for a piece of building work who sublets part of the work, are equally cogent for doing the same in case of an owner or lessee of premises who lets part of building work in precisely the same way. The practical need for doing it has been shown by experience to be extensive owing to the large amount of building work now being done under the method above noted and which this amendment is designed to cover." "The existing provision has proven very beneficial in the case of contractors, and it will be equally useful in the case of the type of owner-contractor, so to speak who must now be dealt with for solution of the same problem." Annual Report of the Industrial Commissioner (1927) pp. 4, 5. [ Footnote 2/21 ] See, e.g., Industrial Commission v. Continental Investment Co., 78 Colo. 399, 401, 402, 242 P. 49; Palumbo v. George A. Fuller Co., 99 Conn. 355, 358, 122 A. 63; Fisk v. Bonner Tie Co., 40 Idaho, 304, 308, 232 P. 569; Parker-Washington Co. v. Industrial Board, 274 Ill. 498, 504, 113 N.E. 976; American Steel Foundries v. Industrial Board, 284 Ill. 99, 103, 119 N.E. 902; McDowell v. Duer, 78 Ind.App. 440, 444, 445, 133 N.E. 839; Burt v. Clay, 207 Ky. 278, 281, 269 S.W. 322; Seabury v. Arkansas Natural Gas Corp., 171 La. 199, 204, 205, 130 So. 1; White v. George B. H. Macomber Co., 244 Mass. 195, 198, 138 N.E. 239; Burt v. Munising Woodenware Co., 222 Mich. 699, 702, 703, 193 N.W. 895; De Lonjay v. Hartford Accident & Indemnity Co. 35 S.W..2d 911, 912; Sherlock v. Sherlock, 112 Neb. 797, 799, 201 N.W. 645; O'Banner v. Pendlebury, 107 N.J.Law, 245, 247, 153 A. 494; Clark v. Monarch Engineering Co., 248 N.Y. 107, 110, 161 N.E. 436; De Witt v. State, 108 Ohio St. 513, 522-525, 141 N.E. 551; Green v. State Industrial Commission, 121 Okl. 211, 212, 249 P. 933; Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780; Murray v. Wasatch Grading Co., 73 Utah, 430, 436, 439, 274 P. 940; Threshermen's Nat. Ins. Co. v. Industrial Commission, 201 Wis. 303, 306, 230 N.W. 67; Wisinger v. White Oil Corp., 24 F.2d 101, 102. But compare Flickenger v. Industrial Accident Commission, 181 Cal. 425, 432, 433, 184 P. 851. Liability to pay compensation obtains in England under circumstances in which no relation of employment exists. See Mulrooney v. Todd (1909), 1 K.B. 165; Marks v. Carne (1909), 2 K.B. 516. [ Footnote 2/22 ] Turner v. Bank of North America , 4 Dall. 8, 4 U. S. 10 ; United States v. Hudson & Goodwin , 7 Cranch, 32, 11 U. S. 33 ; Shelden v. Sill , 8 How. 441, 49 U. S. 449 ; Justices v. Murray , 9 Wall. 274, 76 U. S. 280 ; Home Life Insurance Co. v. Dunn , 19 Wall. 214, 86 U. S. 226 ; Stevenson v. Fain, 195 U. S. 165 , 195 U. S. 167 ; Kline v. Burke Construction Co., 260 U. S. 226 , 260 U. S. 234 . It was not until the Act of March 3, 1875, c. 137, 18 Stat. 470, that Congress extended the jurisdiction of the circuit courts to "cases arising under the laws of the United States," thus permitting to be exercised "the vast range of power which had lain dormant in the Constitution since 1789." See Felix Frankfurter and James M. Landis, "The Business of the Supreme Court," pp. 65-68; Charles Warren, "Federal Criminal Laws and the State Courts," 38 Harv.L.Rev. 545. Large areas of the potential jurisdiction of the lower federal courts are now occupied by other tribunals. As to legislative courts, see Wilber Griffith Katz, "Federal Legislative Courts," 43 Harv.L.Rev. 894. Congress has repeatedly exercised power to exclude from the federal courts cases not involving the requisite jurisdictional amount. Cases arising under the Federal Employers' Liability Act are triable in either the state courts or the federal District Courts. See Second Employers' Liability Cases, 223 U. S. 1 , 223 U. S. 56 , 223 U. S. 57 -59; Douglas v. New York, New Haven & Hartford R. Co., 279 U. S. 377 . So, also, cases under § 20 of the Seamen's Act, as amended by the Merchant Marine Act of 1920, § 33. Engel v. Davenport, 271 U. S. 33 , 271 U. S. 37 ; Panama R. Co. v. Vasquez, 271 U. S. 557 , 271 U. S. 562 . [ Footnote 2/23 ] See decisions and statutes collected in 285 U.S. 22 fn2/5|>note 5, supra. So far as concerns the question here presented, it is immaterial whether the controversy is wholly between private parties or is between the government and a citizen. The fact that litigation under the Longshoremen's Act is, in substance, between private parties (even though under § 21(b) the deputy commissioner is the only necessary party respondent) does not warrant the inference that the administrative features of the Act present a question not heretofore decided. The tribunals in 285 U.S. 22 fn2/5|>note 5, supra, listed deal with matters outside the scope of the doctrine recently examined in Ex parte Bakelite Corporation, 279 U. S. 438 . While the opinion in that case referred to "various matters, arising between the government and others," as appropriate for the cognizance of legislative courts, the reference was restricted to matters "which from their nature do not require judicial determination and yet are susceptible of it," the mode of determining which "is completely within congressional control." Id. at 279 U. S. 451 . The suggestion that due process does not require judicial process in any controversy to which the government is a party would involve a revision of historic conceptions of the nature of the federal judicial system. That all questions arising in the administration of the Interstate Commerce Act, for example, or between a taxpayer and the government under the tax laws, could be committed by Congress exclusively to executive officers, in respect to issues of law as well as of fact, has never been supposed. Thus, there is no indication in the opinion in Ex parte Bakelite Corporation that the Commerce Court was a legislative court, although instances of the creation of such courts were considered in detail. See Wilber Griffith Katz, "Federal Legislative Courts," 43 Harv.L.Rev. 894, 914, 915. [ Footnote 2/24 ] Compare Miller v. Horton, 152 Mass. 540, 26 N.E. 100, and Pearson v. Zehr, 138 Ill. 48, 29 N.E. 854, cited by the Court. These cases involved summary administrative action, and the complaining individuals had been given no opportunity to be heard on the question whether their property was in fact subject to the destruction ordered. The degree of finality appropriate in administrative action must always depend upon the character of the administrative hearing provided. Compare Dickinson, "Administrative Justice and the Supremacy of Law," pp. 260-261; E. F. Albertsworth, "Judicial Review of Administrative action by the Federal Supreme Court," 35 Harv.L.Rev. 127, 152, 153. In most states, the tendency appears to be to deny the right, in a tort action against an administrative officer, to question the existence of the fact justifying his act, if a hearing was provided or if a suit for injunction could have been brought. See Freund, "Administrative Powers Over Persons and Property," pp. 248-252; Kirk v. Board of Health, 83 S.C. 372, 383, 65 S.E. 387. Compare North American Cold Storage Co. v. Chicago, 211 U. S. 306 , 211 U. S. 316 , 211 U. S. 317 . In cases arising under the Workmen's Compensation Laws, where formal hearing is available, the Massachusetts and Illinois courts, in common with many others, have held the administrative finding of the fact of employment conclusive. Churchill's Case, 265 Mass. 117, 164 N.E. 68; Hill's Case, 268 Mass. 491, 167 N.E. 914; Cinofsky v. Industrial Commission, 290 Ill. 521, 125 N.E. 286; Franklin Coal Co. v. Industrial Commission, 296 Ill. 329, 129 N.E. 811. [ Footnote 2/25 ] Compare Frankfurter and Davison, "Cases on Administrative Law," Preface, p. viii. See Albert Levitt, "The Judicial Review of Executive Acts," 23 Mich.L.Rev. 588, 595 et. seq. This authority may embrace as well the determination of questions of law as of fact, depending upon the judicial construction given to the authority of the tribunal. Thus, in In Re Grimley, 137 U. S. 147 ; In Re Morrissey, 137 U. S. 157 ; Noble v. Union River Logging Railroad, 147 U. S. 165 ; Smith v. Hitchcock, 226 U. S. 53 ; and Bates & Guild Co. v. Payne, 194 U. S. 106 , all cited in note 285 U.S. 22 fn2/26|>26, infra, the Court recognized the conclusiveness of many decisions of law by the tribunals in question. Tribunals of this character are, of course, empowered, under ordinary circumstances, to make conclusive determinations of fact. See e.g., Passavant v. United States, 148 U. S. 214 , 148 U. S. 219 ; Medbury v. United States, 173 U. S. 492 , 173 U. S. 497 , 173 U. S. 498 ; Silberschein v. United States, 266 U. S. 221 , 266 U. S. 225 ; Quon Quon Roy v. Johnson, 273 U. S. 352 , 273 U. S. 358 . [ Footnote 2/26 ] (a) In Ng Fung Ho v. White, 259 U. S. 276 , the statute authorized the deportation only of aliens, without provision for judicial review of the executive order. Act of February 5, 1917, c. 29, § 19, 39 Stat. 874, 889. Upon application for a writ of habeas corpus, by a person arrested who claimed to be a citizen, it was held that he was entitled to a judicial determination of that claim. No question arose as to whether Congress might validly have provided for review exclusively upon the record made in the executive department; nor as to the scope of review which might have been permissible upon such record. (b) In re Grimley, 137 U. S. 147 , and In re Morrissey, 137 U. S. 157 , deal with the action of military tribunals. Military tribunals from a system of courts separate from the civil courts and created by virtue of an independent grant of power in the Constitution. Article 1, § 8, clauses 14, 16. They have authority to determine finally any case over which they have jurisdiction; "and their proceedings . . . are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced." Carter v. Roberts, 177 U. S. 496 , 177 U. S. 498 ; Grafton v. United States, 206 U. S. 333 , 206 U. S. 347 . As Congress did not provide any method for review by the courts of the decision of military tribunals, all questions of law concerning military jurisdiction are open to independent determination in the civil courts; and the cases of In re Grimley and In re Morrissey, decide nothing more. Whether Congress could make the findings of "jurisdictional facts," of military tribunals conclusive upon civil courts is a question which appears never to have been raised. (c) In Noble v. Union River Logging Co, 147 U. S. 165 , 147 U. S. 174 , relief was granted by bill in equity to stay illegal and unauthorized action of the Secretary of the Interior in respect to the public lands, there being no method of judicial review prescribed by statute. Compare St. Louis Smelting Co. v. Kemp, 104 U. S. 636 , 104 U. S. 641 . (d) In Smith v. Hitchcock, 226 U. S. 53 , 226 U. S. 58 , as in Bates & Guild Co. v. Payne, 194 U. S. 106 , 194 U. S. 109 , 104 U. S. 110 , and American School of Magnetic Healing v. McAnnulty, 187 U. S. 94 , 187 U. S. 109 , bills in equity were entertained to review acts of the Postmaster General alleged to be unauthorized, Congress not having provided any method of judicial review. In each case the question involved was stated to be one of law. [ Footnote 2/27 ] The decision in the Ohio Valley Water Co. case has evoked extensive and varied comment. See, e.g., Curtis, "Judicial Review of Commission Rate Regulation -- The Ohio Valley Case," 34 Harv.L.Rev. 862; Albertsworth, "Judicial Review of Administrative action by the Federal Supreme Court," 35 Harv.L.Rev. 127; C. W. Pound, "The Judicial Power," 35 Harv.L.Rev. 787; Brown, "The Functions of Courts and Commissions in Public Utility Rate Regulations," 38 Harv.L.Rev. 141; Wiel, "Administrative Finality," 38 Harv.L.Rev. 447; Buchanan, "The Ohio Valley Water Co. Case and the Valuation of Railroads," 40 Harv.L.Rev. 1033; Beutel, "Valuation as a Requirement of Due Process of Law in Rate Cases," 43 Harv.L.Rev. 1249; Green, "The Ohio Valley Water Case, " 4 Ill.L.Q. 55; Freund, "The Right to a Judicial Review in Rate Controversies," 27 W.Va.L.Q. 207; Hardman, "Judicial Review as a Requirement of Due Process in Rate Regulation," 30 Yale L.J. 681; Isaacs, "Judicial Review of Administrative Findings," 30 Yale L.J. 781. No commentator, however, appears to have understood the decision as recognizing in any manner a right to trial de novo in court upon confiscation issues. [ Footnote 2/28 ] It is cause for regret that the Court, in determining this controversy, should have declared, obiter, that, in matters of state public utility regulation involving administrative action of a special character, and raising questions under a different constitutional provision, a mode of procedure is required contrary to that almost universally established under state law ( see David E. Lilienthal, "The Federal Courts and State Regulation of Public Utilities," 43 Harv.L.Rev. 379, 412, 413), and calculated seriously to embarrass the operation of the administrative method in that field. [ Footnote 2/29 ] But see Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88 , 227 U. S. 92 . The statement by Mr. Justice Jamar there, however, went no further than to indicate that, in some circumstances, the courts on review of orders of the Interstate Commerce Commission might pass an independent judgment upon the evidence adduced before the Commission. See also Interstate Commerce Commission v. Northern Pacific Ry. Co., 216 U. S. 538 , 216 U. S. 544 ; Manufacturers' Ry. Co. v. United States, 246 U. S. 457 , 246 U. S. 488 -490. [ Footnote 2/30 ] See Dickinson, "Administrative Justice and the Supremacy of Law," p. 310. [ Footnote 2/31 ] Out of the 30,383 nonfatal cases disposed of during the fiscal year ending June 30, 1931, the deputy commissioners held hearings in only 729, according to information furnished by the United States Employees' Compensation Commission. Compensation payments were completed in 11,776 cases, or 38.8 percent of the total. In 17,328 cases, or 57 percent, the injured employee failed to receive compensation because no time was lost, or less than seven days, on account of the injury. The balance of 1,279 cases, amounting to 4.2 percent of the whole, were dismissed because they did not come within the scope of the law. Among the 18,607 noncompensated cases, formal claims were filed by the employee in only 1,025 instances. See also Report of the Compensation Commission, 1930, pp. 68-70. [ Footnote 2/32 ] For the fiscal year ending June 30, 1931, 101 new cases were filed in the District Courts, out of a total of 30,489 cases disposed of. Report of the United States Employee's Compensation Commission, pp. 69, 71. For the three preceding years, the number of cases filed in the courts was, respectively, 61, 58, and 15. Report, 1930, p. 62; id., 1929, p. 70; id., 1928, p. 34. The decision of the Circuit Court of Appeals in the case at bar declaring the right to a trial de novo was rendered November 17, 1930, and the first opinion of the District Court on May 27, 1929. [ Footnote 2/33 ] How serious these consequences will be is a question of speculation, but it is plain that they will be aggravated by the inherent uncertainty in the scope of the doctrine announced. The determination of what facts are "jurisdictional" or "fundamental" is calculated to provoke a multitude of disputes. That there is a difference in kind, for example, between the defense that the injured claimant is not an employee and that he was not acting as an employee when he was injured, or that there is a difference between the latter defense and the defense that the disability, if any, from which he suffers resulted only in part, or not at all, from the employment in which he claims to have suffered it, are propositions which employers will be unlikely to accept until they have submitted them to the decision of the courts. The effectiveness of this legislation will be lessened by this opportunity for barren controversy over procedural rights and by delayed or thwarted determination of substantive ones.

In Crowell v. Benson, the US Supreme Court ruled that Congress has the power to provide reasonable compensation, regardless of fault, for employees in maritime work who are injured or killed due to their job. The Court upheld the Longshoremen's and Harbor Workers' Compensation Act, which established a framework for compensation in such cases. The Act's classifications and amounts of compensation were deemed reasonable and consistent with due process. The Court also addressed the claims process, where administrative officers called deputy commissioners have the authority to hear and determine claims, issuing subpoenas and conducting investigations. The Act provides for reviews and appeals of compensation orders and judgments, with the possibility of suspension or alteration if the order is not in accordance with the law. The case sets a precedent for federal workers' compensation legislation and the role of administrative officers in handling claims and ensuring fair and efficient resolution processes.

Equal Protection

U.S. v. Harris

https://supreme.justia.com/cases/federal/us/106/629/

U.S. Supreme Court United States v. Harris, 106 U.S. 629 (1883) United States v. Harris Decided January 22, 1883 106 U.S. 629 ON CERTIFICATE OF DIVISION BETWEEN JUDGES OF CIRCUIT COURT OF UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE Syllabus 1. The omission to state, in the certificate of division of opinion between the judges of the circuit court in a criminal proceeding, that the point of difference is certified "upon the request of either party or their counsel," is not fatal to the jurisdiction of this Court where such request can be fairly inferred. 2. Section 5519 of the Revised Statutes ( post, p. 106 U. S. 632 ) is unconstitutional. At the November Term, 1876, of the Circuit Court of the United States for the Western District of Tennessee, an indictment, based on sec. 5519 of the Revised Statutes, was returned by the grand jury against one R. G. Harris and nineteen others. The indictment contained four counts. The first count charged as follows: "That R. G. Harris [and nineteen others, naming them], yeomen, of the County of Crockett, in the State of Tennessee, and all late of the county and district aforesaid, on, to-wit, the fourteenth day of August, in the year of our Lord one thousand eight hundred and seventy-six, in the County of Crockett, in said state and district, and within the jurisdiction of this Court, unlawfully, with force and arms, did conspire together with certain other persons whose names are to the grand jurors aforesaid unknown, then and there, for the purpose of Page 106 U. S. 630 depriving Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, then and there being citizens of the United States and of said state, of the equal protection of the laws, in this, to-wit, that therefore, to-wit, on the day and year aforesaid, in said county, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, having been charged with the commission of certain criminal offenses, the nature of which said criminal offenses being to the grand jurors aforesaid unknown, and having upon such charges then and there been duly arrested by the lawful and constituted authorities of said state, to-wit, by one William A. Tucker, the said William A. Tucker then and there being a deputy sheriff of said county, and then and there acting as such, and having been so arrested as aforesaid, and being then and there so under arrest and in the custody of said deputy sheriff as aforesaid, they, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, were there and then by the laws of said state entitled to the due and equal protection of the laws thereof, and were then and there entitled under the said laws to have their persons protected from violence when so then and there under arrest as aforesaid. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said R. G. Harris, (and 19 others, naming them) with certain other persons whose names are to the said grand jurors unknown, did then and there, with force and arms, unlawfully conspire together as aforesaid then and there for the purpose of depriving them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, of their rights to the due and equal protection of the laws of said state, and of their rights to be protected in their persons from violence while so then and there under arrest as aforesaid, and while so then and there in the custody of the said deputy sheriff, and did then and there deprive them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, of such rights and protection, and of the due and equal protection of the laws of the said state, by then and there, while so under arrest as aforesaid, and while so then and there in the custody of the said deputy sheriff as aforesaid, beating, bruising, wounding, Page 106 U. S. 631 and otherwise ill treating them, the said Robert R. Smith, William J. Overton, George W. Wells, Jr., and P. M. Wells, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States." The second count charged that the defendants, with force and arms, unlawfully did conspire together for the purpose of preventing and hindering the constituted authorities of the State of Tennessee, to-wit, the said William A. Tucker, deputy sheriff of said county, from giving and securing to the said Robert R. Smith and others, naming them, the due and equal protection of the laws of said state, in this, to-wit, that at and before the entering into said conspiracy, the said Robert R. Smith and others, naming them, were held in the custody of said deputy sheriff by virtue of certain warrants duly issued against them, to answer certain criminal charges, and it thereby became and was the duty of said deputy sheriff to safely keep in his custody the said Robert R. Smith and others while so under arrest, and then and there give and secure to them the equal protection of the laws of the State of Tennessee, and that the defendants did then and there conspire together for the purpose of preventing and hindering the said deputy sheriff from then and there safely keeping, while under arrest and in his custody, the said Robert R. Smith and others, and giving and securing to them the equal protection of the laws of said state. The third count was identical with the second, except that the conspiracy was charged to have been for the purpose of hindering and preventing said William A. Tucker, deputy sheriff, from giving and securing to Robert R. Smith alone the due and equal protection of the laws of the state. The fourth count charged that the defendants did conspire together for the purpose of depriving said P. M. Wells, who was then and there a citizen of the United States and the State of Tennessee, of the equal protection of the laws, in this, to-wit, said Wells having been charged with an offense against the laws of said state, was duly arrested by said Tucker, deputy sheriff, and so being under arrest was entitled to the due and equal protection of said laws, and to have his Page 106 U. S. 632 person protected from violence while so under arrest, and the said defendants did then and there unlawfully conspire together for the purpose of depriving said Wells of his right to the equal protection of the laws, and of his right to be protected in person from violence while so under arrest, and "did then and there deprive him of such rights and protection, and of the due and equal protection of the laws of the State of Tennessee, by then and there, and while he, the said P. M. Wells, was so then and there under arrest as aforesaid, unlawfully beating, bruising, wounding, and killing him, the said P. M. Wells, contrary to the form of the statute in such case made and provided," &c. The defendants demurred to the indictment on several grounds, among them the following: "1. Because the offenses created by section 5519 of the Revised Statutes of the United States, and upon which section the aforesaid four counts are based, are not constitutionally within the jurisdiction of the courts of the United States, and because the matters and things therein referred to are judicially cognizable by state tribunals only, and legislative action thereon is among the rights reserved to the several states and inhibited to Congress by the Constitution of the United States," and "2. Because the said section 5519 of the Revised Statutes of the United States, insofar as it creates Page 106 U. S. 633 offenses and imposes penalties, is in violation of the Constitution of the United States and an infringement of the rights of the several states and the people thereof." The case was heard in the circuit court on the demurrer to the indictment, and, as the record states: "Came the district attorney on behalf of the United States, and came also the defendants indicted herein, by their attorneys, when this case came on to be heard before the Hon. John Baxter, Circuit Judge, and the Hon. Connally F. Trigg, District Judge, presiding, on the demurrer of the said defendants, filed herein on the fifth day of February, A.D. 1878, to the indictment herein, and the said judges being divided in opinion on the point of the constitutionality of the section of the Revised Statutes of the United States on which the said indictment is based, being section No. 5519 thereof, . . . after argument, hereby direct the said point . . . to be certified to the Supreme Court of the United States for its decision thereon, and the same is accordingly ordered. And it is further ordered by the court that this case be continued until the decision of said Supreme Court in the premises." Section 651 of the Revised Statutes, which authorizes certificates of division of opinion, declares: "Whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court upon which the judges are divided in opinion, the point upon which they disagree shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court at their next session, but nothing herein contained shall prevent the cause from proceeding if, in the opinion of the court, further proceedings can be had with out prejudice to the merits." MR. JUSTICE WOODS delivered the opinion of the Court, and, after making the foregoing statement, proceeded as follows: The certificate of division of opinion in this case does not Page 106 U. S. 634 expressly state that the point of difference between the judges was certified "upon the request of either party or their counsel." Neither party challenges the jurisdiction of this Court, but it has occurred to us as a question, and we have considered it, whether this omission in the certificate is fatal to our jurisdiction, and we have reached the conclusion that it is not. It fairly appears from the certificate that the point upon which the judges differed in opinion was stated, under their direction, in the presence of the counsel of both parties, without objection from either, and it is expressly stated that the cause was continued until the decision of this Court upon the point of difference between the judges could be rendered. Had no certificate of division of opinion been made, the result must have been a judgment against the indictment, although the difference of opinion arose upon the demurrer of defendant, for no judgment could have been given against the defendant upon the indictment if the judges were not agreed as to the constitutionality of the law upon which it was based. Hence it became the duty of the prosecuting officer, and the interest of the government which he represented, to request a certificate of division of opinion for the determination of the question by this Court. The case is brought to this Court by the counsel for the United States upon the point stated in the certificate; the case is suspended until our decision upon the point certified is made, and he asks us to decide the question upon which the judges of the circuit court differed. These circumstances, all of which appear of record, considered in connection with the fact that the court made the certificate, raise the legal presumption that a request for the certificate was duly preferred. The record evidence of the fact of the request by counsel for the United States is incontrovertible. It is suggested that under section 649 of the Revised Statutes, which provides that a jury may be waived "whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury," this Court has decided that the fact that the stipulation was in writing and filed with the clerk must appear of record in order to entitle the party to the review of the rulings of the court in the progress of the trial Page 106 U. S. 635 provided by sec. 700, and therefore that in the present case, the record should distinctly show the request. But § 649 expressly requires that the waiver of the jury shall be in writing and shall be filed with the clerk. The section which provides for a certificate of division of opinion makes no such requirement in relation to the request for a certificate. In one case, the jurisdictional fact is the filing of a certain paper writing with the clerk; in the other, the making of a request, which may be oral, to the court. In either case, when the jurisdictional fact fairly appears by the record, our jurisdiction attaches. So in this case, if the request may be fairly inferred from such circumstances as we have mentioned, that is all that is necessary to satisfy the statute. In Supervisors v. Kennicott, 103 U. S. 554 , this Court held that when a stipulation in writing was filed with the clerk, by which it was provided that the case might be submitted to the court on an agreed statement of facts, but which contained no express waiver of a jury, yet this amounted to a waiver sufficient to meet the requirements of section 649. And though the right of trial by jury is a constitutional one, yet this Court has declared that when it simply appeared by the record that a party was present by counsel and had gone to trial before the court without objection or exception, a waiver of his right to a jury trial would be presumed, and he would be held in this Court to the legal consequences of such waiver. Kearney v. Case , 12 Wall. 275. We are therefore of opinion that the request by counsel of the United States for a certificate of division is sufficiently shown by the record in this case, and that our jurisdiction is clear. We pass to the consideration of the merits of the case. Proper respect for a coordinate branch of the government requires the courts of the United States to give effect to the presumption that Congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated. While conceding this, it must nevertheless be stated that the government of the United States is one of delegated, limited, and enumerated powers. Martin Page 106 U. S. 636 v. Hunter, 1 Wheat. 304; McCulloch v. Maryland , 4 Wheat. 316; Gibbons v. Ogden , 9 Wheat. 1. Therefore every valid act of Congress must find in the Constitution some warrant for its passage. This is apparent by reference to the following provisions of the Constitution: section 1 of the first article declares that all legislative powers granted by the Constitution shall be vested in the Congress of the United States. Section 8 of the same article enumerates the powers granted to the Congress and concludes the enumeration with a grant of power "to make all laws which shall be necessary and proper to carry into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof." Article X of the amendments to the Constitution declares that "The powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people." Mr. Justice Story, in his Commentaries on the Constitution, says: "Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power and necessary to its execution. If it be, then it may be exercised by Congress. If not, Congress cannot exercise it." Sec. 1243, referring to Virginia Reports and Resolutions, January, 1800, pp. 33-34; President Monroe's Exposition and Message of May 4, 1822, p. 47; 1 Tuck.Black.Com.App. 287-288; 5 Marshall's Wash.App. note 3; 1 Hamilton's Works 117, 121. The demurrer filed to the indictment in this case questions the power of Congress to pass the law under which the indictment was found. It is therefore necessary to search the Constitution to ascertain whether or not the power is conferred. There are only four paragraphs in the Constitution which can in the remotest degree have any reference to the question in hand. These are Section 2 of Article IV of the original Constitution and the Thirteenth, Fourteenth, and Fifteenth Page 106 U. S. 637 Amendments. It will be convenient to consider these in the inverse of the order stated. It is clear that the Fifteenth amendment can have no application. That amendment, as was said by this Court in the case of United States v. Reese, 92 U. S. 214 , "relates to the right of citizens of the United States to vote. It does not confer the right of suffrage on anyone. It merely invests citizens of the United States with the constitutional right of exemption from discrimination in the enjoyment of the elective franchise on account of race, color, or previous condition of servitude." See also United States v. Cruikshank, 92 U. S. 542 . Section 5519 of the Revised Statutes has no reference to this right. The right guaranteed by the Fifteenth Amendment is protected by other legislation of Congress, namely by sections 4 and 5 of the Act of May 31, 1870, c. 114, and now embodied in sections 5506 and 5507, Revised Statutes. Section 5519, according to the theory of the prosecution and as appears by its terms, was framed to protect from invasion by private persons the equal privileges and immunities under the laws of all persons and classes of persons. It requires no argument to show that such a law cannot be founded on a clause of the Constitution whose sole object is to protect from denial or abridgment by the United States or states on account of race, color, or previous condition of servitude the right of citizens of the United States to vote. It is however strenuously insisted that the legislation under consideration finds its warrant in the first and fifth sections of the Fourteenth Amendment. The first section declares "All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The fifth section declares "The Congress shall have power to enforce by appropriate legislation the provisions of this amendment." Page 106 U. S. 638 It is perfectly clear from the language of the first section that its purpose also was to place a restraint upon the action of the states. In the Slaughterhouse Cases , 16 Wall. 36, it was held by the majority of the Court, speaking through MR. JUSTICE MILLER, that the object of the second clause of the first section of the Fourteenth Amendment was to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, and this was conceded by MR. JUSTICE FIELD, who expressed the views of the dissenting Justices in that case. In the same case the Court, referring to the Fourteenth Amendment, said that "if the states do not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation." The purpose and effect of the two sections of the Fourteenth Amendment above quoted were clearly defined by MR. JUSTICE BRADLEY in the case of United States v. Cruikshank, 1 Woods 316, as follows: "It is a guarantee of protection against the acts of the state government itself. It is a guarantee against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guarantee against the commission of individual offenses, and the power of Congress, whether express or implied, to legislate for the enforcement of such a guarantee does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guarantee does not require or authorize Congress to perform 'the duty that the guarantee itself supposes it to be the duty of the state to perform, and which it requires the state to perform.'" When the case of United States v. Cruikshank came to this Court, the same view was taken here. The Chief Justice, delivering the opinion of the Court in that case, said: "The Fourteenth Amendment prohibits a state from depriving any person of life, liberty, or property without due process of law or from denying to any person the equal protection of the laws, but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guarantee against any encroachment by the states upon the fundamental rights which belong to every citizen as a Page 106 U. S. 639 member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guarantees, and no more. The power of the national government is limited to this guarantee." 92 U.S. 92 U. S. 542 . So, in Virginia v. Rives, 100 U. S. 313 , it was declared by this Court, speaking through Mr. Justice Strong, that "these provisions of the Fourteenth Amendment have reference to state action exclusively, and not to any action of private individuals." These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the Fourteenth Amendment. The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative and construed by its judicial and administered by its executive departments recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress. Section 5519 of the Revised Statutes is not limited to take effect only in case the state shall abridge the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property without due process of law or deny to any person the equal protection of the laws. It applies no matter how well the state may have performed its duty. Under it, private persons are liable to punishment for conspiring to deprive anyone of the equal protection of the laws enacted by the state. In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the State of Tennessee has passed Page 106 U. S. 640 any law or done any act forbidden by the Fourteenth Amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the State of Tennessee of the equal protection accorded them by the laws of Tennessee. As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the states or their administration by the officers of the state, we are clear in the opinion that it is not warranted by any clause in the Fourteenth Amendment to the Constitution. We are next to consider whether the Thirteenth Amendment to the Constitution furnishes authority for the enactment of the law under review. This amendment declares that "Neither slavery nor involuntary servitude, except as a punishment of crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. . . . Congress shall have power to enforce this article by appropriate legislation." It is clear that this amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subjected to slavery or involuntary servitude except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. Mr. Justice Swayne, in United States v. Rhodes, 1 Abb. (U.S.) 28; MR. JUSTICE BRADLEY, in United States v. Cruikshank, 1 Woods 308. Congress has, by virtue of this amendment, declared in sec. 1 of the Act of April 9, 1866, c. 31, that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to none other. But the question with which we have to deal is does the Page 106 U. S. 641 Thirteenth Amendment warrant the enactment of sec. 5519 of the Revised Statutes. We are of opinion that it does not. Our conclusion is based on the fact that the provisions of that section are broader than the Thirteenth Amendment would justify. Under that section, it would be an offense for two or more white persons to conspire, etc., for the purpose of depriving another white person of the equal protection of the laws. It would be an offense for two or more colored persons, enfranchised slaves, to conspire with the same purpose against a white citizen or against another colored citizen who had never been a slave. Even if the amendment is held to be directed against the action of private individuals as well as against the action of the states and United States, the law under consideration covers cases both within and without the provisions of the amendment. It covers any conspiracy between two free white men against another free white man to deprive the latter of any right accorded him by the laws of the state or of the United States. A law under which two or more free white private citizens could be punished for conspiring or going in disguise for the purpose of depriving another free white citizen of a right accorded by the law of the state to all classes of persons -- as, for instance, the right to make a contract, bring a suit, or give evidence -- clearly cannot be authorized by the amendment which simply prohibits slavery and involuntary servitude. Those provisions of the law, which are broader than is warranted by the article of the Constitution by which they are supposed to be authorized, cannot be sustained. Upon this question, the case of United States v. Reese, 92 U. S. 214 , is in point. In that case, this Court had under consideration the constitutionality of the third and fourth sections of the Act of May 31, 1870, c. 114, and now constituting sections 2007, 2008, and 5506 of the Revised Statutes. The third section of the act made it an offense for any judge, inspector, or other officer of election whose duty it was, under the circumstances therein stated, to receive and count the vote of any citizen to wrongfully refuse to receive and count the same, and the fourth section made it an offense for any person by force, bribery, or other unlawful means to hinder or delay any Page 106 U. S. 642 citizen from doing any act required to be done to qualify him to vote. The indictment in the case charged two inspectors of a municipal election in the State of Kentucky with refusing to receive and count at such election the vote of William Garner, a citizen of the United States of African descent. It was contended by the defendants that it was not within the constitutional power of Congress to pass the section upon which the indictment was based. The attempt was made by the counsel for the United States to sustain the law as warranted by the Fifteenth Amendment to the Constitution of the United States. But this Court held it not to be appropriate legislation under that amendment. The ground of the decision was that the sections referred to were broad enough not only to punish those who hindered and delayed the enfranchised colored citizen from voting on account of his race, color, or previous condition of servitude, but also those who hindered or delayed the free white citizen. The Court, speaking by the Chief Justice, said: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would to some extent substitute the judicial for the legislative department of the government. The courts enforce the legislative will when ascertained, if within the constitutional grant of power. But if Congress steps outside of its constitutional limitation and attempts that which is beyond its reach, the courts are authorized to, and, when called upon, must, annul its encroachment upon the reserved rights of the states and the people." And the Court declared that it could not limit the statute so as to bring it within the constitutional power of Congress, and concluded: "We must therefore decide that Congress has not as yet provided by appropriate legislation for the punishment of the offenses charged in the indictment." This decision is in point, and, applying the principle established by it, it is clear that the legislation now under consideration cannot be sustained by reference to the Thirteenth Amendment to the Constitution. There is another view which strengthens this conclusion. If Page 106 U. S. 643 Congress has constitutional authority under the Thirteenth Amendment to punish conspiracy between two persons to do an unlawful act, it can punish the act itself, whether done by one or more persons. A private person cannot make constitutions or laws, nor can he with authority construe them, nor can he administer or execute them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder. If, therefore, we hold that section 5519 is warranted by the Thirteenth Amendment, we should by virtue of that amendment, accord to Congress the power to punish every crime by which the right of any person to life, property, or reputation is invaded. Thus, under a provision of the Constitution which simply abolished slavery and involuntary servitude, we should, with few exceptions, invest Congress with power over the whole catalogue of crimes. A construction of the amendment which leads to such a result is clearly unsound. There is only other clause in the Constitution of the United States which can in any degree be supposed to sustain the section under consideration -- namely the second section of Article IV, which declares that "The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states." But this section, like the Fourteenth Amendment, is directed against state action. Its object is to place the citizens of each state upon the same footing with citizens of other states, and inhibit discriminative legislation against them by other states. Paul v. Virginia , 8 Wall. 168. Referring to the same provision of the Constitution, this Court said in the Slaughterhouse Cases, ubi supra, that it "did not create those rights which it called privileges and immunities of citizens of the states. It threw around them in that clause no security for the citizen of the state in which they were claimed or exercised. Nor did it profess to control the power of the state governments over its own citizens. Its sole purpose was to declare to the several states that whatever those rights, as you grant or establish them to your Page 106 U. S. 644 own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction." It was never supposed that the section under consideration conferred on Congress the power to enact a law which would punish a private citizen for an invasion of the rights of his fellow citizen conferred by the State of which they were both residents on all its citizens alike. We have therefore been unable to find any constitutional authority for the enactment of section 5519 of the Revised Statutes. The decisions of this Court above referred to leave no constitutional ground for the act to stand on. The point in reference to which the judges of the circuit court were divided in opinion must therefore be decided against the constitutionality of the law.

The Supreme Court ruled that Section 5519 of the Revised Statutes, which allowed for federal prosecution of individuals who conspired to deprive others of their legal rights, was unconstitutional. The Court found that the Thirteenth and Fourteenth Amendments, as well as Article IV of the Constitution, did not grant Congress the power to punish private citizens for invading the rights of fellow citizens. The Court interpreted these amendments as being directed against state action and discriminatory legislation, rather than private offenses. As a result, the indictment against R.G. Harris and others for conspiring to deprive individuals of their right to protection under state law was deemed invalid.

Government Agencies

NLRB v. Hearst Publications, Inc.

https://supreme.justia.com/cases/federal/us/322/111/

U.S. Supreme Court NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944) Labor Board v. Hearst Publications, Inc. No. 336 Argued February 8, 9, 1944 Decided April 24, 1944 322 U.S. 111 ast|>* 322 U.S. 111 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus 1. The meaning of the term "employee" in the National Labor Relations Act is to be determined not exclusively by reference to common law standards, local law, or legal classifications made for other purposes, but with regard also to the history, context and purposes Page 322 U. S. 112 of the Act and to the economic facts of the particular relationship. Pp. 322 U. S. 120 , 322 U. S. 129 . 2. The determination of the National Labor Relations Board that, in the circumstances of the case, a person is an "employee" under the National Labor Relations Act, may not be set aside on review if it has warrant in the record and a reasonable basis in law. P. 322 U. S. 130 . 3. The conclusion of the National Labor Relations Board that "newsboys" distributing respondents' papers on the streets of the city were employees under the National Labor Relations Act is supported by the findings and the evidence, and has ample basis in the law. P. 322 U. S. 131 . The Board found that the "newsboys" work continuously and regularly, rely upon their earnings for the support of themselves and their families, and have their total wages influenced in large measure by the publishers (respondents), who dictate their buying and selling prices, fix their markets and control their supply of papers; that their hours of work and their efforts on the job are supervised and to some extent prescribed by the publishers or the publishers' agents; and that a substantial part of their sales equipment and advertising materials is furnished by the publishers with the intention that it be used for the publishers' benefit. 4. The Board's designation of the collective bargaining units in this case -- (1) full-time newsboys and "checkmen," engaged to sell papers within the city, and excluding bootjackers, temporary, casual, and part-time newsboys; and (2) newsboys selling at established spots in the city, four or more hours per day, five or more days per week, except temporary newsboys -- was within its discretion, and is sustained. P. 322 U. S. 132 . (a) That the Board's selection of the collective bargaining units emphasizes difference in tenure, rather than in function was, on the record in this case, not an abuse of discretion. P. 322 U. S. 133 . (b) The Board's exclusion of suburban newsboys from the collective bargaining units, on the ground that they were not organized by the union, was, on the record in this case, not an abuse of discretion. P. 322 U. S. 133 . Page 322 U. S. 113 136 F.2d 608 reversed. Certiorari, 320 U.S. 728, to review decrees denying enforcement of orders of the National Labor Relations Board (39 N.L.R.B. 1245,1256) and setting aside the orders. MR. JUSTICE RUTLEDGE delivered the opinion of the Court. These cases arise from the refusal of respondents, publishers of four Los Angeles daily newspapers, to bargain collectively with a union representing newsboys who distribute their papers on the streets of that city. Respondents' contention that they were not required to bargain because the newsboys are not their "employees" within the meaning of that term in the National Labor Relations Act, 49 Stat. 450, 29 U.S.C. § 152, [ Footnote 1 ] presents the important question which we granted certiorari [ Footnote 2 ] to resolve. Page 322 U. S. 114 The proceedings before the National Labor Relations Board were begun with the filing of four petitions for investigation and certification [ Footnote 3 ] by Los Angeles Newsboys Local Industrial Union No. 75. Hearings were held in a consolidated proceeding, [ Footnote 4 ] after which the Board made findings of fact and concluded that the regular full-time newsboys selling each paper were employees within the Act and that questions affecting commerce concerning the representation of employees had arisen. It designated appropriate units and ordered elections. 28 N.L.R.B. 1006. [ Footnote 5 ] At these, the union was selected as their representative by majorities of the eligible newsboys. After the union was appropriately certified. 33 N.L.R.B. 941, 36 N.L.R.B. 285, the respondents refused to bargain with it. Thereupon, proceedings under Section 10, 49 Stat. 453-455, 29 U.S.C. § 160, were instituted, a hearing [ Footnote 6 ] was held, and respondents were found to have violated Section 8(1) and (5) of the Act, 49 Stat. 452, 453, 29 U.S.C. § 158(1), (5). They were ordered to cease and desist from such violations and to bargain collectively with the union upon request. 39 N.L.R.B. 1245, 1256. Upon respondents' petitions for review and the Board's petitions for enforcement, the Circuit Court of Appeals, one judge dissenting, set aside the Board's orders. Rejecting Page 322 U. S. 115 the Board's analysis, the court independently examined the question whether the newsboys are employees within the Act, decided that the statute imports common law standards to determine that question, and held the newsboys are not employees. 136 F.2d 608. The findings of the Board disclose that the Los Angeles Times and the Los Angeles Examiner, published daily and Sunday, [ Footnote 7 ] are morning papers. Each publishes several editions which are distributed on the streets during the evening before their dateline, between about 6:00 or 6:30 p.m. and 1:00 a.m., and other editions distributed during the following morning until about 10:00 o'clock. The Los Angeles Evening Herald and Express, published every day but Sunday, is an evening paper, which has six editions on the presses between 9:00 a.m. and 5:30 p.m. [ Footnote 8 ] The News, also published every day but Sunday, is a twenty-four hour paper with ten editions. [ Footnote 9 ] The papers are distributed to the ultimate consumer through a variety of channels, including independent dealers and newsstands often attached to drug, grocery or confectionery stores, carriers who make home deliveries, and newsboys who sell on the streets of the city and its suburbs. Only the last of these are involved in this case. The newsboys work under varying terms and conditions. They may be "bootjackers," selling to the general public at places other than established corners, or they may sell Page 322 U. S. 116 at fixed "spots." They may sell only casually or part-time, or full-time; and they may be employed regularly and continuously or only temporarily. The units which the Board determined to be appropriate are composed of those who sell full-time at established spots. Those vendors, misnamed boys, are generally mature men, dependent upon the proceeds of their sales for their sustenance, and frequently supporters of families. Working thus as news vendors on a regular basis often for a number of years, they form a stable group with relatively little turnover, in contrast to schoolboys and others who sell as bootjackers, temporary and casual distributors. Over-all circulation and distribution of the papers are under the general supervision of circulation managers. But, for purposes of street distribution, each paper has divided metropolitan Los Angeles into geographic districts. Each district is under the direct and close supervision of a district manager. His function in the mechanics of distribution is to supply the newsboys in his district with papers which he obtains from the publisher and to turn over to the publisher the receipts which he collects from their sales, either directly or with the assistance of "checkmen" or "main spot" boys. [ Footnote 10 ] The latter, stationed at the important corners or "spots" in the district, are newsboys who, among other things, receive delivery of the papers, redistribute them to other newsboys stationed at less important corners, and collect receipts from their sales. [ Footnote 11 ] For that service, which occupies a minor portion Page 322 U. S. 117 of their working day, the checkmen receive a small salary from the publisher. [ Footnote 12 ] The bulk of their day, however, they spend in hawking papers at their "spots" like other full-time newsboys. A large part of the appropriate units selected by the Board for the News and the Herald are checkmen who, in that capacity, clearly are employees of those papers. The newsboys' compensation consists in the difference between the prices at which they sell the papers and the prices they pay for them. The former are fixed by the publishers, and the latter are fixed either by the publishers or, in the case of the News, by the district manager. [ Footnote 13 ] In practice, the newsboys receive their papers on credit. They pay for those sold either sometime during or after the close of their selling day, returning for credit all unsold papers. [ Footnote 14 ] Lost or otherwise unreturned papers, however, must be paid for as though sold. Not only is the "profit" per paper thus effectively fixed by the publisher, but substantial control of the newsboys' total "take home" can be effected through the ability to designate their sales areas and the power to determine the number of papers allocated to each. While, as a practical matter, this power is not exercised fully, the newsboys' "right" to decide how many papers they will take is also not absolute. In practice, the Board found, they cannot determine the size of their established order without the cooperation of the district manager. And often the number of papers they must take is determined unilaterally by the district managers. In addition to effectively fixing the compensation, respondents in a variety of ways prescribe, if not the Page 322 U. S. 118 minutiae of daily activities, at least the broad terms and conditions of work. This is accomplished largely through the supervisory efforts of the district managers, who serve as the nexus between the publishers and the newsboys. [ Footnote 15 ] The district managers assign "spots" or corners to which the newsboys are expected to confine their selling activities. [ Footnote 16 ] Transfers from one "spot" to another may be ordered by the district manager for reasons of discipline or efficiency or other cause. Transportation to the spots from the newspaper building is offered by each of respondents. Hours of work on the spots are determined not simply by the impersonal pressures of the market, but to a real extent by explicit instructions from the district managers. Adherence to the prescribed hours is observed closely by the district managers or other supervisory agents of the publishers. Sanctions, varying in severity Page 322 U. S. 119 from reprimand to dismissal, are visited on the tardy and the delinquent. By similar supervisory controls, minimum standards of diligence and good conduct while at work are sought to be enforced. However wide may be the latitude for individual initiative beyond those standards, district managers' instructions in what the publishers apparently regard as helpful sales technique are expected to be followed. Such varied items as the manner of displaying the paper, of emphasizing current features and headlines, and of placing advertising placards, or the advantages of soliciting customers at specific stores or in the traffic lanes are among the subjects of this instruction. Moreover, newsboys are furnished with sales equipment, such as racks, boxes and change aprons, and advertising placards by the publishers. In this pattern of employment, the Board found that the newsboys are an integral part of the publishers' distribution system and circulation organization. And the record discloses that the newsboys and checkmen feel they are employees of the papers, and respondents' supervisory employees, if not respondents themselves, regard them as such. In addition to questioning the sufficiency of the evidence to sustain these findings, respondents point to a number of other attributes characterizing their relationship with the newsboys, [ Footnote 17 ] and urge that, on the entire Page 322 U. S. 120 record, the latter cannot be considered their employees. They base this conclusion on the argument that, by common law standards, the extent of their control and direction of the newsboys' working activities creates no more than an "independent contractor" relationship, and that common law standards determine the "employee" relationship under the Act. They further urge that the Board's selection of a collective bargaining unit is neither appropriate nor supported by substantial evidence. [ Footnote 18 ] I The principal question is whether the newsboys are "employees." Because Congress did not explicitly define the term, respondents say its meaning must be determined by reference to common law standards. In their view, "common law standards" are those the courts have applied in distinguishing between "employees" and "independent contractors" when working out various problems unrelated to the Wagner Act's purposes and provisions. The argument assumes that there is some simple, uniform and easily applicable test which the courts have used, in dealing with such problems, to determine whether persons doing work for others fall in one class or the other. Unfortunately this is not true. Only by a long and tortuous history was the simple formulation worked out which has been stated most frequently as "the test" for deciding whether one who hires another is responsible in tort for his wrongdoing. [ Footnote 19 ] But this formula has been by no means Page 322 U. S. 121 exclusively controlling in the solution of other problems. And its simplicity has been illusory because it is more largely simplicity of formulation than of application. Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent entrepreneurial dealing. [ Footnote 20 ] This is true within the limited field of determining vicarious liability in tort. It becomes more so when the field is expanded to include all of the possible applications of the distinction. It is hardly necessary to stress particular instances of these variations or to emphasize that they have arisen principally, first, in the struggle of the courts to work out common law liabilities where the legislature has given no guides for judgment, [ Footnote 21 ] more recently also under statutes which have posed the same problem for solution in the light of the enactment's particular terms and purposes. [ Footnote 22 ] Page 322 U. S. 122 It is enough to point out that, with reference to an identical problem, results may be contrary over a very considerable region of doubt in applying the distinction, depending upon the state or jurisdiction where the determination is made; [ Footnote 23 ] and that, within a single jurisdiction, a person who, for instance, is held to be an "independent contractor" for the purpose of imposing vicarious liability in tort may be an "employee" for the purposes of particular legislation, such as unemployment compensation. See, e.g., Globe Grain & Milling Co. v. Industrial Comm'n, 98 Utah 36, 91 P.2d 512. In short, the assumed simplicity and uniformity, resulting from application of "common law standards," does not exist. Mere reference to these possible variations as characterizing the application of the Wagner Act in the treatment of persons identically situated in the facts surrounding their employment and in the influences tending to disrupt it would be enough to require pause before accepting a thesis which would introduce them into its administration. This would be true even if the statute itself had indicated less clearly than it does the intent they should not apply. Two possible consequences could follow. One would be to refer the decision of who are employees to local state law. The alternative would be to make it turn on a sort of pervading general essence distilled from state law. Congress obviously did not intend the former result. It Page 322 U. S. 123 would introduce variations into the statute's operation as wide as the differences the forty-eight states and other local jurisdictions make in applying the distinction for wholly different purposes. Persons who might be "employees" in one state would be "independent contractors" in another. They would be within or without the statute's protection depending not on whether their situation falls factually within the ambit Congress had in mind, but upon the accidents of the location of their work and the attitude of the particular local jurisdiction in casting doubtful cases one way or the other. Persons working across state lines might fall in one class or the other, possibly both, depending on whether the Board and the courts would be required to give effect to the law of one state or of the adjoining one, or to that of each in relation to the portion of the work done within its borders. Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no such patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is federal legislation, administered by a national agency, intended to solve a national problem on a national scale. Cf. e.g., Sen.Rep. No. 573, 74th Cong., 1st Sess. 2-4. It is an Act, therefore, in reference to which it is not only proper, but necessary for us to assume, "in the absence of a plain indication to the contrary, that Congress . . . is not making the application of the federal act dependent on state law." Jerome v. United States, 318 U. S. 101 , 318 U. S. 104 . Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by such varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems. Consequently, so far as the meaning of "employee" in this statute is concerned, "the federal law must prevail no matter what name is given to the interest or Page 322 U. S. 124 right by state law." Morgan v. Commissioner, 309 U. S. 78 , 309 U. S. 81 ; cf. Labor Board v. Blount, 131 F.2d 585 (C.C.A.). II Whether, given the intended national uniformity, the term "employee" includes such workers as these newsboys must be answered primarily from the history, terms and purposes of the legislation. The word "is not treated by Congress as a word of art having a definite meaning. . . ." Rather "it takes color from its surroundings . . . [in] the statute where it appears," United States v. American Trucking Assns., Inc., 310 U. S. 534 , 310 U. S. 545 , and derives meaning from the context of that statute, which "must be read in the light of the mischief to be corrected and the end to be attained." South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 , 309 U. S. 259 ; cf. New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552 ; Drivers' Union v. Lake Valley Farm Products, Inc., 311 U. S. 91 . Congress, on the one hand, was not thinking solely of the immediate technical relation of employer and employee. It had in mind at least some other persons than those standing in the proximate legal relation of employee to the particular employer involved in the labor dispute. [ Footnote 24 ] It cannot be taken, however, that the purpose was to include all other persons who may perform service for another, or was to ignore entirely legal classifications made for other purposes. Congress had in mind a wider field than the narrow technical legal relation of "master and servant," as the common law had worked this out in all its variations, and at the same time a narrower one than the entire area of rendering service to others. The question comes down, therefore, to how much was included of the intermediate Page 322 U. S. 125 region between what is clearly and unequivocally "employment," by any appropriate test, and what is as clearly entrepreneurial enterprise, and not employment. It will not do, for deciding this question as one of uniform national application, to import wholesale the traditional common law conceptions or some distilled essence of their local variations as exclusively controlling limitations upon the scope of the statute's effectiveness. To do this would be merely to select some of the local, hairline variations for nationwide application, and thus to reject others for coverage under the Act. That result hardly would be consistent with the statute's broad terms and purposes. Congress was not seeking to solve the nationally harassing problems with which the statute deals by solutions only partially effective. It rather sought to find a broad solution, one that would bring industrial peace by substituting, so far as its power could reach, the rights of workers to self-organization and collective bargaining for the industrial strife which prevails where these rights are not effectively established. Yet only partial solutions would be provided if large segments of workers about whose technical legal position such local differences exist should be wholly excluded from coverage by reason of such differences. Yet that result could not be avoided if choice must be made among them and controlled by them in deciding who are "employees" within the Act's meaning. Enmeshed in such distinctions, the administration of the statute soon might become encumbered by the same sort of technical legal refinement as has characterized the long evolution of the employee-independent contractor dichotomy in the courts for other purposes. The consequences would be ultimately to defeat, in part at least, the achievement of the statute's objectives. Congress no more intended to Page 322 U. S. 126 import this mass of technicality as a controlling "standard" for uniform national application than to refer decision of the question outright to the local law. The Act, as its first section states, was designed to avert the "substantial obstructions to the free flow of commerce" which result from "strikes and other forms of industrial strife or unrest" by eliminating the causes of that unrest. It is premised on explicit findings that strikes and industrial strife themselves result in large measure from the refusal of employers to bargain collectively and the inability of individual workers to bargain successfully for improvements in their "wages, hours, or other working conditions" with employers who are "organized in the corporate or other forms of ownership association." Hence the avowed and interrelated purposes of the Act are to encourage collective bargaining and to remedy the individual worker's inequality of bargaining power by "protecting the exercise . . . of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 49 Stat. 449, 450, 29 U.S.C. § 151. The mischief at which the Act is aimed and the remedies it offers are not confined exclusively to "employees" within the traditional legal distinctions separating them from "independent contractors." Myriad forms of service relationship, with infinite and subtle variations in the terms of employment, blanket the nation's economy. Some are within this Act, others beyond its coverage. Large numbers will fall clearly on one side or on the other, by whatever test may be applied. But intermediate there will be many the incidents of whose employment partake in part of the one group, in part of the other, in varying proportions of weight. And consequently the legal pendulum, for purposes of applying the statute, may swing one way Page 322 U. S. 127 or the other, depending upon the weight of this balance and its relation to the special purpose at hand. Unless the common law tests are to be imported and made exclusively controlling, without regard to the statute's purposes, it cannot be irrelevant that the particular workers in these cases are subject, as a matter of economic fact, to the evils the statute was designed to eradicate and that the remedies it affords are appropriate for preventing them or curing their harmful effects in the special situation. Interruption of commerce through strikes and unrest may stem as well from labor disputes between some who, for other purposes, are technically "independent contractors" and their employers as from disputes between persons who, for those purposes, are "employees" and their employers. Cf. Drivers' Union v. Lake Valley Co., 311 U. S. 91 . Inequality of bargaining power in controversies over wages, hours and working conditions may as well characterize the status of the one group as of the other. The former, when acting alone, may be as "helpless in dealing with an employer," as "dependent . . . on his daily wage" and as "unable to leave the employ and to resist arbitrary and unfair treatment" as the latter. For each, "union . . . [may be] essential to give . . . opportunity to deal on equality with their employer." [ Footnote 25 ] And for each, collective bargaining may be appropriate and effective for the "friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions." [ Footnote 26 ] 49 Stat. 449. In Page 322 U. S. 128 short, when the particular situation of employment combines these characteristics, so that the economic facts of the relation make it more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the legislation, those characteristics may outweigh technical legal classification for purposes unrelated to the statute's objectives and bring the relation within its protections. To eliminate the causes of labor disputes and industrial strife, Congress thought it necessary to create a balance of forces in certain types of economic relationships. These do not embrace simply employment associations in which controversies could be limited to disputes over proper "physical conduct in the performance of the service." [ Footnote 27 ] On the contrary, Congress recognized those economic relationships cannot be fitted neatly into the containers designated "employee" and "employer" which an earlier law had shaped for different purposes. Its Reports on the bill disclose clearly the understanding that "employers and employees not in proximate relationship may be drawn into common controversies by economic forces," [ Footnote 28 ] and that the very disputes sought to be avoided might involve Page 322 U. S. 129 "employees [who] are at times brought into an economic relationship with employers who are not their employers." [ Footnote 29 ] In this light, the broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as "employee," "employer," and "labor dispute," [ Footnote 30 ] leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts, rather than technically and exclusively by previously established legal classifications. Cf. Labor Board v. Blount, supra. Hence, "technical concepts pertinent to an employer's legal responsibility to third persons for the acts of his servants" have been rejected in various applications of this Act both here ( International Association of Machinists v. Labor Board, 311 U. S. 72 , 311 U. S. 80 -81; H. J. Heinz Co. v. Labor Board, 311 U. S. 514 , 311 U. S. 520 -521) [ Footnote 31 ] and in other federal courts ( Labor Board v. Condenser Corp., 128 F.2d 67; North Whittier Heights Citrus Ass'n v. Labor Board, 109 F.2d 76, 82; Labor Board v. Blount, supra ). There is no good reason for invoking them to restrict the scope of the term "employee" sought to be done in this case. That term, like other provisions, must be understood with reference to the purpose of the Act and the facts involved in the economic relationship. [ Footnote 32 ] "Where all the conditions of the relation require protection, protection ought to be given." [ Footnote 33 ] Page 322 U. S. 130 It is not necessary in this case to make a completely definitive limitation around the term "employee." That task has been assigned primarily to the agency created by Congress to administer the Act. Determination of "where all the conditions of the relation require protection" involves inquiries for the Board charged with this duty. Everyday experience in the administration of the statute gives it familiarity with the circumstances and backgrounds of employment relationships in various industries, with the abilities and needs of the workers for self-organization and collective action, and with the adaptability of collective bargaining for the peaceful settlement of their disputes with their employers. The experience thus acquired must be brought frequently to bear on the question who is an employee under the Act. Resolving that question, like determining whether unfair labor practices have been committed, "belongs to the usual administrative routine" of the Board. [ Footnote 34 ] Gray v. Powell, 314 U. S. 402 , 314 U. S. 411 . Cf. Labor Board v. Standard Oil Co., 138 F.2d 885, 887, 888. In making that body's determinations as to the facts in these matters conclusive, if supported by evidence, Congress entrusted to it primarily the decision whether the evidence establishes the material facts. Hence, in reviewing the Board's ultimate conclusions, it is not the court's function to substitute its own inferences of fact for the Board's when the latter have support in the record. Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105 ; cf. Walker v. Altmeyer, 137 F.2d 531. Undoubtedly questions of statutory interpretation, especially when arising in the first instance in judicial proceedings, are for Page 322 U. S. 131 the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute. Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 ; United States v. American Trucking Associations, Inc., 310 U. S. 534 . But where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited. Like the commissioner's determination under the Longshoremen's & Harbor Workers' Act, [ Footnote 35 ] that a man is not a "member of a crew" ( South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 ) or that he was injured "in the course of his employment" ( Parker v. Motor Boat Sales, Inc., 314 U. S. 244 ) and the Federal Communications Commission's determination [ Footnote 36 ] that one company is under the "control" of another ( Rochester Telephone Corp. v. United States, 307 U. S. 125 ), the Board's determination that specified persons are "employees" under this Act is to be accepted if it has "warrant in the record" and a reasonable basis in law. In this case, the Board found that the designated newsboys work continuously and regularly, rely upon their earnings for the support of themselves and their families, and have their total wages influenced in large measure by the publishers who dictate their buying and selling prices, fix their markets, and control their supply of papers. Their hours of work and their efforts on the job are supervised and to some extent prescribed by the publishers or their agents. Much of their sales equipment and advertising materials is furnished by the publishers with the intention that it be used for the publisher's benefit. Stating that "the primary consideration in the determination of the applicability of the statutory definition is whether Page 322 U. S. 132 effectuation of the declared policy and purposes of the Act comprehends securing to the individual the rights guaranteed and protection afforded by the Act," the Board concluded that the newsboys are employees. The record sustains the Board's findings, and there is ample basis in the law for its conclusion. III The Board's selection of the collective bargaining units also must be upheld. The units chosen for the News and the Herald consist of all full-time [ Footnote 37 ] newsboys and checkmen engaged to sell the papers in Los Angeles. Bootjackers, temporary, casual and part-time [ Footnote 38 ] newsboys are excluded. The units designated for the Times and the Examiner consist of newsboys selling at established spots [ Footnote 39 ] in Los Angeles [ Footnote 40 ] four or more hours per day five or more days per week, except temporary newsboys. [ Footnote 41 ] The Board predicated its designations in part upon the finding that the units included, in general, men who were responsible workers, continuously and regularly employed as vendors, and dependent upon their sales for their livelihood, Page 322 U. S. 133 while schoolboys and transient or casual workers were excluded. The discretion which Congress vested in the Board to determine an appropriate unit is hardly overstepped by the choice of a unit based on a distinction so clearly consistent with the need for responsible bargaining. That the Board's selection emphasizes difference in tenure, rather than function, is, on this record certainly, no abuse of discretion. Nor is there substance in the objection that the Board's designations on the one hand fail to embrace all workers who in fact come within the responsible or stable full-time category generically stated, and, on the other hand, fail to exclude all who in fact come within the schoolboy or more volatile part-time category. The record does not suggest that the units designated, at least so far as Los Angeles newsboys are concerned, do not substantially effectuate the Board's theory or embrace a large portion of those who would make up a stable bargaining group based on responsible tenure and full-time work. In these matters, the Board cannot be held to mathematical precision. If it chooses to couch its orders in terms which for good reasons it regards effective to accomplish its stated ends, peripheral or hypothetical deviations will not defeat an otherwise appropriate order. Another objection urged by the Times, the Herald, and the Examiner is to the Board's exclusion of suburban newsboys [ Footnote 42 ] from the units on the ground they were not organized by the union. The Board found that, although all vendors in metropolitan Los Angeles were eligible for membership, the union had not been extended to the suburban groups generally, and that no other labor organization was seeking to represent respondents' employees. There is no suggestion either that the union deliberately Page 322 U. S. 134 excluded suburban newsboys who sought admission or that suburban newsboys have displayed any interest in collective bargaining or self-organization. Wide variations in the forms of employee self-organization and the complexities of modern industrial organization make difficult the use of inflexible rules as the test of an appropriate unit. Congress was informed of the need for flexibility in shaping the unit to the particular case, [ Footnote 43 ] and accordingly gave the Board wide discretion in the matter. Its choice of a unit is limited specifically only by the requirement that it be an "employer unit, craft unit, plant unit, or subdivision thereof," and that the selection be made so as "to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act." Pittsburgh Plate Glass Co. v. Labor Board, 313 U. S. 146 . The flexibility which Congress thus permitted has characterized the Board's administration of the section, and has led it to resort to a wide variety of factors in case-to-case determination of the appropriate unit. [ Footnote 44 ] Among the considerations to which it has given weight is the extent of organization of the union requesting certification or collective bargaining. This is done on the expressed theory that it is desirable in the determination of an appropriate unit to render collective bargaining of the company's employees an immediate possibility. [ Footnote 45 ] No Page 322 U. S. 135 plausible reason is suggested for withholding the benefits of the Act from those here seeking it until a group of geographically separated employees becomes interested in collective bargaining. In the circumstances disclosed by this record, we cannot say the Board's conclusions are lacking in a "rational basis." The judgment are reversed, and the causes are remanded for further proceedings not inconsistent with this opinion. Reversed. MR. JUSTICE REED concurs in the result. He is of the opinion that the test of coverage for employees is that announced by the Board in the matter of Stockholders Publishing Company, Inc., and Los Angeles Newsboys Local Industrial Union No. 75, C.I.O., and other similar cases, decided January 9, 1941, 28 N.L.R.B. 1006, 1022, 1023. * Together with No. 337, Labor Board v. Stockholders Publishing Co., Inc., No. 338, Labor Board v. Hearst Publications, Inc., and No. 339, Labor Board v. Times-Mirror Co., also on writs of certiorari to the Circuit Court of Appeals for the Ninth Circuit. [ Footnote 1 ] Section 2(3) of the Act provides that "The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse." [ Footnote 2 ] 320 U.S. 728. [ Footnote 3 ] Pursuant to Section 9(b) and (c) of the Act, 49 Stat. 453, 29 U.S.C. § 159(b) and (c). [ Footnote 4 ] Although it treated the four representation petitions in one consolidated proceeding and disposed of them in one opinion, the Board did not consider evidence with respect to one publisher as applicable to any of the others. [ Footnote 5 ] Subsequently, those orders were amended in various details. 29 N.L.R.B. 94, 95; 30 N.L.R.B. 696, 697; 31 N.L.R.B. 697. [ Footnote 6 ] The record in the representation proceeding was, in effect, incorporated in the complaint proceeding. [ Footnote 7 ] The Times' daily circulation is about 220,000 and its Sunday circulation is about 368,000. The Examiner's daily circulation is about 214,000 and its Sunday circulation is about 566,000. [ Footnote 8 ] The Herald has a circulation of about 243,000. Both it and the Examiner are owned by Hearst Publications, Inc. [ Footnote 9 ] The News has a circulation of about 195,000. Its first three and seventh editions are consigned for the most part to route delivery or suburban dealers. Its fourth edition, which goes to press at 2:45 a.m., is sold in the city during the mornings. The remaining editions, which go to press at regular intervals between 9:50 a.m and 5:00 p.m., are sold in the city during the afternoons. [ Footnote 10 ] The Examiner, The Herald, and The News all employ "main spot" boys or checkmen; the Times does not. [ Footnote 11 ] The Times district managers deliver the papers directly to the newsboys and collect directly from them. On the other papers, district managers may deliver bundles of papers to the checkmen or directly to the newsboys themselves. The Times customarily transports its newsboys to their "spots" from the Times building, where they first report and pick up their papers. The other respondents offer similar transportation to those of their newsboys who desire it. [ Footnote 12 ] In the case of the Examiner, these "main spot" boys, although performing services similar to those of checkmen, are less closely knit to the publisher, and sometimes receive no compensation for their services. [ Footnote 13 ] See infra, note 15 [ Footnote 14 ] Newsboys selling the Herald in one residential area do not receive credit for all unsold papers. [ Footnote 15 ] Admittedly the Times, Examiner, and Herald district managers are employees of their respective papers. While the News urged earnestly that its managers are not its employees, the Board found otherwise. They do not operate on a formal salary basis, but they receive guaranteed minimum payments which the Board found are "no more than a fixed salary bearing another label." And while they, rather than the publisher, fix the price of the paper to the newsboy, the Board found, on substantial evidence, that they function for the News in specified districts, distribute racks, aprons, advertising placards from the News to the newsboys, give instructions as to their use, supervise the redistributing activities of the checkmen (themselves clearly employees of the News), and hand out News checks to the checkmen for their services. On this and other evidence suggesting that however different may be their formal arrangements, News district managers bear substantially the same relation to the publisher on one hand and the newsboys on the other as do the other district managers, the Board concluded that they were employees of the paper. [ Footnote 16 ] Although from time to time these "spots" are bought and sold among the vendors themselves, without objection by district managers and publishers, this in no way negates the need for the district managers' implicit approval of a spotholder or their authority to remove vendors from their "spots" for reasons of discipline or efficiency. [ Footnote 17 ] E.g., that there is either no evidence in the record to show, or the record explicitly negatives, that respondents carry the newsboys on their payrolls, pay "salaries" to them, keep records of their sales or locations, or register them as "employees" with the Social Security Board, or that the newsboys are covered by workmen's compensation insurance of the California Compensation Act. Furthermore, it is urged the record shows that the newsboys all sell newspapers, periodicals and other items not furnished to them by their respective publishers, assume the risk for papers lost, stolen or destroyed, purchase and sell their "spots," hire assistants and relief men and make arrangements among themselves for the sale of competing or left-over papers. [ Footnote 18 ] They have abandoned here the contention, made in the circuit court, that the Act does not reach their controversies with the newsboys because they do not affect commerce. [ Footnote 19 ] The so-called "control test" with which common law judges have wrestled to secure precise and ready applications did not escape the difficulties encountered in borderland cases by its reformulation in the Restatement of the Law of Agency § 220. That, even at the common law, the control test and the complex of incidents evolved in applying it to distinguish an "employee" from an "independent contractor," for purposes of vicarious liability in tort, did not necessarily have the same significance in other contexts, compare Lumley v. Guy [1853] El. & Bl. 216, and see also the cases collected in 21 A.L.R. 1229 et seq.; 23 A.L.R. 984 et seq. [ Footnote 20 ] See, e.g., Stevens, The Test of the Employment Relation (1939) 38 Mich.L.Rev. 188; Steffen, Independent Contractor and the Good Life (1935) 2 U. of Chi.L.Rev. 501; Leidy, Salesmen as Independent Contractors (1938) 28 Mich.L.Rev. 365; N.Y. Law Revision Commission Report, 1939 (1939) Legislative Document No. 65(K). [ Footnote 21 ] [ Footnote 22 ] [ Footnote 23 ] Compare Stockwell v. Morris, 46 Wyo, 1, 22 P.2d 189 , with Auer v. Sinclair Refining Co., 103 N.J.L. 372, 137 A. 555; Schomp v. Fuller Brush Co., 124 N.J.L. 487, 12 A.2d 702; In re Schomp, 126 N.J.L. 368, 19 A.2d 780, with Fuller Brush Co. v. Industrial Comm., 99 Utah 97, 104 P.2d 201; Stover Bedding Co. v. Industrial Comm'n, 99 Utah 423, 107 P.2d 1027, 134 P.2d 1006, with Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. [ Footnote 24 ] [ Footnote 25 ] American Steel Foundries Co. v. Tri-City Council, 257 U. S. 184 , 257 U. S. 209 , cited in H.R.Rep. No. 1147, 74th Cong., 1st Sess., 10; cf. Bakery & Pastry Drivers v. Wohl, 315 U. S. 769 . [ Footnote 26 ] The practice of self-organization and collective bargaining to resolve labor disputes has for some time been common among such varied types of "independent contractors" as musicians (How Collective Bargaining Works (20th Century Fund, 1942) 848-866; Proceedings of the 47th Annual Convention of the American Federation of Musicians (1942)), actors ( see e.g. Collective Bargaining by Actors (1926) Bureau of Labor Statistics, Bulletin No. 402; Harding, The Revolt of the Actors (1929); Ross, Stars and Strikes (1941)), and writers ( see, e.g., Rosten, Hollywood (1941); Ross, Stars and Strikes (1941) 48-63), and such atypical "employees" as insurance agents, artists, architects and engineers ( see, e.g., Proceedings of the 2d Convention of the UOPWA, C.I.O. (1938); Proceedings of the 3d Convention of the UOPWA, C.I.O. (1940); Handbook of American Trade Unions (1936); Bureau of Labor Statistics, Bull. No. 618, 291-293; Constitution and By-Laws of the IFTEAD of the A.F.L., 1942.) [ Footnote 27 ] Control of "physical conduct in the performance of the service" is the traditional test of the "employee relationship" at common law. Cf., e.g., Restatement of the Law of Agency § 220(1). [ Footnote 28 ] Sen.Rep. No. 573, 74th Cong., 1st Sess. 7. [ Footnote 29 ] Sen.Rep. No. 573, 74th Cong., 1st Sess. 6. [ Footnote 30 ] Cf. Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 ; and compare Drivers' Union v. Lake Valley Co., 311 U. S. 91 , with Sen.Rep. No. 573, 74th Cong., 1st Sess. 7. [ Footnote 31 ] Compare Labor Board v. Waterman S.S. Corp., 309 U. S. 206 ; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 . [ Footnote 32 ] Cf. South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251 ; Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552 (C.C.A.) [ Footnote 33 ] Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552. [ Footnote 34 ] E.g., Matter of Metro-Goldwyn-Mayer Studios, 7 N.L.R.B. 662, 686-690; Matter of KMOX Broadcasting Station, 10 N.L.R.B. 479; Matter of Interstate Granite Corp., 11 N.L.R.B. 1046; Matter of Sun Life Ins. Co., 15 N.L.R.B. 817; Matter of Kelly Co., 34 N.L.R.B. 325; Matter of John Yasek, 37 N.L.R.B. 156. [ Footnote 35 ] 44 Stat. 1424, 33 U.S.C. § 901 et seq. [ Footnote 36 ] Under § 2(b) of the Communications Act of 1934, 48 Stat. 1064, 1065, 47 U.S.C. § 152(b). [ Footnote 37 ] Full-time newsboys for the Herald includes those who regularly sell to the public five or more editions five or more days per week. Full-time newsboys for the News includes those who regularly sell to the general public the fifth, sixth, eighth, ninth and tenth, or the sixth, eighth, ninth and tenth editions five or more days per week, or the fourth and earlier editions for at least four hours daily between 4:00 a.m. and 10:00 a.m. five days per week. [ Footnote 38 ] Part-time newsboys for the Herald means those selling less than five editions daily or for less than five days per week. [ Footnote 39 ] Established spots are corners at which newsboys sold those papers for at least five or more days per week during at least six consecutive months. [ Footnote 40 ] Glendale is included in the Times unit. [ Footnote 41 ] Temporary newsboys are those selling for less than thirty-one consecutive days. [ Footnote 42 ] Except newsboys selling the Times in Glendale. [ Footnote 43 ] Hearings before Committee on Education and Labor on S. 1958, 74th Cong., 1st Sess. 83. [ Footnote 44 ] E.g., see First Annual Report of the National Labor Relations Board 112-120; Second Annual Report of the National Labor Relations Board 122-140; Third Annual Report of the National Labor Relations Board 156-197; Fourth Annual Report of the National Labor Relations Board 82-97; Fifth Annual Report of the National Labor Relations Board 63-72; Sixth Annual Report of the National Labor Relations Board 63-71. [ Footnote 45 ] Matter of Gulf Oil Corp., 4 N.L.R.B. 133. MR. JUSTICE ROBERTS. I think the judgment of the Circuit Court of Appeals should be affirmed. The opinion of that court reported in 136 F.2d 608, seems to me adequately to state the controlling facts and correctly to deal with the question of law presented for decision. I should not add anything were it not for certain arguments presented here and apparently accepted by the court. I think it plain that newsboys are not "employees" of the respondents within the meaning and intent of the National Labor Relations Act. When Congress, in § 2(3), said: "The term "employee" shall include any employee, . . ." it stated as clearly as language could do it that the provisions of the Act were to extend to those who, as a result of decades of tradition which had become part of the common understanding of our people, bear the named relationship. Clearly also, Congress did not delegate Page 322 U. S. 136 to the National Labor Relations Board the function of defining the relationship of employment so as to promote what the Board understood to be the underlying purpose of the statute. The question who is an employee, so as to make the statute applicable to him, is a question of the meaning of the Act, and therefore is a judicial, and not an administrative, question. I do not think that the court below suggested that the federal courts sitting in the various states must determine whether a given person is an employee by application of either the local statutes or local state decisions. Quite the contrary. As a result of common law development, many prescriptions of federal statutes take on meaning which is uniformly ascribed to them by the federal courts, irrespective of local variance. Funk v. United States, 290 U. S. 371 . This court has repeatedly resorted to just such considerations in defining the very term "employee" as used in other federal statutes, as the opinion of the court below shows. There is a general and prevailing rule throughout the Union as to the indicia of employment and the criteria of one's status as employee. Unquestionably it was to this common, general, and prevailing understanding that Congress referred in the statute and, according to that understanding, the facts stated in the opinion below, and in that of this court, in my judgment, demonstrate that the newsboys were not employees of the newspapers. It is urged that the Act uses the term in some loose and unusual sense such as justifies the Board's decision because Congress added to the definition of employee above quoted these further words: "and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise. . . ." The suggestion seems to be that Congress intended that the term employee should mean those who were not in fact employees, but it Page 322 U. S. 137 is perfectly evident not only from the provisions of the Act as a whole, but from the Senate Committee's Report, that this phrase was added to prevent any misconception of the provisions whereby employees were to be allowed freely to combine and to be represented in collective bargaining by the representatives of their union. Congress intended to make it clear that employee organizations did not have to be organizations of the employees of any single employer. But that qualifying phrase means no more than this, and was never intended to permit the Board to designate as employees those who, in traditional understanding, have no such status.

In NLRB v. Hearst Publications, Inc. (1944), the U.S. Supreme Court ruled that newspaper delivery boys, or "newsboys," working for Hearst Publications were considered "employees" under the National Labor Relations Act (NLRA). The Court determined that the definition of "employee" in the NLRA should not be based solely on common law standards or local laws, but should also consider the economic realities of the relationship and the purpose of the Act. The Court upheld the National Labor Relations Board's (NLRB) decision, finding that Hearst Publications controlled various aspects of the newsboys' work, including their wages, hours, and work efforts, and provided them with sales equipment and advertising materials. Additionally, the Court supported the NLRB's designation of collective bargaining units, which included full-time newsboys and excluded temporary and casual workers, as it was within the Board's discretion and based on the specific facts of the case. This case established an important precedent for defining the employer-employee relationship and extended the protections of the NLRA to newsboys, recognizing their economic dependence on the publishers.

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Bi-Metallic Investment Co. v. State Board of Equalization of Colorado

https://supreme.justia.com/cases/federal/us/239/441/

U.S. Supreme Court Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915) Bi-Metallic Investment Company v. State Board of Equalization of Colorado No. 116 Argued December 7, 8, 1915.-Decided December 20, 1915 239 U.S. 441 ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO Syllabus The allowance of equitable relief is a question of state policy, and if the state court treated the merits of a suit in which equitable relief is sought as legitimately before it, this Court will not attempt to determine whether it might or might not have thrown out the suit upon the preliminary ground. Where a rule of conduct applies to more than a few people, it is impracticable that every one should have a direct voice in its adoption; nor does the federal Constitution require all public acts to be done in town meeting or in an assembly of the whole. There must be a limit to individual argument in regard to matters affecting communities if government is to go on. Page 239 U. S. 442 An order of the State Board of Equalization of Colorado increasing the valuation of all taxable property in the City of Denver forty percent, which was sustained by the supreme court of that state, held not to be in violation of the due process provision of the Fourteenth Amendment because no opportunity was given to the taxpayers or assessing officers of Denver to be heard before the order was made. 56 Colo. 343 affirmed. The facts, which involve the constitutionality under the due provision of the Fourteenth Amendment of an order of the Tax Boards of Colorado, increasing proportionately the valuation of all property in the City of Denver, are stated in the opinion. MR. JUSTICE HOLMES delivered the opinion of the Court. This is a suit to enjoin the State Board of Equalization and the Colorado Tax Commission from putting in force, and the defendant Pitcher, as Assessor of Denver, from obeying, an order of the boards, increasing the valuation of all taxable property in Denver forty percent. The order Page 239 U. S. 444 was sustained and the suit directed to be dismissed by the supreme court of the state. 56 Colo. 512. See 56 Colo. 343. The plaintiff is the owner of real estate in Denver, and brings the case here on the ground that it was given no opportunity to be heard, and that therefore its property will be taken without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States. That is the only question with which we have to deal. There are suggestions on the one side that the construction of the state constitution and laws was an unwarranted surprise, and on the other that the decision might have been placed, although it was not, on the ground that there was an adequate remedy at law. With these suggestions we have nothing to do. They are matters purely of state law. The answer to the former needs no amplification; that to the latter is that the allowance of equitable relief is a question of state policy, and that, as the supreme court of the state treated the merits as legitimately before it, we are not to speculate whether it might or might not have thrown out the suit upon the preliminary ground. For the purposes of decision, we assume that the constitutional question is presented in the baldest way -- that neither the plaintiff nor the assessor of Denver, who presents a brief on the plaintiff's side, nor any representative of the city and county, was given an opportunity to be heard, other than such as they may have had by reason of the fact that the time of meeting of the boards is fixed by law. On this assumption, it is obvious that injustice may be suffered if some property in the county already has been valued at its full worth. But if certain property has been valued at a rate different from that generally prevailing in the county, the owner has had his opportunity to protest and appeal as usual in our system of taxation, Hagar v. Reclamation District, 111 U. S. 701 , 111 U. S. 709 -710, so that it must be assumed that the property Page 239 U. S. 445 owners in the county all stand alike. The question, then, is whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned -- here, for instance, before a superior board decides that the local taxing officers have adopted a system of undervaluation throughout a county, as notoriously often has been the case. The answer of this Court in the State Railroad Tax Cases, 92 U. S. 575 , at least, as to any further notice, was that it was hard to believe that the proposition was seriously made. Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society -- by their power, immediate or remote, over those who make the rule. If the result in this case had been reached, as it might have been, by the state's doubling the rate of taxation, no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body entrusted by the state constitution with the power. In considering this case in this Court we must assume that the proper state machinery has been used, and the question is whether, if the state constitution had declared that Denver had been undervalued as compared with the rest of the state, and had decreed that, for the current year, the valuation should be forty percent higher, the objection now urged could prevail. It appears to us that to put the question is to answer it. There must be a limit to individual argument in such matters if government is to go on. In Londoner v. Denver, 210 U. S. 373 , Page 239 U. S. 446 210 U. S. 385 , a local board had to determine "whether, in what amount, and upon whom" a tax for paving a street should be levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid. Judgment affirmed.

The Supreme Court upheld a state board's decision to increase property tax valuations in Denver by 40% without providing taxpayers or assessing officers a chance to be heard, rejecting claims of a violation of due process under the Fourteenth Amendment. The Court reasoned that not all individuals need to be heard on matters affecting communities and that government functions require some limits on individual arguments. The Court distinguished this case from one where a small group of people was exceptionally affected on individual grounds, emphasizing that the decision applied generally to all assessments in a county.

Government Agencies

Londoner v. Denver

https://supreme.justia.com/cases/federal/us/210/373/

U.S. Supreme Court Londoner v. Denver, 210 U.S. 373 (1908) Londoner v. Denver No. 157 Argued March 6, 9, 1908 Decided June 1, 1908 210 U.S. 373 ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO Syllabus The legislature of a state may authorize municipal improvements without any petition of landowners to be assessed therefor, and proceedings of a municipality in accordance with charter provisions and without hearings authorizing an improvement do not deny due process of law to landowners who are afforded a hearing upon the assessment itself. The decision of a state court that a city council properly determined that the board of public works had acted within its jurisdiction under the city charter does not involve a federal question reviewable by this Court. Where the state court has construed a state statute so as to bring it into harmony with the federal and state constitutions, nothing in the Fourteenth Amendment gives this Court power to review the decision on the ground that the state court exercised legislative power in construing the statute in that manner, and thereby violated that Amendment. There are few constitutional restrictions on the power of the states to assess, apportion, and collect taxes, and in the enforcement of such restrictions, this Court has regard to substance, and not form, but where the legislature commits the determination of the tax to a subordinate body, due process of law requires that the taxpayer he afforded a hearing of which he must have notice, and this requirement is not satisfied by the mere right to file objections, and where, as in Colorado, the taxpayer has no right to object to an assessment in court, due process of law a guaranteed by the Fourteenth Amendment require that he have the opportunity to support his objections by argument and proof at some time and place. The denial of due process of law by municipal authorities while acting as a board of equalization amounts to a denial by the state. 33 Colo. 104 reversed. The facts are stated in the opinion. Page 210 U. S. 374 MR. JUSTICE MOODY delivered the opinion of the Court. The plaintiffs in error began this proceeding in a state court of Colorado to relieve lands owned by them from an assessment of a tax for the cost of paving a street upon which the lands abutted. The relief sought was granted by the trial court, but its action was reversed by the supreme court of the state, which ordered judgment for the defendants. 33 Colo. 104, 80 P. 117. The case is here on writ of error. The supreme court held that the tax was assessed in conformity with the Constitution and laws of the state, and its decision of that question is conclusive. The assignments of error relied upon are as follows: "First. The Supreme Court of Colorado erred in holding and deciding that the portion of proviso 'eighth' of § 3 of article 7 of 'An Act to Revise and Amend the Charter of the City of Denver, Colorado, Signed and Approved by the Governor of Colorado, April 3, 1893' (commonly called the Denver City Charter of 1893), which provided," "And the finding of the city council by ordinance that any improvements provided for in this article were duly ordered after notice duly given, or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal," "as construed by the Supreme Court of Colorado, was valid and conclusive as against these appellees. The validity of so much of said section as is above quoted was drawn in question and denied by appellees in said cause on the ground of its being repugnant to the due process of law clause of the Fourteenth Amendment of the Constitution of the United States, and in contravention thereof." "Second. The Supreme Court of Colorado further erred in assuming that said city council ever made a finding by ordinance in accordance with said proviso 'eighth.'" " * * * *" "Fifth. The Supreme Court of Colorado more particularly erred in holding and deciding that the city authorities, in Page 210 U. S. 375 following the procedure in this Eighth Avenue Paving District, No. 1, of the City of Denver, Colorado, in the manner in which the record, evidence, and decree of the trial court affirmatively shows that they did, constituted due process of law as to these several appellees (now plaintiffs in error) as guaranteed by the Fourteenth Amendment of the Constitution of the United States." "Ninth. The Supreme Court of Colorado erred in upholding sections 29, 30, and 31, and each thereof, of article 7 of 'An Act to Revise and Amend the Charter of the City of Denver, Colorado, Signed and Approved by the Governor of Colorado April 3d 1893' (commonly called the Denver City Charter of 1893), and not holding it special legislation and a denial of the equal protection of the laws and taking of liberty and property of these several plaintiffs in error without due process of law, in violation of both the state and federal Constitution and the Fourteenth Amendment thereof." "Tenth. The Supreme Court of Colorado erred in upholding each of the several assessments against the corner lots, and particularly those lots belonging to said Wolfe Londoner and Dennis Sheedy, because each thereof was assessed for the paving and other improvements in this district alone for more than the several lots so assessed were ever actually worth, and far in excess of any special benefits received from the alleged improvements." These assignments will be passed upon in the order in which they seem to arise in the consideration of the whole case. The tax complained of was assessed under the provisions of the Charter of the City of Denver, which confers upon the city the power to make local improvements and to assess the cost upon property specially benefited. It does not seem necessary to set forth fully the elaborate provisions of the charter regulating the exercise of this power, except where they call for special examination. The board of public works, upon the petition of a majority of the owners of the frontage to be assessed, may order the paving of a street. The board must, however, first adopt specifications, mark out a district of assessment, Page 210 U. S. 376 cause a map to be made and an estimate of the cost, with the approximate amount to be assessed upon each lot of land. Before action, notice by publication and an opportunity to be heard to any person interested must be given by the board. The board may then order the improvement, but must recommend to the city council a form of ordinance authorizing it, and establishing an assessment district, which is not amendable by the council. The council may then, in its discretion, pass or refuse to pass the ordinance. If the ordinance is passed, the contract for the work is made by the mayor. The charter provides that "the finding of the city council, by ordinance, that any improvements provided for in this article were duly ordered after notice duly given, or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal." The charter then provides for the assessment of the cost in the following sections: "SEC. 29. Upon completion of any local improvement, or, in the case of sewers, upon completion from time to time of any part or parts thereof, affording complete drainage for any part or parts of the district, and acceptance thereof by the board of public works, or whenever the total cost of any such improvement, or of any such part or parts of any sewer, can be definitely ascertained, the board of public works shall prepare a statement therein, showing the whole cost of the improvement, or such parts thereof, including six percent additional for costs of collection and other incidentals, and interest to the next succeeding date upon which general taxes, or the first installment thereof, are, by the laws of this state, made payable, and apportioning the same upon each lot or tract of land to be assessed for the same, as hereinabove provided, and shall cause the same to be certified by the president and filed in the office of the city clerk." "SEC. 30. The city clerk shall thereupon, by advertisement for ten days in some newspaper of general circulation, published Page 210 U. S. 377 in the City of Denver, notify the owners of the real estate to be assessed that said improvements have been, or are about to be, completed and accepted, therein specifying the whole cost of the improvements and the share so apportioned to each lot or tract of land, and that any complaints or objections that may be made in writing, by the owners, to the city council and filed with the city clerk within thirty days from the first publication of such notice, will be heard and determined by the city council before the passage of any ordinance assessing the cost of said improvements." "SEC. 31. After the period specified in said notice, the city council, sitting as a board of equalization, shall hear and determine all such complaints and objections, and may recommend to the board of public works any modification of the apportionments made by said board; the board may thereupon make such modifications and changes as to them may seem equitable and just, or may confirm the first apportionment, and shall notify the city council of their final decision, and the city council shall thereupon by ordinance assess the cost of said improvements against all the real estate in said district respectively in the proportions above mentioned." It appears from the charter that, in the execution of the power to make local improvements and assess the cost upon the property specially benefited, the main steps to be taken by the city authorities are plainly marked and separated: 1. The board of public works must transmit to the city council a resolution ordering the work to be done and the form of an ordinance authorizing it and creating an assessment district. This it can do only upon certain conditions, one of which is that there shall first be filed a petition asking the improvement, signed by the owners of the majority of the frontage to be assessed. 2. The passage of that ordinance by the city council, which is given authority to determine conclusively whether the action of the board was duly taken. 3. The assessment of the cost upon the landowners after due notice and opportunity for hearing. Page 210 U. S. 378 In the case before us, the board took the first step by transmitting to the council the resolution to do the work and the form of an ordinance authorizing it. It is contended, however, that there was wanting an essential condition of the jurisdiction of the board -- namely, such a petition from the owners as the law requires. The trial court found this contention to be true. But, as has been seen, the charter gave the city council the authority to determine conclusively that the improvements were duly ordered by the board after due notice and a proper petition. In the exercise of this authority, the city council, in the ordinance directing the improvement to be made, adjudged, in effect, that a proper petition had been filed. That ordinance, after reciting a compliance by the board with the charter in other respects, and that "certain petitions for said improvements were first presented to the said board, subscribed by the owners of a majority of the frontage to be assessed for said improvements, as by the city charter required," enacted "That, upon consideration of the premises, by city council doth find that, in their action and proceedings in relation to said Eighth Avenue Paving District Number 1, the said board of public works has fully complied with the requirements of the city charter relating thereto." The state supreme court held that the determination of the city council was conclusive that a proper petition was filed, and that decision must be accepted by us as the law of the state. The only question for this Court is whether the charter provision authorizing such a finding, without notice to the landowners, denies to them due process of law. We think it does not. The proceedings, from the beginning up to and including the passage of the ordinance authorizing the work, did not include any assessment or necessitate any assessment, although they laid the foundation for an assessment, which might or might not subsequently be made. Clearly all this might validly be done without hearing to the landowners, provided a hearing upon the assessment itself is afforded. Voigt v. Detroit, 184 U. S. 115 ; Goodrich v. Detroit, 184 U. S. 432 . The Page 210 U. S. 379 legislature might have authorized the making of improvements by the city council without any petition. If it chose to exact a petition as a security for wise and just action, it could, so far as the federal Constitution is concerned, accompany that condition with a provision that the council, with or without notice, should determine finally whether it had been performed. This disposes of the first assignment of error, which is overruled. The second assignment is that the court erred in deciding that the city council had determined that the board of public works had complied with the conditions of its jurisdiction to order the work done. It is enough to say that this is not a federal question. We see nothing in the sixth assignment of error. It is apparently based upon the proposition that, in construing a law of the state in a manner which the plaintiffs in error think was clearly erroneous, the supreme court of the state exercised legislative power, and thereby violated the Fourteenth Amendment. We are puzzled to find any other answer to this proposition than to say that it is founded upon a misconception of the opinion of the court and of the effect of the Fourteenth Amendment. The complaint in this assignment is not that the court gave a construction to the law which brought it into conflict with the federal Constitution, but that, in construing the law so as to bring it into harmony with the federal and state constitutions, the court so far neglected its obvious meaning as to make the judgment an exercise of legislative power. We know of nothing in the Fourteenth Amendment which gives us authority to consider a question of this kind. We think it fitting, however, to say that we see nothing extraordinary in the method of interpretation followed by the court, or in its results. Whether we should or not have arrived at the same conclusions is not of consequence. The ninth assignment questions the constitutionality of that part of the law which authorizes the assessment of benefits. It seems desirable, for the proper disposition of this and the next assignment, to state the construction which the supreme Page 210 U. S. 380 court gave to the charter. This may be found in the judgment under review and two cases decided with it. Denver v. Kennedy, 33 Colo. 80; Denver v. Dumars, 33 Colo. 94. From these cases it appears that the lien upon the adjoining land arises out of the assessment; after the cost of the work and the provisional apportionment is certified to the city council, the landowners affected are afforded an opportunity to be heard upon the validity and amount of the assessment by the council, sitting as a board of equalization; if any further notice than the notice to file complaints and objections is required, the city authorities have the implied power to give it; the hearing must be before the assessment is made; this hearing, provided for by § 31, is one where the board of equalization "shall hear the parties complaining and such testimony as they may offer in support of their complaints and objections as would be competent and relevant," 33 Colo. 97, and that the full hearing before the board of equalization excludes the courts from entertaining any objections which are cognizable by this board. The statute itself therefore is clear of all constitutional faults. It remains to see how it was administered in the case at bar. The fifth assignment, though general, vague, and obscure, fairly raises, we think, the question whether the assessment was made without notice and opportunity for hearing to those affected by it, thereby denying to them due process of law. The trial court found as a fact that no opportunity for hearing was afforded, and the supreme court did not disturb this finding. The record discloses what was actually done, and there seems to be no dispute about it. After the improvement was completed, the board of public works, in compliance with § 29 of the charter, certified to the city clerk a statement of the cost, and an apportionment of it to the lots of land to be assessed. Thereupon, the city clerk, in compliance with § 30, published a notice, stating, inter alia, that the written complaints or objections of the owners, if filed within thirty days, would be "heard and determined by the city council before the passage Page 210 U. S. 381 of any ordinance assessing the cost." Those interested therefore were informed that, if they reduced their complaints and objections to writing, and filed them within thirty days, those complaints and objections would be heard, and would be heard before any assessment was made. The notice given in this case, although following the words of the statute, did not fix the time for hearing, and apparently there were no stated sittings of the council acting as a board of equalization. But the notice purported only to fix the time for filing the complaints and objections, and to inform those who should file them that they would be heard before action. The statute expressly required no other notice, but it was sustained in the court below on the authority of Paulsen v. Portland, 149 U. S. 30 , because there was an implied power in the city council give notice of the time for hearing. We think that the court rightly conceived the meaning of that case, and that the statute could be sustained only upon the theory drawn from it. Resting upon the assurance that they would be heard, the plaintiffs in error filed within the thirty days the following paper: "Denver, Colorado, January 13, 1900" "To the Honorable Board of Public Works and the Honorable Mayor and City Council of the City of Denver:" "The undersigned, by Joshua Grozier, their attorney, do hereby most earnestly and strenuously protest and object to the passage of the contemplated or any assessing ordinance against the property in Eighth Avenue Paving District No. 1, so called, for each of the following reasons, to-wit:" "1st. That said assessment and all and each of the proceedings leading up to the same were and are illegal, voidable, and void, and the attempted assessment, if made, will be void and uncollectible." "2nd. That said assessment and the cost of said pretended improvement should be collected, if at all, as a general tax against the city at large, and not as a special assessment. " Page 210 U. S. 382 "3d. That property in said city not assessed is benefited by the said pretended improvement, and certain property assessed is not benefited by said pretended improvement, and other property assessed is not benefited by said pretended improvement to the extent of the assessment; that the individual pieces of property in said district are not benefited to the extent assessed against them and each of them respectively; that the assessment is arbitrary, and property assessed in an equal amount is not benefited equally; that the boundaries of said pretended district were arbitrarily created without regard to the benefits or any other method of assessment known to law; that said assessment is outrageously large." "4th. That each of the laws and each section thereof under which the proceedings in said pretended district were attempted to be had do not confer the authority for such proceedings; that the 1893 city charter was not properly passed, and is not a law of the State of Colorado, by reason of not properly or at all passing the legislature; that each of the provisions of said charter under which said proceedings were attempted are unconstitutional and violative of fundamental principles of law, the Constitution of the United States, and the state constitution, or some one or more of the provisions of one or more of the same." "5th. Because the pretended notice of assessment is invalid, and was not published in accordance with the law, and is in fact no notice at all, because there was and is no valid ordinance creating said district, because each notice required by the 1893 city charter to be given, where it was attempted to give such notice, was insufficient, and was not properly given or properly published." "6th. Because of noncompliance by the contractor with his contract, and failure to complete the work in accordance with the contract; because the contract for said work was let without right or authority; because said pretended district is incomplete and the work under said contract has not been completed in accordance with said contract; because items too Page 210 U. S. 383 numerous to mention, which were not a proper charge in the said assessment, are included therein." "7th. Because the work was done under pretended grants of authority contained in pretended laws, which laws were violative of the Constitution and fundamental laws of the state and Union." "8th. Because the city had no jurisdiction in the premises. No petition subscribed by the owners of a majority of the frontage in the district to be assessed for said improvements was ever obtained or presented." "9th. Because of delay by the board of public works in attempting to let the contract, and because the said pretended improvement was never properly nor sufficiently petitioned for; because the contracts were not let nor the work done in accordance with the petitions, if any, for the work, and because the city had no jurisdiction in the premises." "10th. Because, before ordering the pretended improvement, full details and specifications for the same, permitting and encouraging competition, and determining the number of installments and time within which the costs shall be payable, the rate of interest on unpaid installments, and the district of lands to be assessed, together with a map showing the approximate amounts to be assessed, were not adopted by the board of public works before the letting of the contract for the work and furnishing of material; because advertisement for 20 days in two daily newspapers of general circulation, giving notice to the owners of real estate in the district of the kind of improvements proposed, the number of installments and time in which payable, rate of interest and extent of the district, probable cost, and time when a resolution ordering the improvement would be considered, was not made, either properly or at all, and, if ever attempted to be made, was not made according to law or as required by the law or charter." "11th. Because the attempted advertisements for bids on the contract attempted to be let were not properly published, and were published and let, and the proceedings had, if at all, Page 210 U. S. 384 in such a way as to be prejudicial to the competition of bidders and to deter bidders, and the completion of the contracts, after being attempted to be let, was permitted to lag in such a manner as not to comply with the contract, charter, or laws, and the power to let the contract attempted to be let was not within the power of the parties attempting to let the same; because the city council is or was, by some of the proceedings, deprived of legislative discretion, and the board of public works and other pretended bodies given such discretion, which discretion they delegated to others having no right or power to exercise the same, and executive functions were conferred on bodies having no right, power, or authority to exercise the same, and taken away from others to whom such power was attempted to be granted or given, or who should properly exercise the same; that judicial power was attempted to be conferred on the board of public works, so called, and the city council, and other bodies or pretended bodies not judicial or quasi -judicial in character, having no right, power, or authority to exercise the same, and the courts attempted to be deprived thereof." "Wherefore, because of the foregoing and numerous other good and sufficient reasons, the undersigned object and protest against the passage of the said proposed assessing ordinance." This certainly was a complaint against an objection to the proposed assessment. Instead of affording the plaintiffs in error an opportunity to be heard upon its allegations, the city council, without notice to them, met as a board of equalization, not in a stated, but in a specially called, session and, without any hearing, adopted the following resolution: "Whereas, complaints have been filed by the various persons and firms as the owners of real estate included within the Eighth Avenue Paving District No. 1, of the City of Denver, against the proposed assessments on said property for the cost of said paving, the names and description of the real estate respectively owned by such persons being more particularly described in the various complaints filed with the city clerk; and" "Whereas, no complaint or objection has been filed or made Page 210 U. S. 385 against the apportionment of said assessment made by the board of public works of the City of Denver, but the complaints and objections filed deny wholly the right of the city to assess any district or portion of the assessable property of the City of Denver; therefore, be it" "Resolved, by the City Council of the City of Denver, sitting as a board of equalization, that the apportionments of said assessment made by said board of public works be, and the same are hereby, confirmed and approved." Subsequently, without further notice or hearing, the city council enacted the ordinance of assessment whose validity is to be determined in this case. The facts out of which the question on this assignment arises may be compressed into small compass. The first step in the assessment proceedings was by the certificate of the board of public works of the cost of the improvement and a preliminary apportionment of it. The last step was the enactment of the assessment ordinance. From beginning to end of the proceedings, the landowners, although allowed to formulate and file complaints and objections, were not afforded an opportunity to be heard upon them. Upon these facts, was there a denial by the State of the due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States? In the assessment, apportionment, and collection of taxes upon property within their jurisdiction, the Constitution of the United States imposes few restrictions upon the states. In the enforcement of such restrictions as the Constitution does impose, this Court has regarded substance, and not form. But where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place Page 210 U. S. 386 of the hearing. Hagar v. Reclamation District, 111 U. S. 701 ; Kentucky Railroad Tax Cases, 115 U. S. 321 ; Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526 , 159 U. S. 537 ; Lent v. Tillson, 140 U. S. 316 ; Glidden v. Harrington, 189 U. S. 255 ; Hibben v. Smith, 191 U. S. 310 ; Security Trust Co. v. Lexington, 203 U. S. 323 ; Central of Georgia v. Wright, 207 U. S. 127 . It must be remembered that the law of Colorado denies the landowner the right to object in the courts to the assessment, upon the ground that the objections are cognizable only by the board of equalization. If it is enough that, under such circumstances, an opportunity is given to submit in writing all objections to and complaints of the tax to the board, then there was a hearing afforded in the case at bar. But we think that something more than that, even in proceedings for taxation, is required by due process of law. Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here, a hearing, in its very essence, demands that he who is entitled to it shall have the right to support his allegations by argument, however brief, and, if need be, by proof, however informal. Pittsburgh &c. Railway Co. v. Backus, 154 U. S. 421 , 154 U. S. 426 ; Fallbrook Irrigation District v. Bradley, 164 U. S. 112 , 164 U. S. 171 et seq. It is apparent that such a hearing was denied to the plaintiffs in error. The denial was by the city council, which, while acting as a board of equalization, represents the state. Raymond v. Chicago Traction Co., 207 U. S. 20 . The assessment was therefore void, and the plaintiffs in error were entitled to a decree discharging their lands from a lien on account of it. It is not now necessary to consider the tenth assignment of error. Judgment reversed. THE CHIEF JUSTICE and MR. JUSTICE HOLMES dissent.

The Supreme Court held that landowners must be given a hearing to contest tax assessments against their property, and this requirement is not met by simply allowing them to submit written objections. Due process demands that landowners have the right to present their case and provide supporting arguments and evidence. In this case, the Court ruled in favor of the plaintiffs, finding that the denial of a proper hearing by the city council, acting as a board of equalization, resulted in a void assessment.

Free Speech

Cox v. Louisiana

https://supreme.justia.com/cases/federal/us/379/536/

U.S. Supreme Court Cox v. Louisiana, 379 U.S. 536 (1965) Cox v. Louisiana No. 24 Argued October 21, 1964 Decided January 18, 1965 379 U.S. 536 APPEAL FROM THE SUPREME COURT OF LOUISIANA Syllabus Appellant was the leader of a civil rights demonstration in Baton Rouge, Louisiana, of 2,000 Negro students protesting segregation and the arrest and imprisonment the previous day of other Negro students who had participated in a protest against racial segregation. The group assembled a few blocks from the courthouse, where appellant identified himself to officers as the group's leader and explained the purpose of the demonstration. Following his refusal to disband the group, appellant led it in an orderly march toward the courthouse. In the vicinity of the courthouse, officers stopped appellant who, after explaining the purpose and program of the demonstration, was told by the Police Chief that he could hold the meeting so long as he confined it to the west side of the street. Appellant directed the group to the west sidewalk, across the street from the courthouse and 101 feet from its steps. There, the group, standing five feet deep and occupying almost the entire block but not obstructing the street, displayed signs and sang songs which evoked response from the students in the courthouse jail. Appellant addressed the group. The Sheriff, construing as inflammatory appellant's concluding exhortation to the students to "sit in" at uptown lunch counters, ordered dispersal of the group which, not being directly forthcoming, was effected by tear gas. Appellant was arrested the next day and was convicted of peace disturbance, obstructing public passages, and courthouse picketing. The Louisiana Supreme Court affirmed the convictions, two of which (peace disturbance and obstructing public passages) are involved in this case; the third (courthouse picketing) being involved in No. 49, post at 379 U. S. 559 . Held: 1. In arresting and convicting appellant under the circumstances disclosed by this record, Louisiana deprived him of his rights of free speech and free assembly in violation of the First and Fourteenth Amendments. Edwards v. South Carolina, 372 U. S. 229 ; Fields v. South Carolina, 375 U. S. 44 , followed. Pp. 379 U. S. 544 -551. 2. The breach of the peace statute is unconstitutionally vague in its overly broad scope, for Louisiana has defined "breach of the peace" as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet"; yet one of the very functions of free speech is to invite dispute. Terminiello v. Chicago , Page 379 U. S. 537 337 U. S. 1 ; Stromberg v. California, 283 U. S. 359 , followed. Pp. 379 U. S. 551 -552. 3. The practice in Baton Rouge of allowing local officials unfettered discretion in regulating the use of streets for peaceful parades and meetings notwithstanding the prohibitions contained in the statute against obstructing public passages abridged appellant's freedom of speech and assembly in violation of the First and Fourteenth Amendments. Pp. 379 U. S. 553 -558. (a) The Louisiana Supreme Court construed the obstructing public passages statute as applying to public assemblies which do not have the specific purpose of obstructing traffic. P. 379 U. S. 553 . (b) A State has the right to impose nondiscriminatory restrictions on travel on city streets. P. 379 U. S. 554 . (c) The rights of free speech and assembly do not mean that everyone may address a group at any public place at any time. Pp. 379 U. S. 554 -555. (d) Communication of ideas by picketing and marching on streets is not afforded the same kind of protection under the First and Fourteenth Amendments as is pure speech. P. 379 U. S. 555 . (e) Although the statute, on its face, precludes all street assemblies and parades, the Baton Rouge authorities have not so enforced it, but, in their uncontrolled discretion, have permitted parades and street meetings. Pp. 379 U. S. 555 -557. (f) The lodging of such broad discretion in public officials sanctions suppression of free expression and facilitates denial of equal protection. Pp. 379 U. S. 557 -558. 244 La. 1087, 156 So. 2d 448 , reversed. MR. JUSTICE GOLDBERG delivered the opinion of the Court. Appellant, the Reverend Mr. B. Elton Cox, the leader of a civil rights demonstration, was arrested and charged Page 379 U. S. 538 with four offenses under Louisiana law -- criminal conspiracy, disturbing the peace, obstructing public passages, and picketing before a courthouse. In a consolidated trial before a judge without a jury, and on the same set of facts, he was acquitted of criminal conspiracy, but convicted of the other three offenses. He was sentenced to serve four months in jail and pay a $200 fine for disturbing the peace, to serve five months in jail and pay a $500 fine for obstructing public passages, and to serve one year in jail and pay a $5,000 fine for picketing before a courthouse. The sentences were cumulative. In accordance with Louisiana procedure, the Louisiana Supreme Court reviewed the "disturbing the peace" and "obstructing public passages" convictions on certiorari, and the "courthouse picketing" conviction on appeal. The Louisiana court, in two judgments, affirmed all three convictions. 244 La. 1087, 156 So. 2d 448 ; 245 La. 303, 158 So. 2d 172. Appellant filed two separate appeals to this Court from these judgments contending that the three statutes under which he was convicted were unconstitutional on their face and as applied. We noted probable jurisdiction of both appeals, 377 U.S. 921. This case, No. 24, involves the convictions for disturbing the peace and obstructing public passages, and No. 49 concerns the conviction for picketing before a courthouse. I THE FACTS On December 14, 1961, 23 students from Southern University, a Negro college, were arrested in downtown Baton Rouge, Louisiana, for picketing stores that maintained segregated lunch counters. This picketing, urging a boycott of those stores, was part of a general protest movement against racial segregation, directed by the local chapter of the Congress of Racial Equality, a civil rights Page 379 U. S. 539 organization. The appellant, an ordained Congregational minister, the Reverend Mr. B. Elton Cox, a Field Secretary of CORE, was an advisor to this movement. On the evening of December 14, appellant and Ronnie Moore, student president of the local CORE chapter, spoke at a mass meeting at the college. The students resolved to demonstrate the next day in front of the courthouse in protest of segregation and the arrest and imprisonment of the picketers who were being held in the parish jail located on the upper floor of the courthouse building. The next morning, about 2,000 students left the campus, which was located approximately five miles from downtown Baton Rouge. Most of them had to walk into the city, since the drivers of their busses were arrested. Moore was also arrested at the entrance to the campus while parked in a car equipped with a loudspeaker, and charged with violation of an anti-noise statute. Because Moore was immediately taken off to jail and the vice-president of the CORE chapter was already in jail for picketing, Cox felt it his duty to take over the demonstration and see that it was carried out as planned. He quickly drove to the city "to pick up this leadership and keep things orderly." When Cox arrived, 1,500 of the 2,000 students were assembling at the site of the old State Capitol building, two and one-half blocks from the courthouse. Cox walked up and down cautioning the students to keep to one side of the sidewalk while getting ready for their march to the courthouse. The students circled the block in a file two or three abreast occupying about half of the sidewalk. The police had learned of the proposed demonstration the night before from news media and other sources. Captain Font of the City Police Department and Chief Kling of the Sheriff's office, two high-ranking subordinate officials, approached the group and spoke to Cox at the northeast corner of the capitol Page 379 U. S. 540 grounds. Cox identified himself as the group's leader, and, according to Font and Kling, he explained that the students were demonstrating to protest "the illegal arrest of some of their people who were being held in jail." The version of Cox and his witnesses throughout was that they came not "to protest just the arrest, but . . . [also] to protest the evil of discrimination." Kling asked Cox to disband the group and "take them back from whence they came." Cox did not acquiesce in this request, but told the officers that they would march by the courthouse, say prayers, sing hymns, and conduct a peaceful program of protest. The officer repeated his request to disband, and Cox again refused. Kling and Font then returned to their car in order to report by radio to the Sheriff and Chief of Police, who were in the immediate vicinity; while this was going on, the students, led by Cox, began their walk toward the courthouse. They walked in an orderly and peaceful file, two or three abreast, one block east, stopping on the way for a red traffic light. In the center of this block, they were joined by another group of students. The augmented group, now totaling about 2,000, [ Footnote 1 ] turned the corner and proceeded south, coming to a halt in the next block opposite the courthouse. As Cox, still at the head of the group, approached the vicinity of the courthouse, he was stopped by Captain Font and Inspector Trigg and brought to Police Chief Wingate White, who was standing in the middle of St. Louis Street. The Chief then inquired as to the purpose of the demonstration. Cox, reading from a prepared paper, outlined his program to White, stating that it would include a singing of the Star Spangled Banner Page 379 U. S. 541 and a "freedom song," recitation of the Lord's Prayer and the Pledge of Allegiance, and a short speech. White testified that he told Cox that "he must confine" the demonstration "to the west side of the street." White added, "This, of course, was not -- I didn't mean it in the import that I was giving him any permission to do it, but I was presented with a situation that was accomplished, and I had to make a decision." Cox testified that the officials agreed to permit the meeting. James Erwin, news director of radio station WIBR, a witness for the State, was present and overheard the conversation. He testified that "My understanding was that they would be allowed to demonstrate if they stayed on the west side of the street and stayed within the recognized time, [ Footnote 2 ]" and that this was "agreed to" by White. [ Footnote 3 ] The students were then directed by Cox to the west sidewalk, across the street from the courthouse, 101 feet from its steps. They were lined up on this sidewalk about five deep and spread almost the entire length of the block. The group did not obstruct the street. It was close to noon and, being lunch time, a small crowd of 100 to 300 curious white people, mostly courthouse personnel, gathered on the east sidewalk and courthouse steps, about 100 feet from the demonstrators. Seventy-five to eighty policemen, including city and state patrolmen and members of the Sheriff's staff, as well as members of the fire department and a fire truck were stationed in the street between the two groups. Rain fell throughout the demonstration Page 379 U. S. 542 Several of the students took from beneath their coats picket signs similar to those which had been used the day before. These signs bore legends such as "Don't buy discrimination for Christmas," "Sacrifice for Christ, don't buy," and named stores which were proclaimed "unfair." They then sang "God Bless America," pledged allegiance to the flag, prayed briefly, and sang one or two hymns, including "We Shall Overcome." The 23 students, who were locked in jail cells in the courthouse building out of the sight of the demonstrators, responded by themselves singing; this in turn was greeted with cheers and applause by the demonstrators. Appellant gave a speech, described by a State's witness as follows: "He said that, in effect, that it was a protest against the illegal arrest of some of their members, and that other people were allowed to picket . . . and he said that they were not going to commit any violence, [ Footnote 4 ] that, if anyone spit on them, they would not spit back on the person that did it. [ Footnote 5 ]" Cox then said: "All right. It's lunch time. Let's go eat. There are twelve stores we are protesting. A number of these stores have twenty counters; they accept your money from nineteen. They won't accept it from the Page 379 U. S. 543 twentieth counter. This is an act of racial discrimination. These stores are open to the public. You are members of the public. We pay taxes to the Federal Government, and you who live here pay taxes to the State. [ Footnote 6 ]" In apparent reaction to these last remarks, there was what state witnesses described as "muttering" and "grumbling" by the white onlookers. [ Footnote 7 ] The Sheriff, deeming, as he testified, Cox's appeal to the students to sit in at the lunch counters to be "inflammatory," then took a power microphone and said, "Now, you have been allowed to demonstrate. Up until now, your demonstration has been more or less peaceful, but what you are doing now is a direct violation of the law, a disturbance of the peace, and it has got to be broken up immediately." The testimony as to what then happened is disputed. Some of the State's witnesses testified that Cox said, "don't move"; others stated that he made a "gesture of defiance." It is clear from the record, however, that Cox and the demonstrators did not then and there break up the demonstration. Two of the Sheriff's deputies immediately started across the street and told the group, "You have heard what the Sheriff said, now, do what he said." A state witness testified that they Page 379 U. S. 544 put their hands on the shoulders of some of the students "as though to shove them away." Almost immediately thereafter -- within a time estimated variously at two to five minutes -- one of the policemen exploded a tear gas shell at the crowd. This was followed by several other shells. The demonstrators quickly dispersed, running back towards the State Capitol and the downtown area; Cox tried to calm them as they ran and was himself one of the last to leave. No Negroes participating in the demonstration were arrested on that day. The only person then arrested was a young white man, not a part of the demonstration, who was arrested "because he was causing a disturbance." The next day, appellant was arrested and charged with the four offenses above described. II THE BREACH OF THE PEACE CONVICTION Appellant was convicted of violating a Louisiana "disturbing the peace" statute, which provides: "Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby . . . crowds or congregates with others . . . in or upon . . . a public street or public highway, or upon a public sidewalk, or any other public place or building . . . and who fails or refuses to disperse and move on . . . when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person . . . shall be guilty of disturbing the peace." La.Rev.Stat. § 14:103.1 (Cum.Supp. 1962). It is clear to us that, on the facts of this case, which are strikingly similar to those present in Edwards v. South Page 379 U. S. 545 Carolina, 372 U. S. 229 , and Fields v. South Carolina, 375 U. S. 44 , Louisiana infringed appellant's rights of free speech and free assembly by convicting him under this statute. As in Edwards, we do not find it necessary to pass upon appellant's contention that there was a complete absence of evidence so that his conviction deprived him of liberty without due process of law. Cf. Thompson v. Louisville, 362 U. S. 199 . We hold that Louisiana may not constitutionally punish appellant under this statute for engaging in the type of conduct which this record reveals, and also that the statute as authoritatively interpreted by the Louisiana Supreme Court is unconstitutionally broad in scope. The Louisiana courts have held that appellant's conduct constituted a breach of the peace under state law, and, as in Edwards, "we may accept their decision as binding upon us to that extent," Edwards v. South Carolina, supra, at 372 U. S. 235 ; but our independent examination of the record, which we are required to make, [ Footnote 8 ] shows no conduct which the State had a right to prohibit as a breach of the peace. Appellant led a group of young college students who wished "to protest segregation" and discrimination against Negroes and the arrest of 23 fellow students. They assembled peaceably at the State Capitol building Page 379 U. S. 546 and marched to the courthouse where they sang, prayed and listened to a speech. A reading of the record reveals agreement on the part of the State's witnesses that Cox had the demonstration "very well controlled," and, until the end of Cox's speech, the group was perfectly "orderly." Sheriff Clemmons testified that the crowd's activities were not "objectionable" before that time. They became objectionable, according to the Sheriff himself, when Cox, concluding his speech, urged the students to go uptown and sit in at lunch counters. The Sheriff testified that the sole aspect of the program to which he objected was "[t]he inflammatory manner in which he [Cox] addressed that crowd and told them to go on up town, go to four places on the protest list, sit down and if they don't feed you, sit there for one hour." Yet this part of Cox's speech obviously did not deprive the demonstration of its protected character under the Constitution as free speech and assembly. See Edwards v. South Carolina, supra; Cantwell v. Connecticut, 310 U. S. 296 ; Thornhill v. Alabama, 310 U. S. 88 ; Garner v. Louisiana, 368 U. S. 157 , 368 U. S. 185 (concurring opinion of MR. JUSTICE HARLAN). The State argues, however, that, while the demonstrators started out to be orderly, the loud cheering and clapping by the students in response to the singing from the jail converted the peaceful assembly into a riotous one. [ Footnote 9 ] The record, however, does not support this assertion. It is true that the students, in response to the singing Page 379 U. S. 547 of their fellows who were in custody, cheered and applauded. However, the meeting was an out-door meeting, and a key state witness testified that, while the singing was loud, it was not disorderly. There is, moreover, no indication that the mood of the students was ever hostile, aggressive, or unfriendly. Our conclusion that the entire meeting, from the beginning until its dispersal by tear gas was, orderly [ Footnote 10 ] and not riotous is confirmed by a film of the events taken by a television news photographer, which was offered in evidence as a state exhibit. We have viewed the film, and it reveals that the students, though they undoubtedly cheered and clapped, were well behaved throughout. My Brother BLACK, concurring in this opinion and dissenting in No. 49, post, agrees "that Page 379 U. S. 548 the record does not show boisterous or violent conduct or indecent language on the part of the . . ." students. Post at 379 U. S. 583 . The singing and cheering do not seem to us to differ significantly from the constitutionally protected activity of the demonstrators in Edwards, [ Footnote 11 ] who loudly sang "while stamping their feet and clapping their hands." Edwards v. South Carolina, supra, at 372 U. S. 233 . [ Footnote 12 ] Page 379 U. S. 549 Our conclusion that the record does not support the contention that the students' cheering, clapping and singing constituted a breach of the peace is confirmed by the fact that these were not relied on as a basis for conviction by the trial judge, who, rather, stated as his reason for convicting Cox of disturbing the peace that "[i]t must be Page 379 U. S. 550 recognized to be inherently dangerous and a breach of the peace to bring 1,500 people, colored people, down in the predominantly white business district in the City of Baton Rouge and congregate across the street from the courthouse and sing songs as described to me by the defendant as the CORE national anthem carrying lines such as 'black and white together' and to urge those 1,500 people to descend upon our lunch counters and sit there until they are served. That has to be an inherent breach of the peace, and our statute 14:103.1 has made it so." Finally, the State contends that the conviction should be sustained because of fear expressed by some of the state witnesses that "violence was about to erupt" because of the demonstration. It is virtually undisputed, however, that the students themselves were not violent, and threatened no violence. The fear of violence seems to have been based upon the reaction of the group of white citizens looking on from across the street. One state witness testified that "he felt the situation was getting out of hand" as, on the courthouse side of St. Louis Street, "were small knots or groups of white citizens who were muttering words, who seemed a little bit agitated." A police officer stated that the reaction of the white crowd was not violent, but "was rumblings." Others felt the atmosphere became "tense" because of "mutterings," "grumbling," and "jeering" from the white group. There is no indication, however, that any member of the white group threatened violence. And this small crowd, estimated at between 100 and 300, was separated from the students by "seventy-five to eighty" armed policemen, including "every available shift of the City Police," the "Sheriff's Office in full complement," and "additional help from the State Police," along with a "fire truck and the Fire Department." As Inspector Trigg testified, they could have handled the crowd Page 379 U. S. 551 This situation, like that in Edwards, is "a far cry from the situation in Feiner v. New York, 340 U. S. 315 ." See Edwards v. South Carolina, supra, at 372 U. S. 236 . Nor is there any evidence here of "fighting words." See Chaplinsky v. New Hampshire, 315 U. S. 568 . Here again, as in Edwards, this evidence "showed no more than that the opinions which . . . [the students] were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection." Edwards v. South Carolina, supra, at 372 U. S. 237 . Conceding this was so, the "compelling answer . . . is that constitutional rights may not be denied simply because of hostility to their assertion or exercise." Watson v. Memphis, 373 U. S. 526 , 373 U. S. 535 . There is an additional reason why this conviction cannot be sustained. The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned," and (2) a refusal to move on after having been ordered to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term "breach of the peace" as "to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet." 244 La. at 1105, 156 So. 2d at 455. In Edwards, defendants had been convicted of a common law crime similarly defined by the South Carolina Supreme Court. Both definitions would allow persons to be punished merely for peacefully expressing unpopular views. Yet, a "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with Page 379 U. S. 552 conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions, and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 5 . In Terminiello, convictions were not allowed to stand, because the trial judge charged that speech of the defendants could be punished as a breach of the peace "'if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.'" Id. at 337 U. S. 3 . The Louisiana statute, as interpreted by the Louisiana court, is at least as likely to allow conviction for innocent speech as was the charge of the trial judge in Terminiello. Therefore, as in Terminiello and Edwards, the conviction under this statute must be reversed, as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly. Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy. As Chief Justice Hughes stated in Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 : "A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment." For all these reasons, we hold that appellant's freedoms of speech and assembly, secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment, were denied by his conviction for disturbing the peace. The conviction on this charge cannot stand Page 379 U. S. 553 III THE OBSTRUCTING PUBLIC PASSAGES CONVICTION We now turn to the issue of the validity of appellant's conviction for violating the Louisiana statute, La.Rev.Stat. § 14:100.1 (Cum.Supp. 1962), which provides: " Obstructing Public Passages " "No person shall willfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, watercraft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein." "Providing however nothing herein contained shall apply to a bona fide legitimate labor organization or to any of its legal activities such as picketing, lawful assembly or concerted activity in the interest of its members for the purpose of accomplishing or securing more favorable wage standards, hours of employment and working conditions." Appellant was convicted under this statute not for leading the march to the vicinity of the courthouse, which the Louisiana Supreme Court stated to have been "orderly," 244 La. at 1096, 156 So. 2d at 451, but for leading the meeting on the sidewalk across the street from the courthouse. Id. at 1094, 1106-1107, 156 So. 2d at 451, 455. In upholding appellant's conviction under this statute, the Louisiana Supreme Court thus construed the statute so as to apply to public assemblies which do not have as their specific purpose the obstruction of traffic. There is no doubt from the record in this case that this far sidewalk was obstructed, and thus, as so construed, appellant violated the statute. Appellant, however, contends that, as so construed and applied in this case, the statute is an unconstitutional Page 379 U. S. 554 infringement on freedom of speech and assembly. This contention, on the facts here presented, raises an issue with which this Court has dealt in many decisions, that is, the right of a State or municipality to regulate the use of city streets and other facilities to assure the safety and convenience of the people in their use and the concomitant right of the people of free speech and assembly. See Lovell v. Griffin, 303 U. S. 444 ; Hague v. CIO, 307 U. S. 496 ; Schneider v. State, 308 U. S. 147 ; Thornhill v. Alabama, 310 U. S. 88 ; Cantwell v. Connecticut, 310 U. S. 296 ; Cox v. New Hampshire, 312 U. S. 569 ; Largent v. Texas, 318 U. S. 418 ; Saia v. New York, 334 U. S. 558 ; Kovacs v. Cooper, 336 U. S. 77 ; Niemotko v. Maryland, 340 U. S. 268 ; Kunz v. New York, 340 U. S. 290 ; Poulos v. New Hampshire, 345 U. S. 395 . From these decisions, certain clear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have Page 379 U. S. 555 the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. See Lovell v. Griffin, supra, at 303 U. S. 451 ; Cox v. New Hampshire, supra, at 312 U. S. 574 ; Schneider v. State, supra, at 308 U. S. 160 -161; Cantwell v. Connecticut, supra, at 310 U. S. 306 -307; Giboney v. Empire Storage & Ice Co., 336 U. S. 490 ; Poulos v. New Hampshire, supra, at 345 U. S. 405 -408; see also Edwards v. South Carolina, supra, at 372 U. S. 236 . We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech. See the discussion and cases cited in No. 49, post at 379 U. S. 563 . We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, at 336 U. S. 502 , that "it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." We have no occasion in this case to consider the constitutionality of the uniform, consistent, and nondiscriminatory application of a statute forbidding all access to streets and other public facilities for parades and meetings. [ Footnote 13 ] Although the statute here involved on its face Page 379 U. S. 556 precludes all street assemblies and parades, [ Footnote 14 ] it has not been so applied and enforced by the Baton Rouge authorities. City officials who testified for the State clearly indicated that certain meetings and parades are permitted in Baton Rouge, even though they have the effect of obstructing traffic, provided prior approval is obtained. This was confirmed in oral argument before this Court by counsel for the State. He stated that parades and meetings are permitted, based on "arrangements . . . made with officials." The statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. Nor are there any administrative regulations on this subject which have been called to our attention. [ Footnote 15 ] From all Page 379 U. S. 557 the evidence before us, it appears that the authorities in Baton Rouge permit or prohibit parades or street meetings in their completely uncontrolled discretion. The situation is thus the same as if the statute itself expressly provided that there could only be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective enforcement. A long line of cases in this Court makes it clear that a State or municipality cannot "require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be . . . disseminate[d]. . . ." Schneider v. State, supra, at 308 U. S. 164 . See Lovell v. Griffin, supra; Hague v. CIO, supra; Largent v. Texas, supra; Saia v. New York, supra; Niemotko v. Maryland, supra; Kunz v. New York, supra. This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor. See Saia v. New York, supra, at 334 U. S. 562 . Also inherent in such a system allowing parades or meetings only with the prior permission of an official is the obvious danger to the right of a person or group not to be denied equal protection of the laws. See Niemotko v. Maryland, supra, at 340 U. S. 272 , 340 U. S. 284 ; cf. Yick Wo v. Hopkins, 118 U. S. 356 . It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the Page 379 U. S. 558 equivalent of such a system by selective enforcement of an extremely broad prohibitory statute. It is, of course, undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration, or manner of use of the streets for public assemblies may be vested in administrative officials, provided that such limited discretion is "exercised with 'uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination' . . . [and with] a 'systematic, consistent and just order of treatment, with reference to the convenience of public use of the highways. . . .'" Cox v. New Hampshire, supra, at 312 U. S. 576 . See Poulos v. New Hampshire, supra. But here it is clear that the practice in Baton Rouge allowing unfettered discretion in local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of appellant's freedom of speech and assembly secured to him by the First Amendment, as applied to the States by the Fourteenth Amendment. It follows, therefore, that appellant's conviction for violating the statute as so applied and enforced must be reversed. For the reasons discussed above the judgment of the Supreme Court of Louisiana is reversed. Reversed. [For concurring opinion of MR. JUSTICE BLACK, see post, p. 379 U. S. 575 .] [For concurring opinion of MR. JUSTICE CLARK, see post, p. 379 U. S. 585 .] [For opinion of MR. JUSTICE WHITE, concurring in part and dissenting in part, see post, p. 379 U. S. 591 .] [ Footnote 1 ] Estimates of the crowd's size varied from 1,500 to 3,800. Two thousand seems to have been the consensus, and was the figure accepted by the Louisiana Supreme Court, 244 La. at 1095, 156 So. 2d at 451. [ Footnote 2 ] There were varying versions in the record as to the time the demonstration would take. The State's version was that Cox asked for seven minutes. Cox's version was that he said his speech would take seven minutes, but that the whole program would take between 17 and 25 minutes. [ Footnote 3 ] The "permission" granted the students to demonstrate is discussed at greater length in No. 49, where its legal effect is considered. [ Footnote 4 ] A few days before, Cox had participated with some of the demonstrators in a "direct nonviolent clinic" sponsored by CORE and held at St. Mark's Church. [ Footnote 5 ] Sheriff Clemmons had no objection to this part of the speech. He testified on cross-examination as follows: "Q. Did you have any objection to that part of his talk?" "A. None whatever. If he would have done what he said, there would have been no trouble at all. The whole thing would have been over and done with." "Q. Did you have any objection to them being assembled on that side of the street while he was making that speech, sir?" "A. I had no objection to it." [ Footnote 6 ] Sheriff Clemmons objected strongly to these words. He testified on cross-examination as follows: "Q. Now, what part of his speech became objectionable to him being assembled there?" "A. The inflammatory manner in which he addressed that crowd and told them to go on up town, go to four places on the protest list, sit down and if they don't feed you, sit there for one hour." [ Footnote 7 ] The exact sequence of these events is unclear from the record, being described differently not only by the State and the defense, but also by the state witnesses themselves. It seems reasonably certain, however, that the response to the singing from the jail, the end of Cox's speech, and the "muttering" and "grumbling" of the white onlookers all took place at approximately the same time. [ Footnote 8 ] Because a claim of constitutionally protected right is involved, it "remains our duty in a case such as this to make an independent examination of the whole record." Edwards v. South Carolina, 372 U. S. 229 , 372 U. S. 235 ; Blackburn v. Alabama, 361 U. S. 199 , 361 U. S. 205 , n. 5; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 ; Fiske v. Kansas, 274 U. S. 380 , 274 U. S. 385 -386. In the area of First Amendment freedoms as well as areas involving other constitutionally protected rights, "we cannot avoid our responsibilities by permitting ourselves to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding." Haynes v. Washington, 373 U. S. 503 , 373 U. S. 515 -516; Stein v. New York, 346 U. S. 156 , 346 U. S. 181 . [ Footnote 9 ] The cheering and shouting were described differently by different witnesses, but the most extravagant descriptions were the following: "a jumbled roar like people cheering at a football game," "loud cheering and spontaneous clapping and screaming and a great hullabaloo," "a great outburst," a cheer of "conquest . . . much wilder than a football game," "a loud reaction, not disorderly, loud," "a shout, a roar," and an emotional response "in jubilation and exhortation." Appellant agreed that some of the group "became emotional" and "tears flowed from young ladies' eyes." [ Footnote 10 ] There is much testimony that the demonstrators were well controlled and basically orderly throughout. G. Dupre Litton, an attorney and witness for the State, testified, "I would say that it was an orderly demonstration. It was too large a group, in my opinion, to congregate at that place at that particular time, which is nothing but my opinion . . . but generally . . . it was orderly." Robert Durham, a news photographer for WBRZ, a state witness, testified that, although the demonstration was not "quiet and peaceful," it was basically "orderly." James Erwin, news director of WIBR, a witness for the State, testified as follows: "Q. Was the demonstration generally orderly?" "A. Yes, Reverend Cox had it very well controlled." On the other hand, there is some evidence to the contrary: Erwin also stated: "Q. Was it orderly up to the point of throwing the tear gas?" "A. No, there was one minor outburst after he called for the sit-ins, and then a minor reaction, and then a loud reaction, not disorderly, loud. . . . A loud reaction when the singing occurred upstairs." And James Dumigan, a police officer, thought that the demonstrators showed a certain disorder by "hollering loud, clapping their hands." But this latter evidence is surely not sufficient, particularly in face of the film, to lead us to conclude that the cheering was so disorderly as to be beyond that held constitutionally protected in Edwards v. South Carolina, supra. [ Footnote 11 ] Moreover, there are not significantly more demonstrators here than in Field v. South Carolina, supra, which involved more than 1,000 students. [ Footnote 12 ] Witnesses who concluded that a breach of the peace was threatened or had occurred based their conclusions not upon the shouting or cheering, but upon the fact that the group was demonstrating at all, upon Cox's suggestion that the group sit in, or upon the reaction of the white onlookers across the street. Rush Biossat, a state witness, testified that, while appellant "didn't say anything of a violent nature," there was "emotional upset," "a feeling of disturbance in the air," and "agitation"; he thought, however, that all this was caused by Cox's remarks about "black and white together." James Erwin, a state witness, and news director of WIBR, testified that there was "considerable stirring" and a "restiveness," but among the white group. He also stated that the reaction of the white group to Cox's speech "was electrifying." "You could hear grumbling from the small groups of white people, some total of two hundred fifty, perhaps . . . and there was a definite feeling of ill will that had sprung up." He was afraid that "violence was about to erupt", but also thought that Cox had his group under control, and did not want violence. G. L. Johnston, a police officer and a witness for the State, felt that the disorderly part of the demonstration was Cox's suggestion that the group sit in. Vay Carpenter, and Mary O'Brien, legal secretaries and witnesses for the State, thought that the mood of the crowd changed at the time of Cox's speech, and became "tense." They thought this was because of the sit-in suggestion. Chief Kling of the Sheriff's office, testifying for the State, said that the situation became one "that was explosive, and one that had gotten to the point where it had to be handled or it would have gotten out of hand"; however, he based his opinion upon "the mere presence of these people in downtown Baton Rouge . . . in such great numbers." Police Captain Font also testified for the State that the situation was "explosive"; he based this opinion on "how they came, such a large group like that, just coming out of nowhere, just coming, filling the streets, filling the sidewalks. We are prepared -- we have traffic officers. We can handle traffic situations if we are advised that we are going to have a traffic situation, if the sidewalk is going to be blocked, if the street is going to be blocked, but we wasn't advised of it. They just came and blocked it." He added that he feared "bloodshed," but based this fear upon "when the Sheriff requested them to move, they didn't move; when they cheered in a conquest type of tone; their displaying of the signs; the deliberate agitation that twenty-five people had been arrested the day before, and then they turned right around and just agitated the next day in the same prescribed manner." He also felt that the students displayed their signs in a way which was "agitating." Inspector Trigg testified for the State that, "from their actions, I figured they were going to try to storm the Courthouse and take over the jail and try to get the prisoners that they had come down here to protest." However, Trigg based his conclusions upon the students' having marched down from the Capitol and paraded in front of the courthouse; he thought they were "violent" because "they continued to march around this Courthouse, and they continued to march down here and do things that disrupts our way of living down here." Sheriff Clemmons testified that the assembly "became objectionable" at the time of Cox's speech. The Sheriff objected to "the inflammatory manner in which he addressed that crowd and told them to go on up town, go to four places on the protest list, sit down and if they don't feed you, sit there for one hour. Prior to that, though, out from under these coats, some signs of -- picketing signs. I don't know what's coming out of there next. It could be anything under a coat. It became inflammatory, and when he gestured, go on up town and take charge of these places . . . of business. That is what they were trying to do is take charge of this Courthouse." A close reading of the record seems to reveal next to no evidence that anyone thought that the shouting and cheering were what constituted the threatened breach of the peace. [ Footnote 13 ] It has been argued that, in the exercise of its regulatory power over streets and other public facilities, a State or municipality could reserve the streets completely for traffic and other facilities for rest and relaxation of the citizenry. See Kovacs v. Cooper, supra, at 336 U. S. 98 (opinion of Mr. Justice Jackson); Kunz v. New York, supra, at 340 U. S. 298 (Mr. Justice Jackson, dissenting). The contrary, however, has been indicated, at least to the point that some open area must be preserved for out-door assemblies. See Hague v. CIO, supra, at 307 U. S. 515 -516 (opinion of Mr. Justice Roberts); Kunz v. New York, supra, at 340 U. S. 293 ; Niemotko v. Maryland, supra, at 340 U. S. 283 (Mr. Justice Frankfurter, concurring). See generally, Poulos v. New Hampshire, supra, at 345 U. S. 403 ; Niemotko v. Maryland, supra, at 340 U. S. 272 -273. [ Footnote 14 ] With the express exception, of course, of labor picketing. This exception points up the fact that the statute reaches beyond mere traffic regulation to restrictions on expression. [ Footnote 15 ] Although cited by neither party, research has disclosed the existence of a local ordinance of Baton Rouge, Baton Rouge City Code, Tit. 11, § 210 (19.57), which prohibits "parade[s] . . . along any street except in accordance with a permit issued by the chief of police. . . ." A similar ordinance was in existence in Fields v. South Carolina, supra. As in Fields , this ordinance is irrelevant to the conviction in this case, as not only was appellant not charged with its violation, but the existence of the ordinance was never referred to by the State in any of the courts involved in the case, including this one, and neither the Louisiana trial court nor the Supreme Court relied on the ordinance in sustaining appellant's convictions under the three statutes here involved. Moreover, since the ordinance apparently sets forth no standards for the determination of the Chief of Police as to which parades to permit or which to prohibit, obvious constitutional problems would arise if appellant had been convicted for parading in violation of it. See the discussion in text above; Lovell v. Griffin, supra, at 303 U. S. 452 -453; Hague v. CIO, supra, at 307 U. S. 518 ; Saia v. New York, supra, at 334 U. S. 559 -560.

The Supreme Court ruled in favor of the appellant, a civil rights leader, and overturned his convictions for peace disturbance and obstructing public passages. The Court held that Louisiana violated the appellant's First and Fourteenth Amendment rights to free speech and assembly by arresting and convicting him for leading a peaceful protest against racial segregation. The Court also found that Louisiana's breach of the peace statute was unconstitutionally vague and overly broad.

Government Agencies

Consolidated Edison Co. v. NLRB

https://supreme.justia.com/cases/federal/us/305/197/

U.S. Supreme Court Consolidated Edison Co. v. Labor Board, 305 U.S. 197 (1938) Consolidated Edison Co. v. National Labor Relations Board No. 19 Argued October 14, 17, 1938 Decided December 5, 1938 305 U.S. 197 ast|>* 305 U.S. 197 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. The power of the Federal Government and the provisions of the National Labor Relations Act extend to the labor relations of public utilities engaged in supplying electrical energy, gas, and steam where the business and activities of the utilities are wholly within a State and where the quantum of service rendered to customers for strictly intrastate uses is vast and greatly preponderant, but where, nevertheless, a part of that service, of much importance in itself, is to railroads, steamships, telegraphs, Page 305 U. S. 198 telephones, etc., engaged in interstate or foreign commerce, and where that commerce would be seriously affected if such service were cut off by industrial strife between the utilities and their employees resulting from unfair labor practices. P. 305 U. S. 219 . Petitioners, an integrated system of public utilities, are engaged in supplying electric energy, gas, and steam (and certain byproducts) within New York City and adjacent Westchester County. They serve over 3,500,000 customers with electricity and gas, largely for residential and domestic purposes. In 1936, they supplied about 97.5 percent. of the total electric energy sold in the City, and about 100 percent. of that sold in the County. They do not sell for resale without the State. They have about 42,000 employees, their total payrolls in 1936, with retirement annuities and separation allowances, amounting to nearly $82,000,000. There is also impressive evidence of the dependence of interstate and foreign commerce upon the continuity of the service of the petitioning companies. Upon that service depend: three railroad companies for the lighting and operation of passenger and freight terminals, and for the movement of interstate trains; the Port of New York Authority for the operation of its terminal and a tunnel between New York and New Jersey; a majority of the piers of transatlantic and coastwise steamship companies along the North and East Rivers, within the City of New York, for lighting, freight handling and related uses; two telegraph companies and a telephone company for power for transmitting and receiving messages, local and interstate; also a transatlantic radio service; an airport, and the Federal Government, for operation of lighthouses, beacons, and harbor lights and for light, heat and power in various federal buildings in New York City. In passing upon the status of these petitioners with respect to the federal power of regulation, the Court does not consider supplies of oil, coal, etc., although very large, which come from without the State and are consumed in the generation and distribution of electric energy and gas. 2. The criterion of the federal constitutional power to suppress unfair labor practices under the National Labor Relations Act is the injurious effect upon interstate and foreign commerce, rather than the source of the injury. P. 305 U. S. 222 . 3. Whether or not particular action in the conduct of intrastate enterprises affects interstate or foreign commerce in such a close and intimate fashion as to be subject to federal control depends upon the particular case. P. 305 U. S. 222 . 4. The fact that a State has the power, and has enacted a statute, to regulate the labor relations of intrastate enterprises in order Page 305 U. S. 199 to prevent interruption of their services through industrial disputes cannot affect the constitutional power of the Federal Government to regulate those relations in order to protect interstate and foreign commerce from the injury due to such interruption. P. 305 U. S. 222 . 5. But where, in such cases, the authority of the National Labor Relations Board is invoked to protect interstate and foreign commerce from interference or injury arising from the employers' intrastate activities, the question whether the alleged unfair labor practices do actually threaten interstate or foreign commerce in a substantial manner is necessarily presented. And, in determining that factual question, regard should be had to all the existing circumstances, including the bearing and effect of any protective action to the same end already taken under state authority. The justification for the exercise of federal power should clearly appear. But the question in such a case would relate not to the existence of the federal power, but to the propriety of its exercise on a given state of facts. P. 305 U. S. 223 . The present proceeding was begun before the New York Labor Relations Act became effective, and there was no exertion of state authority which could be taken to remove the need for the exertion of federal authority to protect interstate and foreign commerce. The exercise of the federal power to protect interstate and foreign commerce from injury does not depend upon a clash with state action, and need not await the exercise of state authority. 6. Amendments to the complaint in a proceeding before the National Labor Relations Board held discretionary rulings affording no ground for challenging the validity of the hearing. P. 305 U. S. 224 . 7. A refusal by the National Labor Relations Board to permit the respondent employers to adduce certain additional testimony, highly important, which could have been received without undue delay held unreasonable and arbitrary. P. 305 U. S. 225 . 8. Where the National Labor Relations Board, in abuse of its discretion, refuses to receive important additional testimony which could have been received without undue delay of the proceeding, the injured party has his remedy by application to the Circuit Court of Appeals, upon review of the order, for leave to adduce the additional evidence under § 10(e)(f) of the Act. P. 305 U. S. 226 . 9. After the taking of the evidence by a trial examiner, in a case under the National Labor Relations Act, the employers filed a brief with him. Several weeks later, the case was transferred to the Board. The examiner made no tentative report or findings, Page 305 U. S. 200 and there was no opportunity for a hearing before the Board itself before the Board made its decision. Held: (1) That it must be assumed that the Board received and considered the brief. P. 305 U. S. 226 . (2) Under the rules of the Board, the employers desiring an oral hearing should have requested it after the transfer to the Board. P. 305 U. S. 228 . (3) Though it cannot be said on this record that the Board did not consider the evidence or the petitioner's brief or failed to make its own findings in the light of that evidence and argument, it would have been better practice for the Board to have directed the examiner to make a tentative report with an opportunity for exceptions and argument thereon. P. 305 U. S. 228 . 10. In providing that "the findings of the Board as to the facts, if supported by evidence, shall be conclusive," the Act means supported by substantial evidence -- such evidence as a reasonable mind might accept as adequate to support a conclusion. P. 305 U. S. 229 . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling." The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules, so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. 11. The National Labor Relations Board is authorized to bar the resumption of an unfair labor practice which has lately been abandoned. P. 305 U. S. 230 . The Court is satisfied from the evidence in this case that the order of the Board, insofar as it required employer companies to desist from certain discriminating and coercive practices, and to reinstate certain employees, with back pay, and to post notices assuring freedom from discrimination and coercion, rested upon findings sustained by the evidence, and that the decree of the Court of Appeals enforcing the order in these respects should be affirmed. 12. In a proceeding in which the National Labor Relations Board found employer companies guilty of unfair labor practices violating § 8(1) and (3) of the National Labor Relations Act, but exculpated them from alleged violation of § 8(2), which makes it an Page 305 U. S. 201 unfair labor practice "to dominate or interfere with the formation or administration of any labor organization or contribute financial support to it," the Board nevertheless attempted, in its order, to set aside agreements which had been made, pending the proceeding, between the companies and a Brotherhood of workers and its local unions, all independent organizations not under the companies' control. These agreements stipulated that the Brotherhood should be the collective bargaining agency of those of the companies' employees who were its members (comprising 80% of all the companies' employees out of 38,000 eligible for membership), and that the Brotherhood and its members would not intimidate or coerce employees into membership in the Brotherhood or solicit membership on the time or property of the employers. They also provided against strikes or lockouts, and for the adjustment and arbitration of labor disputes, thus insuring against the disruption of the service of the companies to interstate or foreign commerce through an outbreak of industrial strife. It was conceded that the contracts were fair to both employer and employee. Held, that so much of the Board's order as forbade the companies to give effect to such agreements was beyond its authority. Pp. 305 U. S. 231 , 305 U. S. 238 . (1) The Brotherhood and its locals, having valuable and beneficial interests in the contracts, were entitled to notice and hearing before they could be set aside. Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 , distinguished. P. 305 U. S. 232 . (2) Notice of the complaint, in which the legality of the companies' "relations" with the Brotherhood was attacked, but not the validity of the contracts, did not place the unions under a duty to intervene before the Board in order to safeguard their interests in the contracts. P. 305 U. S. 234 . (3) The rule that due process does not require an opportunity to be heard before judgment if defenses may be presented upon appeal assumes that the appellate review affords opportunity to present all available defenses, including lack of proper notice to justify the judgment or order complained of. P. 305 U. S. 234 . (4) The validity of the contracts was not necessarily in issue because of the charges of unfair labor practices in the Board's complaint, and amendment of the companies' answer, stating that the contracts had made the proceeding moot, did not put them in issue before the Board. P. 305 U. S. 234 . (5) The Act gives no express authority to the Board to invalidate contracts with independent labor organizations. The authority Page 305 U. S. 202 granted by § 10(c) to require that an employer guilty of unfair labor practices desist from such practices, and "take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act," is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act. P. 305 U. S. 235 . Here, there is no basis for a finding that the contracts with the Brotherhood and its locals were a consequence of the unfair labor practices found by the Board, or that these contracts, in themselves, thwart any policy of the Act, or that their cancellation would in any way make the order to cease the specified practices any more effective. (6) The contracts were not invalid because made during the pendency of the Board's proceeding. P. 305 U. S. 237 . The effect of such pendency extends to the practices of the employers to which the complaint was addressed. It did not suspend the right of the employees to self-organization, or preclude the Brotherhood, as an independent organization chosen by its members, from making fair contracts on their behalf. (7) The contention of the Board that the contracts were the fruit of the unfair labor practices of the employers -- "a device to consummate and perpetuate" the companies' illegal conduct, and constituted its culmination -- is rejected as entirely too broad and as not within the complaint and proof, but based on mere conjecture. P. 305 U. S. 238 . (8) A provision of the Board's order requiring the companies to cease recognizing the Brotherhood "as the exclusive representative of their employees" is construed as merely providing that there shall be no interference with an exclusive bargaining agency if one other than the Brotherhood should be established in accordance with the provisions of the Act, and is sustained as merely an application of existing law. P. 305 U. S. 239 . 95 F.2d 390 affirmed with modification. Certiorari, 304 U.S. 555, to review a judgment enforcing an order of the National Labor Relations Board. See 4 N.L.R.B. 71. The case was before the court below upon a petition to set aside the order, brought by the Consolidated Edison Company of New York and its affiliates, and a like petition by the International Brotherhood Page 305 U. S. 203 of Electrical Workers and its locals, which intervened in that court, and upon the Board's petition to enforce, supported by the United Electrical and Radio Workers of America, which also intervened in that court. Page 305 U. S. 217 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. The United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, filed a charge, on May 5, 1937, with the National Labor Relations Board that the Consolidated Edison Company of New York and its affiliated companies were interfering with the right of their employees to form, join, or assist labor organizations of their own choosing, and were contributing financial and other support, in the manner described, to the International Brotherhood of Electrical Workers, an affiliate of the American Federation of Labor. The Board issued its complaint, and the employing companies, appearing specially, challenged its jurisdiction. On the denial of their request that this question be determined initially, the companies filed answers reserving their jurisdictional objections. After the taking of evidence before a trial examiner, the proceeding was transferred to the Board, which, on November 10, 1937, made its findings and order. The order directed the companies to desist from labor practices found to be unfair and in violation of §§ 8(1) and (3) of the National Labor Relations Act, [ Footnote 1 ] directed reinstatement of six discharged employees with back pay, and required the posting of notices to the effect that the companies would cease the described practices and that their employees were free to join or assist any labor organization Page 305 U. S. 218 for the purpose of collective bargaining, and would not be subject to discharge or to any discrimination by reason of their choice. 4 N.L.R.B. 71. It appeared that, between May 28, 1937, and June 16, 1937, the companies had entered into agreements with the International Brotherhood of Electrical Workers and its local unions providing for the recognition of the Brotherhood as the collective bargaining agency for those employees who were its members and containing various stipulations as to hours, working conditions, wages, etc., and for arbitration in the event of disputes. The Board found that these contracts were executed under such circumstances that they were invalid, and required the companies to desist from giving them effect. Id. At the same time, the Board decided that the companies had not engaged in unfair labor practices within the meaning of § 8(2) of the Act. [ Footnote 2 ] That clause makes it an unfair labor practice to "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." Accordingly, the order dismissed the complaint, so far as it alleged a violation of § 8(2), without prejudice. Id. The companies petitioned the Circuit Court of Appeals to set aside the order, and a petition for the same purpose was presented by the Brotherhood and its locals. These labor organizations had not been parties to the proceeding before the Board, but intervened in the Circuit Court of Appeals as parties aggrieved by the invalidation of their contracts. The Board, in turn, asked the court to enforce the order. The United Electrical and Radio Workers of America appeared in support of the Board. The court granted the Board's petition. 95 F.2d 390. We issued writs of certiorari upon applications of the companies (No.19) and of the Brotherhood and its locals (No. 25). Page 305 U. S. 219 The questions presented relate (1) to the jurisdiction of the Board; (2) to the fairness of the hearing; (3) to the sufficiency of the evidence to sustain the findings of the Board with respect to coercive practices, discrimination, and the discharge of employees, and (4) to the invalidation of the contracts with the Brotherhood and its locals. The pertinent facts will be considered in connection with our discussion of these questions. First. The jurisdiction of the Board. That is, was the proceeding within the scope of its authority validly conferred? The petitioning companies constitute an integrated system. With the exception of one company which maintains underground ducts for electrical conductors in New York City, they are all public utilities engaged in supplying electric energy, gas, and steam (and certain byproducts) within that City and adjacent Westchester County. The enterprise is one of great magnitude. The companies serve over 3,500,000 electric and gas customers -- a large majority using the service for residential and domestic purposes. In 1936, the companies supplied about 97.5 percent of the total electric energy sold in the City of New York and about one hundred percent of that sold in Westchester County. They do not sell for resale without the State. They have about 42,000 employees, their total payrolls in 1936, with retirement annuities and separation allowances, amounting to nearly $82,000,000. Petitioners urge that these predominant intrastate activities, carried on under the plenary control of the New York in the exercise of its police power, are not subject to federal authority. It does not follow, however, because these operations of the utilities are of vast concern to the people of the City and New York, that they do not also involve the interests of interstate and foreign commerce in such a degree that the Federal Page 305 U. S. 220 Government was entitled to intervene for their protection. For example, the governance of the intrastate rates of a railroad company may be of great importance to the State and an appropriate object of the exertion of its power, but the Federal Government may still intervene to protect interstate commerce from injury caused by intrastate operations, and, to that end, may override intrastate rates and supply a dominant federal rule. The Shreveport Case, 234 U. S. 342 ; Wisconsin Railroad Comm'n v. Chicago, B. & Q. R. Co., 257 U. S. 563 ; New York v. United States, 257 U. S. 591 . See also Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 301 U. S. 37 -41. In the present instance, we may lay on one side, as did the Circuit Court of Appeals, the mere purchases by the utilities of the supplies of oil, coal, etc., although very large, which come from without the State and are consumed in the generation and distribution of electric energy and gas. Apart from those purchases, there is undisputed and impressive evidence of the dependence of interstate and foreign commerce upon the continuity of the service of the petitioning companies. They supply electric energy to the New York Central Railroad Company, the New York, New Haven, and Hartford Railroad Company, and the Hudson and Manhattan Railroad Company (operating a tunnel service to New Jersey) for the lighting and operation of passenger and freight terminals and for the movement of interstate trains. They supply the Port of New York Authority with electric energy for the operation of its terminal and the Holland Tunnel. They supply a majority of the piers of trans-Atlantic and coastal steamship companies along the North and East Rivers, within the City of New York, for lighting, freight handling and related uses. They serve the Western Union Telegraph Company, the Postal Telegraph Company, and the New York Telephone Company Page 305 U. S. 221 with power for transmitting and receiving messages, local and interstate. They supply electric energy for the trans-Atlantic radio service of the Radio Corporation of America. They provide electric energy for the Floyd Bennett Air Field in Brooklyn for various purposes, including field illumination, a radio beam, and obstruction lighting. Under contracts with the Federal Government, they supply electric energy for six lighthouses and eight beacon or harbor lights; also light, heat, and power for the general post office and branch post offices, the United States Barge Office, the Customs House, appraisers' warehouse, and various federal office buildings. It cannot be doubted that these activities, while conducted within the State, are matters of federal concern. In their totality, they rise to such a degree of importance that the fact that they involve but a small part of the entire service rendered by the utilities in their extensive business is immaterial in the consideration of the existence of the federal protective power. The effect upon interstate and foreign commerce of an interruption through industrial strife of the service of the petitioning companies was vividly described by the Circuit Court of Appeals in these words: "Instantly, the terminals and trains of three great interstate railroads would cease to operate; interstate communication by telegraph, telephone, and radio would stop; lights maintained as aids to navigation would go out, and the business of interstate ferries and of foreign steamships, whose docks are lighted and operated by electric energy, would be greatly impeded. Such effects we cannot regard as indirect and remote." 95 F.2d 390, 394. If industrial strife due to unfair labor practices actually brought about such a catastrophe, we suppose that no one would question the authority of the Federal Government to intervene in order to facilitate the settlement of the dispute and the resumption of the essential service to interstate Page 305 U. S. 222 and foreign commerce. But it cannot be maintained that the exertion of federal power must await the disruption of that commerce. Congress was entitled to provide reasonable preventive measures, and that was the object of the National Labor Relations Act. Congress did not attempt to deal with particular instances. It created for that purpose the National Labor Relations Board. In conferring authority upon that Board, Congress had regard to the limitations of the constitutional grant of federal power. Thus, the "commerce" contemplated by the Act (aside from that within a Territory or the District of Columbia) is interstate and foreign commerce. The unfair labor practices which the Act purports to reach are those affecting that commerce. § 10(a). [ Footnote 3 ] In determining the constitutional bounds of the authority conferred, we have applied the well settled principle that it is the effect upon interstate or foreign commerce, not the source of the injury, which is the criterion. It is not necessary to repeat what we said upon this point in the review of our decisions in the case of Labor Board v. Jones & Laughlin Steel Corp,, supra. And whether or not particular action in the conduct of intrastate enterprises does affect that commerce is such a close and intimate fashion as to be subject to federal control is left to be determined as individual cases arise. Id.; see also Santa Cruz Fruit Packing Co. v. Labor Board, 303 U. S. 453 , 303 U. S. 466 -467. Petitioners urge that the legislature of New York has enacted comprehensive and adequate measures to protect against the interruption of petitioners' services through labor disputes. Not only has the State long had legislation relating to the operations of public utility companies (Public Service Law) but the legislature has recently enacted the New York State Labor Relations Page 305 U. S. 223 Act (Laws of 1937, Chapter 443, effective July 1, 1937), which provides a complete supervision of labor relations for employers in intrastate enterprises similar to that set up by the National Labor Relations Act with respect to interstate or foreign commerce. The state act, with added details, follows closely the national act. The state act provides for collective bargaining, including the conduct of elections to determine the representation of employees, and empowers the state Labor Relations Board to prevent unfair labor practices. In seeking to avoid a clash with federal authority, the state act is made inapplicable "to the employees of any employer who concedes to and agrees with the board that such employees are subject to and protected by the provisions of the national labor relations act or the federal railway labor act. [ Footnote 4 ]" It is manifest that the enactment of this state law could not override the constitutional authority of the Federal Government. The State could not add to or detract from that authority. But it is also true that, where the employers are not themselves engaged in interstate or foreign commerce, and the authority of the National Labor Relations Board is invoked to protect that commerce from interference or injury arising from the employers' intrastate activities, the question whether the alleged unfair labor practices do actually threaten interstate or foreign commerce in a substantial manner is necessary presented. And, in determining that factual question, regard should be had to all the existing circumstances, including the bearing and effect of any protective action to the same end already taken under state authority. The justification for the exercise of federal power should clearly appear. Florida v. United States, 282 U. S. 194 , 282 U. S. 211 -212. But the question in such a case would relate not to the existence of the federal Page 305 U. S. 224 power, but to the propriety of its exercise on a given state of facts. In the instant case, not only was this proceeding instituted before the New York Labor Relations Act became effective, but, so far as appears, no proceedings have been taken under it in relation to the unfair labor practices here alleged. For the present purpose, it is sufficient to say that there has been no exertion of state authority which can be taken to remove the need for the exertion of federal authority to protect interstate and foreign commerce. The exercise of the federal power to protect interstate and foreign commerce from injury does not depend upon a clash with state action, and need not await the exercise of state authority. We conclude that the Board had authority to entertain this proceeding against the petitioning companies. Second. The fairness of the hearing -- procedural due process. Apart from the action of the Board with respect to the Brotherhood contracts, which we shall consider separately, the contentions under this head relate (1) to amendments of the complaint, (2) to the refusal to hear certain witnesses, and (3) to the transfer of the proceeding to the Board and its determination without an intermediate report or opportunity for hearing upon proposed findings. The original complaint related to the discharge of five employees, and alleged unfair labor practices in the employment of industrial spies and undercover operatives, in allowing employees to solicit membership in the Brotherhood during working hours and on the property of the companies, in compensating such employees while so engaged, and in furnishing them office space and financial assistance while refusing such privileges to the United, and generally in coercion of the employees to join the Page 305 U. S. 225 Brotherhood. The amendments were made from time to time in the course of the hearing. In particular, they added another employee to those alleged to have been wrongfully discharged, and supplied an omitted allegation that the other unfair labor practices affected commerce. At the close of the evidence, the trial examiner granted a motion to conform the pleadings to the proof on the statement of the attorney for the Board that no important change was intended, and that the amendment was sought merely to make more definite and certain what appeared in the complaint. These were discretionary rulings which afford no ground for challenging the validity of the hearing. A more serious question grows out of the refusal to receive the testimony of certain witnesses. The taking of evidence began on June 3, 1937, and was continued from time to time until June 23d, when the attorney for the Board unexpectedly announced that its case would probably be closed on the following day. At that time, the Board completed its proof, with the reservation of one matter, and, at the request of the companies' counsel, the hearing was adjourned until July 6th in order that Mr. Carlisle, the chairman of the board of trustees of the Consolidated Edison Company, and Mr. Dean, the vice-president of one of its affiliates, who were then unavailable, could testify. In response to the examiner's inquiry, the companies' counsel stated that the direct examination of all witnesses on their behalf would not occupy more than a day. On July 6th, the testimony of Mr. Carlisle and Mr. Dean was taken, and the companies also offered the testimony of two other witnesses (then present in the hearing room) in relation to the discharge of the employee with respect to whom the complaint had been amended as above stated. The examiner refused to receive this testimony following a ruling of the Board (made in the Page 305 U. S. 226 course of correspondence with the companies' counsel during the adjournment) to the effect that no other testimony than that of Mr. Carlisle and Mr. Dean would be received on the adjourned day. An offer of proof was made which showed the testimony to be highly important with respect to the reasons for the discharge. It was brief, and could have been received at once without any undue delay in the closing of the hearing. We agree with the Circuit Court of Appeals that the refusal to receive the testimony was unreasonable and arbitrary. Assuming, as the Board contends, that it had a discretionary control over the conduct of the proceeding, we cannot but regard this action as an abuse of discretion. But the statute did not leave the petitioners without remedy. The court below pointed to that remedy -- that is, to apply to the Circuit Court of Appeals for leave to adduce the additional evidence; on such an application and a showing of reasonable grounds, the court could have ordered it to be taken. § 10(e)(f). [ Footnote 5 ] Petitioners did not avail themselves of this appropriate procedure. Shortly after the evidence was closed, the counsel for the petitioning companies filed a brief with the trial examiner. Several weeks later, on September 29th, the proceeding was transferred to the Board. The examiner made no tentative report or findings, and there was no opportunity for a hearing before the Board itself. It must be assumed, however, that the brief for the companies was transmitted to the Board and was considered by it in making its decision. The Board contends that the companies submitted their brief without asking for an oral argument, as contemplated by the Board's rule (Rule 29), or for an intermediate report, and hence that they are not in a position to complaint on either score. Page 305 U. S. 227 The Board also insists that, after the transfer of the proceeding, it was within the discretion of the Board to adopt any one of the courses of procedure enumerated in its rule (Rule 38), [ Footnote 6 ] of which petitioners were informed by the Page 305 U. S. 228 service of a copy of the Board's rules at the beginning of the proceeding. Petitioners say that, at the very outset, they had asked, on their special appearance, for a hearing before the Board upon the question of its jurisdiction, and that all proceedings be transferred to the Board, and that the rules induced the belief that, after the transfer to the Board at the close of the evidence, there would be further proceedings at which they would be heard. But we cannot say that the rules justified that expectation or dispensed with the necessity, after the transfer, of a suitable request by the petitioners for such additional hearing as they desired. It does not appear that such request was made. It cannot be said that the Board did not consider the evidence or the petitioners' brief or failed to make its own findings in the light of that evidence and argument. It would have been better practice for the Board to have directed the examiner to make a tentative report with an opportunity for exceptions and argument thereon. But, aside from the question of the Brotherhood contracts, we find no basis for concluding that the issues and contentions were not clearly defined, and that the petitioning companies were not fully advised of them. Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333 , 304 U. S. 350 -351. The points raised as to the lack Page 305 U. S. 229 of procedural due process in this relation cannot be sustained. Third. The sufficiency of the evidence to sustain the findings of the Board with respect to coercive practices, discrimination and discharge of employees. The companies contend that the Court of Appeals misconceived its power to review the findings and, instead of searching the record to see if they were sustained by "substantial" evidence, merely considered whether the record was "wholly barren of evidence" to support them. We agree that the statute, in providing that "the findings of the Board as to the facts, if supported by evidence, shall be conclusive," § 10(e), means supported by substantial evidence. Washington, V. & M. Coach Co. v. Labor Board, 301 U. S. 142 , 301 U. S. 147 ,. Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Appalachian Electric Power Co. v. Labor Board, 93 F.2d 985, 989; Labor Board v. Thompson Products, 97 F.2d 13, 15; Ballston-Stillwater Knitting Co. v. Labor Board, 98 F.2d 758, 760. We do not think that the Circuit Court of Appeals intended to apply a different test. In saying that the record was not "wholly barren of evidence" to sustain the finding of discrimination, we think that the court referred to substantial evidence. Ballston-Stillwater Knitting Co. v. Labor Board, supra. The companies urge that the Board received "remote hearsay" and "mere rumor." The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling." [ Footnote 7 ] The obvious purpose of this and similar provisions is to free administrative Page 305 U. S. 230 boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. Interstate Commerce Comm'n v. Baird, 194 U. S. 25 , 194 U. S. 44 ; Interstate Commerce Comm'n v. Louisville & Nashville R. Co., 227 U. S. 88 , 227 U. S. 93 ; United States v. Abilene & Southern Ry. Co., 265 U. S. 274 , 265 U. S. 288 ; Tagg Bros. & Moorhead v. United States, 280 U. S. 420 , 280 U. S. 442 . But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. Applying these principles, we are unable to conclude that the Board's findings in relation to the matters now under consideration did not have the requisite foundation. With respect to industrial espionage, the companies say that the employment of "outside investigating agencies" of any sort had been voluntarily discontinued prior to November, 1936, but the Board rightly urges that it was entitled to bar its resumption. Compare Federal Trade Comm'n v. Goodyear Tire & Rubber Co., 304 U. S. 257 , 304 U. S. 260 . In relation to the other charges of unfair labor practices, the companies point to the statement of Mr. Carlisle at a large meeting of the employees in April, 1937, when the recognition of the Brotherhood was under discussion, that the employees were absolutely free to join any labor organization -- that they could do as they pleased. Despite this statement, and assuming, as counsel for the companies urges, that, where two independent labor organizations seek recognition, it cannot be said to be an unfair labor practice for the employer merely to express preference of one organization over the other, by reason of the former's announced policies, in the absence of any attempts at intimidation or coercion, we think that there was still substantial evidence that such attempts were made in this case. Page 305 U. S. 231 It would serve no useful purpose to lengthen this opinion by detailing the testimony. We are satisfied that the provisions of the order requiring the companies to desist from the discriminating and coercive practices described in subdivisions (a) to (e) inclusive and in subdivision (h) of paragraph one of its order, [ Footnote 8 ] and to reinstate the six employees mentioned with back pay, and to post notices assuring freedom from discrimination and coercion as provided in paragraph two of the order, rested upon findings sustained by the evidence, and that the decree of the Circuit Court of Appeals enforcing the order in these respects should be affirmed. Fourth. The Brotherhood contracts. The findings of the Board that the contracts with the Brotherhood and its locals were invalid, and the Board's order requiring the companies to desist from giving effect to these contracts, present questions of major importance. We approach them in the light of three cardinal considerations. One is that the Brotherhood and its locals are labor organizations Page 305 U. S. 232 independently established as affiliates of the American Federation of Labor and are not under the control of the employing companies. So far as there was any charge, under § 8(2) of the Act, that the employing companies had dominated or interfered with the formation or administration of any labor organization or had contributed financial or other support to it, the charge was dismissed. Another consideration is that the contracts recognize the right of employees to bargain collectively; they recognize the Brotherhood as the collective bargaining agency for the employees who belong to it, and the Brotherhood agrees for itself and its members not to intimidate or coerce employees into membership in the Brotherhood and not to solicit membership on the time or property of the employers. The third consideration is that the contracts contain important provisions with regard to hours, working conditions, wages, sickness, disability, etc., and also provide against strikes or lockouts and for the adjustment and arbitration of labor disputes, thus constituting insurance against the disruption of the service of the companies to interstate or foreign commerce through an outbreak of industrial strife. It is not contended that these provisions are unreasonable or oppressive, but, on the contrary, it was virtually conceded at the bar that they are fair to both the employers and employees. It also appears from the evidence, which was received without objection, that the Brotherhood and its locals comprised over 30,000, or 80 percent, of the companies' employees out of 38,000 eligible for membership. The Brotherhood and its locals contend that they were indispensable parties, and that, in the absence of legal notice to them or their appearance, the Board had no authority to invalidate the contracts. The Board contests this position, invoking our decision in Labor Board v. Pennsylvania Greyhound Lines , 303 Page 305 U. S. 233 U.S. 261. That case, however, is not apposite, as there no question of contract between employer and employee was involved. The Board had found upon evidence that the employer had created and fostered the labor organization in question and dominated its administration in violation of § 8(2). The statement that the "Association" so formed and controlled was not entitled to notice and hearing was made in that relation. Id., pp. 303 U. S. 262 , 303 U. S. 270 -271. It has no application to independent labor unions such as those before us. We think that the Brotherhood and its locals having valuable and beneficial interests in the contracts were entitled to notice and hearing before they could be set aside. Russell v. Clark's Executors , 7 Cranch 69, 11 U. S. 96 ; Mallow v. Hinde , 12 Wheat. 193, 25 U. S. 198 ; Minnesota v. Northern Securities Co., 184 U. S. 199 , 184 U. S. 235 ; Garzot v. Rios de Rubio, 209 U. S. 283 , 209 U. S. 297 ; General Investment Co. v. Lake Shore & M. S. Co., 260 U. S. 261 , 260 U. S. 285 . The rule, which was applied in the cases cited to suits in equity, is not of a technical character, but rests upon the plainest principle of justice, equally applicable here. See Mallow v. Hinde, supra. The Board urges that the National Labor Relations Act does not contain any provision requiring these unions to be made parties; that § 10(b) [ Footnote 9 ] authorizes the Board to serve a complaint only upon persons charged with unfair labor practices, and that only employers can be so charged. In that view, the question would at once arise whether the Act could be construed as authorizing the Board to invalidate the contracts of independent labor unions not before it, and also as to the validity of the Act if so construed. But the Board contends that the Brotherhood had notice, referring to the service of a copy of the complaint and notice of hearing upon a local union of the Brotherhood on May 12, 1937, and of an amended notice of hearing Page 305 U. S. 234 on May 25, 1937. Petitioners rejoin that the service was not upon a local whose rights were affected, but upon one whose members were not employees of the companies' system. The Board says, however, that the Brotherhood, and the locals which were involved, had actual notice, and hence were entitled to intervene, § 10(b), and chose not to do so. But neither the original complaint, which antedated the contracts, nor the subsequent amendments contained any mention of them, and the Brotherhood and its locals were not put upon notice that the validity of the contracts was under attack. The Board contends that the complaint challenged the legality of the companies' "relations" with the Brotherhood. But what was thus challenged cannot be regarded as going beyond the particular practices of the employers and the discharges which the complaint described. In these circumstances, it cannot be said that the unions were under a duty to intervene before the Board in order to safeguard their interests. The Board urges further that the unions have availed themselves of the opportunity to petition for review of the Board's order in the Circuit Court of Appeals, and that due process does not require an opportunity to be heard before judgment, if defenses may be presented upon appeal. York v. Texas, 137 U. S. 15 , 137 U. S. 20 -21; American Surety Co. v. Baldwin, 287 U. S. 156 , 287 U. S. 168 ; Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 289 U. S. 384 . But this rule assumes that the appellate review does afford opportunity to present all available defenses, including lack of proper notice, to justify the judgment or order complained of. Id. Apart from this question of notice to the unions, both the companies and the unions contend that, upon the case made before the Board, it had no authority to invalidate the contracts. Both insist that that issue was not actually litigated, and the record supports that contention. The argument to the contrary, that the contracts Page 305 U. S. 235 were necessarily in issue because of the charge of unfair labor practices against the companies, is without substance. Not only did the complaint, as amended, fail to assail the contracts, but it was stated by the attorney for the Board upon the hearing that the complaint was not directed against the Brotherhood; that "no issue of representation [was] involved in this proceeding;" and that the Board took the position that the Brotherhood was "a bona fide labor organization" whose legality was not attacked. But the Board says that, on July 6th (the last of the contracts having been made on June 16th), the companies amended their answer stating that the making of the contracts had rendered the proceeding moot, and that this necessarily put the contracts in issue. We cannot so regard it. We think that the fair construction of the position thus taken on the last day of the hearings was entirely consistent with the view that the validity of the contracts had not been, and was not, in issue. And the counsel for the companies point to their brief before the Board, which they produce, as proceeding on the basis that the validity of the contracts had not been assailed. Further, the Act gives no express authority to the Board to invalidate contracts with independent labor organizations. That authority, if it exists, must rest upon the provisions of § 10(c). [ Footnote 10 ] That section authorizes the Board, when it has found the employer guilty of unfair labor practices, to require him to desist from such practices "and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." We think that this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose Page 305 U. S. 236 because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order. The power to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act. The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence or violation of the Act whose continuance thwarts the purposes of the Act and renders ineffective any order restraining the unfair practices. Compare Labor Board v. Pennsylvania Greyhound Lines, supra. Here, there is no basis for a finding that the contracts with the Brotherhood and its locals were a consequence of the unfair labor practices found by the Board, or that these contracts, in themselves, thwart any policy of the Act, or that their cancellation would in any way make the order to cease the specified practices any more effective. The Act contemplates the making of contracts with labor organizations. That is the manifest objective in providing for collective bargaining. Under § 7, [ Footnote 11 ] the employees of the companies are entitled to self-organization, to join labor organizations, and to bargain collectively through representatives of their own choosing. The 80 percent of the employees who were members of the Brotherhood and its locals had that right. They had the right to choose the Brotherhood as their representative for collective bargaining, and to have contracts made as the result of that bargaining. Nothing that the employers had done deprived them of that right. Nor did the contracts make the Brotherhood and its locals exclusive representatives Page 305 U. S. 237 for collective bargaining. On this point, the contracts speak for themselves. They simply constitute the Brotherhood the collective bargaining agency for those employees who are its members. The Board, by its order, did not direct an election to ascertain who should represent the employees for collective bargaining. § 9(c). [ Footnote 12 ] Upon this record, there is nothing to show that the employees' selection as indicated by the Brotherhood contracts has been superseded by any other selection by a majority of employees of the companies so as to create an exclusive agency for bargaining under the statute, and, in the absence of such an exclusive agency, the employees represented by the Brotherhood, even if they were a minority, clearly had the right to make their own choice. Moreover, the fundamental purpose of the Act is to protect interstate and foreign commerce from interruptions and obstructions caused by industrial strife. This purpose appears to be served by these contracts in an important degree. Representing such a large percentage of the employees of the companies, and precluding strikes and providing for the arbitration of disputes, these agreements are highly protective to interstate and foreign commerce. They contain no terms which can be said to "affect commerce" in the sense of the Act, so as to justify their abrogation by the Board. The disruption of these contracts, even pending proceedings to ascertain by an election the wishes of the majority of employees, would remove that salutary protection during the intervening period. The Board insists that the contracts are invalid because made during the pendency of the proceeding. But the effect of that pendency would appropriately extend to the practices of the employers to which the complaint was addressed. See Jones v. Securities and Exchange Comm'n, 298 U. S. 1 , 298 U. S. 15 . It did not reach so far as to suspend Page 305 U. S. 238 the right of the employees to self-organization or preclude the Brotherhood as an independent organization chosen by its members from making fair contracts on their behalf. Apart from this, the main contention of the Board is that the contracts were the fruit of the unfair labor practices of the employers; that they were "simply a device to consummate and perpetuate" the companies' illegal conduct and constituted its culmination. But, as we have said, this conclusion is entirely too broad to be sustained. If the Board intended to make that charge, it should have amended its complaint accordingly, given notice to the Brotherhood, and introduced proof to sustain the charge. Instead, it is left as a matter of mere conjecture to what extent membership in the Brotherhood was induced by any illegal conduct on the part of the employers. The Brotherhood was entitled to form its locals, and their organization was not assailed. The Brotherhood and its locals were entitled to solicit members, and the employees were entitled to join. These rights cannot be brushed aside as immaterial, for they are of the very essence of the rights which the Labor Relations Act was passed to protect, and the Board could not ignore or override them in professing to effectuate the policies of the Act. To say that of the 30,000 who did join there were not those who joined voluntarily, or that the Brotherhood did not have members whom it could properly represent in making these contracts, would be to indulge an extravagant and unwarranted assumption. The employers' practices which were complained of could be stopped without imperiling the interests of those who, for all that appears, had exercised freely their right of choice. We conclude that the Board was without authority to require the petitioning companies to desist from giving effect to the Brotherhood contracts, as provided in subdivision (f) of paragraph one of the Board's order. Page 305 U. S. 239 Subdivision (g) of that paragraph, requiring the companies to cease recognizing the Brotherhood "as the exclusive representative of their employees," stands on a different footing. The contracts do not claim for the Brotherhood exclusive representation of the companies' employees, but only representation of those who are its members, and the continued operation of the contracts is necessarily subject to the provision of the law by which representatives of the employees, for the purpose of collective bargaining, can be ascertained in case any question of "representation" should arise. § 9. [ Footnote 13 ] We construe subdivision (g) as having no more effect than to provide that there shall be no interference with an exclusive bargaining agency if one other than the Brotherhood should be established in accordance with the provisions of the Act. So construed, that subdivision merely applies existing law. The provision of paragraph two of the order as to posting notices should be modified so as to exclude any requirement to post a notice that the existing Brotherhood contracts have been abrogated. The decree of the Circuit Court of Appeals is modified so as to hold unenforceable the provision of subdivision (f) of paragraph one of the order and the application to that provision of paragraph two subdivision (c), and, as so modified, the decree enforcing the order of the Board is affirmed. Modified and affirmed. * Together with No. 25, International Brotherhood of Electrical Workers et al. v. Labor Board et al., also on writ of certiorari to the Circuit Court of Appeals for the Second Circuit. [ Footnote 1 ] 49 Stat. 449; 29 U.S.C. §§ 158(1), (3). [ Footnote 2 ] 29 U.S.C. § 158(2). [ Footnote 3 ] 29 U.S.C. § 160(a). [ Footnote 4 ] New York State Labor Relations Act, § 715. [ Footnote 5 ] 29 U.S.C. § 160(e)(f). [ Footnote 6 ] Rules 37 and 38 are as follows: "Sec. 37. Whenever the Board deems it necessary in order to effectuate the purposes of the Act, it may permit a charge to be filed with it, in Washington, or may at any time after a charge has been filed with a Regional Director pursuant to Section 2 of this Article, order that such charge, and any proceeding which may have been instituted in respect thereto --" "(a) be transferred to and continued before it, for the purpose of consolidation with any proceeding which may have been instituted by the Board, or for any other purpose; or" "(b) be consolidated for the purpose of hearing, or for any other purpose, with any other proceeding which may have been instituted in the same region; or" "(c) be transferred to and continued in any other Region, for the purpose of consolidation with any proceeding which may have been instituted in or transferred to such other Region, or for any other purpose." "The provisions of Sections 3 to 31, inclusive, of this Article shall, insofar as applicable, apply to proceedings before the Board pursuant to this Section, and the powers granted to Regional Directors in such provisions shall, for the purpose of this Section, be reserved to and exercised by the Board. After the transfer of any charge and any proceeding which may have been instituted in respect thereto from one Region to another pursuant to this Section, the provisions of Sections 3 to 36, inclusive, of this Article, shall apply to such charge and such proceeding as if the charge had originally been filed in the Region to which the transfer is made." "Sec. 38. After a hearing for the purpose of taking evidence upon the complaint in any proceeding over which the Board has assumed jurisdiction in accordance with Section 37 of this Article, the Board may --" "(a) direct that the Trial Examiner prepare an Intermediate Report, in which case the provisions of Sections 32 to 36, inclusive, of this Article shall insofar as applicable govern subsequent procedure, and the powers granted to Regional Directors in such provisions shall for the purpose of this § be reserved to and exercised by the Board; or" "(b) decide the matter forthwith upon the record, or after the filing of briefs or oral argument; or" "(c) reopen the record and receive further evidence, or require the taking of further evidence before a member of the Board, or other agent or agency; or" "(d) make other disposition of the case." "The Board shall notify the parties of the time and place of any such submission of briefs, oral argument, or taking of further evidence." [ Footnote 7 ] § 10(b); 29 U.S.C. § 160(b). [ Footnote 8 ] These provisions of the order in substance required the companies to desist from discouraging membership in the United or encouraging membership in the Brotherhood, or any other labor organization of their employees, by discharges, or threats of discharge, or refusal of reinstatement, because of membership or activity in connection with any such labor organization; from permitting representatives of the Brotherhood to engage in activities in its behalf during working hours or on the employers' property unless similar privileges were granted to the United and all other labor organizations; from permitting employees who were officials of the Employees' Representation Plans to use the employers' time, property, and money in behalf of the Brotherhood or any other labor organization; from employing detectives to investigate the activities of their employees in behalf of the United or other labor organizations, or employing for such purpose any other sort of espionage, and from "in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join or assist labor organizations," or to bargain collectively or to engage in concerted activities for that purpose or other mutual aid or protection. [ Footnote 9 ] 29 U.S.C. § 160(b). [ Footnote 10 ] 29 U.S.C. § 160(c). [ Footnote 11 ] 29 U.S.C. § 157. [ Footnote 12 ] 29 U.S.C. § 159(c). [ Footnote 13 ] 29 U.S.C. § 159. MR. JUSTICE BUTLER. I agree with the Court's decision that the Board was without authority to require employers to cease and desist from giving effect to the contracts referred to in Page 305 U. S. 2440 subdivision (f) of the first paragraph of the order. And I am of opinion that the entire order should be set aside. The Board was without jurisdiction. The facts on which it assumed to exert power need not be narrated; they are sufficiently stated by the lower court and in the opinion here. Both courts rightly treat the case as one where neither employers nor employees are engaged in interstate or foreign commerce. Here, the employers are engaged solely in intrastate activities. A very small percentage of the products, furnished in that State to others, is by the latter used in interstate commerce. This Court has held that Congress cannot regulate relations between employers and employees engaged exclusively in intrastate activities. In Schechter Poultry Corp. v. United States, 295 U. S. 495 , decided shortly before passage of the National Labor Relations Act, we held that the federal government cannot regulate the wages and hours of labor of persons employed in the internal commerce of the State. In Carter v. Carter Coal Co., 298 U. S. 238 , decided shortly after passage of the National Labor Relations Act, we held that provisions of the Bituminous Coal Conservation Act of 1935 looking to the control of wages, hours, and working conditions of persons engaged in producing coal about to move in interstate commerce and seeking to guarantee their right of collective bargaining were beyond the power of Congress for the reasons that it has no general power of regulation to promote the general welfare; that the power to regulate commerce does not include the power to control the conditions in which coal is produced; that the effect upon interstate commerce of labor conditions involved in the production of coal, including disputes and strikes over wages and working conditions, is indirect. In the period, less than a year, intervening between the Carter case and Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 , and other Labor Board Cases Page 305 U. S. 241 decided on the same day, [ Footnote 2/1 ] -- and, as I think, wrongly decided -- it was, on the authority of the Schechter and Carter cases, held by four circuit courts of appeals and six district courts that the power of Congress does not extend to regulations between employers and their employees engaged in local production. Their decisions are cited in the dissenting opinion in the Labor Board cases. 301 U. S. 301 U.S. 76. In that period, the lower courts were bound by our decisions to condemn the National Labor Relations Act, construed to apply to production or intrastate commerce, as not within the power of Congress. This case is not distinguishable from the Schechter case or the Carter case. There, as here, the activities of the employers and their employees were exclusively local. It differs from the Jones & Laughlin case and all the other Labor Board cases. [ Footnote 2/2 ] In each of them, the employer was to an extent engaged in interstate commerce. The opinion just announced points to no distinction between this case and the Schechter or Carter case. Nor does it refer to the Labor Board cases as controlling here. But, to support this federal advance into local fields, the Court brings forward three railroad rate cases: Houston & Texas Ry. Co. v. United States (The Shreveport Case), 234 U. S. 342 , Wisconsin Railroad Comm'n v. Chicago, B. & Q. R. Co., 257 U. S. 563 , and New York v. United States, 257 U. S. 591 . These cases give no support to the idea that, in absence of conflict between state and federal policy or regulation, Page 305 U. S. 242 Congress has power to control labor conditions in production or intrastate transportation. In each, the federal interference is shown necessary in order to protect national authority, interstate commerce, and interstate rates established under federal law. Brief reference to the conditions that led up to these cases and the substance of the decisions will be sufficient to show they have no application here. In 1906 and 1907, Minnesota reduced intrastate rates substantially below lawfully established interstate rates. Suits were brought by their stockholders to restrain the carriers from obeying, and state officers from enforcing, the local rates on the ground, inter alia, that they were repugnant to the commerce clause and that enforcement would necessarily interfere with and burden interstate transportation by the carriers. The Minnesota Rate Cases, 230 U. S. 352 . The controversy was everywhere regarded as important. See p. 230 U. S. 395 . The facts found by the special master and adopted by the circuit court are stated in its opinion ( Shepard v. Northern Pac. Ry. Co., 184 F. 765, 775-794) and summarized in the opinion of this Court. P. 230 U. S. 381 -395. They show that the intrastate rates discriminated against interstate commerce and made it impossible for the carriers to collect, or for the United States to enforce, valid higher interstate rates. The trial court held the state measures repugnant to the commerce clause, and upon that ground, among others, enjoined enforcement of the rates they prescribed. The cases were argued here in April, 1912, and decided June 9, 1913. This Court upheld the state rates notwithstanding the commerce clause, the Act to Regulate Commerce, the interstate rates lawfully established in accordance with federal law, and the destructive discrimination. It held that, in the absence of a finding by the Interstate Commerce Commission of unjust discrimination, Page 305 U. S. 243 the intrastate rates were valid. The opinion reserved, p. 230 U. S. 419 , the question whether the Commission was empowered to make the determination. And that question was decided in the Shreveport case, 234 U. S. 342 , 234 U. S. 357 . That case was pending here before the decision in the Minnesota Rate Cases, and was decided in June, 1914. The Interstate Commerce Commission had found that rates prescribed by Texas operated to discriminate against interstate traffic from Shreveport, Louisiana, into Texas moving on lawfully established interstate rates. In order to eliminate the discrimination, the Commission directed the carriers to cease charging higher rates for interstate transportation than those charged for transportation between Texas points. This Court held the carriers free to raise the intrastate rates so as to remove the discrimination. Wisconsin Railroad Comm'n v. Chicago, B. & Q. R. Co., 257 U. S. 563 , upheld § 15a of the Interstate Commerce Act, added by § 422, Transportation Act, 1920, which empowered the Interstate Commerce Commission to remove discrimination resulting from intrastate rates unduly low as compared with corresponding rates fixed under that section. New York v. United States, 257 U. S. 591 , held that intrastate rates so low that they discriminated against interstate commerce within the meaning of the Transportation Act, 1920, may constitutionally be increased under that Act by the Commission to conform with like rates in interstate commerce fixed by it. The constitutional questions decided in these three cases were essentially different from the one of federal power here presented. The state measures there overborne were repugnant to existing federal regulations of interstate commerce. Application of the lower state rates made it impossible for federal authority to require, or to enable, Page 305 U. S. 244 carriers to collect interstate rates lawfully established as just and reasonable. The policy and provisions of the New York State Labor Relations Act are in substance precisely the same as the national policy and the National Labor Relations Act. The State's interest, purpose, and ability to safeguard against possible interruption of production and service by labor disputes are not less than those of the federal government. The State's need of continuous service is immediate, while the effect of interruption on interstate or foreign commerce would be mediate, indirect, and relatively remote. The record fails to disclose any condition, existing or threatened, to suggest as necessary federal action to protect interstate commerce, or any other interest of the government against interruption or interference liable to result from controversies between these employers and their employees. The right of the States, consistently with national policy and law, freely to exert the powers safeguarded to them by the Federal Constitution is essential to the preservation of this government. United States v. E. C. Knight Co., 156 U. S. 1 , 156 U. S. 12 -13; Kidd v. Pearson, 128 U. S. 1 , 128 U. S. 21 . Asseveration of need to uphold our dual form of government and the safeguards set for protection of the States and the liberties of the people against unauthorized exertion of federal power does not assure adherence to, or conceal failure to discharge, duty to support the Constitution. See Schechter Poultry Corp. v. United States, supra, pp. 295 U. S. 548 -550. Cf. Labor Board v. Jones & Laughlin Steel Corp., supra, pp. 301 U. S. 29 -30. MR. JUSTICE McREYNOLDS concurs in this opinion. [ Footnote 2/1 ] Labor Board v. Fruehauf Trailer Co., 301 U. S. 49 ; Labor Board v. Friedman-Harry Marks Clothing Co., 301 U. S. 58 ; Associated Press v. Labor Board, 301 U. S. 103 ; Washington Coach Co. v. Labor Board, 301 U. S. 142 . [ Footnote 2/2 ] Labor Board v. Fruehauf Trailer Co., 301 U. S. 49 ; Labor Board v. Friedman-Harry Marks Clothing Co., 301 U. S. 58 ; Associated Press v. Labor Board, 301 U. S. 103 ; Washington, Virginia Coach Co. v. Labor Board, 301 U. S. 142 ; Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 ; Labor Board v. Pacific Greyhound Lines, 303 U. S. 272 ; Santa Cruz Fruit Packing Co. v. Labor Board, 303 U. S. 453 ; Labor Board v. Mackay Radio & T. Co., 304 U. S. 333 . MR. JUSTICE REED concurring in part, dissenting in part. While concurring in general with the conclusions of the Court in Consolidated Edison Company v. Labor Board and International Brotherhood of Electrical Workers v. Labor Board, I find myself in disagreement with the conclusion that the National Labor Relations Board was "without authority to require the petitioning companies Page 305 U. S. 245 to desist from giving effect to the Brotherhood contracts, as provided in subdivision (f) of paragraph one of the Board's order." In that paragraph, the petitioner companies are ordered to: "I. Cease and desist from:" " * * * *" "(f) Giving effect to their contracts with the International Brotherhood of Electrical Workers." It is agreed that the "fundamental purpose of the Act is to protect interstate and foreign commerce from interruptions and obstructions caused by industrial strife." This is to be accomplished by contracts with labor organizations, reached through collective bargaining. The labor organizations, in turn, are to be created through the self-organization of workers, free from interference, restraint, or coercion of the employer. [ Footnote 3/1 ] The forbidden interference is an unfair labor practice, which the Board, exclusively, is empowered to prevent by such negative and affirmative action as will effectuate the policies of the Act. [ Footnote 3/2 ] To interpret the Act to mean that the Board is without power to nullify advantages obtained by the Edison companies through contracts with unions, partly developed by the unlawful interference of the Edison companies with self-organization, is to withdraw from the Board the specific authority granted by the Act to take affirmative action to protect the workers' right of self-organization, the basic privilege guaranteed by the Act. Freedom from employer domination flows from freedom in self-organization. It is assumed that the terms of these contracts in all respects are consistent with the requirements of the National Labor Relations Act, and are, in themselves, considered apart from the actions of the Edison companies in securing their execution, advantageous in preserving industrial harmony. Page 305 U. S. 246 The Board found that the Consolidated Edison Company and its affiliates, the respondents before the Board, "deliberately embarked upon an unlawful course of conduct, as described above, which enabled them to impose the I.B.E.W. upon their employees as their bargaining representative and at the same time discourage and weaken the United, which they opposed. From the outset, the respondents contemplated the execution of contracts with the I.B.E.W. locals which would consummate and perpetuate their plainly illegal course of conduct in interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed to them under § 7 of the Act. It is clear that the granting of the contracts to the I.B.E.W. by the respondents was a part of the respondents' unlawful course of conduct, and, as such, constituted an interference with the rights of their employees to self-organization. The contracts were executed under such circumstances that they are invalid, notwithstanding that they are in express terms applicable only to members of the I.B.E.W. locals. If the contracts are susceptible of the construction placed upon them by the respondents -- namely, that they were exclusive collective bargaining agreements -- then a fortiori they are invalid. [ Footnote 3/3 ]" The evidence upon which this finding is based is summarized in detail in 4 N.L.R.B. pages 83 to 94. It shows a consistent effort on the part of the officers and foremen of the Edison Company and its affiliates, as well as other employees of the Edison companies -- formerly officers in the recently disestablished "Employees' Representation Plans," actually company unions -- to further the development of the I.B.E.W. unions by recognition, contracts for bargaining, openly expressed approval, Page 305 U. S. 247 establishment of locals and by permitting solicitation of employees on the time and premises of the Edison companies. By the Wagner Act, employees have "the right to self-organization." It is an "unfair labor practice for an employer" to "interfere with, restrain, or coerce employees" in the exercise of that right. [ Footnote 3/4 ] The Board concluded that the contracts with the I.B.E.W. unions were a part of a systematic violation by the Edison companies of the workers' right to self-organization. This determination set in motion the authority of the Board to issue an order to cease and desist from the unfair labor practice and to take "such affirmative action . . . as will effectuate the policies of this Act." § 10(c). The evidence was clearly sufficient to support the conclusion of the Board that the Edison companies entered into the contracts as an integral part of a plan for coercion of and interference with the self-organization of their employees. This justified the Board's prohibition against giving effect to the contracts. The "affirmative action" must be connected with the unfair practices, but there could be no question as to the materiality of the contracts. As this Court only recently said as to the purpose of the Congress in enacting this Act: "It had before it the Railway Clerks case, which had emphasized the importance of union recognition in securing collective bargaining, Report of the Senate Committee on Education and Labor, S.Rep. 573, 74th Cong., 1st Sess., p. 17, and there were then available data showing that, once an employer has conferred recognition on a particular organization, it has a marked advantage over any other in securing the adherence of employees, and hence in preventing the recognition of any other. [ Footnote 3/5 ]" To this it is answered that the extent of the coercion is left to "mere conjecture;" that it would be an "extravagant" Page 305 U. S. 248 assumption to say that none of the 30,000 members "joined voluntarily," and that the "employers' practices which were complained of could be stopped without imperiling the interests of those who, for all that appears, had exercised freely their right of choice. [ Footnote 3/6 ]" On the question whether or not the Edison companies' activities as to these contracts were a part of a definite plan to interfere with the right of self-organization, these answers are immaterial. It is suggested that the problem of the contracts should be approached with three cardinal considerations in mind: (1) that one contracting party is an "independently established" labor organization, free of domination by the employer; (2) that the contracts grant valuable collective bargaining rights, and (3) that they contain provisions for desirable working privileges. Such considerations should affect discretion in shaping the proper remedy. They are negligible in determining the power of the Board. They would, if given weight, permit paternalism to be substituted for self-organization. The findings of the Board, based on substantial evidence, are conclusive. [ Footnote 3/7 ] There was evidence of coercion and interference, and the Board did determine that the policies of the Act would be effectuated by requiring the companies to cease giving effect to these contracts. The petitioners, however, aside from the merits, raise procedural objections. It is contended that, before the Board could have authority to order the Edison companies to cease and desist from giving effect to their contracts with the unions, it was necessary that the unions, as well as the Edison companies, should have legal notice or should appear; that the unions were indispensable parties. This Court has held to the contrary in Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 . Page 305 U. S. 249 This case determined that, where an employer has created and fostered a labor organization of employees, thus interfering with their right to self-organization, the employer can be required, without notice to the organization, to withdraw all recognition of such organization as the representative of its employees. It is said that this case "is not apposite, as there no question of contract between employer and employee was involved. The Board had found upon evidence that the employer had created and fostered the labor organization in question and dominated its administration in violation of § 8(2). [ Footnote 3/8 ]" In the instant case, it was found that no such domination existed. In the Greyhound case, the Board found not only domination under § 8(2), but also, as in this case, an unfair labor practice under § 8(1). The company's violation of § 8(1) was predicated on its interference with self-organization. [ Footnote 3/9 ] In the Greyhound case, it was said that the organization was not entitled to notice and hearing because "the order did not run against the Association." [ Footnote 3/10 ] Here, the unions are affected by the action on the contracts exactly as the labor organization in the Greyhound case was affected by the order to withdraw recognition. It would seem immaterial whether those contracts were violative of one or both or all the prohibited unfair labor practices. A further procedural objection is found in the failure of the complaint, or any of its amendments, to seek specifically a cease and desist order against continued operation under the contracts. The companies were charged with allowing organization meetings on the company time and on company property, permitting solicitation Page 305 U. S. 250 of membership during company time, and paying overtime allowances to those engaged in soliciting or coercing workers to join the contracting unions. The complaint said that similar aid was not extended to a competing union, and that office assistance was given to the effort to get members for the contracting unions. These charges made it obvious that the contracts were obtained from the unions which were improperly aided by the Edison companies in violation of the prohibitions against interference with self-organization. Contracts so obtained were necessarily at issue in an examination of the acts in question. Certainly the Edison companies and the contracting unions could have been allowed on a proper showing a further hearing on the question of the companies continuing recognition of the contracts. By § 10(f), the Edison companies and the unions could obtain a review of the Board's order. In that hearing, either or both could show to the court, § 10(e), that additional evidence as to the contracts was material and that it had not been presented because the aggrieved parties had not understood that the contracts were subject to a cease and desist order or had not known of the proceeding. The court could order the Board to take the additional evidence. This simple practice was not followed. Although all parties were before the lower court on the review, the petitioners chose to rely on the impotency of the Board to enter an order affecting the contracts. In these circumstances, the provision of the order requiring the Edison companies to cease from giving effect to their contracts with the contracting unions is proper. This order prevents the Edison companies from reaping an advantage from those acts of interference found illegal by the Board. MR. JUSTICE BLACK concurs in this opinion. [ Footnote 3/1 ] Labor Board Cases, 301 U. S. 1 . [ Footnote 3/2 ] §§ 7, 8, 10, Act of July 5, 1935, 49 Stat. 452-455. [ Footnote 3/3 ] 4 N.L.R.B. 71, 94. [ Footnote 3/4 ] §§7 and 8, Act of July 5, 1935, 49 Stat. 452. [ Footnote 3/5 ] Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 , 303 U. S. 267 . [ Footnote 3/6 ] Ante, p. 305 U. S. 238 . [ Footnote 3/7 ] Washington, V. & M. Coach Co. v. Labor Board, 301 U. S. 142 , 301 U. S. 146 . [ Footnote 3/8 ] Ante, p. 305 U.S. 233 . [ Footnote 3/9 ] Labor Board v. Pennsylvania Greyhound Lines, 303 U. S. 261 , 303 U. S. 263 . [ Footnote 3/10 ] Id., 303 U. S. 271 .

In Consolidated Edison Co. v. National Labor Relations Board, the Supreme Court ruled that the National Labor Relations Act extends to public utilities engaged in supplying energy and utilities, even when their business activities are wholly within a single state. The case involved a group of companies that supplied electric energy, gas, and steam to customers in New York City and Westchester County. The Court found that any disruption in their services due to labor disputes would significantly impact interstate and foreign commerce, justifying federal regulation. The Court also addressed the companies' labor contracts, finding that the National Labor Relations Board's order requiring the companies to cease recognizing the contracts was valid, as it prevented them from benefiting from illegal interference in labor organizing activities.

Government Agencies

Universal Camera Corp. v. NLRB

https://supreme.justia.com/cases/federal/us/340/474/

U.S. Supreme Court Universal Camera Corp. v. Labor Board, 340 U.S. 474 (1951) Universal Camera Corp. v. National Labor Relations Board No. 40 Argued November 6-7, 1950 Decided February 26, 1951 340 U.S. 474 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus The National Labor Relations Board ordered petitioner to reinstate with back pay an employee found to have been discharged because he gave certain testimony in another proceeding under the National Labor Relations Act. The evidence as to the reason for his discharge was conflicting, and the Board overruled its examiner's findings of fact and his recommendation that the proceedings be dismissed. In decreeing enforcement, the Court of Appeals held that the Board's findings of fact were "supported by substantial evidence on the record considered as a whole" within the meaning of § 10(e) of the National Labor Relations Act, as amended in 1947. This holding was based partly on the view (1) that the 1947 amendments had not broadened the scope of judicial review, and (2) that the Board's rejection of its examiner's findings of fact was without relevance in determining whether the Board's findings were supported by substantial evidence. Held: 1. In the light of the legislative history, the standard of proof required under § 10(e) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, to support a decision of the Labor Board on judicial review is the same as that to be exacted by courts reviewing every administrative action subject to the Administrative Procedure Act. Pp. 340 U. S. 477 -487. 2. In amending § 10(e) of the National Labor Relations Act so as to require that, on judicial review, the Board's findings of fact must be supported by substantial evidence "on the record considered as a whole," Congress made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view. Pp. 340 U. S. 487 -488. 3. When read in the light of their legislative history, the Administrative Procedure Act and the Labor Management Relations Act, Page 340 U. S. 475 1947, require the courts to assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Pp. 340 U. S. 488 -490. 4. Whether, on the record as a whole, there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the courts of appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied. P. 340 U. S. 491 . 5. The Court of Appeals erred in holding that it was barred from taking into account the report of the examiner on questions of fact insofar as that report was rejected by the Board. Pp. 340 U. S. 491 -497. (a) A trial examiner's findings are not as unassailable as a master's, and may be reversed by the Board when when not clearly erroneous. P. 340 U. S. 492 . (b) A reviewing court need not give a trial examiner's findings more weight than, in reason and in the light of judicial experience, they deserve, but they should be accorded the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board's order is substantial. Pp. 340 U. S. 496 -497. 6. The cause is remanded to the Court of Appeals, which is left free to grant or deny enforcement as it thinks the principles expressed in the opinion, of this Court dictate. P. 340 U. S. 497 . 179 F.2d 749, vacated and remanded. The Court of Appeals decreed enforcement of an order of the National Labor Relations Board requiring petitioner to reinstate an employee with back pay and to cease and desist from discriminating against any employee who files charges or gives testimony under the National Labor Relations Act. 179 F.2d 749. This Court granted certiorari. 339 U.S. 962. Judgment vacated and cause remanded, p. 340 U. S. 497 . Page 340 U. S. 476 MR. JUSTICE FRANKFURTER delivered the opinion of the Court. The essential issue raised by this case and its companion, Labor Board v. Pittsburgh Steamship Co., post, 340 U. S. 498 , is the effect of the Administrative Procedure Act and the legislation colloquially known as the Taft-Hartley Act on the duty of Courts of Appeals when called upon to review orders of the National Labor Relations Board. The Court of Appeals for the Second Circuit granted enforcement of an order directing, in the main, that petitioner reinstate with back pay an employee found to have been discharged because he gave testimony under the Wagner Act, and cease and desist from discriminating against any employee who files charges or gives testimony under that Act. The court below, Judge Swan dissenting, decreed full enforcement of the order. 179 F.2d 749. Because the views of that court regarding the effect of the new legislation on the relation between the Board and the courts of appeals in the enforcement of the Board's orders conflicted with those of the Court of Appeals for the Sixth Circuit, [ Footnote 1 ] we brought both cases here. 339 U.S. 951. The clash of opinion obviously required settlement by this Court. Page 340 U. S. 477 I . Want of certainty in judicial review of Labor Board decisions partly reflects the intractability of any formula to furnish definiteness of content for all the impalpable factors involved in judicial review. But, in part, doubts as to the nature of the reviewing power and uncertainties in its application derive from history, and, to that extent, an elucidation of this history may clear them away. The Wagner Act provided: "The findings of the Board as to the facts, if supported by evidence, shall be conclusive." Act of July 5, 1935, § 10(e), 49 Stat. 449, 454, 29 U.S.C. § 160(e). This Court read "evidence" to mean "substantial evidence," Washington, V. & M. Coach Co. v. Labor Board, 301 U. S. 142 , and we said that "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U. S. 197 , 305 U. S. 229 . Accordingly, it "must do more than create a suspicion of the existence of the fact to be established. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292 , 306 U. S. 300 . The very smoothness of the "substantial evidence" formula as the standard for reviewing the evidentiary validity of the Board's findings established its currency. But the inevitably variant applications of the standard to conflicting evidence soon brought contrariety of views, and, in due course, bred criticism. Even though the whole record may have been canvassed in order to determine whether the evidentiary foundation of a determination by the Board was "substantial," the phrasing of this Court's process of review readily lent itself to the notion Page 340 U. S. 478 that it was enough that the evidence supporting the Board's result was "substantial" when considered by itself. It is fair to say that, by imperceptible steps, regard for the factfinding function of the Board led to the assumption that the requirements of the Wagner Act were met when the reviewing court could find in the record evidence which, when viewed in isolation, substantiated the Board's findings. Compare Labor Board v. Waterman Steamship Corp., 309 U. S. 206 ; Labor Board v. Bradford Dyeing Ass'n, 310 U. S. 318 ; and see Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105 . This is not to say that every member of this Court was consciously guided by this view, or that the Court ever explicitly avowed this practice as doctrine. What matters is that the belief justifiably arose that the Court had so construed the obligation to review. [ Footnote 2 ] Criticism of so contracted a reviewing power reinforced dissatisfaction felt in various quarters with the Board's administration of the Wagner Act in the years preceding the war. The scheme of the Act was attacked as an inherently unfair fusion of the functions of prosecutor and judge. [ Footnote 3 ] Accusations of partisan bias were not wanting. [ Footnote 4 ] The "irresponsible admission and weighing of hearsay, opinion, and emotional speculation in place of factual evidence" was said to be a "serious menace." [ Footnote 5 ] No doubt Page 340 U. S. 479 some, perhaps even much, of the criticism was baseless ,and some surely was reckless. [ Footnote 6 ] What is here relevant, however, is the climate of opinion thereby generated, and its effect on Congress. Protests against "shocking injustices" [ Footnote 7 ] and intimations of judicial "abdication" [ Footnote 8 ] with which some courts granted enforcement of the Board's order stimulated pressures for legislative relief from alleged administrative excesses. The strength of these pressures was reflected in the passage in 1940 of the Walter-Logan Bill. It was vetoed by President Roosevelt, partly because it imposed unduly rigid limitations on the administrative process and partly because of the investigation into the actual operation of the administrative process then being conducted by an experienced committee appointed by the Attorney General. [ Footnote 9 ] It is worth noting that, despite its aim to tighten control over administrative determinations of fact, the Walter-Logan Bill contented itself with the conventional formula that an agency's decision could be set aside if "the findings of fact are not supported by substantial evidence." [ Footnote 10 ] Page 340 U. S. 480 The final report of the Attorney General's Committee was submitted in January, 1941. The majority concluded that "[d]issatisfaction with the existing standards as to the scope of judicial review derives largely from dissatisfaction with the factfinding procedures now employed by the administrative bodies. [ Footnote 11 ]" Departure from the "substantial evidence" test, it thought, would either create unnecessary uncertainty or transfer to courts the responsibility for ascertaining and assaying matters the significance of which lies outside judicial competence. Accordingly, it recommended against Legislation embodying a general scheme of judicial review. [ Footnote 12 ] Page 340 U. S. 481 Three members of the Committee registered a dissent. Their view was that the "present system or lack of system of judicial review" led to inconsistency and uncertainty. They reported that, under a "prevalent" interpretation of the "substantial evidence" rule, "if what is called 'substantial evidence' is found anywhere in the record to support conclusions of fact, the courts are said to be obliged to sustain the decision without reference to how heavily the countervailing evidence may preponderate -- unless, indeed, the stage of arbitrary decision is reached. Under this interpretation, the courts need to read only one side of the case, and, if they find any evidence there, the administrative action is to be sustained, and the record to the contrary is to be ignored. [ Footnote 13 ]" Their view led them to recommend that Congress enact principles of review applicable to all agencies not excepted by unique characteristics. One of these principles was expressed by the formula that judicial review could extend to "findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence." [ Footnote 14 ] So far as the Page 340 U. S. 482 history of this movement for enlarged review reveals, the phrase "upon the whole record" makes its first appearance in this recommendation of the minority of the Attorney General's Committee. This evidence of the close relationship between the phrase and the criticism out of which it arose is important, for the substance of this formula for judicial review found its way into the statute books when Congress with unquestioning -- we might even say uncritical -- unanimity enacted the Administrative Procedure Act. [ Footnote 15 ] Page 340 U. S. 483 Once is tempted to say "uncritical" because the legislative history of that Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will. On the one hand, the sponsors of the legislation indicated that they were reaffirming the prevailing "substantial evidence" test. [ Footnote 16 ] But, with equal clarity, they expressed disapproval of the manner in which the courts were applying Page 340 U. S. 484 their own standard. The committee reports of both houses refer to the practice of agencies to rely upon "suspicion, surmise, implications, or plainly incredible evidence," and indicate that courts are to exact higher standards "in the exercise of their independent judgment," and on consideration of "the whole record." [ Footnote 17 ] Similar dissatisfaction with too restricted application of the "substantial evidence" test is reflected in the legislative history of the Taft-Hartley Act. [ Footnote 18 ] The bill as reported to the House provided that the "findings of the Board as to the facts shall be conclusive unless it is made to appear to the satisfaction of the court either (1) that the findings of fact are against the manifest weight of the Page 340 U. S. 485 evidence, or (2) that the findings of fact are not supported by substantial evidence. [ Footnote 19 ]" The bill left the House with this provision. Early committee prints in the Senate provided for review by "weight of the evidence" or "clearly erroneous" standards. [ Footnote 20 ] But, as the Senate Committee Report relates, "it was finally decided to conform the statute to the corresponding section of the Administrative Procedure Act, where the substantial evidence test prevails. In order to clarify any ambiguity in that statute, however, the committee inserted the words 'questions of fact, if supported by substantial evidence on the record considered as a whole. . . .' [ Footnote 21 ]" This phraseology was adopted by the Senate. The House conferees agreed. They reported to the House: "It is believed that the provisions of the conference agreement Page 340 U. S. 486 relating to the courts' reviewing power will be adequate to preclude such decisions as those in NLRB v. Nevada Consol. Copper Corp., 316 U. S. 105 , and in the Wilson, Columbia Products, Union Pacific Stages, Hearst, Republic Aviation, and Le Tourneau, etc. cases, supra, without unduly burdening the courts. [ Footnote 22 ]" The Senate version became the law. Page 340 U. S. 487 It is fair to say that, in all this, Congress expressed a mood. And it expressed its mood not merely by oratory, but by legislation. As legislation, that mood must be respected, even though it can only serve as a standard for judgment, and not as a body of rigid rules assuring sameness of applications. Enforcement of such broad standards implies subtlety of mind and solidity of judgment. But it is not for us to question that Congress may assume such qualities in the federal judiciary. From the legislative story we have summarized, two concrete conclusions do emerge. One is the identity of aim of the Administrative Procedure Act and the Taft-Hartley Act regarding the proof with which the Labor Board must support a decision. The other is that, now, Congress has left no room for doubt as to the kind of scrutiny which a court of appeals must give the record before the Board to satisfy itself that the Board's order rests on adequate proof. It would be mischievous word-playing to find that the scope of review under the Taft-Hartley Act is any different from that under the Administrative Procedure Act. The Senate Committee which reported the review clause of the Taft-Hartley Act expressly indicated that the two standards were to conform in this regard, and the wording of the two Acts is, for purposes of judicial administration, identical. And so we hold that the standard of proof specifically required of the Labor Board by the Taft-Hartley Act is the same as that to be exacted by courts reviewing every administrative action subject to the Administrative Procedure Act. Whether or not it was ever permissible for courts to determine the substantiality of evidence supporting a Labor Board decision merely on the basis of evidence which, in and of itself, justified it, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn, the new legislation Page 340 U. S. 488 definitively precludes such a theory of review and bars its practice. The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. Committee reports and the adoption in the Administrative Procedure Act of the minority views of the Attorney General's Committee demonstrate that to enjoin such a duty on the reviewing court was one of the important purposes of the movement which eventuated in that enactment. To be sure, the requirement for canvassing "the whole record" in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess, and therefore must respect. Nor does it mean that, even as to matters not requiring expertise, a court may displace the Board's choice between two fairly conflicting views even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view. There remains, then, the question whether enactment of these two statutes has altered the scope of review other than to require that substantiality be determined in the light of all that the record relevantly presents. A formula for judicial review of administrative action may afford grounds for certitude, but cannot assure certainty of application. Page 340 U. S. 489 Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging, or by using the formula as an instrument of futile casuistry. It cannot be too often repeated that judges are not automata. The ultimate reliance for the fair operation of any standard is a judiciary of high competence and character, and the constant play of an informed professional critique upon its work. Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment. The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms. Whatever changes were made by the Administrative Procedure and Taft-Hartley Acts are clearly within this area where precise definition is impossible. Retention of the familiar "substantial evidence" terminology indicates that no drastic reversal of attitude was intended. But a standard leaving an unavoidable margin for individual judgment does not leave the judicial judgment at large, even though the phrasing of the standard does not wholly fence it in. The legislative history of these Acts demonstrates a purpose to impose on courts a responsibility which has not always been recognized. Of course, it is a statute, and not a committee report, which we are interpreting. But the fair interpretation of a statute if often "the art of proliferating a purpose," Brooklyn National Corp. v. Commissioner, 157 F.2d 450, 451, revealed more by the demonstrable forces that produced it than by its precise phrasing. The adoption in these statutes of the judicially constructed "substantial evidence" test was a response to pressures for stricter and more uniform practice, not a reflection of approval of all existing practices. Page 340 U. S. 490 To find the change so elusive that it cannot be precisely defined does not mean it may be ignored. We should fail in our duty to effectuate the will of Congress if we denied recognition to expressed Congressional disapproval of the finality accorded to Labor Board findings by some decisions of this and lower courts, or even of the atmosphere which may have favored those decisions. We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect, but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both. From this, it follows that enactment of these statutes does not require every Court of Appeals to alter its practice. Some -- perhaps a majority -- have always applied the attitude reflected in this legislation. To explore whether a particular court should or should not alter its practice would only divert attention from the application of the standard now prescribed to a futile inquiry into the nature of the test formerly used by a particular court. Our power to review the correctness of application of the present standard ought seldom to be called into action. Page 340 U. S. 491 Whether, on the record as a whole, there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied. II Our disagreement with the view of the court below that the scope of review of Labor Board decisions is unaltered by recent legislation does not, of itself, as we have noted, require reversal of its decision. The court may have applied a standard of review which satisfies the present Congressional requirement. The decision of the Court of Appeals is assailed on two grounds. It is said (1) that the court erred in holding that it was barred from taking into account the report of the examiner on questions of fact insofar as that report was rejected by the Board, and (2) that the Board's order was not supported by substantial evidence on the record, considered as a whole, even apart from the validity of the court's refusal to consider the rejected portions of the examiner's report. The latter contention is easily met. It is true that two of the earlier decisions of the court below were among those disapproved by Congress. [ Footnote 23 ] But this disapproval, we have seen, may well have been caused by unintended intimations of judicial phrasing. And, in any event, it is clear from the court's opinion in this case that it, in fact, did consider the "record as a whole," and did not deem itself merely the judicial echo of the Board's conclusion. The testimony of the company's witnesses was inconsistent, and there was clear evidence that the complaining Page 340 U. S. 492 employee had been discharged by an officer who was at one time influenced against him because of his appearance at the Board hearing. On such a record, we could not say that it would be error to grant enforcement. The first contention, however, raises serious questions, to which we now turn. III The Court of Appeals deemed itself bound by the Board's rejection of the examiner's findings because the court considered these findings not "as unassailable as a master's." [ Footnote 24 ] 179 F.2d at 752. They are not. Section 10(c) of the Labor Management Relations Act provides that. "If upon the preponderance of the testimony taken, the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact. . . ." 61 Stat. 147, 29 U.S.C.(Supp. III) § 160(c). The responsibility for decision thus placed on the Board is wholly inconsistent with the notion that it has power to reverse an examiner's findings only when they are "clearly erroneous." Such a limitation would make so drastic a departure from prior administrative practice that explicitness would be required. The Court of Appeals concluded from this premise "that, although the Board would be wrong in totally disregarding his findings, it is practically impossible for a Page 340 U. S. 493 court, upon review of those findings which the Board itself substitutes, to consider the Board's reversal as a factor in the court's own decision. This we say because we cannot find any middle ground between doing that and treating such a reversal as error, whenever it would be such, if done by a judge to a master in equity." 179 F.2d at 753. Much as we respect the logical acumen of the Chief Judge of the Court of Appeals, we do not find ourselves pinioned between the horns of his dilemma. We are aware that to give the examiner's findings less finality than a master's, and yet entitle them to consideration in striking the account, is to introduce another and an unruly factor into the judgmatical process of review. But we ought not to fashion an exclusionary rule merely to reduce the number of imponderables to be considered by reviewing courts. The Taft-Hartley Act provides that "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." 61 Stat. 148, 29 U.S.C.(Supp. III) § 160(e). Surely an examiner's report is as much a part of the record as the complaint or the testimony. According to the Administrative Procedure Act, "All decisions (including initial, recommended, or tentative decisions) shall become a part of the record. . . ." § 8(b), 60 Stat. 242, 5 U.S.C. § 1007(b). We found that this Act's provision for judicial review has the same meaning as that in the Taft-Hartley Act. The similarity of the two statutes in language and purpose also requires that the definition of "record" found in the Administrative Procedure Act be construed to be applicable as well to the term "record" as used in the Taft-Hartley Act. It is therefore difficult to escape the conclusion that the plain language of the statutes directs a reviewing court to determine the substantiality of evidence on the record including the examiner's report. The conclusion Page 340 U. S. 494 is confirmed by the indications in the legislative history that enhancement of the status and function of the trial examiner was one of the important purposes of the movement for administrative reform. This aim was set forth by the Attorney General's Committee on Administrative Procedure: "In general, the relationship upon appeal between the hearing commissioner and the agency ought, to a considerable extent, to be that of trial court to appellate court. Conclusions, interpretations, law, and policy should, of course, be open to full review. On the other hand, on matters which the hearing commissioner, having heard the evidence and seen the witnesses, is best qualified to decide, the agency should be reluctant to disturb his findings unless error is clearly shown. [ Footnote 25 ]" Apparently it was the Committee's opinion that these recommendations should not be obligatory. For the bill which accompanied the Final Report required only that hearing officers make an initial decision which would become final in the absence of further agency action, and that agencies which differed on the facts from their examiners give reasons and record citations supporting their conclusion. [ Footnote 26 ] This proposal was further moderated by the Administrative Procedure Act. It permits agencies to use examiners to record testimony, but not to evaluate it, and contains the rather obscure provision that an agency which reviews an examiner's report has "all the powers which it would have in making the initial decision." [ Footnote 27 ] Page 340 U. S. 495 But this refusal to make mandatory the recommendations of the Attorney General's Committee should not be construed as a repudiation of them. Nothing in the statutes suggests that the Labor Board should not be influenced by the examiner's opportunity to observe the witnesses he hears and sees and the Board does not. Nothing suggests that reviewing courts should not give to the examiner's report such probative force as it intrinsically commands. To the contrary, § 11 of the Administrative Procedure Act contains detailed provisions designed to maintain high standards of independence and competence in examiners. Section 10(c) of the Labor Management Relations Act requires that examiners "shall issue . . . a proposed report, together with a recommended order." Both statutes thus evince a purpose to increase the importance of the role of examiners in the administrative process. High standards of public administration counsel that we attribute to the Labor Board's examiners both due regard for the responsibility which Congress imposes on them and the competence to discharge it. [ Footnote 28 ] Page 340 U. S. 496 The committee reports also make it clear that the sponsors of the legislation thought the statutes gave significance to the findings of examiners. Thus, the Senate Committee responsible for the Administrative Procedure Act explained in its report that examiners' decisions "would be of consequence, for example, to the extent that material facts in any case depend on the determination of credibility of witnesses as shown by their demeanor or conduct at the hearing. [ Footnote 29 ]" The House Report reflects the same attitude, [ Footnote 30 ] and the Senate Committee Report on the Taft-Hartley Act likewise indicates regard for the responsibility devolving on the examiner. [ Footnote 31 ] We do not require that the examiner's findings be given more weight than, in reason and in the light of judicial experience, they deserve. The "substantial evidence" standard is not modified in any way when the Board and its examiner disagree. We intend only to recognize that evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion. The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case. To give it this significance does not seem to us materially more difficult Page 340 U. S. 497 than to heed the other factors which in sum determine whether evidence is "substantial." The direction in which the law moves is often a guide for decision of particular cases, and here it serves to confirm our conclusion. However halting its progress, the trend in litigation is toward a rational inquiry into truth, in which the tribunal considers everything "logically probative of some matter requiring to be proved." Thayer, A Preliminary Treatise on Evidence, 530; Funk v. United States, 290 U. S. 371 . This Court has refused to accept assumptions of fact which are demonstrably false, United States v. Provident Trust Co., 291 U. S. 272 , even when agreed to by the parties, Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281 . Machinery for discovery of evidence has been strengthened; the boundaries of judicial notice have been slowly but perceptibly enlarged. It would reverse this process for courts to deny examiners' findings the probative force they would have in the conduct of affairs outside a courtroom. We therefore remand the cause to the Court of Appeals. On reconsideration of the record, it should accord the findings of the trial examiner the relevance that they reasonably command in answering the comprehensive question whether the evidence supporting the Board's order is substantial. But the court need not limit its reexamination of the case to the effect of that report on its decision. We leave it free to grant or deny enforcement as it thinks the principles expressed in this opinion dictate. Judgment vacated that cause remanded. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS concur with parts I and II of this opinion, but, as to part III, agree with the opinion of the court below, 179 F.2d 749, 753. [ Footnote 1 ] Labor Board v. Pittsburgh Steamship Co., 180 F.2d 731; aff'd, post, p. 340 U. S. 498 . The Courts of Appeals of five circuits have agreed with the Court of Appeals for the Second Circuit that no material change was made in the reviewing power. Eastern Coal Corp. v. Labor Board, 176 F.2d 131, 134-136; Labor Board v. La Salle Steele Co., 178 F.2d 829, 833-834; Labor Board v. Minnesota Mining & Mfg. Co., 179 F.2d 323, 325-326; Labor Board v. Continental Oil Co., 179 F.2d 552, 555; Labor Board v. Booker, 180 F.2d 727, 729; but see Labor Board v. Caroline Mills, Inc., 167 F.2d 212, 213. [ Footnote 2 ] See the testimony of Dean Stason before the Subcommittee of the Senate Committee on the Judiciary in 1941. Hearings on S. 674, 77th Cong., 1st Sess. 1355-1360. [ Footnote 3 ] See, for example, the remarks of Laird Bell, then Chairman of the Committee on Administrative Law of the Chicago Bar Association, writing in 1940 in the American Bar Association Journal. 26 A.B.A.J. 552. [ Footnote 4 ] See Gall, The Current Labor Problem: The View of Industry, 27 Iowa L.Rev. 381, 382. [ Footnote 5 ] This charge was made by the majority of the Special Committee of the House appointed in 1939 to investigate the National Labor Relations Board. H.R.Rep. No. 1902, 76th Cong., 3d Sess. 76. [ Footnote 6 ] Professor Gellhorn and Mr. Linfield reached the conclusion in 1939, after an extended investigation, that "the denunciations find no support in fact." Gellhorn and Linfield, Politics and Labor Relations, 39 Col.L.Rev. 339, 394. See also Millis and Brown, From the Wagner Act to Taft-Hartley, 66-75. [ Footnote 7 ] Wilson & Co. v. Labor Board, 126 F.2d 114, 117. [ Footnote 8 ] In Labor Board v. Standard Oil Co., 138 F.2d 885, 887, Judge Learned Hand said, "We understand the law to be that the decision of the Board upon that issue is, for all practical purposes, not open to us at all; certainly not after we have once decided that there was 'substantial' evidence that the 'disestablished' union was immediately preceded by a period during which there was a 'dominated' union. . . ." "[W]e recognize how momentous may be such an abdication of any power of review. . . ." [ Footnote 9 ] 86 Cong.Rec. 13942-13943, reprinted as H.R.Doc. No. 986, 76th Cong., 3d Sess. [ Footnote 10 ] S. 915, H.R. 6324, 76th Cong., 1st Sess., § 5(a). [ Footnote 11 ] Final Report, 92. [ Footnote 12 ] Referring to proposals to enlarge the scope of review to permit inquiry whether the findings are supported by the weight of the evidence, the majority said: "Assuming that such a change may be desirable with respect to special administrative determinations, there is serious objection to its adoption for general application." "In the first place, there is the question of how much change, if any, the amendment would produce. The respect that courts have for the judgments of specialized tribunals which have carefully considered the problems, and the evidence, cannot be legislated away. The line between 'substantial evidence' and 'weight of evidence' is not easily drawn -- particularly when the court is confined to a written record, has a limited amount of time, and has no opportunity further to question witnesses on testimony which seems hazy or leaves some lingering doubts unanswered. 'Substantial evidence' may well be equivalent to the 'weight of evidence' when a tribunal in which one has confidence and which had greater opportunities for accurate determination has already so decided." "In the second place, the wisdom of a general change to review of the 'weight of evidence' is questionable. If the change would require the courts to determine independently which way the evidence preponderates, administrative tribunals would be turned into little more than media for transmission of the evidence to the courts. It would destroy the values of adjudication of fact by experts or specialists in the field involved. It would divide the responsibility for administrative adjudications." Final Report 91-92. [ Footnote 13 ] Id., 210-211. [ Footnote 14 ] The minority enumerated four "existing deficiencies" in judicial review. These were (1) "the haphazard, uncertain, and variable results of the present system or lack of system of judicial review," (2) the interpretation permitting substantiality to be determined without taking into account conflicting evidence, (3) the failure of existing formulas "to take account of differences between the various types of fact determinations," and (4) the practice of determining standards of review by "case-to-case procedure of the courts." They recommended that, "Until Congress finds it practicable to examine into the situation of particular agencies, it should provide more definitely by general legislation for both the availability and scope of judicial review in order to reduce uncertainty and variability. As the Committee recognizes in its report, there are several principal subjects of judicial review -- including constitutional questions, statutory interpretation, procedure, and the support of findings of fact by adequate evidence. The last of these should obviously, we think, mean support of all findings of fact, including inferences and conclusions of fact, upon the whole record. Such a legislative provision should, however, be qualified by a direction to the courts to respect the experience, technical competence, specialized knowledge, and discretionary authority of each agency. We have framed such a provision in the appendix to this statement." Id., 210-212. The text of the recommended provision is as follows: "(e) Scope of review. -- As to the findings, conclusions, and decisions in any case, the reviewing court, regardless of the form of the review proceeding, shall consider and decide, so far as necessary to its decision and where raised by the parties, all relevant questions of: (1) constitutional right, power, privilege, or immunity; (2) the statutory authority or jurisdiction of the agency; (3) the lawfulness and adequacy of procedure; (4) findings, inferences, or conclusions of fact unsupported, upon the whole record, by substantial evidence; and (5) administrative action otherwise arbitrary or capricious. Provided, however, That, upon such review, due weight shall be accorded the experience, technical competence, specialized knowledge, and legislative policy of the agency involved, as well as the discretionary authority conferred upon it." Id., 246-247. [ Footnote 15 ] 60 Stat. 237, 5 U.S.C. § 1001 et seq. The form finally adopted reads as follows: "Sec. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion. . . ." " * * * *" "(e) SCOPE OF REVIEW. -- So far as necessary to decision, and where presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record, or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error." 60 Stat. 243-244, 5 U.S.C. § 1009(e). (Italics ours.) In the form in which the bill was originally presented to Congress, clause (B)(5) read, "unsupported by competent, material, and substantial evidence upon the whole agency record as reviewed by the court in any case subject to the requirements of sections 7 and 8." H.R. 1203, 79th Cong., 1st Sess., quoted in S.Doc. No. 248, 79th Cong., 2d Sess. 155, 160. References to competency and materiality of evidence were deleted, and the final sentence added, by the Senate Committee. S.Rep.No. 752, 79th Cong., 1st Sess. 28; S.Doc.No. 248, supra, 39-40, 214. No reason was given for the deletion. [ Footnote 16 ] A statement of the Attorney General appended to the Senate Report explained that the bill "is intended to embody the law as declared, for example, in Consolidated Edison Co. v. Labor Board, 305 U. S. 197 ." Section 10(e) of Appendix B to S.Rep. No. 752, supra, reprinted in S.Doc. No. 248, supra, 230. Mr. McFarland, then Chairman of the American Bar Association Committee on Administrative Law, testified before the House Judiciary Committee to the same effect. Id., 85-86. [ Footnote 17 ] The following quotation from the report of the Senate Judiciary Committee indicates the position of the sponsors. "The 'substantial evidence' rule set forth in section 10(e) is exceedingly important. As a matter of language, substantial evidence would seem to be an adequate expression of law. The difficulty comes about in the practice of agencies to rely upon (and of courts to tacitly approve) something less -- to rely upon suspicion, surmise, implications, or plainly incredible evidence. It will be the duty of the courts to determine, in the final analysis and in the exercise of their independent judgment, whether, on the whole record, the evidence in a given instance is sufficiently substantial to support a finding, conclusion, or other agency action as a matter of law. In the first instance, however, it will be the function of the agency to determine the sufficiency of the evidence upon which it acts -- and the proper performance of its public duties will require it to undertake this inquiry in a careful and dispassionate manner. Should these objectives of the bill, as worded, fail, supplemental legislation will be required." S.Rep. No. 752, supra, 30-31. The House Committee Report is to substantially the same effect. H.R.Rep. No. 1980, 79th Cong., 2d Sess. 45. The reports are reprinted in S.Doc. No. 248, supra, 216-217, 279. See also the response of Senator McCarran in debate, to the effect that the bill changed the "rule" that courts were "powerless to interfere" when there "was no probative evidence." Id., 322. And see the comment of Congressman Springer, a member of the House Judiciary Committee, id., 376. [ Footnote 18 ] 61 Stat. 136, 29 U.S.C. (Supp. III) § 141 et seq. [ Footnote 19 ] H.R. 3020, 80th Cong., 1st Sess., § 10(e), reprinted in 1 Legislative History of the Labor Management Relations Act 1947, p. 71. [ Footnote 20 ] The history of the evolution of the Senate provision was given by Senator Morse. 93 Cong.Rec. 5108, reprinted in 2 Legislative History 1504-1505. The prints were not approved by the Committee. [ Footnote 21 ] S.Rep. No. 105, 80th Cong., 1st Sess. 26-27, reprinted in 1 Legislative History 432-433. The Committee did not explain what the ambiguity might be, and it is to be noted that the phrase it italicized is indistinguishable in content from the requirement of § 10(e) of the Administrative Procedure Act that "the court shall review the whole record or such portions thereof as may be cited by any party. . . ." Senator Taft gave this explanation to the Senate of the meaning of the section: "In the first place, the evidence must be substantial; in the second place, it must still look substantial when viewed in the light of the entire record. That does not go so far as saying that a decision can be reversed on the weight of the evidence. It does not go quite so far as the power given to a circuit court of appeals to review a district court decision, but it goes a great deal further than the present law, and gives the court greater opportunity to reverse an obviously unjust decision on the part of the National Labor Relations Board." 93 Cong.Rec. 3839, reprinted in 2 Legislative History 1014. [ Footnote 22 ] H.R.Rep. No. 510, 80th Cong., 1st Sess. 56, reprinted in 1 Legislative History 560. In Labor Board v. Nevada Consolidated Copper Corp., 316 U. S. 105 , 316 U. S. 107 , we reversed a judgment refusing to enforce a Board order because, "upon an examination of the record, we cannot say that the findings of fact of the Board are without support in the evidence." The sufficiency of evidence to support findings of fact is not involved in the three other decisions of this Court to which reference was made. Labor Board v. Hearst Publications, Inc., 322 U. S. 111 ; Republic Aviation Corp. v. Labor Board and Labor Board v. Le Tourneau Co., 324 U. S. 793 . The language used by the Court offers a probable explanation for including two of the decisions of Courts of Appeals. In Wilson & Co. v. Labor Board, 126 F.2d 114, 117, the Court of Appeals for the Seventh Circuit sustained a finding that the employer dominated a company union after stating that it had "recognized (or tried to) that findings must be sustained, even when they are contrary to the great weight of the evidence, and we have ignored, or at least endeavored to ignore, the shocking injustices which such findings, opposed to the overwhelming weight of the evidence, produce." Labor Board v. Columbia Products Corp., 141 F.2d 687, 688 is a per curiam decision of the Court of Appeals for the Second Circuit sustaining a finding of discriminatory discharge. The court said of the Board's decision on a question of fact, "Though it may strain our credulity, if it does not quite break it down, we must accept it. . . ." The reason for disapproval of Labor Board v. Union Pacific Stages, 99 F.2d 153, is not apparent. The Court of Appeals for the Ninth Circuit there enforced the portion of the Board's order directing the company to disavow a policy of discrimination against union members on the ground that there appeared "to be evidence, although disputed," that some company officials had discouraged employees from joining. 99 F.2d at 179. The bulk of the lengthy opinion, however, is devoted to a discussion of the facts to support the court's conclusion that the Board's findings of discriminatory discharges should not be sustained. [ Footnote 23 ] Labor Board v. Standard Oil Co., 138 F.2d 885; Labor Board v. Columbia Products Corp., 141 F.2d 687. See notes 8 and | 8 and S. 474fn22|>22, supra. [ Footnote 24 ] Rule 53(e)(2), Fed.Rules Civ.Proc., gives finality to the findings of a master unless they are clearly erroneous. The court's ruling excluding from consideration disagreement between the Board and the examiner was in apparent conflict with the views of three other circuits. Labor Board v. Ohio Calcium Co., 133 F.2d 721, 724; A. E. Staley Mfg. Co. v. Labor Board, 117 F.2d 868, 878; Wilson & Co. v. Labor Board, 123 F.2d 411, 418; cf. International Ass'n of Machinists v. Labor Board, 71 App.D.C. 175, 180, 110 F.2d 29, 34( C.A.D.C.Cir.). [ Footnote 25 ] Final Report, 51. [ Footnote 26 ] §§ 308(1) and 309(2) of the proposed bill, quoted in Final Report, 200, 201. [ Footnote 27 ] § 8(a), 60 Stat. 242, 5 U.S.C. § 1007(a). The quoted provision did not appear in the bill in the form in which it was introduced into the Senate. S. 7, 79th Cong., 1st Sess., § 7. It was added by the Senate Judiciary Committee. The Committee published its reasons for modifying the earlier draft, but gave no explanation for this particular change. See S.Doc. No. 248, supra, 32-33. It is likely that the sentence was intended to embody a clause in the draft prepared by the Attorney General's Committee which provided that, on review of a case decided initially by an examiner, an agency should have jurisdiction to remand or to "affirm, reverse, modify, or set aside in whole or in part the decision of the hearing commissioner, or itself to make any finding which in its judgment is proper upon the record." § 309(2), Final Report 201. The substance of this recommendation was included in bills introduced into the House. H.R. 184, 79th Cong., 1st Sess., § 309(2), and H.R. 339, 79th Cong., 1st Sess., § 7(c), both quoted in S.Doc. No. 248, supra, 138, 143. [ Footnote 28 ] Salaries of trial examiners range from $7,600 to $10,750 per year. See Appendix to the Budget of the United States Government for the fiscal year ending June 30, 1952, p. 47. [ Footnote 29 ] S.Rep. No. 752, supra, 24, reproduced in S.Doc. No. 248, supra, 210. [ Footnote 30 ] H.R.Rep. No. 1980, 79th Cong., 2d Sess. 38-39, reprinted in S.Doc. No. 248, supra, 272-273. The House Report added that, "In a broad sense, the agencies' reviewing powers are to be compared with that of courts under section 10(e) of the bill." The language of the statute offers no support for this statement. [ Footnote 31 ] S.Rep. No. 105, 80th Cong., 1st Sess. 9, quoted in 1 Legislative History of the Labor Management Relations Act 1947, p. 415.

The Supreme Court held that the National Labor Relations Board's decision to reinstate an employee with back pay was supported by substantial evidence and should be enforced. The Court clarified the standard of review for courts reviewing administrative agency decisions, stating that the agency's findings must be supported by substantial evidence on the record as a whole. This means courts must consider all the evidence, including that which contradicts the agency's view, when determining if the decision is reasonable and fair.

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SEC v. Chenery Corp. (Chenery I)

https://supreme.justia.com/cases/federal/us/318/80/

U.S. Supreme Court SEC v. Chenery Corp., 318 U.S. 80 (1943) Securities and Exchange Commission v. Chenery Corporation No. 254 Argued December 17, 18, 1942 Decided February 1, 1943 318 U.S. 80 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA Syllabus By an order of the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, approval was given, over objections, to a plan for the reorganization of a registered holding company, whereby preferred stock which had been acquired by officers and directors of the company while plans for its reorganization were before the Commission would not be converted into stock of the reorganized company, as would all other preferred stock, but would be surrendered at cost plus interest. The Commission explicitly based its order on its view of principles of equity judicially established. However, the Commission did not find, but, on the contrary, disavowed, that the specific transactions showed misuse by the officers and directors of their position as reorganization managers, or that, as such managers, they took advantage of the corporation, other stockholders, or the investing public. Held: 1. On review under § 24(a) of the Act, the validity of the order of the Commission must be judged on the grounds upon which the record discloses that its action was based. P. 318 U. S. 87 . 2. Tested by principles of equity judicially established, the order of the Commission can not be sustained. P. 318 U. S. 88 . 3. It is immaterial that the Commission might have made findings which would justify its order as an appropriate safeguard of interests which the Act was designed to protect. Such findings are essential to the validity of the order, and here there is none. P. 318 U. S. 94 . Page 318 U. S. 81 4. Such an administrative order can not be upheld if not sustainable by the grounds upon which it was based by the Commission. P. 318 U. S. 95 . 75 U.S.App.D.C. 374, 128 F.2d 303, remanded. Certiorari, 317 U.S. 609, to review a judgment setting aside an order of the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935. MR. JUSTICE FRANKFURTER delivered the opinion of the Court. The respondents, who were officers, directors, and controlling stockholders of the Federal Water Service Corporation (hereafter called Federal), a holding company registered under the Public Utility Holding Company Act of 1935, c. 687, 49 Stat. 803, 15 U.S.C. § 79 et seq., brought this proceeding under § 24(a) of the Act to review an order made by the Securities and Exchange Commission on September 24, 1941, approving a plan of reorganization for the company. Under the Commission's order, preferred stock acquired by the respondents during the period in which successive reorganization plans proposed by the management of the company were before the Commission was not permitted to participate in the reorganization on an equal footing with all other preferred stock. The Court of Appeals for the District of Columbia, with one judge dissenting, set the Commission's order aside, 75 U.S.App.D.C. 374, 128 F.2d 303, and, because the question presented looms large in the administration of the Act, we brought the case here. 317 U.S. 609 Page 318 U. S. 82 The relevant facts are as follows. In 1937, Federal was a typical public utility holding company. Incorporated in Delaware, its assets consisted of securities of subsidiary water, gas, electric, and other companies in thirteen states and one foreign country. The respondents controlled Federal through their control of its parent, Utility Operators Company, which owned all of the outstanding shares of Federal's Class B common stock, representing the controlling voting power in the company. On November 8, 1937, when Federal registered as a holding company under the Public Utility Holding Company Act of 1935, its management filed a plan for reorganization under §§ 7 and 11 of the Act, the relevant portions of which are copied in the margin. [ Footnote 1 ] This plan, as well as two other plans later Page 318 U. S. 83 submitted by Federal, provided for participation by Class B stockholders in the equity of the proposed reorganized company. This feature of the plans was unacceptable to the Commission, and all were ultimately withdrawn. Page 318 U. S. 84 On March 30, 1940, a fourth plan was filed by Federal. This plan, proposing a merger of Federal, Utility Operators Company, and Federal Water and Gas Corporation, a wholly owned inactive subsidiary of Federal, contained no provision for participation by the Class B stock. Instead, that class of stock was to be surrendered for cancellation, and the preferred and Class A common stock of Federal were to be converted into common stock of the new corporation. As the Commission pointed out in its analysis of the proposed plan, "except for the 5.3% of new common allocated to the present holders of Class A stock, substantially all of the equity of the reorganized company will be given to the present preferred stockholders." During the period from November 8, 1937, to June 30, 1940, while the successive reorganization plans were before the Commission, the respondents purchased a total of 12,407 shares of Federal's preferred stock. (The total number of outstanding shares of Federal's preferred stock was 159,269.) These purchases were made on the over-the-counter market through brokers at prices lower than the book value of the common stock of the new corporation into which the preferred stock would have been converted under the proposed plan. If this feature of the plan had been approved by the Commission, the respondents, through their holdings of Federal's preferred stock, would Page 318 U. S. 85 have acquired more than 10 percent of the common stock of the new corporation. The respondents frankly admitted that their purpose in buying the preferred stock was to protect their interests in the company. In ascertaining whether the terms of issuance of the new common stock were "fair and equitable" or "detrimental to . . . the interest of investors" within § 7 of the Act, the Commission found that it could not approve the proposed plan so long as the preferred stock acquired by the respondents would be permitted to share on a parity with other preferred stock. The Commission did not find fraud or lack of disclosure, but it concluded that the respondents, as Federal's managers, were fiduciaries, and hence under a "duty of fair dealing" not to trade in the securities of the corporation while plans for its reorganization were before the Commission. It recommended that a formula be devised under which the respondents' preferred stock would participate only to the extent of the purchase prices paid plus accumulated dividends since the dates of such purchases. Accordingly, the plan was thereafter amended to provide that the preferred stock acquired by the respondents, unlike the preferred stock held by others, would not be converted into stock of the reorganized company, but could only be surrendered at cost plus 4 percent interest. The Commission, over the respondents' objections, approved the plan as thus amended, and it is this order which is now under review. We completely agree with the Commission that officers and directors who manage a holding company in process of reorganization under the Public Utility Holding Company Act of 1935 occupy positions of trust. We reject a lax view of fiduciary obligations, and insist upon their scrupulous observance. See Wormley v. Wormley , 8 Wheat. 421, 21 U. S. 441 ; Southern Pacific Co. v. Bogert, 250 U. S. 483 , 250 U. S. 487 -488; and see Stone, The Public Influence of the Bar, 48 Harv.L.Rev. 1, 8-9. But to say that a man is a fiduciary Page 318 U. S. 86 only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty? The Commission did not find that the respondents, as managers of Federal, acted covertly or traded on inside knowledge, or that their position as reorganization managers enabled them to purchase the preferred stock at prices lower than they would otherwise have had to pay, or that their acquisition of the stock in any way prejudiced the interests of the corporation or its stockholders. To be sure, the new stock into which the respondents' preferred stock would be converted under the plan of reorganization would have a book value -- which may or may not represent market value -- considerably greater than the prices paid for the preferred stock. But that would equally be true of purchases of preferred stock made by other investors. The respondents, the Commission tells us, acquired their stock as the outside world did, and upon no better terms. The Commission dealt with this as a specific case, and not as the application of a general rule formulating rules of conduct for reorganization managers. Consequently, it is a vital consideration that the Commission conceded that the respondents did not acquire their stock through any favoring circumstances. In its own words, "honesty, full disclosure, and purchase at a fair price" characterized the transactions. The Commission did not suggest that, as a result of their purchases of preferred stock, the respondents would be unjustly enriched. On the contrary, the question before the Commission was whether the respondents, simply because they were reorganization managers, should be denied the benefits to be received by the 6,000 other preferred stockholders. Some technical rule of law must have moved the Commission to single out the respondents and deny their preferred Page 318 U. S. 87 stock the right to participate equally in the reorganization. To ascertain the precise basis of its determination, we must look to the Commission's opinion. The Commission stated that, "in the process of formulation of a 'voluntary' reorganization plan, the management of a corporation occupies a fiduciary position toward all of the security holders to be affected, and that it is subjected to the same standards as other fiduciaries with respect to dealing with the property which is the subject matter of the trust." Applying by analogy the restrictions imposed on trustees in trafficking in property held by them in trust for others, Michoud v. Girod , 4 How. 503, 45 U. S. 557 , the Commission ruled that, even though the management does not hold the stock of the corporation in trust for the stockholders, nevertheless the "duty of fair dealing" which the management owes to the stockholders is violated if those in control of the corporation purchase its stock, even at a fair price, openly and without fraud. The Commission concluded that "honesty, full disclosure, and purchase at a fair price do not take the case outside the rule." In reaching this result, the Commission stated that it was merely applying "the broad equitable principles enunciated in the cases heretofore cited," namely, Pepper v. Litton, 308 U. S. 295 ; Michoud v. Girod , 4 How. 503, 45 U. S. 557 ; Magruder v. Drury, 235 U. S. 106 , 235 U. S. 119 -120; and Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545. Its opinion plainly shows that the Commission purported to be acting only as it assumed a court of equity would have acted in a similar case. Since the decision of the Commission was explicitly based upon the applicability of principles of equity announced by courts, its validity must likewise be judged on that basis. The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based. Page 318 U. S. 88 In confining our review to a judgment upon the validity of the grounds upon which the Commission itself based its action, we do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct "although the lower court relied upon a wrong ground or gave a wrong reason." Helvering v. Gowran, 302 U. S. 238 , 302 U. S. 245 . The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made, but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate. But it is also familiar appellate procedure that, where the correctness of the lower court's decision depends upon a determination of fact which only a jury could make, but which has not been made, the appellate court cannot take the place of the jury. Like considerations govern review of administrative orders. If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming, no less than reversing, its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency. If, therefore, the rule applied by the Commission is to be judged solely on the basis of its adherence to principles of equity derived from judicial decisions, its order plainly cannot stand. As the Commission concedes here, the courts do not impose upon officers and directors of a corporation any fiduciary duty to its stockholders which precludes them, merely because they are officers and directors, from buying and selling the corporation's stock. [ Footnote 2 ] Page 318 U. S. 89 The cases upon which the Commission relied do not establish principles of law and equity which, in themselves, are sufficient to sustain its order. The only question in Pepper v. Litton, 308 U. S. 295 , was whether claims obtained by the controlling stockholders of a bankrupt corporation were to be treated equally with the claims of other creditors where the evidence revealed "a scheme to defraud creditors reminiscent of some of the evils with which 13 Eliz, c. 5 was designed to cope," 308 U.S. at 308 U. S. 296 . Another case relied upon, Woods v. City Bank Co., 312 U. S. 262 , held only that a bankruptcy court, in the exercise of its plenary power to review fees and expenses in connection with a reorganization proceeding under Chapter X of the Chandler Act, 52 Stat. 840, could deny compensation to protective committees representing conflicting interests. Michoud v. Girod , 4 How. 503, and Magruder v. Drury, 235 U. S. 106 , dealt with the specific obligations of express trustees, and not with those of persons in control of a corporate enterprise toward its stockholders. Determination of what is "fair and equitable" calls for the application of ethical standards to particular sets of facts. But these standards are not static. In evolving standards of fairness and equity, the Commission is not bound by settled judicial precedents. Congress certainly did not mean to preclude the formulation by the Commission of standards expressing a more sensitive regard for what is right and what is wrong than those prevalent at the time the Public Utility Holding Company Act of 1935 became law. But the Commission did not, in this case, proffer new standards reflecting the experience gained by it in effectuating the legislative policy. On the contrary, it explicitly disavowed any purpose of going beyond those which the courts had theretofore recognized. Since the Commission professed to decide the case before it according to settled judicial doctrines, its action must be judged by the standards which the Commission itself invoked. Page 318 U. S. 90 And, judged by those standards, i.e., those which would be enforced by a court of equity, we must conclude that the Commission was in error in deeming its action controlled by established judicial principles. But the Commission urges here that the order should nevertheless be sustained because "the effect of trading by management is not measured by the fairness of individual transactions between buyer and seller, but by its relation to the timing and dynamics of the reorganization which the management itself initiates and so largely controls." Its argument lays stress upon the "strategic position enjoyed by the management in this type of reorganization proceeding, and the vesting in it of statutory powers available to no other representative of security holders." It contends that these considerations warrant the stern rule applied in this case, since the Commission "has dealt extensively with corporate reorganizations, both under the Act, and other statutes entrusted to it," and "has, in addition, exhaustively studied protective and reorganization committees," and that the situation was therefore "peculiarly within the Commission's special administrative competence." In determining whether to approve the plan of reorganization proposed by Federal's management, the Commission could inquire, under § 7(d)(6) and (e) of the Act, whether the proposal was "detrimental to the public interest or the interest of investors or consumers," and, under § 11(e), whether it was "fair and equitable." That these provisions were meant to confer upon the Commission broad powers for the protection of the public plainly appears from the reports of the Congressional committees in charge of the legislation. The provisions of § 7 were "designed to give adequate protection to investors and consumers . . . , and are in accord with the underlying purpose of the legislation to give to investors and consumers full protection against the deleterious practices Page 318 U. S. 91 which have characterized certain holding company finance in the past." Sen.Rep.No.621, 74th Cong., 1st Sess., p. 28. Similarly, the authority given the Commission by § 11 was intended to be responsive to the demands of the particular situations with which the Commission would be faced: "Under these subsections [11(d)(e), and (f)], Commission approval of reorganization plans and supervision of the conditions under which such plans are prepared will make it impossible for a group of favored insiders to continue their domination over inarticulate and helpless minorities, or even, as is often the case, majorities. . . ." Id., p. 33. In view of this legislative history, reflecting the range of public interests committed to the care of the Commission, § 17(a) and (b), which requires officers and directors of any holding company registered under the Act to file statements of their security holdings in the company and provides that profits made from dealing in such securities within any period of less than six months shall inure to the benefit of the company, cannot be regarded as a limitation upon the power of the Commission to deal with other situations in which officers and directors have failed to measure up to the standards of conduct imposed upon them by the Act. The Act vests in the officers and directors of a holding company registered under the Act broad powers as representatives of all the stockholders. Besides the Commission, only the management can initiate a proceeding before the Commission to simplify the corporate structure and to effect a fair and equitable distribution of voting power among security holders. Only the management can amend a plan under §§ 7 and 11(e), and this it may do at any time; only the management can withdraw the plan, and this, too, it may do at will; and even after the Commission has approved a plan, it cannot be carried out without the consent of the management. Page 318 U. S. 92 Notwithstanding § 17(a) and (b), therefore, the Commission could take appropriate action for the correction of reorganization abuses found to be "detrimental to the public interest or the interest of investors or consumers." It was entitled to take into account those more subtle factors in the marketing of utility company securities that gave rise to the very grave evils which the Public Utility Holding Act of 1935 was designed to correct. See the concurring opinion of Judge Learned Hand in Morgan, Stanley & Co. v. Securities Exchange Commission, 126 F.2d 325, 332. But the difficulty remains that the considerations urged here in support of the Commission's order were not those upon which its action was based. The Commission did not rely upon "its special administrative competence"; it formulated no judgment upon the requirements of the "public interest or the interest of investors or consumers" in the situation before it. Through its preoccupation with the special problems of utility reorganizations, the Commission accumulates an experience and insight denied to others. Had the Commission, acting upon its experience and peculiar competence, promulgated a general rule of which its order here was a particular application, the problem for our consideration would be very different. Whether and to what extent directors or officers should be prohibited from buying or selling stock of the corporation during its reorganization presents problems of policy for the judgment of Congress or of the body to which it has delegated power to deal with the matter. Abuse of corporate position, influence, and access to information may raise questions so subtle that the law can deal with them effectively only by prohibitions not concerned with the fairness of a particular transaction. But before transactions otherwise legal can be outlawed or denied their usual business consequences, they must fall under the ban of some standards of conduct prescribed by an agency of Page 318 U. S. 93 government authorized to prescribe such standards -- either the courts or Congress or an agency to which Congress has delegated its authority. Congress itself did not proscribe the respondents' purchases of preferred stock in Federal. Established judicial doctrines do not condemn these transactions. Nor has the Commission, acting under the rulemaking powers delegated to it by § 11(e), promulgated new general standards of conduct. It purported merely to be applying an existing judge-made rule of equity. The Commission's determination can stand, therefore, only if it found that the specific transactions under scrutiny showed misuse by the respondents of their position as reorganization managers, in that, as such managers, they took advantage of the corporation or the other stockholders or the investing public. The record is utterly barren of any such showing. Indeed, such a claim against the respondents was explicitly disavowed by the Commission. In view of the conditions imposed by the Commission in approving the plan, it is clear that the respondents were charged with violation of a positive command of law, rather than with any moral wrong. If there had been a wrong, it would be against the stockholders from whom they purchased the preferred stock at less than the book value of the new stock -- which, as we have already said, may or may not be its real value. But the Commission did not regard such stockholders as beneficiaries of the respondents' "trust," and hence entitled to restitution. The Commission did not undo the purchases deemed by it to have been made by the respondents in violation of their fiduciary obligations. Instead, the Commission confirmed the purchases, and ordered that the stock be surrendered to the corporation. Judged, therefore, as a determination based upon judge-made rules of equity, the Commission's order cannot be upheld. Its action must be measured by what the Commission Page 318 U. S. 94 did, not by what it might have done. It is not for us to determine independently what is "detrimental to the public interest or the interest of investors or consumers" or "fair and equitable" within the meaning of §§ 7 and 11 of the Public Utility Holding Company Act of 1935. The Commission's action cannot be upheld merely because findings might have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act. There must be such a responsible finding. Compare United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499 , 294 U. S. 510 -511. There is no such finding here. Congress has seen fit to subject to judicial review such orders of the Securities and Exchange Commission as the one before us. That the scope of such review is narrowly circumscribed is beside the point. For the courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review. If the action rests upon an administrative determination -- an exercise of judgment in an area which Congress has entrusted to the agency -- of course it must not be set aside, because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law. In either event, the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted by clearly disclosed and adequately sustained. "The administrative process will best be vindicated by clarity in its exercise." Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 , 313 U. S. 197 . What was said in that case is equally applicable here: "We do not intend to enter the province the belongs to the Board, nor do we do so. All we ask of the Board is to give clear indication that it has exercised the discretion with Page 318 U. S. 95 which Congress has empowered it. This is to affirm most emphatically the authority of the Board." Ibid. Compare United States v. Carolina Carriers Corp., 315 U. S. 475 , 315 U. S. 488 -490. In finding that the Commission's order cannot be sustained, we are not imposing any trammels on its powers. We are not enforcing formal requirements. We are not suggesting that the Commission must justify its exercise of administrative discretion in any particular manner or with artistic refinement. We are not sticking in the bark of words. We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained. The cause should therefore be remanded to the Court to Appeals with directions to remand to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate. So ordered. Mr. Justice DOUGLAS took no part in the consideration and decision of this case. [ Footnote 1 ] "Sec. 7. (a) A registered holding company or subsidiary company thereof may file a declaration with the Commission regarding any of the acts enumerated in subsection (a) of section 6, in such form as the Commission may be rules and regulations prescribe as necessary or appropriate in the public interest or for the protection of investors or consumers. Such declaration shall include --" "(1) such of the information and documents which are required to be filed in order to register a security under section 7 of the Securities Act of 1933, as amended, as the Commission may by rules and regulations or order prescribe as necessary or appropriate in the public interest or for the protection of investors or consumers; and" "(2) such additional information, in such form and detail, and such documents regarding the declarant or any associate company thereof, the particular security and compliance with such State laws as may apply to the act in question as the Commission may by rules and regulations or order prescribe as necessary or appropriate in the public interest or for the protection of investors or consumers. . . ." " * * * *" "(d) If the requirements of subsections (c) and (g) are satisfied, the Commission shall permit a declaration regarding the issue or sale of a security to become effective unless the Commission finds that --" " * * * *" "(6) the terms and conditions of the issue or sale of the security are detrimental to the public interest or the interest of investors or consumers." "(e) If the requirements of subsection (g) are satisfied, the Commission shall permit a declaration to become effective regarding the exercise of a privilege or right to alter the priorities, preferences, voting power, or other rights of the holders of an outstanding security unless the Commission finds that such exercise of such privilege or right will result in an unfair or inequitable distribution of voting power among holders of the securities of the declarant or is otherwise detrimental to the public interest or the interest of investors or consumers." "(f) Any order permitting a declaration to become effective may contain such terms and conditions as the Commission finds necessary to assure compliance with the conditions specified in this section. . . ." "Sec. 11. (a) It shall be the duty of the Commission to examine the corporate structure of every registered holding company and subsidiary company thereof, the relationships among the companies in the holding company system of every such company and the character of the interests thereof and the properties owned or controlled thereby to determine the extent to which the corporate structure of such holding company system and the companies therein may be simplified, unnecessary complexities therein eliminated, voting power fairly and equitably distributed among the holders of securities thereof, and the properties and business thereof confined to those necessary or appropriate to the operations of an integrated public utility system. . . ." " * * * *" "(e) In accordance with such rules and regulations or order as the Commission may deem necessary or appropriate in the public interest or for the protection of investors or consumers, any registered holding company or any subsidiary company of a registered holding company may, at any time after January 1, 1936, submit a plan to the Commission for the divestment of control, securities, or other assets, or for other action by such company or any subsidiary company thereof for the purpose of enabling such company or any subsidiary company thereof to comply with the provisions of subsection (b). If, after notice and opportunity for hearing, the Commission shall find such plan, as submitted or as modified, necessary to effectuate the provisions of subsection (b) and fair and equitable to the persons affected by such plan, the Commission shall make an order approving such plan; and the Commission, at the request of the company, may apply to a court, in accordance with the provisions of subsection (f) of section 18 to enforce and carry out the terms and provisions of such plan. If, upon any such application, the court, after notice and opportunity for hearing, shall approve such plan as fair and equitable and as appropriate to effectuate the provisions of section 11, the court, as a court of equity may, to such extent as it deems necessary for the purpose of carrying out the terms and provisions of such plan, take exclusive jurisdiction and possession of the company or companies and the assets thereof, wherever located; and the court shall have jurisdiction to appoint a trustee, and the court may constitute and appoint the Commission as sole trustee, to hold or administer, under the direction of the court and in accordance with the plan theretofore approved by the court and the Commission, the assets so possessed. . . ." [ Footnote 2 ] See 1 Dodd and Baker, Cases on Business Associations (1940) 498-500, 583-86, 621-22; 1 Morawetz on Private Corporations (2d ed. 1886) §§ 516-21, pp. 482-89. MR. JUSTICE BLACK, with whom MR. JUSTICE REED and MR. JUSTICE MURPHY concur, dissenting. For reasons set out in the Court's opinion and the dissenting opinion below, I agree that these respondents, officers and directors of the Corporations seeking reorganization, acted in a fiduciary capacity in formulating and managing plans they submitted to the Commission, and that, as fiduciaries, they should be held to a scrupulous observance of their trust. I further agree that Congress conferred on the Commission "broad powers for the protection of the public," investors and consumers, and that the Commission, not the Court, was invested by Congress with authority to determine whether a proposed reorganization or merger would be "fair and equitable," or whether Page 318 U. S. 96 it would be "detrimental to the public interest or the interest of investors or consumers." The conclusions of the Court with which I disagree are those in which it holds that, while the Securities and Exchange Commission has abundant power to meet the situation presented by the activities of these respondents, it has not done so. This conclusion is apparently based on the premise that the Commission has relied upon the common law, rather than on "new standards reflecting the experience gained by it in effectuating legislative policy," and that the common law does not support its conclusion; that the Commission could have promulgated "a general rule of which its order here was a particular application," but, instead, made merely an ad hoc judgment; and that the Commission made no finding that these practices would prejudice anyone. The Commission's actual finding was that "The plan of reorganization herein considered, like the previous plans filed with us over the past several years, was formulated by the management of Federal, and discussions concerning the reorganization of this corporation have taken place between the management and the staff of the Commission over the past several years;" that C. T. Chenery purchased 8,618 shares of preferred stock during this period; that other officers and directors of the concerns involved acquired 3,789 shares during the same period; that, for this stock these respondent fiduciaries paid $328,346.89 and then submitted their latest reorganization plan, under which this purchased stock would have a book value in the reorganization company of $1,162,431.90. In the light of these and other facts, the Commission concluded that the new plan would be "unfair, inequitable, and detrimental so long as the preferred stock purchased by the management at low prices is to be permitted to share on a parity with other preferred stock." The Commission declined to give "effectiveness" to the proposed plan and entered Page 318 U. S. 97 "adverse findings" against it under §§ 7(d)(1) and 7(d)(2) of the controlling Act, resting its refusal to approve on this statement: "We find that the provisions for participation by the preferred stock hold by the management result in the terms of issuance of the new securities being detrimental to the interests of investors, and the plan being unfair and inequitable." The grounds upon which the Commission made its findings seem clear enough to me. Accepting, as the Court does, the fiduciary relationship of these respondents in managing the Commission proceedings, it follows that their peculiar information as to the stock values under their proposed plan afforded them opportunities for stock purchase profits which other stockholders did not have. While such fiduciaries, they bought preferred stock and then offered a reorganization plan which would give this stock a book value of four times the price they had paid for it. What the Commission has done is to say that no such reward shall be reaped by these fiduciaries. At the same time, they are permitted to recover the full purchase price with interest. To permit their reorganization plan to put them in the same position as the old stockholders gives to these fiduciaries an unconscionable profit for trading with inside information. I can see nothing improper in the Commission's findings and determinations. On the contrary, the rule they evolved appears to me to be a salutary one, adequately supported by cogent reasons and thoroughly consistent with the high standards of conduct which should be required of fiduciaries. That the Commission saw fit to draw support for its own administrative conclusion from decisions of courts should not detract from the validity of its findings. Entrusted, as the Commission is, with the responsibility of lifting the standard of transactions in the marketplace in order that the managers of financial ventures may not impose upon the general investing public, Page 318 U. S. 98 it seems wholly appropriate that the Commission should have recognized the influence of admonitory language like the following it approvingly quoted from Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546: "A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this, there has developed a tradition that is unbending and inveterate. . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd." The decisions cited by the Commission seem to me to show the soundness of the conclusion it reached. As judges, we are entitled to a sense of gratification that the common law has been able to make so substantial a contribution to the development of the administrative law of this field. See e.g. Pepper v. Litton, 308 U. S. 295 ; Michoud v. Girod , 4 How. 503; Magruder v. Drury, 235 U. S. 106 . Of course, the Commission is not limited to common law principles in protecting investors and the public, but, even if it were so limited, the Magruder case would, in my opinion, provide complete support for the position taken by the Commission: "The intention is to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty which is owing in a fiduciary capacity. . . . It makes no difference that the estate was not a loser in the transaction, or that the commission was no more than the services were reasonably worth." pp. 235 U. S. 119 -120. The distinction now seen by the Court between these cases and the instant problem comes to little more than that the fact situations are similar, but not identical. While I consider that the cases on which the Commission relied give full support to the conclusion it reached, I do not suppose, as the Court does, that the Commission's rule is not fully based on Commission experience. The Page 318 U. S. 99 Commission did not "explicitly disavow" any reliance on what its members had learned in their years of experience, and, of course, they, as trade experts, made their findings that respondent's practice was "detrimental to the interests of investors" in the light of their knowledge. That they did not unduly parade fact data across the pages of their reports is a commendable saving of effort, since they meant merely to announce for their own jurisdiction an obvious rule of honest dealing closely related to common law standards. Of course, the Commission can now change the form of its decision to comply with the Court order. The Court can require the Commission to use more words; but it seems difficult to imagine how more words or different words could further illuminate its purpose or its determination. A judicial requirement of circumstantially detailed findings as the price of court approval can bog the administrative power in a quagmire of minutiae. Hypercritical exactions as to findings can provide a handy but an almost invisible glideway enabling courts to pass "from the narrow confines of law into the more spacious domain of policy." Phelps-Dodge Corporation v. Labor Board, 313 U. S. 177 , 313 U. S. 194 . Here for instance, the Court apparently holds that the Commission has full power to do exactly what it did; but the Court sends the matter back to the Commission to revise the language of its opinion, in order, I suppose, that the Court may reappraise the reasons which moved the Commission to determine that the conduct of these fiduciaries was detrimental to the public and investors. The Act under which the Commission proceeded does not purport to vest us with authority to make such a reappraisal. That the Commission has chosen to proceed case by case, rather than by a general pronouncement, does not appear to me to merit criticism. The intimation is that the Commission can act only through general formulae rigidly adhered to. In the first place, the rule of the single case is obviously a general advertisement to the trade, Page 318 U. S. 100 and, in the second place, the briefs before us indicate that this is but one of a number of cases in which the Commission is moving to an identical result on a broad front. But, aside from these considerations, the Act gives the Commission wide powers to evolve policy standards, and this may well be done case by case, as under the Federal Trade Commission Act. Federal Trade Commission v. R. F. Keppel & Bros., 291 U. S. 304 , 291 U. S. 310 -312. The whole point of the Commission finding has been lost if it is criticized for a failure to show injury to particular shareholders. The Commission holding is that it should not "undertake to decide case by case whether the management's trading has, in fact, operated to the detriment of the persons whom it represents," because the "tendency to evil" from this practice is so great that the Commission desires to attach to it a conclusive presumption of impropriety. The rule the Commission adopted here is appropriate. Protection of investors from insiders was one of the chief reasons which led to adoption of the law which the Commission was selected to administer. * That purpose can be greatly retarded by over-meticulous exactions -- exactions which require a detailed narration of underlying reasons which prompt the Commission to require high standards of honesty and fairness. I favor approving the rule they applied. * "Among the most vicious practices unearthed at the hearings before the subcommittee was the flagrant betrayal of their fiduciary duties by directors and officers of corporations who used their positions of trust and the confidential information which came to them in such positions to aid them in their market activities. Closely allied to this type of abuse was the unscrupulous employment of inside information by large stockholders who, while not directors and officers, exercised sufficient control over the destinies of their companies to enable them to acquire and profit by information not available to others." Report of the Senate Committee on Banking and Currency on Stock Exchange Practices, Report No. 1455, 73d Cong., 2d Sess.

The Securities and Exchange Commission (SEC) approved a plan for the reorganization of a registered holding company, preventing officers and directors from converting their preferred stock into that of the new company. The United States Supreme Court reviewed the SEC's order and held that the order could not be sustained based on the grounds provided by the SEC, which were principles of equity. The Court remanded the case back to the SEC, emphasizing the need for specific findings that justified the order and aligned with the interests protected by the Public Utility Holding Company Act of 1935.

Government Agencies

Bowles v. Seminole Rock & Sand Co.

https://supreme.justia.com/cases/federal/us/325/410/

U.S. Supreme Court Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) Bowles v. Seminole Rock & Sand Co. No. 914 Argued April 26, 27, 1945 Decided June 4, 1945 325 U.S. 410 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus 1. Under Rule (i) of § 1499.163(a)(2) of Maximum Price Regulation No. 188, issued by the Administrator of the Office of Price Administration under § 2(a) of the Emergency Price Control Act of 1942, a seller's ceiling price for an article which was actually delivered during March, 1942, is the highest price charged for the article so delivered, regardless of when the sale or charge was made. P. 325 U. S. 416 . Page 325 U. S. 411 2. In interpreting an administrative regulation, a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. Pp. 325 U. S. 413 -414. 3. This Court does not here determine the constitutionality or statutory validity of the regulation as so construed (matters determinable in the first instance by the Emergency Court of Appeals), nor any question of hardship of enforcement of such ceiling price (the procedure for relief therefrom being prescribed by § 2(c) of the Act and § 1499.161 of the Regulation). P. 325 U. S. 418 . 145 F.2d 482 reversed. Certiorari, 324 U.S. 835, to review a judgment affirming the dismissal of a suit by the Price Administrator to enjoin the respondent from violation of the Emergency Price Control Act of 1942 and Regulations issued pursuant thereto. MR. JUSTICE MURPHY delivered the opinion of the Court. Our consideration here is directed to the proper interpretation and application of certain provisions of Maximum Price Regulation No. 188, [ Footnote 1 ] issued by the Administrator of the Office of Price Administration under Section 2(a) of the Emergency Price Control Act of 1942. [ Footnote 2 ] Page 325 U. S. 412 Respondent is a manufacturer of crushed stone, a commodity subject to Maximum Price Regulation No. 188. In October, 1941, respondent contracted to furnish the Seaboard Air Line Railway crushed stone on demand at 60 cents per ton, to be delivered when called for by Seaboard. This stone was actually delivered to Seaboard in March, 1942. In January, 1942, respondent had contracted to sell crushed stone to V. P. Loftis Co., a government contractor engaged in the construction of a government dam, for $1.50 a ton. [ Footnote 3 ] This stone was to be delivered by respondent by barge when needed at the dam site. A small portion of stone of a different grade than that sold to seaboard was delivered to Loftis Co. during January pursuant to this contract. For some time thereafter, however, Lotfis Co. was unable to pour concrete or to store crushed stone at the dam site. Respondent thus made no further deliveries under this contract until August, 1942, at which time stone of the same grade as received by Seaboard was delivered to Loftis Co. at the $1.50 rate. Subsequently, and after the effective date of Maximum Price Regulation No. 188, respondent made new contracts to sell crushed stone to Seaboard at 85 cents and $1.00 per ton. Alleging that the highest price at which respondent could lawfully sell crushed stone of the kind sold to Seaboard was 60 cents a ton, since that was asserted to be the highest price charged by respondent during the crucial month of March, 1942, the Administrator of the Office of Price Administration brought this action to enjoin respondent from violating the Act and Maximum Price Regulation No. 188. [ Footnote 4 ] The District Court dismissed the action Page 325 U. S. 413 on the ground that $1.50 a ton was the highest price charged by respondent during March, 1942, and that this ceiling price had not been exceeded. The Fifth Circuit Court of Appeals affirmed the judgment. 145 F.2d 482. We granted certiorari because of the importance of the problem in the administration of the emergency price control and stabilization laws. 324 U.S. 835. In his efforts to combat wartime inflation, the Administrator originally adopted a policy of piecemeal price control, only certain specified articles being subject to price regulation. On April 28, 1942, however, he issued the General Maximum Price Regulation. [ Footnote 5 ] This brought the entire economy of the nation under price control, with certain minor exceptions. The core of the regulation was the requirement that each seller shall charge no more than the prices which he charged during the selected base period of March 1 to 31, 1942. While still applying this general price "freeze" as of March, 1942, numerous specialized regulations relating to particular groups of commodities subsequently have made certain refinements and modifications of the general regulation. Maximum Price Regulation No. 188, covering specified building materials and consumers' goods, is of this number. The problem in this case is to determine the highest price respondent charged for crushed stone during March, 1942, within the meaning of Maximum Price Regulation No. 188. Since this involves an interpretation of an administrative Page 325 U. S. 414 regulation, a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. The legality of the result reached by this process, of course, is quite a different matter. In this case, the only problem is to discover the meaning of certain portions of Maximum Price Regulation No. 188. Our only tools, therefore, are the plain words of the regulation and any relevant interpretations of the Administrator. Section 1499.153(a) of Maximum Price Regulation No. 188 provides that "the maximum price for any article which was delivered or offered for delivery in March, 1942, by the manufacturer, shall be the highest price charged by the manufacturer during March, 1942 (as defined in § 1499.163) for the article." Section 1499.163(a)(2), [ Footnote 6 ] in turn, provides that, for purposes of this regulation, the term: "'Highest price charged during March, 1942' means" "(i) The highest price which the seller charged to a purchaser of the same class for delivery of the article or material during March, 1942; or" "(ii) If the seller made no such delivery during March, 1942, such seller's highest offering price to a purchaser of the same class for delivery of the article or material during that month; or" "(iii) If the seller made no such delivery and had no such offering price to a purchaser of the same class during March, 1942, the highest price charged by the seller during March, 1942, to a purchaser of a different class, adjusted Page 325 U. S. 415 to reflect the seller's customary differential between the two classes of purchasers; . . ." It is thus evident that the regulation establishes three mutually exclusive rules for determining the highest price charged by a seller during March, 1942. The facts of each case must first be tested by rule (i); only if that rule is inapplicable may rule (ii) be utilized, and only if both rules (i) and (ii) are inapplicable is rule (iii) controlling. The dispute in this instance centers about the meaning and applicability of rule (i). The Administrator claims that the rule is satisfied, and therefore is controlling, whenever there has been an actual delivery of articles in the month of March, 1942, such as occurred when respondent delivered the crushed rock to Seaboard at the 60-cent rate. The respondent, on the other hand, argues that there must be both a charge and a delivery during March, 1942, in order to fix the ceiling price according to rule (i). Since the charge or sale to Seaboard occurred several months prior to March, it is asserted that rule (i) becomes inapplicable, and that rule (ii) must be used. Inasmuch as there was an outstanding offering price of $1.50 per ton for delivery of crushed stone to Loftis Co. during the month of March, 1942, although the stone was not actually delivered at that time, respondent concludes that the requirements of rule (ii) have been met, and that the ceiling price is $1.50 per ton. As we read the regulation, however, rule (i) clearly applies to the facts of this case, making 60 cents per ton the ceiling price for respondent's crushed stone. The regulation recognizes the fact that more than one meaning may be attached to the phrase "highest price charged during March, 1942." The phrase might be construed to mean only the actual charges or sales made during March, regardless of the delivery dates. Or it might refer only to the charges made for actual delivery in March. Whatever may be the variety of meanings, however, rule Page 325 U. S. 416 (i) adopts the highest price which the seller "charged . . . for delivery" of an article during March, 1942. The essential element bringing the rule into operation is thus the fact of delivery during March. If delivery occurs during that period, the highest price charged for such delivery becomes the ceiling price. Nothing is said concerning the time when the charge or sale [ Footnote 7 ] giving rise to the delivery occurs. One may make a sale or charge in October relative to an article which is actually delivered in March, and still be said to have "charged . . . for delivery . . . during March." We can only conclude, therefore, that, for purposes of rule (i), the highest price charged for an article delivered during March, 1942, is the seller's ceiling price, regardless of the time when the sale or charge was made. This conclusion is further borne out by the fact that rule (ii) becomes applicable only where "the seller made no such delivery during March, 1942," as contemplated by rule (i). The absence of a delivery, rather than the absence of both a charge and a delivery, during March is necessary to make rule (i) ineffective, thereby indicating that the factor of delivery is the essence of rule (i). It is apparent, moreover, that the delivery must be an actual, instead of a constructive, one. Section 1499.20(d) of General Maximum Price Regulation, incorporated by reference into Maximum Price Regulation No. 188 by Section 1499.151, defines the word "delivered" as meaning "received by the purchaser or by any carrier . . . for shipment to the purchaser" during March, 1942. Thus, an article is not Page 325 U. S. 417 "delivered" to a purchaser during March because of the existence of an executory contract under which no shipments are actually made to him during that month. In short, the Administrator, in rule (i), was concerned with what actually was delivered, not with what might have been delivered. Any doubts concerning this interpretation of rule (i) are removed by reference to the administrative construction of this method of computing the ceiling price. Thus, in a bulletin issued by the Administrator concurrently with the General Maximum Price Regulation entitled "What Every Retailer Should Know About the General Maximum Price Regulation," [ Footnote 8 ] which was made available to manufacturers as well as to wholesalers and retailers, the Administrator stated (p. 3): "The highest price charged during March, 1942 means the highest price which the retailer charged for an article actually delivered during that month or, if he did not make any delivery of that article during March, then his highest offering price for delivery of that article during March." He also stated (p. 4) that "It should be carefully noted that actual delivery during March, rather than the making of a sale during March, is controlling." In his First Quarterly Report to Congress, the Administrator further remarked (p. 40) that "'Highest price charged' means one of two things: (1) It means the top price for which an article was delivered during March, 1942, in completion of a sale to a purchaser of the same class. . . . (2) If there was no actual delivery of a particular article during March, the seller may establish as his maximum price the highest price at which he offered the article for sale during that month." Finally, the Administrator has stated that this position has uniformly been taken by the Office of Price Administration Page 325 U. S. 418 in the countless explanations and interpretations given to inquirers affected by this type of maximum price determination. Our reading of the language of Section 1499.163(a)(2) of Maximum Price Regulation No. 188 and the consistent administrative interpretation [ Footnote 9 ] of the phrase "highest price charged during March, 1942," thus compel the conclusion that respondent's highest price charged during March for crushed stone was 60 cents per ton, since that was the highest price charged for stone actually delivered during that month. The two courts below erred in their interpretation of this regulation, and the judgment below must accordingly be reversed. We do not, of course, reach any question here as to the constitutionality or statutory validity of the regulation as Page 325 U. S. 419 we have construed it, matters that must in the first instance be presented to the Emergency Court of Appeals. Lockerty v. Phillips, 319 U. S. 182 ; Yakus v. United States, 321 U. S. 414 , 321 U. S. 427 -431. Nor are we here concerned with any possible hardship that the enforcement of the 60-cent price ceiling may impose on respondent. Adequate avenues for relief from hardship are open to respondent through the provisions of Section 2(c) of the Act and Section 1499.161 of the regulation. Reversed. MR. JUSTICE ROBERTS thinks the judgment should be affirmed for the reasons given in the opinion of the Circuit Court of Appeals, 145 F.2d 482. [ Footnote 1 ] 7 Fed.Reg. 5872, 7967, 8943. [ Footnote 2 ] 56 Stat. 23. [ Footnote 3 ] The contract actually spoke in terms of $1.50 per cubic yard, but there is no appreciable difference between a cubic yard of crushed stone and a ton of crushed stone. [ Footnote 4 ] The Administrator also sought to recover from respondent a judgment under Section 205(e) of the Act for three times the amount by which the sales price of the crushed stone sold by the respondent to Seaboard after the effective date of Maximum Price Regulation No. 188 exceeded 60 cents per ton. The District Court held that the purchaser, rather than the Administrator, was vested with whatever cause of action existed to recover a judgment under Section 205(e). The Circuit Court of Appeals, however, held that Section 205(e), as amended by Section 108(b) of the Stabilization Extension Act of 1944, 58 Stat. 640, entitled the Administrator, rather than the purchaser, to bring suit under the circumstances of this case. This aspect of the case is not now before us. [ Footnote 5 ] 7 Fed.Reg. 3156. [ Footnote 6 ] 7 Fed.Reg. 7968, 7969. [ Footnote 7 ] Respondent points to the provision in Section 302(a) of the Act, 56 Stat. 36, to the effect that the term "sale," as used in the Act, includes "sales, dispositions, exchanges, leases, and other transfers, and contracts and offers to do any of the foregoing," as well as to a similar provision in Section 1499.20(r) of the General Maximum Price Regulation. But such a definition is of no assistance in determining the meaning of the Administrator's use of the phrase "charged . . . for delivery" during March, 1942. [ Footnote 8 ] General Maximum Price Regulation, Bulletin No. 2 (May, 1942). Maximum Price Regulation No. 188 established prices "at the identical level of the General Maximum Price Regulation" for articles dealt in during March, 1942. 7 Fed.Reg. 5873. [ Footnote 9 ] Respondent points to two allegedly inconsistent interpretations made by the Administrator: 1. On August 20, 1942 (OPA Press Release No. 564), he made certain statements with reference to Amendment 23 to the General Maximum Price Regulation, 7 Fed.Reg. 6615, allowing a different method of maximum price computation where general price increases were announced prior to April 1, 1942, and deliveries at lower prices were made in March under previous contracts. The provisions and applicability of this amendment are not in issue in this case, and statements interpreting that amendment have no bearing here. 2. On December 5, 1942 (OPA Press Release No. 1223), he issued a statement interpreting Amendment 38 to the General Maximum Price Regulation and Amendment 3 to Maximum Price Regulation No. 188, 7 Fed.Reg. 10155. These amendments authorized sellers who made general price increases prior to April 1, 1942, to apply the increases to ceiling prices for goods and services delivered during March under long-term contracts. The Administrator's explanation of these amendments, which are not presently before us, is likewise irrelevant in this case. Indeed, the fact that the Administrator found it necessary to make such amendments is some evidence that, under the rules here in issue, the price established under a previous contract is the maximum price if that was the highest price for goods actually delivered during March, 1942.

Here is a summary of the key holdings in the Supreme Court case of *Bowles v. Seminole Rock & Sand Co.* (1945): - The Court interpreted a price regulation issued by the Administrator of the Office of Price Administration under the Emergency Price Control Act of 1942. - The regulation set a seller's ceiling price for an article delivered during March 1942 as the highest price charged for that article, regardless of when the sale was made. - When interpreting administrative regulations, courts should defer to the administering agency's interpretation of its own regulations, unless that interpretation is clearly wrong or inconsistent with the regulation's plain meaning. - The Court declined to address the constitutionality or statutory validity of the regulation and focused solely on its interpretation and application. - The case concerned the proper interpretation of the phrase "charged...for delivery" in the regulation, and the Court held that it referred to the price charged for goods actually delivered during March 1942. - The Court rejected the respondent's arguments based on the Administrator's prior interpretations of different amendments to the regulation, finding them irrelevant to the specific issue at hand.

Government Agencies

SEC v. Chenery Corp. (Chenery II)

https://supreme.justia.com/cases/federal/us/332/194/

U.S. Supreme Court SEC v. Chenery Corp., 332 U.S. 194 (1947) Securities and Exchange Commission v. Chenery Corporation No. 81 Argued December 13, 16, 1946 Decided June 23, 1947 332 U.S. 194 ast|>* 332 U.S. 194 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA Syllabus 1. In approving a plan for the reorganization of a holding company under the Public Utility Holding Company Act of 1935, the Securities and Exchange Commission required that preferred stock purchased by the management without fraud or concealment while plans of reorganization were before the Commission should not be converted into stock of the reorganized company, like other preferred stock, but should be surrendered at cost plus interest. In SEC v. Chenery Corp., 318 U. S. 80 , this Court held that this requirement could not be sustained on the sole ground upon which it was based by the Commission -- i.e., principles of equity judicially established. On remand, the Commission reexamined the problem and reached the same result, but based this requirement on the ground that to permit the management to profit from purchases of stock made while reorganization proceedings were pending would be inconsistent with the standards of §§ 7 and 11 of the Act. Held: the new order is sustained. Pp. 332 U. S. 196 -199, 332 U. S. 209 . 2. This Court's earlier decision held only that the requirement could not be supported on the sole ground stated by the Commission in its first order, and, on remand for such further proceedings as might be appropriate, the Commission was not precluded in the performance of its administrative function from reaching the same result on proper and relevant grounds. Pp. 332 U. S. 200 -201. 3. The Commission's action was not precluded by the fact that the Commission had not anticipated this problem and adopted a general rule or regulation governing management trading during reorganization. Pp. 332 U. S. 201 -202. 4. The choice between proceeding by general rule or by ad hoc decisions is one that lies primarily in the informed discretion of the administrative agency. Pp. 332 U. S. 202 -203. 5. That an ad hoc decision of the Commission might have a retroactive effect does not necessarily render it invalid. P. 332 U. S. 203 . Page 332 U. S. 195 6. The scope of judicial review of an administrative decision in which a new principle was announced is no different from that in the case of ordinary administrative action. P. 332 U. S. 207 . 7. The judicial function on review of an order of the Commission is at an end when it becomes evident that the Commission's action is based upon substantial evidence and is consistent with the authority granted by Congress. P. 332 U. S. 207 . 8. In determining whether to approve a plan of reorganization under the Act, the Commission may properly consider that some abuses in the field of corporate reorganization may be dealt with effectively only by prohibitions not concerned with the fairness of a particular transaction. Pp. 332 U. S. 207 -208. 9. In its interpretation and application of the "fair and equitable" rule of § 11(e), and of the standard of what is "detrimental to the public interest or the interest of investors or consumers" under §§ 7(d)(6) and 7(e), the Commission did not abuse its discretion in this case. P. 332 U. S. 208 . 10. There was reasonable basis in this case for the conclusion that the benefits and profits accruing to the management from the stock purchases should be prohibited, regardless of the good faith involved. P. 332 U. S. 208 . 11. The Commission's conclusion in this case is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts, and constitutes an allowable administrative judgment which cannot be disturbed on judicial review. P. 332 U. S. 209 . 154 F.2d 6 reversed. Upon remand to the Securities and Exchange Commission of the case decided by this Court in SEC v. Chenery Corp., 318 U. S. 80 , the Commission denied an application for approval of an amendment of the plan of reorganization. Holding Company Act Release No. 5584. The court below reversed. 154 F.2d 6. This Court granted certiorari. 328 U.S. 829. Reversed, p. 332 U. S. 209 . Page 332 U. S. 196 MR. JUSTICE MURPHY delivered the opinion of the Court. This case is here for the second time. In SEC v. Chenery Corp., 318 U. S. 80 , we held that an order of the Securities and Exchange Commission could not be sustained on the grounds upon which that agency acted. We therefore directed that the case be remanded to the Commission for such further proceedings as might be appropriate. On remand, the Commission reexamined the problem, recast its rationale, and reached the same result. The issue now is whether the Commission's action is proper in light of the principles established in our prior decision. When the case was first here, we emphasized a simple but fundamental rule of administrative law. That rule is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside exclusively for the administrative agency. We also emphasized in our prior decision an important corollary of the foregoing rule. If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled Page 332 U. S. 197 to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, "We must know what a decision means before the duty becomes ours to say whether it is right or wrong." United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499 , 294 U. S. 511 . Applying this rule and its corollary, the Court was unable to sustain the Commission's original action. The Commission had been dealing with the reorganization of the Federal Water Service Corporation (Federal), a holding company registered under the Public Utility Holding Company Act of 1935, 49 Stat. 803. During the period when successive reorganization plans proposed by the management were before the Commission, the officers, directors and controlling stockholders of Federal purchased a substantial amount of Federal's preferred stock on the over the counter market. Under the fourth reorganization plan, this preferred stock was to be converted into common stock of a new corporation; on the basis of the purchases of preferred stock, the management would have received more than 10% of this new common stock. It was frankly admitted that the management's purpose in buying the preferred stock was to protect its interest in the new company. It was also plain that there was no fraud or lack of disclosure in making these purchases. But the Commission would not approve the fourth plan so long as the preferred stock purchased by the management was to be treated on a parity with the other preferred stock. It felt that the officers and directors of a holding company in process of reorganization under the Act were fiduciaries, and were under a duty not to trade in the securities of that company during the reorganization period. 8 SEC 893, 915-921. And so the plan was amended to provide that the preferred stock acquired by the management, unlike that held by others, was not to be converted Page 332 U. S. 198 into the new common stock; instead, it was to be surrendered at cost plus dividends accumulated since the purchase dates. As amended, the plan was approved by the Commission over the management's objections. 10 SEC 200. The Court interpreted the Commission's order approving this amended plan as grounded solely upon judicial authority. The Commission appeared to have treated the preferred stock acquired by the management in accordance with what it thought were standards theretofore recognized by courts. If it intended to create new standards growing out of its experience in effectuating the legislative policy, it failed to express itself with sufficient clarity and precision to be so understood. Hence, the order was judged by the only standards clearly invoked by the Commission. On that basis, the order could not stand. The opinion pointed out that courts do not impose upon officers and directors of a corporation any fiduciary duty to its stockholders which precludes them, merely because they are officers and directors, from buying and selling the corporation's stock. Nor was it felt that the cases upon which the Commission relied established any principles of law or equity which, in themselves, would be sufficient to justify this order. The opinion further noted that neither Congress nor the Commission had promulgated any general rule proscribing such action as the purchase of preferred stock by Federal's management. And the only judge-made rule of equity which might have justified the Commission's order related to fraud or mismanagement of the reorganization by the officers and directors, matters which were admittedly absent in this situation. After the case was remanded to the Commission, Federal Water and Gas Corp. (Federal Water), the surviving corporation under the reorganization plan, made an application for approval of an amendment to the plan to provide Page 332 U. S. 199 for the issuance of now common stock of the reorganized company. This stock was to be distributed to the members of Federal's management on the basis of the shares of the old preferred stock which they had acquired during the period of reorganization, thereby placing them in the same position as the public holders of the old preferred stock. The intervening members of Federal's management joined in this request. The Commission denied the application in an order issued on February 7, 1945. Holding Company Act Release No. 5584. That order was reversed by the Court of Appeals, 154 F.2d 6, which felt that our prior decision precluded such action by the Commission. The latest order of the Commission definitely avoids the fatal error of relying on judicial precedents which do not sustain it. This time, after a thorough reexamination of the problem in light of the purposes and standards of the Holding Company Act, the Commission has concluded that the proposed transaction is inconsistent with the standards of §§ 7 and 11 of the Act. It has drawn heavily upon its accumulated experience in dealing with utility reorganizations. And it has expressed its reasons with a clarity and thoroughness that admit of no doubt as to the underlying basis of its order. The argument is pressed upon us, however, that the Commission was foreclosed from taking such a step following our prior decision. It is said that, in the absence of findings of conscious wrongdoing on the part of Federal's management, the Commission could not determine by an order in this particular case that it was inconsistent with the statutory standards to permit Federal's management to realize a profit through the reorganization purchases. All that it could do was to enter an order allowing an amendment to the plan so that the proposed transaction could be consummated. Under this view, the Commission would be free only to promulgate a general rule Page 332 U. S. 200 outlawing such profits in future utility reorganizations; but such a rule would have to be prospective in nature, and have no retroactive effect upon the instant situation. We reject this contention, for it grows out of a misapprehension of our prior decision and of the Commission's statutory duties. We held no more and no less than that the Commission's first order was unsupportable for the reasons supplied by that agency. But when the case left this Court, the problem whether Federal's management should be treated equally with other preferred stockholders still lacked a final and complete answer. It was clear that the Commission could not give a negative answer by resort to prior judicial declarations. And it was also clear that the Commission was not bound by settled judicial precedents in a situation of this nature. 318 U.S. at 318 U. S. 89 . Still unsettled, however, was the answer the Commission might give were it to bring to bear on the facts the proper administrative and statutory considerations, a function which belongs exclusively to the Commission in the first instance. The administrative process had taken an erroneous, rather than a final, turn. Hence, we carefully refrained from expressing any views as to the propriety of an order rooted in the proper and relevant considerations. See Siegel v. Federal Trade Commission, 327 U. S. 608 , 327 U. S. 613 -614. When the case was directed to be remanded to the Commission for such further proceedings as might be appropriate, it was with the thought that the Commission would give full effect to its duties in harmony with the views we had expressed. Ford Motor Co. v. Labor Board, 305 U. S. 364 , 305 U. S. 374 ; Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 278 . This obviously meant something more than the entry of a perfunctory order giving parity treatment to the management holdings of preferred stock. The fact that the Commission had committed a legal error in its first disposition of the case certainly gave Federal's Page 332 U. S. 201 management no vested right to receive the benefits of such an order. See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134 , 309 U. S. 145 . After the remand was made, therefore, the Commission was bound to deal with the problem afresh, performing the function delegated to it by Congress. It was again charged with the duty of measuring the proposed treatment of the management's preferred stock holdings by relevant and proper standards. Only in that way could the legislative policies embodied in the Act be effectuated. The absence of a general rule or regulation governing management trading during reorganization did not affect the Commission's duties in relation to the particular proposal before it. The Commission was asked to grant or deny effectiveness to a proposed amendment to Federal's reorganization plan whereby the management would be accorded parity treatment on its holdings. It could do that only in the form of an order, entered after a due consideration of the particular facts in light of the relevant and proper standards. That was true regardless of whether those standards previously had been spelled out in a general rule or regulation. Indeed, if the Commission rightly felt that the proposed amendment was inconsistent with those standards, an order giving effect to the amendment merely because there was no general rule or regulation covering the matter would be unjustified. It is true that our prior decision explicitly recognized the possibility that the Commission might have promulgated a general rule dealing with this problem under its statutory rulemaking powers, in which case the issue for our consideration would have been entirely different from that which did confront us. 318 U.S. at 318 U. S. 92 -93. But we did not mean to imply thereby that the failure of the Commission to anticipate this problem and to promulgate a general rule withdrew all power from that agency to perform Page 332 U. S. 202 its statutory duty in this case. To hold that the Commission had no alternative in this proceeding but to approve the proposed transaction, while formulating any general rules it might desire for use in future cases of this nature, would be to stultify the administrative process. That we refuse to do. Since the Commission, unlike a court, does have the ability to make new law prospectively through the exercise of its rulemaking powers, it has less reason to rely upon ad hoc adjudication to formulate new standards of conduct within the framework of the Holding Company Act. The function of filling in the interstices of the Act should be performed, as much as possible, through this quasi -legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise. See Report of the Attorney General's Committee on Administrative Procedure in Government Agencies, S.Doc. No. 8, 77th Cong., 1st Sess., p. 29. Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or Page 332 U. S. 203 the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards. And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency. See Columbia Broadcasting System v. United States, 316 U. S. 407 , 316 U. S. 421 . Hence, we refuse to say that the Commission, which had not previously been confronted with the problem of management trading during reorganization, was forbidden from utilizing this particular proceeding for announcing and applying a new standard of conduct. Cf. Federal Trade Commission v. R. F. Keppel & Bro., 291 U. S. 304 . That such action might have a retroactive effect was not necessarily fatal to its validity. Every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency. But such retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law. See Addison v. Holly Hill Co., 322 U. S. 607 , 322 U. S. 620 . And so, in this case, the fact that the Commission's order might retroactively prevent Federal's management from securing the profits and control which were the objects of the preferred stock purchases may well be outweighed by the dangers inherent in such purchases from the statutory standpoint. If that is true, the argument of retroactivity becomes nothing more than a claim that the Commission lacks power to enforce the standards of Page 332 U. S. 204 the Act in this proceeding. Such a claim deserves rejection. The problem in this case thus resolves itself into a determination of whether the Commission's action in denying effectiveness to the proposed amendment to the Federal reorganization plan can be justified on the basis upon which it clearly rests. As we have noted, the Commission avoided placing its sole reliance on inapplicable judicial precedents. Rather, it has derived its conclusions from the particular facts in the case, its general experience in reorganization matters, and its informed view of statutory requirements. It is hose matters which are the guide for our review. The Commission concluded that it could not find that the reorganization plan, if amended as proposed, would be "fair and equitable to the persons affected [thereby]" within the meaning of § 11(e) of the Act, under which the reorganization was taking place. Its view was that the amended plan would involve the issuance of securities on terms "detrimental to the public interest or the interest of investors" contrary to §§ 7(d)(6) and 7(e), and would result in an "unfair or inequitable distribution of voting power" among the Federal security holders within the meaning of § 7(e). It was led to this result "not by proof that the interveners [Federal's management] committed acts of conscious wrongdoing, but by the character of the conflicting interests created by the interveners' program of stock purchases carried out while plans for reorganization were under consideration." The Commission noted that Federal's management controlled a large multi-state utility system, and that its influence permeated down to the lowest tier of operating companies. The financial, operational and accounting policies of the parent and its subsidiaries were therefore under the management's strict control. The broad range of business judgments vested in Federal's management Page 332 U. S. 205 multiplied opportunities for affecting the market price of Federal's outstanding securities, and made the exercise of judgment on any matter a subject of greatest significance to investors. Added to these normal managerial powers, the Commission pointed out that a holding company management obtains special powers in the course of a voluntary reorganization under § 11(e) of the Holding Company Act. The management represents the stockholders in such a reorganization, initiates the proceeding, draws up and files the plan, and can file amendments thereto at any time. These additional powers may introduce conflicts between the management's normal interests and its responsibilities to the various classes of stockholders which it represents in the reorganization. Moreover, because of its representative status, the management has special opportunities to obtain advance information of the attitude of the Commission. Drawing upon its experience, the Commission indicated that all these normal and special powers of the holding company management during the course of a § 11(e) reorganization placed in the management's command "a formidable battery of devices that would enable it, if it should choose to use them selfishly, to affect in material degree the ultimate allocation of new securities among the various existing classes, to influence the market for its own gain, and to manipulate or obstruct the reorganization required by the mandate of the statute." In that setting, the Commission felt that a management program of stock purchase would give rise to the temptation and the opportunity to shape the reorganization proceeding so as to encourage public selling on the market at low prices. No management could engage in such a program without raising serious questions as to whether its personal interests had not opposed its duties "to exercise disinterested judgment in matters pertaining to subsidiaries' accounting, budgetary and dividend policies, to present Page 332 U. S. 206 publicly an unprejudiced financial picture of the enterprise, and to effectuate a fair and feasible plan expeditiously." The Commission further felt that its answer should be the same even where proof of intentional wrongdoing on the management's part is lacking. Assuming a conflict of interests, the Commission thought that the absence of actual misconduct is immaterial; injury to the public investors and to the corporation may result just as readily. "Questionable transactions may be explained away, and an abuse of investors and the administrative process may be perpetrated without evil intent, yet the injury will remain." Moreover, the Commission was of the view that the delays and the difficulties involved in probing the mental processes and personal integrity of corporate officials do not warrant any distinction on the basis of evil intent, the plain fact being "that an absence of unfairness or detriment in cases of this sort would be practically impossible to establish by proof." Turning to the facts in this case, the Commission noted the salient fact that the primary object of Federal's management in buying the preferred stock was admittedly to obtain the voting power that was accruing to that stock through the reorganization and to profit from the investment therein. That stock had been purchased in the market at prices that were depressed in relation to what the management anticipated would be, and what in fact was, the earning and asset value of its reorganization equivalent. The Commission admitted that the good faith and personal integrity of this management were not in question; but as to the management's justification of its motives, the Commission concluded that it was merely trying to "deny that they made selfish use of their powers during the period when their conflict of interest vis-a-vis public investors was in existence owing to their purchase program." Federal's management had Page 332 U. S. 207 thus placed itself in a position where it was "peculiarly susceptible to temptation to conduct the reorganization for personal gain, rather than the public good," and where its desire to make advantageous purchases of stock could have an important influence, even though subconsciously, upon many of the decisions to be made in the course of the reorganization. Accordingly, the Commission felt that all of its general considerations of the problem were applicable to this case. The scope of our review of an administrative order wherein a new principle is announced and applied is no different from that which pertains to ordinary administrative action. The wisdom of the principle adopted is none of our concern. See Board of Trade v. United States, 314 U. S. 534 , 314 U. S. 548 . Our duty is at an end when it becomes evident that the Commission's action is based upon substantial evidence and is consistent with the authority granted by Congress. See National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 224 . We are unable to say in this case that the Commission erred in reaching the result it did. The facts being undisputed, we are free to disturb the Commission's conclusion only if it lacks any rational and statutory foundation. In that connection, the Commission has made a thorough examination of the problem, utilizing statutory standards and its own accumulated experience with reorganization matters. In essence, it has made what we indicated in our prior opinion would be an informed, expert judgment on the problem. It has taken into account "those more subtle factors in the marketing of utility company securities that gave rise to the very grave evils which the Public Utility Holding Company Act of 1935 was designed to correct," and has relied upon the fact that "[a]buse of corporate position, influence, and access to information may raise questions so subtle that the law can deal with them effectively only by prohibitions Page 332 U. S. 208 not concerned with the fairness of a particular transaction." 318 U.S. at 318 U. S. 92 . Such factors may properly be considered by the Commission in determining whether to approve a plan of reorganization of a utility holding company, or an amendment to such a plan. The "fair and equitable" rule of § 11(e) and the standard of what is "detrimental to the public interest or the interest of investors or consumers" under § 7(d)(6) and § 7(e) were inserted by the framers of the Act in order that the Commission might have broad powers to protect the various interests at stake. 318 U.S. at 318 U. S. 90 -91. The application of those criteria, whether in the form of a particular order or a general regulation, necessarily requires the use of informal discretion by the Commission. The very breath of the statutory language precludes a reversal of the Commission's judgment save where it has plainly abused its discretion in these matters. See United States v. Lowden, 308 U. S. 225 ; ICC v. Railway Labor Executives Ass'n, 315 U. S. 373 . Such an abuse is not present in this case. The purchase by a holding company management of that company's securities during the course of a reorganization may well be thought to be so fraught with danger as to warrant a denial of the benefits and profits accruing to the management. The possibility that such a stock purchase program will result in detriment to the public investors is not a fanciful one. The influence that program may have upon the important decisions to be made by the management during reorganization is not inconsequential. Since the officers and directors occupy fiduciary positions during this period, their actions are to be held to a higher standard than that imposed upon the general investing public. There is thus a reasonable basis for a value judgment that the benefits and profits accruing to the management from the stock purchases should be prohibited, regardless of the good faith involved. And Page 332 U. S. 209 it is a judgment that can justifiably be reached in terms of fairness and equitableness, to the end that the interests of the public, the investors and the consumers might be protected. But it is a judgment based upon public policy, a judgment which Congress has indicated is of the type for the Commission to make. The Commission's conclusion here rests squarely in that area where administrative judgments are entitled to the greatest amount of weight by appellate courts. It is the product of administrative experience, appreciation of the complexities of the problem, realization of the statutory policies, and responsible treatment of the uncontested facts. It is the type of judgment which administrative agencies are best equipped to make and which justifies the use of the administrative process. See Republic Aviation Corporation v. Labor Board, 324 U. S. 793 , 324 U. S. 800 . Whether we agree or disagree with the result reached, it is an allowable judgment which we cannot disturb. Reversed. MR. JUSTICE BURTON concurs in the result. THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON dissent, but there is not now opportunity for a response adequate to the issues raised by the Court's opinion. These concern the rule of law in its application to the administrative process and the function of this Court in reviewing administrative action. Accordingly, the detailed grounds for dissent will be filed in due course. * Together with No. 82, Securities & Exchange Commission v. Federal Water & Gas Corp., also on certiorari to the same Court. MR. JUSTICE JACKSON, dissenting.* The Court by this present decision sustains the identical administrative order which only recently it held invalid. Page 332 U. S. 210 Securities and Exchange Commission v. Chenery Corp., 318 U. S. 80 . As the Court correctly notes, the Commission has only "recast its rationale and reached the same result." (Par. 1.) [ Footnote 1 ] There being no change in the order, no additional evidence in the record, and no amendment of relevant legislation, it is clear that there has been a shift in attitude between that of the controlling membership of the Court when the case was first here and that of those who have the power of decision on this second review. I feel constrained to disagree with the reasoning offered to rationalize this shift. It makes judicial review of administrative orders a hopeless formality for the litigant, even where granted to him by Congress. It reduces the judicial process in such cases to a mere feint. While the opinion does not have the adherence of a majority of the full Court, if its pronouncements should become governing principles, they would, in practice, put most administrative orders over and above the law. I The essential facts are few, and are not in dispute. [ Footnote 2 ] This corporation filed with the Securities and Exchange Commission a voluntary plan of reorganization. While the reorganization proceedings were pending, sixteen officers and directors bought on the open market about 7 1/2% of the corporation's preferred stock. Both the Commission and the Court admit that these purchases were not forbidden by any law, judicial precedent, regulation or rule of the Commission. Nevertheless, the Commission has Page 332 U. S. 211 ordered these individuals to surrender their shares to the corporation at cost, plus 4% interest, and the Court now approves that order. It is helpful, before considering whether this order is authorized by law, to reflect on what it is and what it is not. It is not conceivably a discharge of the Commission's duty to determine whether a proposed plan of reorganization would be "fair and equitable." It has nothing to do with the corporate structure, or the classes and amounts of stock, or voting rights or dividend preferences. It does not remotely affect the impersonal financial or legal factors of the plan. It is a personal deprivation denying particular persons the right to continue to own their stock and to exercise its privileges. Other persons who bought at the same time and price in the open market would be allowed to keep and convert their stock. Thus, the order is in no sense an exercise of the function of control over the terms and relations of the corporate securities. Neither is the order one merely to regulate the future use of property. It literally takes valuable property away from its lawful owners for the benefit of other private parties without full compensation, and the Court expressly approves the taking. It says that the stock owned by these persons is denied conversion along with similar stock owned by others; "instead, it was to be surrendered at cost plus dividends accumulated since the purchase dates." (Par. 5.) It should be noted that this formula was subsequently altered to read "cost plus 4% interest." That this basis was less than its value is recognized, for the Court says "That stock had been purchased in the market at prices that were depressed in relation to what the management anticipated would be, and what in fact was, the earning and asset value of its reorganization equivalent." (Par. 24.) Admittedly, the value above cost, and interest on it, simply is taken from the owners, Page 332 U. S. 212 without compensation. No such power has ever been confirmed in any administrative body. It should also be noted that neither the Court nor the Commission purports to adjudge a forfeiture of this property as a consequence of sharp dealing or breach of trust. The Court says, "The Commission admitted that the good faith and personal integrity of this management were not in question; . . . " (Par. 24.) And again, "It was frankly admitted that the management's purpose in buying the preferred stock was to protect its interest in the new company. It was also plain that there was no fraud or lack of disclosure in making these purchases." (Par. 4.) II The reversal of the position of this Court is due to a fundamental change in prevailing philosophy. The basic assumption of the earlier opinion as therein stated was, "But before transactions otherwise legal can be outlawed or denied their usual business consequences, they must fall under the ban of some standards of conduct prescribed by an agency of government authorized to prescribe such standards." Securities and Exchange Commission v. Chenery Corp., 318 U. S. 80 , 318 U. S. 92 -93. The basic assumption of the present opinion is stated thus: "The absence of a general rule or regulation governing management trading during reorganization did not affect the Commission's duties in relation to the particular proposal before it." (Par. 13.) This puts in juxtaposition the two conflicting philosophies, which produce opposite results in the same case and on the same facts. The difference between the first and the latest decision of the Court is thus simply the difference between holding that administrative orders must have a basis in law and a holding that absence of a legal basis is no ground on which courts may annul them. As there admittedly is no law or regulation to support this order, we peruse the Court's opinion diligently to find Page 332 U. S. 213 on what grounds it is now held that the Court of Appeals, on pain of being reversed for error, was required to stamp this order with its approval. We find but one. That is the principle of judicial deference to administrative experience. That argument is five times stressed in as many different contexts, and I quote just enough to identify the instances: "The Commission," it says, "has drawn heavily upon its accumulated experience in dealing with utility reorganizations." (Par. 9.) "Rather it has derived its conclusions from the particular facts in the case, its general experience in reorganization matters and its informed view of statutory requirements." (Par. 19.) "Drawing upon its experience, the Commission indicated . . . ," etc. (Par. 22.) ". . . the Commission has made a thorough examination of the problem, utilizing statutory standards and its own accumulated experience with reorganization matters." (Par. 26.) And finally, of the order the Court says, "It is the product of administrative experience," etc. (Par. 29.) What are we to make of this reiterated deference to "administrative experience" when, in another context, the Court says, "Hence, we refuse to say that the Commission, which had not previously been confronted with the problem of management trading during reorganization, was forbidden from utilizing this particular proceeding for announcing and applying a new standard of conduct. "? (Par. 17.) (Emphasis supplied.) The Court's reasoning adds up to this: the Commission must be sustained because of its accumulated experience in solving a problem with which it had never before been confronted! Of course, thus to uphold the Commission by professing to find that it has enunciated a "new standard of conduct" brings the Court squarely against the invalidity of retroactive lawmaking. But the Court does not falter. "That such action might have a retroactive effect Page 332 U. S. 214 was not necessarily fatal to its validity." (Par. 17.) "But such retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles." (Par. 17.) Of course, if what these parties did really was condemned by "statutory design" or "legal and equitable principles," it could be stopped without resort to a new rule, and there would be no retroactivity to condone. But if it had been the Court's view that some law already prohibited the purchases, it would hardly have been necessary three sentences earlier to hold that the Commission was not prohibited "from utilizing this particular proceeding for announcing and applying a new standard of conduct. " (Par. 17.) (Emphasis supplied.) I give up. Now I realize fully what Mark Twain meant when he said, "The more you explain it, the more I don't understand it." III But one does not need to comprehend the processes by which other minds reach a given result in order to estimate the practical consequences of their pronouncement upon judicial review of administrative orders. If it is of no consequence that no rule of law be existent to support an administrative order, and the Court of Appeals is obliged to defer to administrative experience and to sustain a Commission's power merely because it has been asserted and exercised, of what use is it to print a record or briefs in the case, or to hear argument? Administrative experience always is present, at least to the degree that it is here, and would always dictate a like deference by this Court to an assertion of administrative power. Must the reviewing court, as this Court does in this opinion, support the order on a presumptive or imputed experience even though the Court is obliged to discredit such experience in the very same opinion? Is Page 332 U. S. 215 fictitious experience to be conclusive in matters of law and particularly in the interpretation of statutes, as the Court's opinion now intimates, or just in factfinding which has been the function which the Court has heretofore sustained upon the argument of administrative experience? I suggest that administrative experience is of weight in judicial review only to this point -- it is a persuasive reason for deference to the Commission in the exercise of its discretionary powers under and within the law. It cannot be invoked to support action outside of the law. And what action is, and what is not, within the law must be determined by courts, when authorized to review, no matter how much deference is due to the agency's fact finding. Surely an administrative agency is not a law unto itself, but the Court does not really face up to the fact that this is the justification it is offering for sustaining the Commission action. Even if the Commission had, as the Court says, utilized this case to announce a new legal standard of conduct, there would be hurdles to be cleared, but we need not dwell on them now. Because to promulgate a general rule of law, either by regulation or by case law, is something the Commission expressly declined to do. It did not previously promulgate, and it does not by this order profess to promulgate, any rule or regulation to prohibit such purchases absolutely or under stated conditions. On the other hand, its position is that no such rule or standard would be fair and equitable in all cases. [ Footnote 3 ] Page 332 U. S. 216 IV Whether, as matter of policy, corporate managers during reorganization should be prohibited from buying or selling its stock is not a question for us to decide. But it is for us to decide whether, so long as no law or regulation prohibits them from buying, their purchases may be forfeited, or not, in the discretion of the Commission. If such a power exists in words of the statute or in their implication, it would be possible to point it out, and thus end the case. Instead, the Court admits that there was no law prohibiting these purchases when they were made, or at any time thereafter. And, except for this decision, there is none now. The truth is that, in this decision, the Court approves the Commission's assertion of power to govern the matter without law, power to force surrender of stock so purchased whenever it will, and power also to overlook such acquisitions if it so chooses. The reasons which will lead it to take one course as against the other remain locked in its own breast, and it has not and apparently does not intend to commit them to any rule or regulation. This administrative authoritarianism, this power to decide without law, is what the Court seems to approve in so many words: "The absence of a general rule or regulation Page 332 U. S. 217 governing management trading during reorganization did not affect the Commission's duties . . ." (Par. 13). This seems to me to undervalue and to belittle the place of law, even in the system of administrative justice. It calls to mind Mr. Justice Cardozo's statement that "[l]aw as a guide to conduct is reduced to the level of mere futility if it is unknown and unknowable." [ Footnote 4 ] V The Court's averment concerning this order that "[i]t is the type of judgment which administrative agencies are best equipped to make and which justifies the use of the administrative process," (Par. 29) is the first instance in which the administrative process is sustained by reliance on that disregard of law which enemies of the process have always alleged to be its principal evil. It is the first encouragement this Court has given to conscious lawlessness as a permissible rule of administrative action. This decision is an ominous one to those who believe that men should be governed by laws that they may ascertain and abide by, and which will guide the action of those in authority as well as of those who are subject to authority. [ Footnote 5 ] I have long urged, and still believe, that the administrative process deserves fostering in our system as an expeditious and nontechnical method of applying law in specialized Page 332 U. S. 218 fields. [ Footnote 6 ] I can not agree that it be used, and I think its continued effectiveness is endangered when it is used, as a method of dispensing with law in those fields. MR. JUSTICE FRANKFURTER joins in this opinion. * Filed October 6, 1947. [ Footnote 1 ] For convenience of reference, I have numbered consecutively the paragraphs of the Court's opinion, and cite quotations accordingly. [ Footnote 2 ] ^2, The facts and the law of the case generally are fully set forth in the first opinion of Mr. Chief Justice Groner of the Court of Appeals, which reversed the Commission's order (75 U.S.App.D.C. 374, 128 F.2d 303), and in his second opinion (80 U.S.App.D.C. 365, 154 F.2d 6), again reversing the Commission's order after it had "recast its rationale." [ Footnote 3 ] The Commission, speaking of such a rule appends the following note to its opinion: "Without flexibility, the rule might itself operate unfairly. Limitation to cost appears appropriate here, but would be inappropriate in a case where the cost of the security purchased was in excess of its reorganization value, and, in some instances, cash payment by the company would not be feasible. In addition, special treatment of any sort might be inappropriate for incidental purchases not made as part of a program in contemplation of reorganization benefits. In this connection, we wish to emphasize that our concern here is not primarily with the normal corporate powers which make it possible for officers and directors to influence the market for their own gain, in the absence of reorganization, by a choice of dividend policies, accounting practices, published reports, and the like. The questions of fairness and detriment here presented arise before us in the context of a capital readjustment. At that point, our scrutiny is called for, and that our scrutiny is to be vigilant cannot be doubted. See Appendix to Sen.Rep. No. 621 (74th Cong., 1st Sess.) on S. 2796, at p. 58, quoted supra. " [ Footnote 4 ] The Growth of the Law, p. 3. [ Footnote 5 ] On the same day, the Court denied its own authority to recognize and enforce without Congressional action, an unlegislated liability much less novel than the one imposed here, and that in the field of tort law which traditionally has developed by decisional, rather than by legislative, process. The result is to confirm in an executive agency a discretion to act outside of established law that goes beyond any judicial discretion, as well as beyond any legislative delegation. Compare United States v. Standard Oil Co., 332 U. S. 301 . [ Footnote 6 ] See statement before House of Delegates, American Bar Association, 1939. (1939 Proceedings, House of Delegates, XXXV A.B.A. Journal 95.) Also see Report as Attorney General to President Roosevelt recommending veto of Walter-Logan Bill -- made part of veto message, Vol. 86, Part 12, Congressional Record, 76th Congress, 3d Session, p. 13943.

In SEC v. Chenery Corp., the Supreme Court upheld the Securities and Exchange Commission's (SEC) requirement that a company's management surrender preferred stock at cost plus interest during a reorganization, rather than convert it into stock of the reorganized company. The Court ruled that the SEC's decision was valid, even though it was made on a different basis than the original order, as long as it was based on substantial evidence and consistent with Congressional authority. The Court also affirmed the SEC's discretion to act through ad hoc decisions rather than general rules, and highlighted the importance of vigilant scrutiny in the context of capital readjustment.

Government Agencies

Shapiro v. U.S.

https://supreme.justia.com/cases/federal/us/335/1/

U.S. Supreme Court Shapiro v. United States, 335 U.S. 1 (1948) Shapiro v. United States No. 49 Argued October 23, 1947 Decided June 21, 1948 335 U.S. 1 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. In obedience to an administrative subpoena, petitioner produced sales records which he had kept as required by a regulation of the Price Administrator, but claimed constitutional privilege. In a prosecution for violation of the Emergency Price Control Act based on evidence thus produced, he interposed a plea in bar, claiming that, under § 202(g) of the Act, which incorporates by reference the provisions of the Compulsory Testimony Act of 1893, his production of these records gave him immunity from prosecution. Held: the plea in bar was properly overruled by the trial court. Pp. 335 U. S. 3 -36. 2. The language of the Act and its legislative history, viewed against the background of settled judicial construction of the immunity provision, indicate that Congress required records to be kept as a means of enforcing the statute, and did not intend to frustrate the use of these records for enforcement action by granting an immunity to individuals compelled to disclose them to the Administrator. Pp. 335 U. S. 7 -32. (a) The very language of § 202(a) discloses that the recordkeeping and inspection requirements were designed not merely to "obtain information" for assistance in prescribing regulations or orders under the statute, but also to aid in their enforcement. P. 335 U. S. 8 . (b) The legislative history of § 202 indicates that Congress, whose attention was invited by proponents of the Price Control Act to the vital importance of the licensing, recordkeeping and inspection provisions in aiding effective enforcement, did not Page 335 U. S. 2 intend § 202(g) to proffer a "gratuity to crime" by granting immunity to custodians of nonprivileged records. Pp. 335 U. S. 8 -16. (c) In view of the previous construction given to the Compulsory Testimony Act of 1893 by this Court in Heike v. United States, 227 U. S. 131 , Congress must have intended the immunity proviso in the Price Control Act to be coterminous with what would otherwise have been the constitutional privilege of petitioner in the case at bar; and since he could assert no valid privilege as to the required records here involved, under the doctrine of Wilson v. United States, 221 U. S. 361 , he was entitled to no immunity under the statute. Pp. 335 U. S. 16 -20. (d) The precise wording of § 202(g) of the Price Control Act indicates that its draftsmen went to some pains to insure that the immunity provided for would be construed by the courts as being so limited. Pp. 335 U. S. 20 -22. (e) Since the Price Control Act provided for price regulations enforceable against unincorporated entrepreneurs as well as corporate industry, it cannot be assumed that Congress intended to differentiate sub silentio, for purposes of the immunity proviso, between records required to be kept by individuals and those required to be kept by corporations. Pp. 335 U. S. 22 -24. (f) Such a construction of the immunity proviso does not render meaningless the phrase "any requirements" in the opening clause of § 202(g). Pp. 335 U. S. 24 -29. (g) The legislative history of the 1893 immunity provision, which was incorporated into the Emergency Price Control Act, clearly discloses that the provision was enacted merely to provide an immunity sufficiently broad to be an adequate substitute for the constitutional privilege, in response to the ruling by this Court in Counselman v. Hitchcock, 142 U. S. 547 . Pp. 335 U. S. 28 -29. (h) The canon of avoidance of constitutional doubts does not govern the interpretation of the immunity provision, since its application to that clause would override the settled judicial construction of similar provisions and the legislative history of the Compulsory Testimony Act of 1893, and would frustrate the congressional intent manifested by the legislative history of the Emergency Price Control Act. Pp. 335 U. S. 29 -35. 3. This construction of § 202(g) of the Price Control Act raises no serious doubts as to its constitutionality. Pp. 335 U. S. 32 -34. (a) The privilege which exists as to private papers cannot be maintained where the records in question were required to be maintained under appropriate regulation, their relevance to the lawful purpose of the OPA is unquestioned, and they record transactions Page 335 U. S. 3 in which the dealer could engage solely by virtue of a license granted under the statute. Pp. 335 U. S. 32 -35. (b) The sales record which petitioner was required to keep as a licensee under the Price Control Act was such a record; it was legally obtained by the Administrator pursuant to the Act, and hence it was available as evidence. Pp. 335 U. S. 34 -35. 159 F.2d 890, affirmed. Petitioner was convicted of having made tie-in sales in violation of regulations under the Emergency Price Control Act, notwithstanding a plea in bar claiming immunity from prosecution under § 202(g). The Circuit Court of Appeals affirmed. 159 F.2d 890. This Court granted certiorari. 331 U.S. 801. Affirmed, p. 335 U. S. 36 . MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. Petitioner was tried on charges of having made tie-in sales in violation of regulations under the Emergency Price Control Act. [ Footnote 1 ] A plea in bar, claiming immunity from prosecution based on § 202(g) [ Footnote 2 ] Of the Act, was Page 335 U. S. 4 overruled by the trial judge; judgment of conviction followed and was affirmed on appeal, 159 F.2d 890. A contrary conclusion was reached by the district judge in United States v. Hoffman, 335 U. S. 77 . Because this conflict involves an important question of statutory construction, these cases were brought here and heard together. Additional minor considerations involved in the Hoffman case are dealt with in a separate opinion. The petitioner, a wholesaler of fruit and produce, on September 29, 1944, was served with a subpoena duces tecum and ad testificandum issued by the Price Administrator under authority of the Emergency Price Control Act. The subpoena directed petitioner to appear before designated enforcement attorneys of the Office of Price Administration and to produce "all duplicate sales invoices, sales books, ledgers, inventory records, contracts and records relating to the sale of all commodities from September 1st, 1944, to September 28, 1944." In compliance with the subpoena, petitioner appeared and, after being sworn, was requested to turn over the subpoenaed records. Petitioner's counsel inquired whether petitioner was being granted immunity "as to any and all matters for information obtained as a result of the investigation and examination of these records." The presiding official stated that the "witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept Page 335 U. S. 5 pursuant to M.P.R.'s 271 and 426. [ Footnote 3 ]" Petitioner thereupon produced the records, but claimed constitutional privilege. The plea in bar alleged that the name of the purchaser in the transactions involved in the information appeared in the subpoenaed sales invoices and other similar documents. And it was alleged that the Office of Price Administration had used the name and other unspecified leads obtained from these documents to search out evidence of the violations, which had occurred in the preceding year. The Circuit Court of Appeals ruled that the records which petitioner was compelled to produce were records required to be kept by a valid regulation under the Price Control Act; that thereby they became public documents, as to which no constitutional privilege against self-incrimination attaches; that, accordingly, the immunity of § 202(g) did not extend to the production of these records, and the plea in bar was properly overruled by the trial court. 159 F.2d 890. It should be observed at the outset that the decision in the instant case turns on the construction of a compulsory Page 335 U. S. 6 testimony immunity provision which incorporates by reference the Compulsory Testimony Act of 1893. This provision, in conjunction with broad recordkeeping requirements, has been included not merely in a temporary wartime measure, but also, in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government. [ Footnote 4 ] Page 335 U. S. 7 It is contended that a broader construction of the scope of the immunity provision than that approved by the Circuit Court of Appeals would be more consistent with the congressional aim, in conferring investigatory powers upon the Administrator, to secure prompt disclosure of books and records of the private enterprises subjected to OPA regulations. In support of this contention, it is urged that the language and legislative history of the Act indicate nothing more than that § 202 was included for the purpose of "obtaining information," and that nothing in that history throws any light upon the scope of the immunity afforded by subsection (g). We cannot agree with these contentions. For the language of the statute and its legislative history, viewed against the background of settled judicial construction of the immunity provision, indicate that Congress required records to be kept as a means of enforcing the statute, and did not intend to frustrate the use of those records for enforcement action by granting an immunity bonus to individuals compelled to disclose their required records to the Administrator. Page 335 U. S. 8 The very language of § 202(a) discloses that the recordkeeping and inspection requirements were designed not merely to "obtain information" for assistance in prescribing regulations or orders under the statute, but also to aid "in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder." [ Footnote 5 ] The legislative history of § 202 casts even stronger light on the meaning of the words used in that section. On July 30, 1941, the President of the United States, in a message to Congress, requested price control legislation conferring effective authority to curb evasion and bootlegging. [ Footnote 6 ] Two days later, the Price Control Bill was introduced in the House by Representative Steagall, and referred to the Committee on Banking and Currency. As introduced, and as reported out of the Committee on November 7, 1941, the bill included broad investigatory, recordkeeping, licensing, and other enforcement powers to be exercised by the Administrator. [ Footnote 7 ] While it Page 335 U. S. 9 was before the House, Representative Wolcott on November 28, 1941, offered as a substitute for § 201 a series of Page 335 U. S. 10 amendments, one of which authorized the Administrator "to subpoena documents and witnesses for the purpose of obtaining information in respect to the establishment of price ceilings, and a review of price ceilings. [ Footnote 8 ]" This amendment was adopted. Thereupon, Representative Wolcott moved to strike out as "redundant" the much broader and far more rigorous provisions in the bill (§ 202) which authorized the Administrator to "require the making and keeping of records and other documents and making of reports," and to "obtain or require the furnishing of such information under oath or affirmation or otherwise, as he deems necessary or proper to assist him in prescribing any regulation or order under this act, and in the administration and enforcement of the act, and regulations and orders thereunder. [ Footnote 9 ]" This amendment too was accepted by the House. [ Footnote 10 ] It is significant to note that the Senate Committee on Banking and Currency began its consideration of the Page 335 U. S. 11 bill on December 9, 1941, the day after Congress declared the existence of a state of war between this country and the Imperial Government of Japan. Appearing before the Senate Committee in this wartime setting, the proponents of the original measure requested and secured the restoration of the enforcement powers which the House had stricken. [ Footnote 11 ] They asserted that a major aspect of the investigatory powers contained in the bill as originally drafted was to enable the Administrator to ferret out violations and enforce the law against the violators. [ Footnote 12 ] And it was pointed out that, in striking down the authority originally given the Administrator in the committee bill to require the maintenance of records, the House had substantially stripped him of his investigatory and enforcement powers, "because no investigatory power can be effective without the right to insist upon the maintenance of records. By the simple device of failing to keep records of pertinent transactions, or by destroying or falsifying such records, a person may violate the Act with impunity and little fear of detection. Especially is this true in the case of price control legislation, which operates on many diverse industries and commodities, each industry having its own trade practices and methods of operation. " Page 335 U. S. 12 "The House bill also deprives the Administrator of the power to require reports and to make inspections and to copy documents. By this deprivation, the Administrator's supervision over the operation of the act is rendered most difficult. He has no expeditious way of checking on compliance. He is left without ready power to discover violations." "It should not be forgotten that the statute to be administered is an emergency statute. To put teeth into the Price Control Act, it is imperative that the Administrator's investigatory powers be strong, clear, and well adapted to the objective. . . . [ Footnote 13 ]" Emphasis was placed on the restoration of licensing provisions, which the House had deleted from the Price Control Bill as originally drafted. The General Counsel for the OPA contended that licensing was the backbone of enforcement of price schedules and regulations. [ Footnote 14 ] The Page 335 U. S. 13 World War I prototype of the Price Control Act, the Lever Act, had contained authority for the President to license the distribution of any necessaries whenever deemed essential "in order to carry into effect any of the purposes of this Act. . . ." [ Footnote 15 ] It was pointed out that "The general licensing regulations prescribed under the Lever Act, applicable to all licensees, required the making of reports (rule 1), the permitting of inspection (rule 2), and the keeping of records (rule 3). [ Footnote 16 ]" And it was noted that licensing had been employed in connection with the fuel provisions of the Act " as a method of obtaining information, of insuring universal compliance, and of enforcing refunds of overcharges and the payment of penalty charges to war charities. [ Footnote 17 ]" By licensing Page 335 U. S. 14 middlemen, "Violations were readily discovered by examination of the records which each licensee was required to submit." [ Footnote 18 ] With this background, [ Footnote 19 ] Congress restored licensing powers to the Administrator in the Price Control Bill as Page 335 U. S. 15 enacted, § 205, 50 U.S.C.App. § 925(f), and provided for the suspension by court action of the license of any person found to have violated any of the provisions of the license or price schedules or other requirements. Nonretail fruit dealers, including petitioner in the present case, were licensed under § 9a of Maximum Price Regulation No. 426, 8 F.R. 16411 (1943). It is difficult to believe that Congress, whose attention was invited by the proponents of the Price Control Act to the vital importance of the licensing, recordkeeping, and inspection provisions in aiding effective enforcement of the Lever Act, could possibly have intended § 202(g) to proffer a "gratuity to crime" by granting immunity to custodians of nonprivileged records. Nor is it easy to conceive that Congress could have intended private privilege to attach to records whose keeping it authorized the Administrator to require on the express supposition that it was thereby inserting "teeth" into the Price Control Act, since the Administrator, by the use of such records, could readily discover violations, check on compliance, and prevent violations from being committed "with impunity." In conformance with these views, the bill as passed by Congress empowered the Administrator to require the making and keeping of records by all persons subject to the statute, and to compel, by legal process, oral testimony of witnesses and the production of documents deemed necessary in the administration and enforcement of the statute and regulations. It also included the immunity proviso, subsection (g) of § 202, as to which no special attention seems to have been paid in the debates, although it was undoubtedly included, as it had been in other statutes, as a "usual administrative provision," [ Footnote 20 ] intended to fulfill the purpose customarily fulfilled by such a provision. Page 335 U. S. 16 The inescapable implications of the legislative history related above concerning the other subsections of § 202 would appear to be that Congress did not intend the scope of the statutory immunity to be so broad as to confer a bonus for the production of information otherwise obtainable. Moreover, there is a presumption that Congress, in reenacting the immunity provision of the 1893 Act, was aware of the settled judicial construction of the statutory immunity. In adopting the language used in the earlier act, Congress "must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment." [ Footnote 21 ] That judicial construction is made up of the doctrines enunciated by this Court in spelling out the nonprivileged status of records validly required by law to be kept, in Wilson v. United States, 221 U. S. 361 (1911), and the inapplicability of immunity provisions to nonprivileged documents, in Heike v. United States, 227 U. S. 131 (1914). In the former case, Wilson, the president of a corporation, was required by subpoena to produce the corporate books in his custody before a grand jury. He appeared before the grand jury, but refused to deliver up the records on the ground that their contents would tend to incriminate him, and claimed privilege under the Fifth Amendment. On review in this Court of the judgment committing him for contempt, Wilson based his defense in part on the theory that he would have been protected in his constitutional privilege against self-incrimination had he been sworn as a witness, and that the government's failure to permit him to be sworn could not deprive him of such protection. [ Footnote 22 ] This argument was disposed Page 335 U. S. 17 of by the Court simply on the ground that a corporate officer has no such constitutional privilege as to corporate records in his possession, even though they contain entries made by himself which disclose his crime. Mr. Justice Hughes, announcing the opinion of the Court, based the decision on the reasoning (which this Court recently cited with approval in Davis v. United States, 328 U. S. 582 , 328 U. S. 589 -590 (1946)), that "the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may yet appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim of privilege. . . . The principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There, the privilege which exists as to private papers cannot be maintained. [ Footnote 23 ]" As illustrations of documents meeting this "required records" test, the Court cited with approval state supreme court decisions that business records kept under requirement of law by private individuals in unincorporated enterprises were "public documents, which the defendant was required to keep, not for his private uses, but for the benefit of the public, and for public Page 335 U. S. 18 inspection." [ Footnote 24 ] The noncorporate records treated as public in those cases concerned such individuals as druggists required by statute to keep a record of all sales of intoxicating liquors. [ Footnote 25 ] The corporate and noncorporate Page 335 U. S. 19 businesses required by the Price Control Act to keep records embrace a much greater number of enterprises than those similarly regulated by the states and municipalities. But, since it is conceded that the increased scope of regulation under the wartime measure here involved does not render that Act unconstitutional, the required records doctrine which this Court approved as applied to noncorporate businessmen in the state cases would appear equally applicable in the case at bar. In the Heike case, this Court, per Holmes, J., laid down a standard for the construction of statutory immunity provisos which clearly requires affirmance of the decision of the circuit court here: ". . . the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned. [ Footnote 26 ]" In view of the clear rationale in Wilson, taken together with the ruling in Heike as to how statutory immunity provisos should be construed, the conclusion seems inevitable that Congress must have intended the immunity proviso in the Price Control Act to be coterminous with what would otherwise have been the constitutional privilege of petitioner in the case at bar. Page 335 U. S. 20 Since he could assert no valid privilege as to the required records here in question, he was entitled to no immunity under the statute thus viewed. The traditional rule that re-enactment of a statute creates a presumption of legislative adoption of previous judicial construction may properly be applied here, since the Court in Heike regarded the 1903 immunity statute, 49 U.S.C. § 47, there construed as identical, in policy and in the scope of immunity furnished, with the Compulsory Testimony Act of 1893, which has been reenacted by incorporation into the Price Control Act. In addition, scrutiny of the precise wording of § 202(g) of the latter statute indicates that the draftsmen of that section went to some pains to ensure that the immunity provided for would be construed by the courts as being so limited. The construction adopted in the Heike decision was rendered somewhat difficult because neither the Compulsory Testimony Act of 1893 nor the immunity proviso in the 1903 Act made any explicit reference to the constitutional privilege against self-incrimination, with whose scope the Court nonetheless held the immunity to be coterminous. Section 202(g), on the other hand, follows a pattern set by the Securities Act of 1933, and expressly refers to that privilege, thus apparently seeking to make it doubly certain that the courts would construe the immunity there granted as no broader than the privilege: " No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 . . . shall apply with respect to any individual who specifically claims such privilege. " A comparison of the precise wording of § 202(g) with the wording of immunity provisions contained in earlier Page 335 U. S. 21 statutes [ Footnote 27 ] readily suggests one function intended by the drafters of § 202(g) to be performed by the additional phrases expressly referring to "privilege" -- viz., that of underlining the legislative intention of requiring an exchange of constitutional privilege for immunity, an intent which the Court had previously thought discernable even in the less obvious terms used by the drafters of the earlier statutes. Thus, the immunity provisions of the Compulsory Testimony Act can be relied upon here only if the two prerequisites set forth in § 202(g) are satisfied: (1) that the person seeking to avail himself of the immunity could actually have been excused, in the absence Page 335 U. S. 22 of this section from complying with any of its requirements because of his constitutional privilege against self-incrimination, and (2) that the person specifically claim such privilege. Obviously if prerequisite (1) is not fulfilled, the mere fact that the person specifically claims a nonexistent privilege was not intended by Congress to entitle him to the benefit of the immunity. And this is so whether the statute be construed with particular reference to its grammar, its historical genesis, or its rational function. Petitioner does not deny that the actual existence of a genuine privilege against self-incrimination is an absolute prerequisite for the attainment of immunity under § 202(g) by a corporate officer who has been compelled by subpoena to produce required records; and that, under the Heike ruling, the assertion of a claim to such a privilege in connection with records which are in fact nonprivileged is unavailing to secure immunity, where the claimant is a corporate officer. But, while conceding that the statute should be so construed where corporate officials are concerned, the petitioner necessarily attributes to Congress the paradoxical intention of awarding immunity in exchange for a claim of privilege as to records of a claimant engaged in noncorporate business, though his business is similarly subjected to governmental price control, and its required records are, under the Wilson rationale, similarly nonprivileged. The implausibility of any such interpretation of congressional intent is highlighted by the unquestioned fact that Congress provided for price regulations enforceable against unincorporated entrepreneurs as well as corporate industry. It is also unquestionable that Congress, to ensure that violations of the statute should not go unpunished, required records to be kept of all relevant buying and selling transactions by all individual and corporate business subject to the statute. If these aspects of congressional Page 335 U. S. 23 intention be conceded, it is most difficult to comprehend why Congress should be assumed to have differentiated sub silentio, for purposes of the immunity proviso, between records required to be kept by individuals and records required to be kept by corporations. Such an assumption carries with it the incongruous result that individuals forced to produce records required to be kept for the Administrator's inspection and use in enforcing the price regulations, would be given a bonus of immunity if engaged in noncorporate business, thus rendering the records of noncorporate enterprise virtually useless for enforcement purposes, [ Footnote 28 ] whereas individuals disclosing the very same type of required records but engaged in corporate enterprise would not be given that bonus. In effect, this is to say that Congress intended the immunity proviso to frustrate a major aim of its statutory requirement of recordkeeping and record inspection Page 335 U. S. 24 so far as it applies to noncorporate businessmen, but not so far as it applies to corporate officers. [ Footnote 29 ] It is contended that to construe the immunity proviso as we have here is to devitalize, if not render meaningless, the phrase "any requirements" [ Footnote 30 ] which appears in the opening clause of § 202(g): "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination. . . ." It is urged that, since § 202 includes among its requirements Page 335 U. S. 25 the furnishing of information under oath, the making and keeping of records and reports, the inspection and copying of records and other documents, and the appearing and testifying or producing of documents, the immunity provided must cover compliance with any one of these requirements. The short answer to that contention is that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his privilege, were it not for the statutory grant of immunity in exchange for such privilege. [ Footnote 31 ] The express language of the proviso, as well as its historical background, readily suggests this reasonable interpretation. Even those who oppose this interpretation must and do concede that Congress had no intention of removing the excuse of privilege where the privilege is absent from the outset because the records whose production is ordered and concerning which privilege is asserted are corporate records. If this concession is made, surely logic as well as history requires a similar reading of the proviso in connection with validly required noncorporate records, as to which privilege is similarly absent from the outset. If the contention advanced against our interpretation be valid, the Court must have erred in its construction of the immunity proviso in the Heike case. For the 1893 Act, 49 U.S.C. § 46, which it was in effect construing, provides that, "No person shall be excused Page 335 U. S. 26 from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission . . . for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted . . . for or on account of any transaction . . . concerning which he may testify, or produce evidence, documentary or otherwise. . . ." Thus, the immunity part of the 1893 statute extended to any documentary as well as oral testimony concerning which there might be a claim of privilege. And included among the documents which the immunity-seeker might be compelled to produce were records maintained by common carriers in compliance with the requirements of the Interstate Commerce Act, [ Footnote 32 ] and hence obviously within the definition of public records set forth in the Wilson and Heike decisions. If the reasoning advanced against the interpretation of § 202(g) we have proposed were valid, then it might equally well be contended that the Court in the Heike decision devitalized, if not rendered meaningless, the phrase, "documentary or otherwise" in the immunity section of the 1893 Act. Actually, neither the interpretation as applied in the Heike decision nor as expounded here renders meaningless any of the words in the immunity provision. In each case, the immunity proviso is set forth in conjunction with recordkeeping requirements. And in each case, where the immunity provided concerns documents whose production might otherwise be excused on the ground of Page 335 U. S. 27 privilege, the documents referred to are and writings whose keeping as records has not been required by valid statute or regulation. Of course, all oral testimony by individuals can properly be compelled only by exchange of immunity in return for privilege. [ Footnote 33 ] Page 335 U. S. 28 The Court in the Heike case was confronted with the further contention that the 1903 immunity statute, which was immediately before him, had been passed when "there was an imperious popular demand that the inside working of the trusts should be investigated, and that the people and Congress cared so much to secure the necessary evidence that they were willing that some guilty persons should escape, as that reward was necessary to the end. [ Footnote 34 ]" In the light of the express statements in the legislative history of the Price Control Act as to the enforcement role of the investigatory powers, such an argument would hardly be tenable in the present case. Yet even in the Heike case, where such an argument had some elements of plausibility, the Court had no difficulty in rejecting it in favor of the Government's contention that "the statute should be limited as nearly as may be by the boundaries of the constitutional privilege of which it takes the place." [ Footnote 35 ] As a final answer, an understanding of the 1893 immunity provision, based on its full historical context, should suffice to explain the limited function contemplated by Congress in incorporating that provision into the 1942 statute. The 1893 provision was enacted merely to provide an immunity sufficiently broad to be an adequate Page 335 U. S. 29 substitute for the constitutional privilege, since previous statutory provision for immunity had been found by the Court in Counselman v. Hitchcock, 142 U. S. 547 (1892), not to be coextensive with the privilege, thus rendering unconstitutional the statutory requirements for compulsory production of privileged documents and oral testimony. [ Footnote 36 ] The suggestion has been advanced that the scope of the immunity intended by Congress should be ascertained not by reference to the judicial and legislative history considered above, but by reference to the principle expounded in Federal Trade Commission v. American Tobacco Co., 264 U. S. 298 , 264 U. S. 307 (1924), of construing a broad grant of statutory authority so as to avoid attributing to Congress "an intent to defy the Fourth Amendment or even to come so near to doing so as to raise a serious question of constitutional law." It is interesting to note that Congress, in enacting the Price Control Bill, apparently did intend to rely upon the principle of American Tobacco in circumstances similar to those in which that principle was originally applied: namely, to insure that the power of inspection or examination would not conflict with the prohibition against unreasonable searches and seizures contained in the Fourth Amendment. Senator Brown, who was chairman of the subcommittee on the Price Control Bill and one of the managers on the part of the Senate Page 335 U. S. 30 appointed to confer with the House managers on the Senate amendments, expressly stated it to be the view of the conferees that § 202(a), which contained broad authorization to the Administrator to "obtain such information as he deems necessary or proper to assist him" in his statutory duties, was intended solely to empower the Administrator to "obtain relevant data to enable him properly to discharge his functions, preferably by requiring the furnishing of information under oath or affirmation or otherwise as he may determine. It is not intended, nor is any other provision of the Act intended, to confer any power of inspection or examination which might conflict with the Fourth Amendment of the Constitution of the United States. See opinion of Justice Holmes in Federal Trade Commission v. American Tobacco Co., 264 U. S. 298 , 264 U. S. 307 . [ Footnote 37 ]" It was the abuse of the subpoena power to obtain irrelevant data in the course of a "fishing expedition" with which the Court was concerned in that case. It is clear that if the Administrator sought to obtain data irrelevant to the effective administration of the statute and if his right of access was challenged on the ground that the evidence sought was "plainly incompetent or irrelevant to any lawful purpose of the Administrator," [ Footnote 38 ] that objection could sustain a refusal by the district court to issue a subpoena or other writ to compel inspection. But there is no indication in the legislative history that Congress intended the American Tobacco principle of construction to govern the immunity proviso of subsection (g), particularly since the scope of that proviso had been so well demarcated by the courts prior to its 1942 reenactment. And it is not insignificant that the one rule of construction which this Court has, in the past, directly and Page 335 U. S. 31 expressly applied to the immunity proviso -- that "[i]t should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned [ Footnote 39 ]" -- was enunciated by Mr. Justice Holmes, who gave no sign of repudiating that principle by his subsequent statements in the American Tobacco case. Even if the evidence of congressional intent contained in the legislative history were less clear-cut and persuasive, and constitutional doubts more serious than they appear to us, we should still be unconvinced as to the applicability of the American Tobacco standard to the construction of the immunity proviso in relation to documentary evidence which is clearly and undeniably relevant, and the recording and keeping of which the Administrator has properly required in advance. For, in construing statutory immunities in such circumstances, we must heed the equally well settled doctrine of this Court to read a statute, assuming that it is susceptible of either of two opposed interpretations, in the manner which effectuates, rather than frustrates, the major purpose of the legislative draftsmen. The canon of avoidance of constitutional doubts must, like the "plain meaning" rule, give way where its application would produce a futile result, or an unreasonable result "plainly at variance with the policy of the legislation as a whole." [ Footnote 40 ] In the present case, not merely does the construction Page 335 U. S. 32 put forward by the petitioner frustrate the congressional intent as manifested by the legislative history, but it also shuts out the illumination that emanates from key words and phrases in the section when considered, as above, in the context of the history of the Compulsory Testimony Act of 1893, and the construction that had been placed upon it and similar provisos, prior to its incorporation into the Price Control Act. There remains for consideration only the question as to whether serious doubts of constitutionality are raised if the Price Control Act is thus construed. This issue was not duly raised by petitioner, and it becomes relevant, if at all, only because such doubts are now said to be present if the immunity proviso is interpreted as set forth above. It may be assumed at the outset that there are limits which the government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the recordkeeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator. It is not questioned here that Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and that the licensing and recordkeeping requirements of the Price Control Act represent a legitimate exercise of that power. [ Footnote 41 ] Accordingly, the principle enunciated in the Wilson case, and reaffirmed as recently as the Davis case, is clearly applicable here: Page 335 U. S. 33 namely, that the privilege which exists as to private papers cannot be maintained in relation to "records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. [ Footnote 42 ] " Page 335 U. S. 34 Even the dissenting Justices in the Davis case conceded that "there is an important difference in the constitutional protection afforded their possessors between papers exclusively private and documents having public aspects," [ Footnote 43 ] a difference whose essence is that the latter papers, "once they have been legally obtained, are available as evidence." [ Footnote 44 ] In the case at bar, it cannot be doubted that the sales record which petitioner was required to keep as a licensee under the Price Control Act has "public aspects." Nor can there be any doubt that when it was obtained by the Administrator through the use of subpoena, as authorized specifically by § 202(b) of the statute, it was "legally Page 335 U. S. 35 obtained," and hence "available as evidence." [ Footnote 45 ] The record involved in the case at bar was a sales record required to be maintained under an appropriate regulation, its relevance to the lawful purpose of the Administrator is unquestioned, and the transaction which it recorded was one in which the petitioner could lawfully engage solely by virtue of the license granted to him under the statute. [ Footnote 46 ] In the view that we have taken of the case, we find it unnecessary to consider the additional contention by the government that, in any event, no immunity attaches to the production of the books by the petitioner because the Page 335 U. S. 36 connection between the books and the evidence produced at the trial was too tenuous to justify the claim. For the foregoing reasons, the judgment of the Circuit Court of Appeals is Affirmed. [ Footnote 1 ] 56 Stat. 23, as amended, 50 U.S.C.App. § 901. [ Footnote 2 ] "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." 50 U.S.C.App. § 922(g). The Compulsory Testimony Act of 1893 provides: "No person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission . . . on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena. . . ." [ Footnote 3 ] Section 14 of Maximum Price Regulation 426, 8 Fed.Reg. 9546 (1943) provides: " Records. (a) Every person subject to this regulation shall, so long as the Emergency Price Control Act of 1942, as amended, remains in effect, preserve for examination by the Office of Price Administration all his records, including invoices, sales tickets, cash receipts, or other written evidences of sale or delivery which relate to the prices charged pursuant to the provisions of this regulation." "(b) Every person subject to this regulation shall keep and make available for examination by the Office of Price Administration for so long as the Emergency Price Control Act of 1942, as amended, remains in effect, records of the same kind as he has customarily kept, relating to the prices which he charges for fresh fruits and vegetables after the effective date of this regulation and in addition as precisely as possible, the basis upon which he determined maximum prices for these commodities." [ Footnote 4 ] Some of the statutes which include such provisions, applicable to the records of noncorporate as well as corporate business enterprises are listed below: Shipping Act, 1916 [46 U.S.C. §§ 826, 827, 814, 817, 820]. Packers and Stockyards Act, 1921 [7 U.S.C. §§ 221, 222]. Commodity Exchange Act of 1922 [7 U.S.C. §§ 15, 6, 7a]. Perishable Agricultural Commodities Act, 1930 [7 U.S.C. §§ 499m, 499i]. Communications Act of 1934 [47 U.S.C. §§ 409, 203, 211, 213(f), 220, 412]. Securities Exchange Act of 1934 [15 U.S.C. §§ 78q, 78u]. Federal Alcohol Administration Act, 1935 [27 U.S.C. §§ 202(c), 204(d); 26 U.S.C. § 2857; 15 U.S.C. §§ 49, 50]. Federal Power Act, 1935 [16 U.S.C. §§ 825(a), 825f(g)]. Industrial Alcohol Act of 1935 [26 U.S.C. §§ 3119, 3121(c)]. Motor Carrier Act of 1935 [49 U.S.C. §§ 305(d), 304(a)(1), 311(d), 317, 318, 320, 322(g)]. National Labor Relations Act, 1935 [29 U.S.C. §§ 156, 161]. Social Security Act, 1935 [42 U.S.C. § 405(a, d, e, f)]. Merchant Marine Act, 1936 [46 U.S.C. §§ 1124, 1211, 1114(b)]. Bituminous Coal Act of 1937 [15 U.S.C. (1940 ed.) §§ 838, 833(a, e, k), 840 (terminated, as provided in § 849)]. Civil Aeronautics Act of 1938 [49 U.S.C. §§ 644, 483, 487, 492, 622(e) and (g), 673]. Fair Labor Standards Act of 1938 [29 U.S.C. §§ 209, 211; 15 U.S.C. §§ 49, 50]. Natural Gas Act, 1938 [15 U.S.C. §§ 717a, 717g, 717m]. Railroad Unemployment Insurance Act, 1938 [45 U.S.C. §§ 362(a, b, c, l), 359]. Water Carriers Act of 1940 [49 U.S.C. §§ 916, 906, 913, 917(d)]. Freight Forwarders Act, 1942 [49 U.S.C. § 1017(a, b, d), 1005, 1012, 1021(d)]. In addition to the Price Control Act, the other major regulatory statutes enacted in response to the recent wartime exigencies also contain these provisions: Second War Powers Act [50 U.S.C.App. (Supp. V, 1946) §§ 633, subsec. 2(a)(3, 4)]. Stabilization Act of 1942 [50 U.S.C.App. (Supp. V, 1946) §§ 967(b), 962]. War and Defense Contract Acts [50 U.S.C.App. (Supp. V, 1946) § 1152(a), (3, 4)]. War Labor Disputes Act [50 U.S.C.App. (Supp. V, 1946) § 1507(a)(3), (b)]. Very recent regulatory statutes, whose construction may also be affected or determined by the ruling of the Court in the present case, include: Atomic Energy Act of 1946 [42 U.S.C. §§ 1812(a)(3), 1810(c)]. Labor Management Relations Act of 1947, § 101, subsecs. 11, 6; § 207(c), 61 Stat. 136, 150, 140, 155. [ Footnote 5 ] Italics have been added here and in all other quotations in which they appear, unless otherwise noted. [ Footnote 6 ] ". . . the existing authority over prices is indirect and circumscribed, and operates through measures which are not appropriate or applicable in all circumstances. It has further been weakened by those who purport to recognize need for price stabilization, yet challenge the existence of any effective power. In some cases, moreover, there has been evasion and bootlegging; in other cases, the Office of Price Administration and Civilian Supply has been openly defied." "Faced now with the prospect of inflationary price advances, legislative action can no longer prudently be postponed. Our national safety demands that we take steps at once to extend, clarify, and strengthen the authority of the Government to act in the interest of the general welfare." Doc.No.332, 77th Cong., 1st Sess. 3 (1941). [ Footnote 7 ] See 87 Cong.Rec. 9148 (1941) for the precise wording of § 202, which was then numbered § 211. The full text of § 202 as enacted is as follows: "(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder." "(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpoena require any such person to appear and testify or to appear and produce documents, or both, at any designated place." "(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpoena require any other person to appear and testify or to appear and produce documents, or both, at any designated place." "(d) The production of a person's documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpoena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy) or has entered into a stipulation with the Administrator as to the information contained in such documents." "(e) In case of contumacy by, or refusal to obey a subpoena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4(a)." "(f) Witnesses subpoenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States." "(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." "(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information unless he determines that the withholding thereof is contrary to the interest of the national defense and security." "(i) Any person subpoenaed under this section shall have the right to make a record of his testimony and to be represented by counsel." 56 Stat. 23, 30, as amended by § 105 of the Stabilization Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C. § 922. [ Footnote 8 ] 87 Cong.Rec. at 9232; see also id. at 9226. [ Footnote 9 ] Id. at 9231. [ Footnote 10 ] Id. at 9233. [ Footnote 11 ] As pointed out by the Senate Committee, ". . . in amending the House bill, the committee has sought to strengthen it. That bill, when we were not actually at war, might have sufficed. If the authority granted had proved inadequate, additional powers might have been sought, and there might have been time to do so. But the swiftly moving pace of war, with evidences of inflation already apparent, leaves little time for the luxury of experiment. The need for price stability is urgent. . . ." S.Rep.No.931, 77th Cong., 2d Sess. 3 (Jan. 2, 1942). [ Footnote 12 ] Hearings before the Senate Committee on Banking and Currency on H.R. 5998, 77th Cong., 1st Sess. 192(1941) (the reference is contained in a brief filed with the Committee by the General Counsel of the Office of Price Administration). [ Footnote 13 ] Id. at 193. It is apparently conceded that the written statement presented to the Senate Committee by the General Counsel of the OPA in its hearings sets forth the construction that this Court sustains in affirming the judgment of the Circuit Court of Appeals for the Second Circuit in this case. We may accord to the construction expounded during the course of the hearings at least that weight which this Court has in the past given to the contemporaneous interpretation of an administrative agency affected by a statute, especially where it appears that the agency has actively sponsored the particular provisions which it interprets. And we may treat those contemporaneous expressions of opinion as "highly relevant and material evidence of the probable general understanding of the times and of the opinions of men who probably were active in the drafting of the statute. As such they are entitled to serious consideration. . . ." White v. Winchester Club, 315 U. S. 32 (1942). See also United States v. American Trucking Ass'n, Inc., 310 U. S. 534 , 310 U. S. 549 (1940); Hassett v. Welch, 303 U. S. 303 , 303 U. S. 310 -311 (1938). [ Footnote 14 ] Hearings, supra, note 12 at 181; see also id. at 154, 179-80 (oral testimony), 190-200; 88 Cong.Rec. 61, 693-94 (1942); S.Rep.No.931, 77th Cong., 2d Sess. 8-9, 19 (1942). [ Footnote 15 ] Section 5, 40 Stat. 277, Act Aug. 10, 1917. Although § 4 of the Lever Act, making it unlawful for any person to charge any "unjust or unreasonable rate or charge" for handling or dealing in necessaries, was held unconstitutional because of lack of an ascertainable standard of guilt in United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921), the validity of the licensing and recordkeeping provisions was not challenged. [ Footnote 16 ] Hearings, supra, note 12 at 183; see also id. at 154. [ Footnote 17 ] Id. at 184. The Report of the Senate Committee, following these hearings, recognized the key importance of licensing provisions for effective enforcement of the statute, noting that the "broad licensing power" which had been given to the Food Administrator under the Lever Act "was extensively and effectively used." The Report specifically referred also to the experience of the Fuel Administration, which at first lacked the power to license, then discovered the need for the power, and after acquiring it, secured "highly effective" enforcement results. The Report concluded that, ". . . where there are many sellers, as in retailing, for example, it is impossible to determine who is subject to control, much less enforce price regulations, without licensing. Of these facts industry is fully aware. Licensing provides a simple and direct control over violators. . . ." S.Rep.No.931, 77th Cong., 2d Sess. 8, 9. Speaking critically of the Conference Report, Representative Gifford, who was a Manager on the part of the House and had refused to sign the Report and the Statement by the Managers, described licensing then in practice in Canada as a parallel to the licensing proposed by the amended Bill. He called the attention of the House to the Canadian statement of policy: "These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted. " 88 Cong.Rec. 672(1942). (Rep. Gifford quoted the statement from "a compiled brief on the licensing methods;" it appears, together with other data referred to by Rep. Gifford, in the section on licensing methods in the brief presented during the Senate hearings by the General Counsel of the OPA, cited supra, note 12 at p. 188.) [ Footnote 18 ] Hearings, supra, note 12 at 184. [ Footnote 19 ] In asking unanimous consent for the Committee to file its report on the next day, Senator Barkley, the Majority Leader and a member of the Committee, stated on the floor of the Senate on January 2, 1942, that these "hearings [held before the Senate Committee from December 9-17] have been in print for a week or two." 87 Cong.Rec. 10142. The Senate vote approving the House Bill as amended was not taken until January 10, more than two weeks after the hearings appeared in printed form. 88 Cong.Rec. 242. The House agreed to the Conference Report on January 26. Id. at 689. The Senate accepted the Conference Report on January 27. Id. at 725. And the Bill was approved and signed by the President on January 30. Id. at 911. It is also of some interest to note the statement, contained in the Senate Report on the Bill, that a subcommittee which had been appointed immediately after the conclusion of the December 9-17 hearings " extensively revised and strengthened the House bill in the light of the hearings and the onslaught of war. " S.Rep.No.931, 77th Cong., 2d Sess. 6 (Jan. 2, 1942). We assume that this record of the Senate Committee proceedings merits the same presumption of regularity as the record of a county criminal court. Cf. Foster v. Illinois, 332 U. S. 134 , 332 U. S. 138 (1947). [ Footnote 20 ] See Joint Hearings on S. 2475 and H.R. 7200 (Fair Labor Standards Act), 75th Cong., 1st Sess. 61 (1937). [ Footnote 21 ] Hecht v. Malley, 265 U. S. 144 , 265 U. S. 153 (1924); see also Missouri v. Ross, 299 U. S. 72 , 299 U. S. 75 (1936); Sessions v. Romadka, 145 U. S. 29 , 145 U. S. 42 (1892). [ Footnote 22 ] See digest of brief for appellant in Wilson v. United States, 55 L. Ed. 771, 773 (1911). [ Footnote 23 ] Wilson v. United States, 221 U. S. 361 , 221 U. S. 380 (1911). Holmes, J., in Heike v. United States, 227 U. S. 131 , 227 U. S. 143 (1913), emphasized that the decision in Wilson went "upon the absence of constitutional privilege, not upon the ground of statutory immunity in such a case." [ Footnote 24 ] Wilson, supra, note 23 at 221 U. S. 381 . In a later decision involving the alleged ability of corporate officers to assert constitutional privilege in relation to records required to be kept under a regulatory statute, Hughes, J., speaking for the Court, further spelled out the implications of the Wilson case and of the "required records" doctrine: ". . . the transactions to which the required reports relate are corporate transactions, subject to the regulating power of Congress. And, with regard to the keeping of suitable records of corporate administration, and the making of reports of corporate action, where these are ordered by the Commission under the authority of Congress, the officers of the corporation, by virtue of the assumption of their duties as such, are bound by the corporate obligation, and cannot claim a personal privilege in hostility to the requirement." Baltimore & O. R. Co. v. ICC, 221 U. S. 612 , 221 U. S. 622 -623 (1911). Thus, the significant element in determining the absence of constitutional privilege was the fact that the records in question had been validly required to be kept to enable the Commission "properly to perform its duty to enforce the law." Id. at 221 U. S. 622 . The fact that the individuals claiming the privilege were corporate officers was significant only in that the business transactions subject to the Interstate Commerce Act and the records required to be kept were corporate. And, as corporate officers, they were bound by the obligation imposed by the statute upon their corporation to keep the record. In other words, they were deemed custodians of the records for the Interstate Commerce Commission, not merely for the corporation. Had the transactions there regulated, and the records there required, concerned an unincorporated business, Justice Hughes' rationale sustaining the absence of constitutional privilege against self-incrimination would still apply with undiminished force. [ Footnote 25 ] Other state supreme court decisions, subsequent to the Wilson case, similarly treat as nonprivileged records required by statute to be kept by such individuals as licensed fish dealers, Paladini v. Superior Court, 178 Cal. 369, 372, 374, 173 P. 588, 590 (1918); junk dealers regulated by municipal ordinance, St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870 (1918), or by statute, State v. Legora, 162 Tenn. 122, 127, 128, 34 S.W.2d 1056, 1057, 1058 (1931); cf. Rosenthal v. New York, 226 U. S. 260 , 226 U. S. 268 -269 (1912); dealers in raw furs, State v. Stein, 215 Minn. 308, 9 N.W.2d 763 (1943); and licensed money lenders, Financial Aid Corp. v. Wallace, 216 Ind. 114, 23 N.E.2d 472, 474, 476 (1939). [ Footnote 26 ] Heike, supra, note 23 at 227 U. S. 142 . [ Footnote 27 ] See analysis of the earlier provisos in 8 Wigmore, Evidence, 511 n. 9 (3d ed.1940), and in the brief submitted by the Government in Heike v. United States, a digest of which appears at 227 U.S. 137 [argument of counsel -- omitted]. Whether the stronger wording in the Price Control Act and other recent enactments be deemed to indicate a "new legislative purpose," as the majority of the Court in United States v. Monia, 317 U. S. 424 (1943), ruled that it did in connection with a procedural point not involved in the present case -- or be deemed nothing more than "a careful rephrasing of a conventional statutory provision," as the dissenters in Monia, supra, at 317 U. S. 446 , believed, the more stringent phrasing of the Price Control Act proviso must, in either view, be regarded as strengthening the applicability of the rule of construction of the Heike case. The precise holding in Monia was that a witness before an investigatory body need not claim his privilege as a prerequisite to earning immunity under a pre-1933 statute which offered immunity without any reference to the need for making such a claim. The majority considered the Heike decision inapplicable to Monia because the relevant terms of the immunity proviso involved in the latter case were so plain and so sharply in contrast with the wording of the enactments after 1933, which (including the Price Control Act) expressly require the assertion of the claim, that Congress could not have intended the pre-1933 statute to require a witness to assert his claim. And it was emphasized that to construe congressional intention otherwise in those circumstances might well result in entrapment of witnesses as to testimony concededly privileged. We do not perceive such distinguishing factors in the case at bar, and accordingly consider the Heike rationale fully applicable here. [ Footnote 28 ] See Judge Delehant's well reasoned discussion, in Bowles v. Misle, 64 F. Supp. 835 , 843, of the "public or semi-public" character of records kept by a noncorporate entrepreneur subject in his business to such governmental regulation: ". . . if the regulating authority may be intercepted altogether at the door of a regulated business in its quest of information touching the observance of the law and applicable regulations, its ministry must be fruitless. And it can be no more effective if, realistically viewed, the administrator's examination may be made only at a bargain which absolves the proprietor of the business from the sanctions, whether civil or criminal, by law provided for such violations of the regulations, and, therefore, of the law as examination may disclose. . . ." Compare the dictum in United States v. Mulligan, 268 F. 893 (N.D.N.U.1920), that records required to be kept by an unincorporated businessman under the Lever Act were not privileged, and that information contained therein was available for use in criminal prosecutions against the recordkeeper himself. Like the Price Control Act, the Lever Act contained a compulsory testimony immunity provision. § 25, 40 Stat. 285. The memorandum filed with the Senate Committee, cited supra, note 12 at 194, specifically referred to the "well stated" opinion in the Mulligan case. [ Footnote 29 ] The extreme unlikelihood that such a distinction, not expressly stated anywhere in the Act, was nevertheless intended by Congress becomes even more apparent in the light of express provision in the statute, § 4(a), making it unlawful for any person subject to the Act, whether in corporate or unincorporated business enterprise, to fail to comply with the recordkeeping requirements of § 202(b), and making it unlawful, § 205(b), for any such person to make "any statement or entry false in any material respect in any document or report required to be kept or filed" under § 202(b). Even in the absence of the judicial background highlighted by the rationale of the Wilson and Heike decisions, it would be difficult to imagine that records properly required to be kept by the government, for government use in the administration of a regulatory statute, with penalties of fines and imprisonment applicable against any person subject to the statute who fails to keep those records or who falsifies entries in them, could still be regarded by Congress or the public as private records concerning which the recorder may assert a privilege against self-incrimination. [ Footnote 30 ] The phrase "any requirements" appears also in the immunity provision of the Atomic Energy Act of 1946, 42 U.S.C. § 1812(a)(3). There, as in the Price Control Act, some of the requirements referred to would, in the absence of the section, be excusable because of privilege -- e.g., compelled oral testimony -- while other requirements, including the compulsory production of records which had been kept pursuant to the statute (§ 1810[c]), would, under the Wilson doctrine, have the same nonprivileged (and hence non-immunizing) status as the sales record involved in the present case. Compare also the phraseology used in such statutes as the War and Defense Contract Acts, 50 U.S.C.App. § 1152(a)(3), (4), and Freight Forwarders Act (1942), 49 U.S.C. § 1017(a), (b), (d). [ Footnote 31 ] Compare the paraphrase of § 202(g) contained in the Committee Reports: ". . . Although no person is excused from complying with any requirement of this subsection because of his privilege against self-incrimination, the immunity provisions of the Compulsory Testimony Act of February 11, 1893, are made applicable with respect to any individual who specifically claims such privilege. " S.Rep.No.931, 77th Cong., 2d Sess. 21; H.R.Rep.No.1409, 77th Cong., 1st Sess. 9. (Italics added here, as elsewhere, unless otherwise noted.) [ Footnote 32 ] Section 6 of the Interstate Commerce Act of Feb. 4, 1887, c. 104, 24 Stat. 380, required every common carrier subject to the provisions of the statute to file with the Commission copies of its schedules and tariffs of rates, fares, and charges, and of all contracts and agreements between carriers. [ Footnote 33 ] It is further suggested that the presence of statutory provisions for confidential treatment, in certain limited respects, of information obtained by the Administrator is inconsistent with the views of this opinion. We find no such inconsistency in the presence of §§ 4(c) and 202(h), the provisions which specify the types of confidential safeguards intended. "Section 4(c) affords protection to those persons required to disclose information to the Administrator by making it unlawful for any officer or employee of the Government, or for any adviser or consultant to the Administrator in his official capacity, to disclose or to use for his personal benefit, any information obtained under the bill. Further provision for confidential treatment of such information is found in section 202(b) [changed in Conference to § 202(h)]. . . . Section 202(b) gives further protection to persons furnishing information to the Administrator under the bill by directing the Administrator upon the request of the party furnishing such information, or if he deems such information confidential, not to disclose such information unless he deems that the public interest requires such disclosure. " S.Rep.No.931, 77th Cong., 2d Sess. 20, 21. This is substantially the same sort of confidential treatment provided for by the Hepburn Act of 1906, 34 Stat. 594, amending the Interstate Commerce Act: "Any examiner who divulges any fact or information which may come to his knowledge during the course of such examination, except insofar as he may be directed by the commission or by a court or judge thereof, shall be subject, upon conviction in any court of the United States of competent jurisdiction, to a fine of not more than $5,000 or imprisonment for a term not exceeding two years, or both." 49 U.S.C. § 20(8). Numerous other statutes have incorporated almost identically worded provisions. See e.g., Motor Carrier Act of 1935, 49 U.S.C. § 322(d). In statutes such as these, where Congress validly distinguishes required records from private papers, with respect to the availability of the required documents as evidence in criminal or other proceedings to enforce the statute for whose effectuation they are kept, nothing in logic nor historical practice requires Congress at the same time to treat the records as public in the sense that they be open at all times to scrutiny by the merely curious. See Coleman v. United States, 153 F.2d 400, 402-404 (C.C.A. 1946). Congress expressly foreclosed such a result in the Emergency Price Control Act, and this opinion neither requires nor permits it. [ Footnote 34 ] Heike, supra, note 23 at 227 U. S. 141 . [ Footnote 35 ] Id. at 227 U. S. 141 -142. It would appear that the persuasive brief for the Government in this case, prepared with the assistance of eminent counsel, called forth a Holmesian echo. [ Footnote 36 ] See Heike, supra, note 23 at 227 U. S. 142 ; Brown v. Walker, 161 U. S. 591 , 161 U. S. 594 -595 (1896); Hale v. Henkel, 201 U. S. 43 , 201 U. S. 67 (1906). See also the statement made in the House by Representative Wise, of the Committee on Interstate and Foreign Commerce, in presenting the bill which became the basis of the 1893 Compulsory Testimony Act: "The whole scope and effect of the act is simply to meet the decision rendered recently by the Supreme Court in the case known as 'the Councilman [ sic ] case.'" 24 Cong.Rec. 503 (1893). [ Footnote 37 ] 88 Cong.Rec. 700 (1942). [ Footnote 38 ] Endicott Johnson Corp. v. Perkins, 317 U. S. 501 , 317 U. S. 509 (1943). [ Footnote 39 ] Heike, supra, note 23 at 227 U. S. 142 . [ Footnote 40 ] United States v. American Trucking Ass'ns, Inc., 310 U. S. 534 , 310 U. S. 543 (1940); see also Missouri, Pacific R. Co. v. Boone, 270 U. S. 466 , 270 U. S. 472 (1926). "A restrictive interpretation should not be given a statute merely because Congress has chosen to depart from custom or because giving effect to the express language employed by Congress might require a court to face a constitutional question." United States v. Sullivan, 332 U. S. 689 , 332 U. S. 693 (1948). [ Footnote 41 ] Cf. Yakus v. United States, 321 U. S. 414 , 321 U. S. 422 (1944). [ Footnote 42 ] Davis v. United States, 328 U. S. 582 , 328 U. S. 589 -590 (1946). See also United States v. Darby, 312 U. S. 100 , 312 U. S. 125 (1941) ("Since . . . Congress may require production for interstate commerce to conform to those conditions [wages and hours], it may require the employer, as a means of enforcing the valid law, to keep a record showing whether he has in fact complied with it. The requirement for records even of the intrastate transaction is an appropriate means to the legitimate end. . . ."); Arrow Distilleries v. Alexander, 109 F.2d 397, 404, 405 (1940); Di Santo v. United States, 93 F.2d 948 (1937). Cf. Rodgers v. United States, 138 F.2d 992, 995, 996 (1943). In Boyd v. United States, 116 U. S. 616 (1886), the Court held unconstitutional, as repugnant to the Fourth and Fifth Amendments, an 1874 revenue statute which required the defendant or claimant, on motion of the Government attorney, to produce in court his private books, invoices and papers, or else the allegations of the Government were to be taken as confessed. The document to which the statute had been applied in that case was an invoice, which the Government, as well as the defendant, treated throughout the trial and appellate proceedings as a private business record. The Government defended the constitutionality of the statute thus applied on the ground that the action was not against the claimants, but was merely a civil action in rem for the forfeiture of merchandise, in which action the claimants had voluntarily intervened. It argued that, in a forfeiture action, private books and papers produced under compulsion have no higher sanctity than other property, since the provision in the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself" applies only to criminal proceedings in personam. In rejecting the Government's contention, the opinion of the majority of the Court proceeded mainly upon a complex interpretation of the Fourth Amendment, taken as intertwined in its purpose and historical origins with the Fifth Amendment. Under that view, "a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit ( i.e., a suit for a penalty or forfeiture) is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure -- and an unreasonable search and seizure -- within the meaning of the fourth amendment." Id. at 116 U. S. 634 -635; see also id. at 116 U. S. 621 et seq. In other words, the majority opinion construed the prohibition of the Fourth Amendment as applying in the foregoing circumstances "to a returnable writ of seizure describing specific documents in the possession of a specific person." 8 Wigmore, Evidence 368 (3d ed.1940); see Hale v. Henkel, 201 U. S. 43 , 201 U. S. 71 -72 (1906). Holding this view of the Fourth Amendment, the majority of the Court nevertheless carefully distinguished the "unreasonable search and seizure" effected by the statute before it from the "search and seizure" which Congress had provided for in revenue acts that required manufacturers to keep certain records, subject to inspection ( see, e.g., Act of July 20, 1868, c. 186, §§ 19, 45, 15 Stat. 133, 143, regulating distillers and rectifiers): ". . . the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. . . . But, when examined with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. . . ." Id. at 116 U. S. 623 -624. [ Footnote 43 ] Davis, supra, note 42 at | note 42 at S. 602|>602. [ Footnote 44 ] Ibid. [ Footnote 45 ] See dissenting opinion in Davis, supra, note 42 at 328 U. S. 614 note 9. See also Amato v. Porter, 157 F.2d 719 (1946); Coleman v. United States, 153 F.2d 400 (1946). [ Footnote 46 ] See also the rationale set forth in 8 Wigmore, Evidence § 2259c (3d ed.1940), a section which was cited with approval by the opinion of the Court in Davis, supra, note 42 at 328 U. S. 590 : "The State requires the books to be kept, but it does not require the officer to commit the crime. If, in the course of committing the crime, he makes entries, the criminality of the entries exists by his own choice and election, not by compulsion of law. The State announced its requirement to keep the books long before there was any crime; so that the entry was made by reason of a command or compulsion which was directed to the class of entries in general, and not to this specific act. The duty or compulsion to disclose the books existed generically, and prior to the specific act; hence the compulsion is not directed to the criminal act, but is independent of it, and cannot be attributed to it. . . . The same reasoning applies to records required by law to be kept by a citizen not being a public official, e.g., a druggist's report of liquor sales, or a pawnbroker's record of pledges. The only difference here is that the duty arises not from the person's general official status, but from the specific statute limited to a particular class of acts. The duty, or compulsion, is directed, as before, to the generic class of acts, not to the criminal act, and is anterior to and independent of the crime, the crime being due to the party's own election, made subsequent to the origin of the duty." (Italics as in the original.) MR. JUSTICE FRANKFURTER, dissenting. The Court this day decides that when Congress prescribes for a limited Governmental purpose, enforceable by appropriate sanctions, the form in which some records are to be kept, not by corporations but by private individuals, in what in everyday language is a private and not a Governmental business, Congress thereby takes such records out of the protection of the Constitution against self-incrimination and search and seizure. Decision of constitutional issues is at times unavoidable. But, in this case, the Court so decides when it is not necessary. The Court makes a drastic break with the past in disregard of the settled principle of constitutional adjudication not to pass on a constitutional issue -- and here a grave one involving basic civil liberties -- if a construction that does no violence to the English language permits its avoidance. This statute clearly permits it. [ Footnote 2/1 ] Instead, the Court goes on the assumption that an immunity statute must be equated with the privilege, although only recently the Court attributed to Congress a gratuitous grant of immunity where concededly the Constitution did not require it, under circumstances far less persuasive than the statutory language and the policy underlying it. See United States v. Monia, 317 U. S. 424 . Page 335 U. S. 37 Instead of respecting "serious doubts of constitutionality" by giving what is at least an allowable construction to the Price Control Act which legitimately avoids these doubts, the Court goes out of its way to make a far-reaching pronouncement on a provision of the Bill of Rights. In an almost cursory fashion, the Court needlessly decides that all records which Congress may require individuals to keep in the conduct of their affairs, because they fall within some regulatory power of Government, become "public records" and thereby, ipso facto, fall outside the protection of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself." In reaching out for a constitutional adjudication, especially one of such moment, when a statutory solution avoiding it lay ready at hand, the Court has disregarded its constantly professed principle for the proper approach toward congressional legislation. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 , quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 348 , note 8. And see, generally, for duty to avoid constitutional adjudication, Rescue Army v. Municipal Court, 331 U. S. 549 , 331 U. S. 568 et seq. Departure from a basic canon of constitutional adjudication is singularly uncalled for in a case such as this, where the statute not only permits a construction avoiding constitutional considerations, but, on fair reading, requires it. In conferring powers of investigation upon the Administrator, Congress designed to secure the promptest disclosure Page 335 U. S. 38 of the books and records of the millions of private enterprises subjected to the regulations of the Office of Price Administration. The would contradict that vital aim to attribute to Congress the conflicting purpose of hampering the free flow of knowledge contained in businessmen's books by inviting controversies regarding still undetermined claims of privilege under the Fifth Amendment, in the absence of an expression of such propose made much more manifest than the broad language of § 202(g) which conferred immunity for the very purpose of avoiding such controversies. It is a poor answer to say that if the statute were eventually found to confer immunity only to the extent required for supplying an equivalent for the constitutional privilege, all records would turn out to be unprivileged or would furnish immunity, and in either case refute any excuse for withholding them. Businessmen are not guided by such abstractions. Obedience is not freely given to uncertain laws when they involve such sensitive matters as opening the books of business. And so, businessmen would have had a strong incentive to hold back their records, forcing the Administrator to compel production by judicial process. Apart from the use of opportunities for obstructive tactics that can hardly be circumvented when new legislation is tested, delays inevitable to litigation would dam up the flow of needed information. Congress sought to produce information, not litigation. See United States v. Monia, supra, at 317 U. S. 428 . In the Monia case, the Court considered that the statute, "if interpreted as the Government now desires, may well be a trap for the witness." Id. at 317 U. S. 430 . We need not speculate here as to potential entrapment. The record discloses that the petitioner asked, through his attorney, whether he was "being granted immunity as to any and all matters for information obtained as the result of the investigation and examination of these records." On behalf Page 335 U. S. 39 of the Price Administrator, the reply was "The witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept pursuant to MPRs (Maximum Price Regulations) 271 and 426." Petitioner, himself, thereupon specifically claimed immunity under the statute as well as under the Constitution, and stated that, under "these conditions," he produced the books and records that the subpoena sought. It seems clear that disclosure was here made, records were produced, on the petitioner's justifiable belief -- based upon the advice of counsel and acquiesced in by the presiding official -- that he thereby secured statutory immunity, and not constitutional litigation. There is nothing to indicate that, in 1942, Congress legislated with a view to litigating the scope of the limitation of the Fifth Amendment upon its powers. To ascertain what Congress meant by § 202(g), we would do well to begin by carefully attending to what Congress said: "No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C.1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." 56 Stat. 23, 30, 50 U.S.C.App. § 922(g). The text must be put into its context not merely because one provision of a statute should normally be read in relation to its fellows, but particularly so here because Congress explicitly linked subsection (g) of § 202 to "any requirements under this section." Effective price control depended on unimpeded access to relevant information. To that end, § 202 authorized the Administrator to impose the "requirements" of the section, and those from whom Page 335 U. S. 40 they were exacted were under duty of compliance by subsection (e), while subsection (g) barred any excuse from compliance by a claim of privilege against self-crimination by the assurance of immunity from prosecution. [ Footnote 2/2 ] Page 335 U. S. 41 Subsections (a), (b), (c) and (e) impose these four requirements: persons engaged in the vast range of business subject to the Act may be required to (1) make and keep records, (2) make reports and (3) permit the inspection and copying of records and other documents; such persons as well as others may be required to (4) "appear and testify or to appear and produce documents, or both, at any designated place." [ Footnote 2/3 ] An unconstrained reading of subsection (g) insured prompt compliance with all these requirements by removing any excuse based on the privilege against self-crimination. Page 335 U. S. 42 Here, the Administrator required the petitioner to "keep and make available for examination by the Office of Price Administration . . . records of the same kind as he has customarily kept. . . ." § 14(b), MPR 426, 8 F.R. 9546. The Government contends that, because the records of petitioner's own business, those that he "customarily kept," were required to be so kept by the Administrator, he was compelled to disclose their contents even though they may have incriminated him, and that he was afforded no immunity under subsection (g) because he was not disclosing what were really his records. Surely this is to devitalize the phrase "any requirements under this section" if not to render it meaningless. The Court supports this devitalization with the "short answer" that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his constitutional privilege. The short reply is that, bearing in mind the Court's conclusions as to the scope of the constitutional privilege, only the fourth requirement appears to be thus covered. I do not wish to lay too much stress on the Court's singular interpretation of the plural "requirements." Plainly, the Court construes § 202(g) as according immunity only to oral testimony under oath and to the production of any documents which the Administrator did not have the foresight to require to be kept. [ Footnote 2/4 ] The Court thus construes the words "complying with any requirements under this section" to read "appearing and testifying or producing documents other than those required to be kept pursuant to this section." Construction, Page 335 U. S. 43 no doubt, is not a mechanical process, and, even when most scrupulously pursued by judges, may not wholly escape some retrospective infusion, so that the line between interpretation and substitution is sometimes thin. But there is a difference between reading what is and rewriting it. The Court here does not adhere to the text, but deletes and reshapes it. Such literary freewheeling is hardly justified by the assumption that Congress would have so expressed it if it had given the matter attentive consideration. [ Footnote 2/5 ] In the Monia case, the Court, having concluded that a similar question was present, had no difficulty in answering: "It is not for us to add to the legislation what Congress pretermitted." 317 U.S. at 317 U. S. 430 . Both logic and authority, apart from due regard for our limited function, demonstrate the wisdom of respecting the text. The reach of the immunity given by § 202(g) is spelled out in the incorporated terms of the Compulsory Testimony Act of 1893. These provide that where, as here, documentary evidence is exacted which may tend to incriminate, he who produces it shall not "be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise. . . ." 27 Stat. 443, 49 U.S.C. § 46. There is, of course, nothing in this provision to support the fine-spun exegesis which the Court puts upon § 202(g). The Government admits as much by acknowledging that "the literal language of the Compulsory Testimony Act possibly may be so read" as to support the present claim of immunity. But it urges that nothing Page 335 U. S. 44 in the "language or legislative history" of § 202(g) requires a broader immunity than an adjudication of the scope of the constitutional privilege would exact. The language yields no support for the Government's sophisticated reading adopted by the Court. Nor is there anything in the legislative history to transmute the clear import of § 202 into esoteric significance. So far as it bears upon our problem, the legislative history of the Act merely shows that § 202, in its entirety, was included for the purpose of "obtaining information." [ Footnote 2/6 ] Nothing in that history throws any light upon the scope of the immunity afforded by subsection (g). [ Footnote 2/7 ] What is there in this silence of Congress that speaks so loudly to the Court? What are the "inescapable implications of the legislative history" that compelled its extraordinary reading of this statute? Surely, the fact that the Administrator's authority to require the keeping of records and the making of reports was stricken from the bill on its original passage through the House but was eventually Page 335 U. S. 45 reinserted, reinserted, merely indicates that Congress finally concluded that obtaining information was necessary for effective price regulation. [ Footnote 2/8 ] But the Court reads into § 202(g) the meaning that "they" put upon the recordkeeping provisions that Congress thus reinserted into the bill. "They," the "general Counsel for the OPA," appeared and testified orally at the Senate Hearings [ Footnote 2/9 ] and, in urging restoration of the licensing (§ 205(f)) and recordkeeping provisions, secured permission to file various briefs and documents with the Committee. [ Footnote 2/10 ] While there is nothing in the General Counsel's oral testimony that sheds light upon our problem, Page 335 U. S. 46 it does appear from one of the exhibits filed by him that the Court has correctly determined the far-reaching construction that he had given to provisions which the House had rejected as "redundant." [ Footnote 2/11 ] But our task is to determine, as best we can, what Congress meant -- not what counsel sponsoring legislation, however disinterestedly, hoped Congress would mean. If counsel's views had been orally expressed to the Committee, [ Footnote 2/12 ] the Committee might have given some indication of its views. But even if, upon such disclosure of counsel's views, the Committee had remained silent, this would hardly have furnished sufficient evidence to transmute the language that Congress actually employed to express its meaning into some other meaning. To attribute to Congress familiarity with, let alone acceptance of, a construction solely by reason of the fact that our research reveals its presence among the 60,000-word memoranda which the Chairman of the Senate Committee permitted the General Counsel of the OPA to file is surely to defy the actualities of the legislative process. Is there the slenderest ground for assuming that members of the Committee read counsel's submission now relied upon by the Court? There is not a reference to the contentions of the OPA wholly apart from that brief, in any report of a committee of either House or in any utterance on the floor of either House. [ Footnote 2/13 ] The fact Page 335 U. S. 47 of the matter is that the House had passed the measure before the brief, in type smaller than that of the footnotes in this opinion, appeared in a volume of hearings comprising Page 335 U. S. 48 560 pages (part of the three volumes of House and Senate Hearings containing 2,865 pages). The Government, in submitting to us the legislative history of the immunity provision with a view to sustaining its claims, did not pretend that the Congress was either aware of the brief or accepted the construction it proffered. The suggestion that members of a congressional committee have read, and presumptively agreed with, the views found in a memorandum allowed to be filed by a witness and printed in appendix form in the hearings on a bill, let alone that both Houses in voting for a measure adopted such views as the gloss upon the language of the Act which it would not otherwise bear, can only be made in a Pickwickian sense. It is hard to believe that even the most conscientious members of the Congress would care to be charged with underwriting views merely because they were expressed in a memorandum filed as was the OPA brief, on which so much reliance is placed in the Court's opinion. If the language of a statute is to be subjected to the esoteric interpretive process that the suggested use of the OPA brief implies, since it is the common practice to allow memoranda to be submitted to a committee of Congress by interests, public and private, often high-minded enough but with their own axes to grind, great encouragement will be given to the temptations of administrative officials and others to provide self-serving "proof" of congressional confirmation for their private views through incorporation of such materials. Hitherto unsuspected opportunities for assuring desired Page 335 U. S. 49 glosses upon innocent-looking legislation would thus be afforded. We agree with the Government that Congress gave the Administrator broad powers for obtaining information as an aid to the administration and enforcement [ Footnote 2/14 ] of the Act, and that "The immunity provision of Section 202(g) was inserted to insure a full exercise of these powers unhampered by the assertion of the privilege against self-incrimination." Certainly. But how does it follow that Congress thereby intended sub silentio to effectuate this broad purpose by confining the immunity accorded within the undefined controversial scope of the Fifth Amendment? One would suppose that Congress secured its object, as this Court held in the Monia case, by giving immunity and so taking away contentions based on the constitutional privilege. Plainly, it would have sufficed to dispose of the present controversy by holding that Congress granted immunity by § 202(g) to persons who produced their own records, as were the records in this case, and not in their possession as custodians of others, even though required to be kept by § 202. To adapt the language of Mr. Justice Holmes, words have been strained by the Court more than they Page 335 U. S. 50 should be strained in order to reach a doubtful constitutional question. See Blodgett v. Holden, 275 U. S. 142 , 275 U. S. 148 . And so we come to the Court's facile treatment of the grave constitutional question brought into issue by its disposition of the statutory question. In the interest of clarity, it is appropriate to note that the basic constitutional question concerns the scope oft he Fifth Amendment, not the validity of the Price Control Act. The Court has construed the immunity afforded by § 202(g) of the Act as coextensive with the scope of the constitutional privilege against self-incrimination. Thus construed, the subsection is, of course, valid, since, by hypothesis, it affords a protection as broad as the Fifth Amendment. Counselman v. Hitchcock, 142 U. S. 547 ; Brown v. Walker, 161 U. S. 591 . The vice of this construction -- and the importance of the point warrants its reiteration -- is precisely that it necessitates interpretation of the Constitution instead of avoiding it. [ Footnote 2/15 ] And, if the precedents mean anything, this course will be followed in every future case involving a question of statutory immunity. The Court hardly finds a problem in disposing of an issue far-reaching in its implications, involving as they do a drastic change in the relations between the individual and the Government as hitherto conceived. The Court treats the problem as though it were almost self-evident that, when records are required to be kept for some needs of Government, or to be kept in a particular form, they are legally considered governmental records, and may be demanded as instruments of self-crimination. Ready-made catch-phrases may conceal, but do not solve, serious constitutional problems. "Too broadly generalized Page 335 U. S. 51 conceptions are a constant source of fallacy." Holmes, J., in Lorenzo v. Wirth, 170 Mass. 596, 600, 49 N.E. 1010, 1011. Here, the fallacy can be traced to the rephrasing of our problem into terms "to which, as lawyers, the judges have become accustomed," ibid.; then, by treating the question as though it were the rephrased issue, the easy answer appears axiomatic and, because familiar, authoritative. Subtle question-begging is nevertheless question-begging. Thus: records required to be kept by law are public records; public records are nonprivileged; required records are nonprivileged. If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment -- to say nothing of State and local legislation -- has recordkeeping provisions. In addition to recordkeeping requirements is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for recordkeeping and reporting requirements. Unquestionably, they are enormous in volume. The Congress began its history with such legislation. Chapter I of the Laws of the First Session of the First Congress -- "An Act to regulate the Time and Manner of administering certain Oaths" -- contained a provision requiring the maintenance of records by persons administering oaths to State officials. 1 Stat. 23, 24. Chapter V -- "An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandise imported into the United States" -- contained a provision requiring an importer to produce the original invoice and to make a return concerning the consigned goods with the collector of the port of arrival. 1 Stat. 29, 39-40. Every Congress since 1789 has added recordkeeping and reporting requirements. Indeed, it was the plethora Page 335 U. S. 52 of such provisions that led President Roosevelt to establish the Central Statistical Board in 1933 and induced the enactment, in 1942, of the Federal Reports Act, 56 Stat. 1078,. See generally Report of the Central Statistical Board, H.Doc. No. 27, 76th Cong., 1st Sess.; Centralization and Coordination of Federal Statistics -- Report to the Committee on Appropriations of the House of Representatives, December 4, 1945, 91 Cong. Rec. A5419. On April 25, 1939, the Central Statistical Board reported that, "Since the end of 1933, the Board has reviewed in advance of dissemination more than 4,600 questionnaires and related forms and plans proposed for use by Federal agencies. The records for the past 2 years show that the Board has received forms from 52 Federal agencies and a number of temporary interdepartmental committees." See Hearings before the House Committee on Expenditure in the Executive Departments on H.R. 5917, 76th Cong., 1st Sess., at p. 32. The Board, on the basis of a comprehensive survey of the financial and other reports and returns made to 88 Federal agencies by private individuals, farms, and business concerns during the fiscal year ending June 30, 1938, informed Congress as follows: "Counting both the administrative and the nonadministrative reports and returns, the Board's inquiry revealed that some 49,000,000 of the total during the year were collected in accordance with statutory provisions specifically authorizing or directing the collection of reports of the types called for. Approximately 55,000,000 returns were collected by agencies in connection with their performance of functions which were specifically authorized by statutes, although the statutes did not specify the reports. In such cases, the information sought was obviously necessary in carrying out required functions. Nearly 27,000,000 returns were collected by Page 335 U. S. 53 Federal agencies on report forms for each of which the legal authority was too general or too indefinite to permit its clear definition. The remaining 5,000,000 returns were made under a variety of types of legal authorities including authorizations implied in appropriations made specifically to support the collection of the reports." "Somewhat less than half of the returns made to Federal agencies on all forms . . . were mandatory by law, in the sense that a penalty is prescribed in case of failure of the respondent to file a required report. Some of these mandatory returns are very elaborate, and, as a consequence, over 60 percent of the total number of answers on report forms, other than applications, were in accordance with mandatory requirements." (H. Doc. No. 27, supra, at 11-12.) I do not intend by the above exposition to cast any doubt upon the constitutionality of the recordkeeping or reporting provisions of the Emergency Price Control Act or, in general, upon the vast number of similar statutory requirements. Such provisions serve important and often indispensable purposes. But today's decision can hardly fail to hamper those who make and those who execute the laws in securing the information and data necessary for the most effective and intelligent conduct of Government. The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become "public" records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by federal Page 335 U. S. 54 regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records. If the records in controversy here are, in fact, public in the sense of publicly owned or governmental records, their nonprivileged status follows. See Davis v. United States, 328 U. S. 582 , 328 U. S. 594 , 328 U. S. 602 (dissenting opinion). No one has a private right to keep for his own use the contents of such records. But the notion that, whenever Congress requires an individual to keep in a particular form his own books dealing with his own affairs, his records cease to be his when he is accused of crime is indeed startling. A public record is a public record. If the documents in controversy are "public records," and, as such, nonprivileged in a prosecution under the Price Control Act, why are they not similarly public and nonprivileged in any sort of legal action? There is nothing in either the Act or the Court's construction of it to qualify their "public" nature. Is there any maintainable reason why the Fifth Amendment should be a barrier to their utilization in a prosecution under any other law if it is no barrier here? These records were, as a matter of fact, required to be kept (and hence "public") quite apart from this Act. See Int.Rev.Code, § 54(a) and Treas. Reg. 111, § 29.54-1. If an examination of the records of an individual engaged in the processing and sale of essential commodities should disclose nonessential production, for example, why cannot the records be utilized in prosecutions for violations of the priorities or selective service legislation? Cf. Harris v. United States, 331 U. S. 145 ; but cf. Trupiano v. United States, 334 U. S. 699 . Moreover, the Government should be able to enter a man's home to examine or seize such public records, with Page 335 U. S. 55 or without a search warrant, at any time. If an individual should keep such records in his home, as millions do, instead of in his place of business, why is not his home for some purposes and in the same technical sense, a "public" library? Compare Davis v. United States, 328 U. S. 582 , and Harris v. United States, supra, with the "well stated" opinion in United States v. Mulligan, 268 F. 893; but see Trupiano v. United States, supra. This is not "a parade of horribles." If a man's records are "public" so as to deprive him of his privilege against self-crimination, their publicness inheres in them for many other situations. Indeed, if these records are public, I can see no reason why the public should not have the same right that the Government has to peruse, if not to use, them. For public records are "of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure." Evanston v. Gunn, 99 U. S. 660 , 99 U. S. 666 . It would seem to follow, therefore, that these public records of persons engaged in what to the common understanding is deemed private enterprise should be generally available for examination, and not barred by the plea that the enterprise would thereby cease to be private. Congress was guilty, perhaps, of no more than curious inconsistency when it provided in § 202(h) of the Act for the confidential treatment of these "public" records. [ Footnote 2/16 ] But the seeming inconsistency generally applies to Page 335 U. S. 56 information obtained by the Government pursuant to recordkeeping and reporting requirements. See H.Doc. No. 27, supra, at pp. 26-28; 56 Stat. 1078, 1079; H.R.Rep. No. 1651, 77th Cong., 2d Sess., at pp. 4-5; ("We [the Bureau of the Census] do not even supply the Department of Justice or anybody else with that information") Hearings before the House Committee on Expenditures in the Executive Departments on H.R. 7590, 74th Cong., 1st Sess., at p. 63. The fact of the matter, then, is that records required to be kept by law are not necessarily public in any except a wordplaying sense. To determine whether such records are truly public records, i.e., are denuded of their essentially private significances, we have to take into account their custody, their subject matter, and the use sought to be made of them. It is the part of wisdom, particularly for judges, not to be victimized by words. Records may be public records regardless of whether "a statute requires them to be kept" if "they are kept in the discharge of a public duty" either by a public officer or by persons acting under his direction. Evanston v. Gunn, supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record to be kept. Records do not become public records, however, merely because they are required to be kept by law. Private records under such circumstances continue to be private records. Chapter V of the Acts of the First Congress, supra, is an example of such a private record required to be kept by law. Is there, then, any foundation for the Court's assumption that all records required to be kept by law are public and not privileged? Reliance is placed on language in Wilson v. United States, 221 U. S. 361 . The holding in that case has no real bearing on our problem. Wilson, the president of a corporation, in answer to a subpoena Page 335 U. S. 57 to produce, refused to surrender the corporation's books and records on the ground that their contents would tend to incriminate him. He appealed to this Court from a judgment committing him for contempt. The case was disposed of on the ground that the books were the corporation's, and not "his private or personal books," that the "physical custody of incriminating documents does not of itself protect the custodian against their compulsory production," and that, therefore, "the custodian has no privilege to refuse production although their contents tend to criminate him." 221 U.S. at 221 U. S. 378 , 221 U. S. 380 , 221 U. S. 382 . The Court concluded as follows: "The only question was whether, as against the corporation, the books were lawfully required in the administration of justice. When the appellant became president of the corporation, and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place, his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize." "We have not overlooked the early English decisions to which our attention has been called . . . , but these cannot be deemed controlling. The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our laws. Nothing more is demanded than that the appellant should perform the obligations pertaining to his custody, and should produce the books which he holds in his official capacity in accordance with the requirements of the subpoena. None of his personal papers is subject to inspection under the writ, and his action in refusing to permit the Page 335 U. S. 58 examination of the corporate books demanded fully warranted his commitment for contempt." 221 U.S. at 221 U. S. 385 -386. The Wilson case was correctly decided. The Court's holding boiled down to the proposition that "what's not yours is not yours." It gives no sanction for the bold proposition that Congress can legislate private papers in the hands of their owner, and not in the hands of a custodian, out of the protection afforded by the Fifth Amendment. Even if there were language in the Wilson opinion in that direction, an observation taken from its context would seem to be scant justification for resolving, and needlessly, "a very grave question of constitutional law, involving the personal security, and privileges and immunities of the citizen." Boyd v. United States, 116 U. S. 616 , 116 U. S. 618 . The conclusion reached today that all records required to be kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court: "The principal [that a custodian has no privilege as to the documents in his custody ] applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There, the privilege which exists as to private papers cannot be maintained." 221 U.S. at 221 U. S. 380 . But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that "[t]here are abundant illustrations in the decisions" of this principle that a custodian has no privilege as to the documents in his custody, just as no one has a privilege as to public or official records because they are not his private papers. He resorted Page 335 U. S. 59 to these illustrations concerning custodians because the dissenting opinion of Mr. Justice McKenna, while accepting the premise that public records were not privileged, quarreled with the Court's holding as to the absence of a custodian's privilege concerning nonpublic records, as follows: "As the privilege is a guaranty of personal liberty, it should not be qualified by construction, and a distinction based on the ownership of the books demanded as evidence is immaterial. Such distinction has not been regarded except in the case of public records, as will be exhibited by a review of the authorities." 221 U.S. at 221 U. S. 388 . The illustrations utilized by Mr. Justice Hughes to meet this challenge raised by the dissent stand for the proposition that (a) a custodian has no privilege, and (b) public documents and records are nonprivileged, but not at all on any notion that private records required to be kept by law are "public" records. Before analyzing the eleven precedents or illustrations thus employed, it is worthy of note that the illustrations were derived from the Government's brief. It is significant that that brief, by Solicitor General Frederick W. Lehmann, well known for his learning, contained no reference to the "required records" doctrine. On the contrary, the Government cited these cases to support its argument that "[t]he immunity granted by the Constitution is purely personal." [ Footnote 2/17 ] These are the "illustrations in the decisions": (1) Bradshaw v. Murphy, 7 C. & P. 612, where "it was held that a vestry clerk who was called as a witness could not, on the ground that it might incriminate himself, object to the production of the vestry books kept under the statute, 58 Geo. III, chap. 69, § 2." (211 U.S. at 211 U. S. 380 .) Page 335 U. S. 60 Comment. -- This is an instance where records were required to be kept by a public officer (for such, in England, was a parish vestry clerk). Clearly, the clerk had no privilege as to such records, since (1) they were not his; he was merely their custodian, and (2) he was a public officer. (2) State v. Farnum, 73 S.C. 165, where it was held that the dispenser of the State Dispensary had to disclose to a legislative committee the official books of that State institution. Comment. -- Under South Carolina law, the dispenser was an officer of the State; the books were true public records; he was their custodian. (3) State v. Donovan, 10 N.D. 203, where it was held that a register of sales of intoxicating liquor kept by a druggist pursuant to a statute providing that such record "shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof" was a public record. Comment. -- The State court construed the statute to make the druggist a public officer and, as such, the custodian of the register for the State. The court quoted authority to the effect that the register was "the property of the state, and not of the citizen, and is in no sense a private memorandum." 10 N.D. at 209. Are we to infer from the Court's opinion in this case that the books and records petitioner customarily kept were not his property, but that of the United States Government, and that they "shall be open for the inspection of the public at all reasonable times during business hours, and any person . . . may take memoranda or copies thereof"? Ibid., and cf. Evanston v. Gunn, supra. (4) State v. Davis, 108 Mo. 666, where it was held that a druggist had no privilege as to the prescriptions he filled for sales of intoxicating liquor. Page 335 U. S. 61 Comment. -- Here, the prescriptions were "required to be kept by law," but they constituted "public" records in the pure Wilson sense. The prescriptions belonged to the physicians or their patients, "and the druggist [was] merely their custodian." 108 Mo. at 671. (5) State v. Davis, 68 W.Va. 142 (prescription-keeping case virtually identical with State v. Davis, 108 Mo. 666). (6) People v. Combs, 158 N.Y. 532, where it was held that a coroner had no privilege as to official inquest records, required to be filed with the county clerk, over his contention that they were private records because they were false and had been found in his own office. Comment. -- "The papers were in a public office, in the custody of a clerk who was paid by the city. On their face, they were public records, and intended to be used as such." 158 N.Y. at 539. (7) Louisville & N. R. Co. v. Commonwealth, 51 S.W. (Ky.) 167, where it was held that a railroad corporation had no privilege as to a tariff sheet. Comment. -- The tariff sheet was "required by law to be publicly posted at the station, and was in fact so posted." 51 S.W. at 167. Petitioner is not a railroad corporation, and his records were not "publicly posted." (8) State v. Smith, 74 Iowa 580, where it was held that a pharmacist had no privilege as to the monthly reports of liquor sales that he had made to the county auditor pursuant to a statutory reporting requirement. Comment. -- The reports in the auditor's office were "public records of the office, which are open to the inspection of all, and may be used in evidence in all cases between all parties, when competent, to establish any fact in issue for judicial determination." 74 Iowa at 583, 584. Petitioner's records were in his possession, and were not open for public inspection. Page 335 U. S. 62 (9) State v. Cummins, 76 Iowa 133 (same as State v. Smith, supra ). (10) People v. Henwood, 123 Mich. 317 (liquor sales reporting requirement held valid). (11) Langdon v. People, 133 Ill. 382, held that seizure pursuant to search warrant of official State documents unlawfully in appellant's possession constituted reasonable search -- "They were not private papers." 133 Ill. at 398. In summary of the authorities cited as illustrations of the principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither stand for the proposition that the fact that private records are required to be kept by statute makes them public records by operation of law, nor did Mr. Justice Hughes misconstrue them in reaching the decision in the Wilson case. Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to be resolved by the Wilson opinion itself. After reviewing the illustrative cases, Mr. Justice Hughes observed: "The fundamental ground of decision in this class of cases is that where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody, he has accepted the incident obligation to permit inspection." 221 U.S. at 221 U. S. 381 -382. Evidently the dictum in the Wilson case and the authorities therein cited need to be bolstered for the use to which they are put in this case. We are told that "Other state supreme court decisions, subsequent to the Page 335 U. S. 63 Wilson case, similarly treat as nonprivileged, records required by statute to be kept." These are the five instances cited: (1) Paladini v. Superior Court, 178 Cal. 369, where it was held that the statutory procedure whereby the State Market Director could compel the production of the sales records of licensed fish dealers was valid. Comment. -- The court did not hold that the records were "nonprivileged," but disposed of the contention that the statute violated the constitutional privilege against self-incrimination on the ground that "[t]he proceeding before the state market director is not criminal in its nature, and the order compelling the petitioners to produce their books before the state market director was not in violation of the constitutional provision, which prohibits a court or officer from requiring a defendant in a criminal case to furnish evidence against himself." 178 Cal. at 373. The court did dispose of the contention that the statute violated the Fourth Amendment of the United States Constitution on the ground that the records were not private. But the records here were public records because, since it was conceded that the fish belonged to the State, "[t]hey contain a record of the purchase and sale of the property of the state, by those having a qualified or conditional interest therein." Ibid. There is no suggestion in this case that petitioner's records were public records because his fruit and vegetables were the property of the United States Government. (2) St. Louis v. Baskowitz, 273 Mo. 543, where a municipal ordinance requiring junk dealers to keep books of registry recording their purchases and providing that the books be open for inspection and examination by the police or any citizen was upheld against the contention that it violated the State constitutional provision against unreasonable searches and seizures for private purposes. Page 335 U. S. 64 Comment. -- The case was disposed of by the court's interpretation of the words "any citizen" as being limited in meaning to "one whose property has been stolen." 273 Mo. at 576. The records here were "required to be kept by statute," it is true, but the court had no occasion to, and did not, go into the question as to whether the records were "nonprivileged." (3) State v. Legora, 162 Tenn. 122, where a statute requiring junk dealers to keep a record of their purchases was upheld. Comment. -- A record which "shall at all times be open to inspection of . . . any person who may desire to see the same," 162 Tenn. at 124, is, of course, a "public" record. Evanston v. Gunn, supra; cf. St. Louis v. Baskowitz, supra. (4) State v. Stein, 215 Minn. 308, where a statute requiring licensed dealers in raw furs to keep records of their sales and purchases was upheld. Comment. -- The records here were public records for the same reason that the records involved in the Paladini case were public records -- "the state is the owner, in trust for the people, of all wild animals." 215 Minn. at 311. (5) Financial Aid Corporation v. Wallace, 216 Ind. 114, where a statute requiring licensed small loan concerns to keep records and providing for their inspection by the State Department of Financial Institutions was upheld. Comment. -- The court had no occasion to, and did not, go into the question as to whether the records were either "public" or "nonprivileged." It appears to me, therefore, that the authorities give no support to the broad proposition that, because records are required to be kept by law, they are public records, and hence nonprivileged. Private records do not thus Page 335 U. S. 65 become "public" in any critical or legally significant sense; they are merely the records of an industry or business regulated by law. Nor does the fact that the Government either may make, or has made, a license a prerequisite for the doing of business make them public in any ordinary use of the term. While Congress may, in time of war, or perhaps in circumstances of economic crisis, provide for the licensing of every individual business, surely such licensing requirements do not remove the records of a man's private business from the protection afforded by the Fifth Amendment. Even the exercise of the war power is subject to the Fifth Amendment. See, e.g., Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S. 155 -156. Just as the licensing of private motor vehicles does not make them public carriers, the licensing of a man's private business, for tax or other purposes, does not, under our system, at least so I had supposed, make him a public officer. Different considerations control where the business of an enterprise is, as it were, the public's. Clearly the records of a business licensed to sell state-owned property are public records. Cf., e.g., Paladini v. Superior Court, supra; State v. Stein, supra. And the records of a public utility, apart from the considerations relevant to corporate enterprise, may similarly be teated as public records. Cf., e.g., Louisville & N. R. Co. v. Commonwealth, supra; Financial Aid Corporation v. Wallace, supra. This has been extended to the records of "occupations which are malum in se, or so closely allied thereto as to endanger the public health, morals, or safety." St. Louis v. Baskowitz, supra, 273 Mo. at 554; cf., e.g., State v. Legora, supra; State v. Donovan, supra; State v. Smith, supra. Here, the subject matter of petitioner's business was not such as to render it public. Surely there is nothing inherently dangerous, immoral, or unhealthy about the Page 335 U. S. 66 sale of fruits and vegetables. Nor was there anything in his possession or control of the records to cast a cloud on his title to them. They were the records that he customarily kept. I find nothing in the Act, or in the Court's construction of the Act, that made him a public officer. He was being administered, not administering. Nor was he in any legitimate sense of the word a "custodian" of the records. I see nothing frivolous in a distinction between the records of an "unincorporated entrepreneur" and those of a corporation. On the contrary, that distinction was decisive of the Wilson holding: "But the corporate form of business activity, with its chartered privileges, raises a distinction when the authority of government demands the examination of books." 221 U.S. at 221 U. S. 382 . And the Court quoted at length from Hale v. Henkel, 201 U. S. 43 , 201 U. S. 74 -75: ". . . we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. . . ." "Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises. . . ." 221 U.S. at 221 U. S. 383 Page 335 U. S. 67 The distinction between corporate and individual enterprise is one of the deepest in our constitutional law, as it is for the shapers of public policy. The phrase "required to be kept by law," then, is not a magic phrase by which the legislature opens the door to inroads upon the Fifth Amendment. Statutory provisions similar to § 202(b) of this Act, requiring the keeping of records and making them available for official inspection, are constitutional means for effective administration and enforcement. [ Footnote 2/18 ] It follows that those charged with the responsibility for such administration and enforcement may compel the disclosure of such records in conformity with the Fourth Amendment. See Boyd v. United States, supra, at 116 U. S. 623 -624,. But it does not follow that such disclosures are beyond the scope of the protection afforded by the Fifth Amendment. For the compulsory disclosure of a man's "private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom." Id. at 116 U. S. 632 . The Court in the Boyd case was fully cognizant of the sense and significance of the phrase "books required by law to be kept for their inspection." Id. at 116 U. S. 623 -624. Surely the result of that decision, if not the opinion itself, speaks loudly against the claim that, merely by virtue of a recordkeeping provision, the constitutional privilege against self-incrimination becomes inoperative. The document in controversy in the Boyd case was historically, and as a matter of fact, much more of a "required record" than the books and records the petitioner here "customarily Page 335 U. S. 68 kept." If the Court's position today is correct, the Boyd case was erroneously decided. [ Footnote 2/19 ] Page 335 U. S. 69 In disregarding the spirit of that decision, the Court's opinion disregards the clarion call of the Boyd case: obsta principiis. For, while it is easy enough to see this as a petty case, and while some may not consider the rule of law today announced to be fraught with unexplored significance for the great problem of reconciling individual freedom with governmental strength, the Boyd opinion admonishes against being so lulled. "It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance." Id. at 116 U. S. 635 . Violators should be detected, tried, convicted, and punished -- but not at the cost of needlessly bringing into question constitutional rights and privileges. While law enforcement officers may find their duties more arduous and crime detection more difficult as society becomes more complicated, the constitutional safeguards of the Page 335 U. S. 70 individual were not designed for short-cuts in the administration of criminal justice. And so I conclude that the Court has misconstrued the Fifth Amendment by narrowing the range and scope of the protection it was intended to afford. The privilege against self-incrimination is, after all, "as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, supra, at 142 U. S. 563 . If Congress, by the easy device of requiring a man to keep the private papers that he has customarily kept, can render such papers "public" and nonprivileged, there is little left to either the right of privacy or the constitutional privilege. Even if there were authority for the temerarious pronouncement in today's opinion, I would insist that such authority was ill founded, and ought not to be followed. There is no such authority. The Court's opinion can gain no strength beyond itself. The persuasiveness of its opinion is not enhanced by the endeavor of the majority of the Court, so needlessly reaching out for a constitutional issue, to rest its ominous inroads upon the Fifth Amendment not on the wisdom of their determination, but on blind reliance upon nonpersuasive authority. [ Footnote 2/1 ] "A decision could be made either way without contradicting the express words of the act, or, possibly, even any very clear implication." Holmes, C.J., in Hooper v. Bradford, 178 Mass. 95, 97, 59 N.E. 678. [ Footnote 2/2 ] The entire § 202 of the Emergency Price Control Act of 1942, as amended, is as follows: "(a) The Administrator is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any regulation or order under this Act, or in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder." "(b) The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to make and keep records and other documents, and to make reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpoena required any such person to appear and testify or to appear and produce documents, or both, at any designated place." "(c) For the purpose of obtaining any information under subsection (a), the Administrator may by subpoena require any other person to appear and testify or to appear and produce documents, or both, at any designated place." "(d) The production of a person's documents at any place other than his place of business shall not be required under this section in any case in which, prior to the return date specified in the subpoena issued with respect thereto, such person either has furnished the Administrator with a copy of such documents (certified by such person under oath to be a true and correct copy), or has entered into a stipulation with the Administrator as to the information contained in such documents." "(e) In case of contumacy by, or refusal to obey a subpoena served upon, any person referred to in subsection (c), the district court for any district in which such person is found or resides or transacts business, upon application by the Administrator, shall have jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The provisions of this subsection shall also apply to any person referred to in subsection (b), and shall be in addition to the provisions of section 4(a)." "(f) Witnesses subpoenaed under this section shall be paid the same fees and mileage as are paid witnesses in the district courts of the United States." "(g) No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." "(h) The Administrator shall not publish or disclose any information obtained under this Act that such Administrator deems confidential or with reference to which a request for confidential treatment is made by the person furnishing such information, unless he determines that the withholding thereof is contrary to the interest of the national defense and security." "(i) Any person subpoenaed under this section shall have the right to make a record of his testimony and to be represented by counsel." 56 Stat. 23, 30, as amended by § 105 of the Stabilization Extension Act of 1944, 58 Stat. 632, 637, 50 U.S.C.App. § 922. [ Footnote 2/3 ] Technically, there is an additional or fifth requirement -- to furnish information "under oath or affirmation or otherwise" -- but this requirement is really covered by the other four. [ Footnote 2/4 ] The Administrator required this petitioner to keep "records of the same kind as he has customarily kept." § 14(b) of Maximum Price Regulation No. 426, 8 Fed.Reg. 9546. As a practical matter, therefore, the statute as construed by the Court provides immunity only for compelled oral testimony. [ Footnote 2/5 ] But cf. Carroll, Through the Looking Glass, c. 6: "'The question is' said Alice, 'whether you can make words mean so many different things.'" "'The question is,' said Humpty Dumpty, 'which is to be the master -- that's all.'" [ Footnote 2/6 ] See H.R. 5479, 77th Cong., 1st Sess., as introduced on August 1, 1941, in the House of Representatives and referred to the Committee on Banking and Currency, at p. 8; H.R. 5990, 77th Cong., 1st Sess., as reported out by the Committee on November 7, 1941, at p. 12 (at the conclusion of the hearings on H.R. 5479, the Committee directed its chairman to introduce this new bill representing the old bill as amended by the Committee in executive session; see H.Rep. 1409, 77th Cong., 1st Sess., p. 3); H.Rep. 1409, supra, at p. 9; 87 Cong.Rec. 9073, 9231; id. at 9232 (Wolcott amendment to strike out all of § 202 because previous amendment of the bill rendered this section for "obtaining information" redundant); id. at 9233 (Wolcott amendment adopted by the House); S.Rep.No.931, 77th Cong., 2d Sess., p. 21 (H.R. 5990, as passed by the House, amended by reinstating § 202 for the purpose of "obtaining information"); and see finally the Conference Report accompanying H.R. 5990, H.Rep. 1658, 77th Cong., 2d Sess., pp. 25-26 (agreeing to § 202). [ Footnote 2/7 ] Indeed, the only reference to the immunity provision in the legislative documents, see 335 U.S. 1 fn2/6|>footnote 6 supra, consists merely of practically verbatim repetitions of the provision. [ Footnote 2/8 ] The House originally struck out the entire § 202 because a previously adopted amendment had made the section "redundant." 87 Cong.Rec. 9232-9233. The previously adopted amendment had inserted a § 203(a), which simply provided that: "The Administrator and the Board of Administrative Review or any member or commissioner thereof may administer oaths and affirmations, may require by subpoena or otherwise the attendance and testimony of witnesses and the production of documents at any designated place. No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C., 1934 Ed., title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege." Id. at 9226. As passed by the House, then, the bill would have authorized the Administrator to require the production of the records here in issue, but there would have been no question of their being "public" records, and petitioner would clearly have been accorded the immunity herein claimed. The House Managers yielded as to the recordkeeping requirements and the reinstatement of the entire § 202, but there is no mention in their report of the provisions of subsection (g), let alone any indication that there was any difference intended in the scope of the immunity accorded by the two bills. [ Footnote 2/9 ] Hearings before the Senate Committee on Banking and Currency on H.R. 5990, 77th Cong., 1st Sess., at pp. 68-71, 112-23, 144-60, 174-81, 550-53. [ Footnote 2/10 ] Id. at 154, 175, 180-81. [ Footnote 2/11 ] See 335 U.S. 1 fn2/8|>footnote 8 supra. [ Footnote 2/12 ] Every reference in the Court's opinion to p. 181 et seq. of the hearings is to the General Counsel's brief -- an exhibit -- not to oral testimony. [ Footnote 2/13 ] I do not dispute either (a) that the hearings (including the brief as an exhibit thereto) were printed and available before the Senate passed the bill, or (b) that there is a possibility that a curious Senator (but not a Representative) might have read all this fine print. I mean merely to suggest (a) that, in view of the times, the typography, and the length of the text, the chances are remote, and (b) that, in view of the importance of the issue, it is indeed a hazardous matter to attribute positive congressional meaning to such an improbable source. While it may be presumed that the Senate subcommittee revised the House bill "in the light of the hearings," all that means is that they heard what they heard -- it does not mean that they read everything they might have read. It would be enough to attribute to a diligent committeeman familiarity with transcribed oral testimony of such volume as that on this bill. But cf. id. at 15: "Senator Barkley. Mr. Chairman, none of us has read the hearings in the House -- or maybe a few of us have"; id. at 26: "Senator Taft. I have not read the House hearings, I am ashamed to say." On January 26, 1942, Representative Gifford stated on the floor of the House: "But this licensing business, 'Compulsory loyalty will crack sooner than the genuine kind.' During the last World War, it was loyalty by cooperation. They had licensing, yes, on food products and on fuel, but little of anything else. If the licensee was punished, it was only a slap on the wrist. If he would contribute to the Red Cross he was forgiven. I have a compiled brief on the licensing methods that I could go into at length. An hour would be necessary to properly discuss it and to recite the experiences of ours and other nations. Canada now has it. Let me read to you their statement of policy. These restrictions are not designed to curtail business operations in any way. But by placing every person who in any way handles the commodities named in the order under license, the Board will have the machinery with which to make speedy checks on available stocks and to police more effectively any price-fixing order which may be instituted." (88 Cong.Rec. 672.) To trace knowledge of the OPA brief to a congressional reader by assuming from this statement that Representative Gifford, who opposed the adoption of these provisions of the bill, was such a reader, and from that to attribute to Congress knowledge of what was in an exhibit to a committee hearing, is so attenuated a process of inferential reasoning as to discredit the whole paraphernalia of legislative history. That the Congress itself does not care to be charged with knowledge of all the extraneous matter for which either House has granted leave to print in the Record is apparent from the rules of the Joint Committee on Printing providing that "the same shall be published in the Appendix" and "in 6 1/2 point type." See Cong.Rec., Dec. 11, 1947, p. A5039. There is, moreover, little basis for concluding that the Gifford "compiled brief" was the OPA brief -- different briefs frequently quote from the same authority. On the contrary, the OPA brief hardly presented the argument that "Compulsory loyalty will crack sooner than the genuine kind," nor did it contain material demonstrating either the narrow scope or the weaknesses of World War I licensing. [ Footnote 2/14 ] Putting the word "enforcement" in § 202(a) in italics does little to solve our problem of statutory construction -- for enforcement means enforcement. The word is hardly enervated by the extension of immunity to the person compelled to disclose his books and records. The information thus obtained might well assist the Administrator in the enforcement of the Act against the suppliers of, buyers from, or competitors of the owner of the records. As to his suppliers, the records would, of course, disclose compliance with maximum price regulations; as to the buyers, many regulations established maximum price on a cost-plus basis, and the information obtained would be essential to proof of violation; as to the competitors, many regulations established maximum price for new sellers on the basis of their closest competitors, and, here again, the information obtained might well be essential to the enforcement of the Act. [ Footnote 2/15 ] Needless to say, the constitutionality of the Fifth Amendment is not raised! [ Footnote 2/16 ] For the text of § 202(h), see 335 U.S. 1 fn2/2|>note 2 supra. H.R. 5479 as originally introduced ( see 335 U.S. 1 fn2/6|>note 6 supra ) would have left it to the Administrator to determine whether the information obtained should be deemed confidential. The bill was changed by the House Committee to its final form whereby the person furnishing the information could request confidential treatment so as to give such persons "further protection." H.R.Rep.1409, 77th Cong., 1st Sess., p. 9. "Further" meant in addition to the statutory immunity afforded by § 202(g)! Ibid. [ Footnote 2/17 ] See summary of argument for the United States, 221 U.S. at 221 U. S. 366 . The Lehmann Brief deserves reading. [ Footnote 2/18 ] See 335 U.S. 1 fn2/14|>note 14, supra. [ Footnote 2/19 ] The Boyds had contracted to supply plate glass to the Government on a duty-free price basis. They contended that they had fulfilled this contract out of their stock on hand. They had previously secured a free entry of 29 cases of plate glass, and claimed that this shipment replaced in part the glass that they had furnished the Government; the Government asserted that that shipment contained more than the amount of the glass furnished. After the Boyds had secured a free permit and entry of a second shipment of 35 cases of plate glass, but before delivery to them, the goods were seized and the free permit was revoked. In the proceedings for the forfeiture of the 35 cases, the Government, pursuant to the statutory procedure held unconstitutional by the Court, sought and secured production from the Boyds of the invoice covering the first shipment of the 29 cases. This invoice was a "record required to be kept by statute." The Act of July 31, 1789, required the importer to make an official entry with the collector at the port of arrival, and there produce the original invoice to the collector. 1 Stat. 29, 39-40; as amended by the Act of August 4, 1790, 1 Stat. 145, 161-62; as amended by the Act of March 2, 1799, 1 Stat. 627, 655-56 (invoice must be signed by collector; and see form of oath required to accompany invoice); as amended by the Act of April 20, 1818, 3 Stat. 433, 434, 436; as amended by the Act of March 1, 1823, 3 Stat. 729-30 (no entry without invoice unless importer gives bond to secure production of invoice within stated period), 737 (invoice, certified with collector's official seal, conclusive evidence of value of imported goods in any court of the United States); as amended by the Act of August 30, 1842, 5 Stat. 548, 564-65 (collector authorized to examine any importer and to require production of invoices); as amended by the Act of March 3, 1863, 12 Stat. 737-38 (required invoices to be in triplicate and indorsed prior to shipment to this country by a consular officer who "shall deliver to the person producing the same one of said triplicates, to be used in making entry of said goods, wares, or merchandise; shall file another in his office, to be there carefully preserved; and shall, as soon as practicable, transmit the remaining one to the collector of the port of the United States at which it shall be declared to be the intention to make entry of said goods, wares, or merchandise"), 740 (penalty for wilful destruction or concealment of invoices) and (district judge where it appears to his satisfaction that fraud on revenue has been committed or attempted shall authorize collector to seize invoices); as amended by the Act of June 30, 1864, 13 Stat. 202, 217-218 (invoice must be made out in the weights and measures of the country from which importation made); as amended by the Act of July 18, 1866, 14 Stat. 178, 187 (seizure of invoices); as amended by the Act of March 2, 1867, 14 Stat. 546, 547 (seizure of invoices); as amended by the Act of June 22, 1874, 18 Stat. 186, 187 (§ 5 -- seizure of invoices -- held unconstitutional in Boyd case). For administrative requirements as to form, contents, filing and keeping of invoices, in effect at time of entry involved in Boyd case, see General Regulations under the Customs and Navigation Laws (1884) Arts. 314-34; see also Elmes, Customs (1887) c. VII. MR. JUSTICE JACKSON, with whom MR. JUSTICE MURPHY agrees, dissenting. The protection against compulsory self-incrimination, guaranteed by the Fifth Amendment, is nullified to whatever extent this Court holds that Congress may require a citizen to keep an account of his deeds and misdeeds and turn over or exhibit the record on demand of government inspectors, who then can use it to convict him. Today's decision introduces a principle of considerable moment. Of course, it strips of protection only businessmen and their records; but we cannot too often remind ourselves of the tendency of such a principle, once approved, to expand itself in practice "to the limits of its logic." That it has already expanded to cover a vast Page 335 U. S. 71 area is apparent from the Court's citation of twenty-six federal statutes that present parallels to the situation here under review. It would, no doubt, simplify enforcement of all criminal laws if each citizen were required to keep a diary that would show where he was at all times, with whom he was, and what he was up to. The decision of today, applying this rule not merely to records specially required under the Act, but also to records "customarily kept," invites and facilitates that eventuality. The practice approved today obviously narrows the protections of the Fifth Amendment. We should not attribute to Congress such a purpose or intent unless it used language so mandatory and unmistakable that it left no alternative, and certainly should not base that inference on "legislative history" of such dubious meaning as exists in this case. Congress, if we give its language plain and usual meaning, has guarded the immunity so scrupulously as to raise no constitutional question. But if Congress had overstepped, we should have no hesitation in holding that the Government must lose some cases, rather than the people lose their immunities from compulsory self-incrimination. However, in this case, the plain language of Congress requires no such choice. It does require, in my view, that this judgment be reversed. MR. JUSTICE RUTLEDGE, dissenting. With reservations to be noted, I agree with the views expressed by MR. JUSTICE JACKSON, and with MR. JUSTICE FRANKFURTER's conclusions concerning the effect of the immunity provision, § 202(g) of the Emergency Price Control Act. [ Footnote 3/1 ] Page 335 U. S. 72 With them, I cannot accept the Court's construction of that section which reduces the statutory immunity to the scope of that afforded by the Fifth Amendment's prohibition against compulsory self-incrimination. This Court has not previously so decided. [ Footnote 3/2 ] Nor, in my judgment, Page 335 U. S. 73 can the present decision be reconciled with the language of the statute or its purpose obvious on its face. That wording compels testimony and the production of evidence, documentary or otherwise, regardless of any claim of constitutional immunity, whether valid or not. [ Footnote 3/3 ] But, to avoid the constitutional prohibition and, it would seem clearly, also any delay in securing the information or evidence required, the Act promises immunity "for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence . . . in obedience to" the subpoena. [ Footnote 3/4 ] The statute thus consists of a command and a promise. In explicit terms, the promise is made coextensive with the command. It expressly precludes prosecution, forfeiture or penalty "for or on account of any transaction, matter or thing" concerning which evidence is produced in compliance with the subpoena. [ Footnote 3/5 ] Compelling testimony and giving immunity "for or on account of any transaction, matter or thing, concerning which he may testify" are very different from compelling it and promising that, when given, the person complying "shall have only the immunity given by the Fifth Amendment, and no more." To constrict the statute's wording so drastically is not simply to interpret, it is to rewrite the congressional Page 335 U. S. 74 language, and, in my view, its purpose. If Congress had intended only so narrow a protection, it could easily have said so without adding words to lead witnesses and others to believe more was given. It may be, however, notwithstanding the breadth of the promissory terms, that the statutory immunity was not intended to be so broad as to cover situations where the claim of constitutional right precluded is only frivolous or insubstantial, or not put forward in good faith. [ Footnote 3/6 ] And if, for such a reason, the literal breadth of the wording may be somewhat cut down, restricting the statute's immunity by excluding those situations would neither restrict the effect of the statutory words to that of the Amendment itself nor give them the misleading connotation of the Court's construction. Such a construction would not be departing widely from either the statute's terms or their obvious purpose to give immunity broader than the Amendment's, and would be well within the bounds of statutory interpretation. On the other hand, the Court's reduction of the statutory wording to equivalence in effect with the constitutional immunity, nearly if not quite makes that wording redundant or meaningless; in any event, it goes so far in rewriting the statutory language as to amount to invasion of the legislative function. Whether one or the other of the two broader views of the statute's effect is accepted, therefore, it is neither necessary nor, I think, reasonable or consistent with the statutory wording and object or with this Court's function as strictly a judicial body to go so far in reconstructing what Congress has done, as I think results from reducing the statutory immunity to equivalence with the constitutional one. Page 335 U. S. 75 Since it is not contended that there was not full compliance with the subpoena in this case, that compliance was excessive in the presently material portions of the evidence or information produced, or that the claim of constitutional immunity precluded was frivolous, insubstantial or not made in good faith, I think the judgment should be reversed by applying the statutory immunity, whether in one or the other of the two forms which may be applied. In this view, I am relieved of the necessity of reaching the constitutional issue resulting from the Court's construction, and I express no opinion upon it except to say that I have substantial doubt of the validity of the Court's conclusion, and indicate some of the reasons for this. I have none that Congress itself may require the keeping and production of specified records, with appropriate limitations, in connection with business matters it is entitled to and does regulate. That is true not only of corporate records, Wilson v. United States, 221 U. S. 361 , but also of individual business records under appropriate specification and limitations, as the numerous instances cited in MR. JUSTICE FRANKFURTER's opinion illustrate. But I seriously doubt that, consistently with the Fourth Amendment, as well as the prohibition of the Fifth against compulsory self-incrimination, Congress could enact a general law requiring all persons, individual or corporate, engaged in business subject to congressional regulation to produce, either in evidence or for an administrative agency's or official's examination, any and all records, without other limitation, kept in connection with that business. Such a command would approach too closely in effect the kind of general warrant the Fourth Amendment outlawed. That would be even more obviously true, if there were any difference, in case Congress Page 335 U. S. 76 should delegate to an administrative or executive official the power to impose so broad a prohibition. The authority here conferred upon the Administrator by the Emergency Price Control Act, in reference to recordkeeping and requiring production of records, closely approaches such a command. Congress neither itself specifies the records to be kept and produced upon the Administrator's demand nor limits his power to designate them by any restriction other than that he may require such as "he deems necessary or proper to assist him," § 202(a), (b), (c), in carrying out his functions of investigation and prescribing regulations under, as well as of administration and enforcement of, the Act. And as the authority to specify records for keeping and production was carried out by the Administrator, the only limitation imposed was that the records should be such as had been "customarily kept." § 14(b), M.P.R. 426, 8 Fed.Reg. 9546, 9549. Such a restriction is little, if any, less broad than the one concerning which I have indicated doubt that Congress itself could enact consistently with the Fourth Amendment. The authorization, therefore, is one which raises serious question whether, by reason of failure to make more definite specification of the records to be kept and produced, the legislation and regulations involved here do not exceed the prohibition of the Fourth Amendment against general warrants and unreasonable searches and seizures. There is a difference, of course, and often a large one, between situations where evidence is searched out and seized without warrant and others where it is required to be produced under judicial safeguards. But I do not understand that, in the latter situation, its production can be required under a warrant that amounts to a general one. The Fourth Amendment stands as a barrier to judicial and legislative, as well as executive or administrative, excesses in this respect. Page 335 U. S. 77 Although I seriously question whether the sum of the statute, as construed by the Court, the pertinent regulations, and their execution in this case does not go beyond constitutional limitations in the breadth of their inquiry, I express no conclusive opinion concerning this, since, for me, the statutory immunity applies, and is sufficient to require reversal of petitioner's conviction. [ Footnote 3/1 ] 56 Stat. 23, 30 [§ 202(g)], as amended, 50 U.S.C.App. § 901, incorporating the provisions of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, quoted in the Court's opinion in note 2 [ Footnote 3/2 ] Neither Heike v. United States, 227 U. S. 131 , nor Wilson v. United States, 221 U. S. 361 , principally relied upon by the Court, approached such a ruling. The Wilson case dealt only with corporate records, and the claim of a corporate officer having their custody to constitutional immunity against being required to produce them. None was required by law to be kept, in the sense that any federal law required that it be kept and produced for regulatory purposes. The only ruling was that a corporate officer has no personal immunity against producing corporate records, which are, of course, not his own, and that the corporation has no immunity of its own under the Fifth Amendment's guaranty. The decision is not pertinent to the presently tendered problem. The Heike decision is equally not apropos. The exact ruling was that the evidence, from the production of which the claimed right of immunity, constitutional as well as statutory, arose "did not concern any matter of the present charge. Not only was the general subject of the former investigation wholly different, but the specific things testified to had no connection with the facts now in proof much closer than that all were dealings of the same sugar company." 227 U. S. 227 U.S. 131, 227 U. S. 143 . The actual ruling, therefore, apart from the fact that a corporate officer claimed immunity in large part for producing corporate records, see id., 227 U. S. 142 -143, was that the petitioner had not brought himself within the scope of the statutory authorization, namely, because the "transaction, matter or thing" concerning which he had testified had no substantial connection with the matters involved in his prosecution. The decision is authority for nothing more than that the immunity, at the most, does not attach when the constitutional claim precluded, but said to bring the statute into play, is insubstantial. The dictum stressed in the Court's opinion that the statute "should be construed, so far as its words fairly allow the construction, as coterminous with" (p. 227 U. S. 142 ) the constitutional immunity, not only was unnecessary, but as the clause itself emphasized, explicitly negative exact equivalence. (Emphasis added.) [ Footnote 3/3 ] The wording of the Compulsory Testimony Act neither requires nor suggests that the right to the immunity given should turn on the validity or invalidity of the constitutional claim which is precluded. But, at the least, the Act would seem clearly to cover both valid and substantially doubtful ones. [ Footnote 3/4 ] See the text of the Compulsory Testimony Act of 1893 quoted in note 2 of the Court's opinion [ Footnote 3/5 ] The express limitation of the immunity to testimony or evidence produced in obedience to the subpoena excludes immunity for volunteered testimony or evidence, i.e., such as is given in excess of the subpoena's requirement. But the terms of the statute purport to exclude no other. [ Footnote 3/6 ] Cf. Heike v. United States, 227 U. S. 131 . See 335 U.S. 1 fn3/2|>note 2, supra.

In Shapiro v. United States (1948), the Supreme Court ruled that a petitioner who produced sales records under an administrative subpoena could not claim immunity from prosecution under the Emergency Price Control Act. The Court interpreted the Act's legislative history as prioritizing record-keeping for enforcement purposes, not granting immunity to individuals disclosing records to the Price Administrator. The Court also cited judicial precedent, including the Compulsory Testimony Act of 1893, to support its decision. This case illustrates the Court's approach to interpreting statutes and balancing enforcement needs with individual rights.

Due Process

Slaughterhouse Cases

https://supreme.justia.com/cases/federal/us/83/36/

U.S. Supreme Court Slaughterhouse Cases, 83 U.S. 16 Wall. 36 36 (1872) Slaughterhouse Cases* 83 U.S. (16 Wall.) 36 ERROR TO THE SUPREME COURT OF LOUISIANA 1. The legislature of Louisiana, on the 8th of March, 1869, passed an act granting to a corporation, created by it, the exclusive right, for twenty-five years, to have and maintain slaughterhouses, landings for cattle, and yards for inclosing cattle intended for sale or slaughter within the parishes of Orleans, Jefferson, and St. Bernard, in that State (a territory which, it was said -- see infra, p. 83 U. S. 85 -- contained 1154 square miles, including the city of New Orleans, and a population of between two and three hundred thousand people), and prohibiting all other persons from building, keeping, or having slaughterhouses, landings for cattle, and yards for cattle intended for sale or slaughter, within those limits, and requiring that all cattle and other animals intended for sale or slaughter in that district, should be brought to the yards and slaughterhouses of the corporation, and authorizing the corporation to exact certain prescribed fees for the use of its wharves and for each animal landed, and certain prescribed fees for each animal slaughtered, besides the head, feet, gore, and entrails, except of swine. Held, that this grant of exclusive right or privilege, guarded by proper limitation of the prices to be charged, and imposing the duty of providing ample conveniences, with permission to all owners of stock to land, and of all Page 83 U. S. 37 butchers to slaughter at those places, was a police regulation for the health and comfort of the people (the statute locating them where health and comfort required), within the power of the state legislatures, unaffected by the Constitution of the United States previous to the adoption of the thirteenth and fourteenth articles of amendment. 2. The Parliament of Great Britain and the State legislatures of this country have always exercised the power of granting exclusive rights when they were necessary and proper to effectuate a purpose which had in view the public good, and the power here exercised is of that class, and has, until now, never been denied. Such power is not forbidden by the thirteenth article of amendment and by the first section of the fourteenth article. An examination of the history of the causes which led to the adoption of those amendments and of the amendments themselves demonstrates that the main purpose of all the three last amendments was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery. 3. In giving construction to any of those articles, it is necessary to keep this main purpose steadily in view, though the letter and spirit of those articles must apply to all cases coming within their purview, whether the party concerned be of African descent or not. While the thirteenth article of amendment was intended primarily to abolish African slavery, it equally forbids Mexican peonage or the Chinese coolie trade when they amount to slavery or involuntary servitude, and the use of the word "servitude" is intended to prohibit all forms of involuntary slavery of whatever class or name. The first clause of the fourteenth article was primarily intended to confer citizenship on the negro race, and secondly to give definitions of citizenship of the United States and citizenship of the States, and it recognizes the distinction between citizenship of a State and citizenship of the United States by those definitions. The second clause protects from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the States. These latter, as defined by Justice Washington in Corfield v. Coryell, and by this court in Ward v. Maryland, embrace generally those fundamental civil rights for the security and establishment of which organized society is instituted, and they remain, with certain exceptions mentioned in the Federal Constitution, under the care of the State governments, and of this class are those set up by plaintiffs. 4. The privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its Constitution, or its laws and treaties made in pursuance thereof, and it is these which are placed under the protection of Congress by this clause of the Thirteenth amendment. It is not necessary to inquire here into the full force of the clause forbidding a State to enforce any law which deprives a person of life, liberty, Page 83 U. S. 38 or property without due process of law, for that phrase has been often the subject of judicial construction, and is, under no admissible view of it, applicable to the present case. 5. The clause which forbids a State to deny to any person the equal protection of the laws was clearly intended to prevent the hostile discrimination against the negro race so familiar in the States where he had been a slave, and, for this purpose, the clause confers ample power in Congress to secure his rights and his equality before the law. The three cases -- the parties to which, as plaintiff and defendants in error, are given specifically as a subtitle, at the head of this report, but which are reported together also under the general name which, in common parlance, they had acquired -- grew out of an act of the legislature of the State of Louisiana, entitled "An act to protect the health of the City of New Orleans, to locate the stock landings and slaughterhouses, and to incorporate 'The Crescent City Live-Stock Landing and Slaughter-House Company,'" which was approved on the 8th of March, 1869, and went into operation on the 1st of June following, and the three cases were argued together. The act was as follows: "SECTION 1. Be it enacted, &c., That from and after the first day of June, A.D. 1869, it shall not be lawful to land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landing, yards, pens, slaughterhouses, or abattoirs at any point or place within the city of New Orleans, or the parishes of Orleans, Jefferson, and St. Bernard, or at any point or place on the east bank of the Mississippi River within the corporate limits of the city of New Orleans, or at any point on the west bank of the Mississippi River above the present depot of the New Orleans, Opelousas, and Great Western Railroad Company, except that the 'Crescent City Stock Landing and Slaughter-House Company' may establish themselves at any point or place as hereinafter provided. Any person or persons, or corporation or company carrying on any business or doing any act in contravention of this act, or landing, slaughtering or keeping any animal or animals in violation of this act, shall be liable to a fine of $250 for each and Page 83 U. S. 39 every violation, the same to be recoverable, with costs of suit, before any court of competent jurisdiction." The second section of the act created one Sauger and sixteen other person named, a corporation, with the usual privileges of a corporation, and including power to appoint officers and fix their compensation and term of office, to fix the amount of the capital stock of the corporation and the number of shares thereof. The act then went on: "SECTION 3. Be it further enacted, &c., That said company or corporation is hereby authorized to establish and erect at its own expense, at any point or place on the east bank of the Mississippi River within the parish of St. Bernard, or in the corporate limits of the city of New Orleans, below the United States Barracks, or at any point or place on the west bank of the Mississippi River below the present depot of the New Orleans, Opelousas, and Great Western Railroad Company, wharves, stables, sheds, yards, and buildings necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals, and from and after the time such buildings, yards, &c., are ready and complete for business, and notice thereof is given in the official journal of the State, the said Crescent City Live-Stock Landing and Slaughter-House Company shall have the sole and exclusive privilege of conducting and carrying on the livestock landing and slaughterhouse business within the limits and privileges granted by the provisions of this act, and cattle and other animals destined for sale or slaughter in the city of New Orleans, or its environs, shall be landed at the livestock landings and yards of said company, and shall be yarded, sheltered, and protected, if necessary, by said company or corporation, and said company or corporation shall be entitled to have and receive for each steamship landing at the wharves of the said company or corporation, $10; for each steamboat or other watercraft, $5, and for each horse, mule, bull ox, or cow landed at their wharves, for each and every day kept, 10 cents; for each and every hog, calf, sheep, or goat, for each and every day kept, 5 cents, all without including the feed, and said company or corporation shall be entitled to keep and detain each and all of said animals until said charges are fully paid. But Page 83 U. S. 40 if the charges of landing, keeping, and feeding any of the aforesaid animals shall not be paid by the owners thereof after fifteen days of their being landed and placed in the custody of the said company or corporation, then the said company or corporation, in order to reimburse themselves for charges and expenses incurred, shall have power, by resorting to judicial proceedings, to advertise said animals for sale by auction, in any two newspapers published in the city of New Orleans, for five days, and after the expiration of said five days, the said company or corporation may proceed to sell by auction, as advertised, the said animals, and the proceeds of such sales shall be taken by the said company or corporation and applied to the payment of the charges and expenses aforesaid, and other additional costs, and the balance, if any, remaining from such sales, shall be bold to the credit of and paid to the order or receipt of the owner of said animals. Any person or persons, firm or corporation violating any of the provisions of this act, or interfering with the privileges herein granted, or landing, yarding, or keeping any animals in violation of the provisions of this act, or to the injury of said company or corporation, shall be liable to a fine or penalty of $250, to be recovered with costs of suit before any court of competent jurisdiction." "The company shall, before the first of June, 1869, build and complete A GRAND SLAUGHTERHOUSE of sufficient capacity to accommodate all butchers, and in which to slaughter 500 animals per day; also a sufficient number of sheds and stables shall be erected before the date aforementioned to accommodate all the stock received at this port, all of which to be accomplished before the date fixed for the removal of the stock landing, as provided in the first section of this act, under penalty of forfeiture of their charter." "SECTION 4. Be it further enacted, &c., That the said company or corporation is hereby authorized to erect, at its own expense, one or more landing places for livestock, as aforesaid, at any points or places consistent with the provisions of this act, and to have and enjoy from the completion thereof, and after the first day of June, A.D. 1869, the exclusive privilege of having landed at their wharves or landing places all animals intended for sale or slaughter in the parishes of Orleans and Jefferson, and are hereby also authorized (in connection) to erect at its own expense one or more slaughterhouses, at any points or places Page 83 U. S. 41 consistent with the provisions of this act, and to have and enjoy, from the completion thereof, and after the first day of June, A.D. 1869, the exclusive privilege of having slaughtered therein all animals the meat of which is destined for sale in the parishes of Orleans and Jefferson. " "SECTION 5. Be it further enacted, &c., That whenever said slaughterhouses and accessory buildings shall be completed and thrown open for the use of the public, said company or corporation shall immediately give public notice for thirty days, in the official journal of the State, and within said thirty days' notice, and within, from and after the first day of June, A.D. 1869, all other stock landings and slaughterhouses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it will no longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the meat of which is determined for sale within the parishes aforesaid, under a penalty of $100, for each end every offence, recoverable, with costs of suit, before any court if competent jurisdiction; that all animals to be slaughtered, the meat whereof is determined for sale in the parishes of Orleans or Jefferson, must be slaughtered in the slaughtehouses erected by the said company or corporation, and upon a refusal of said company or corporation to allow any animal or animals to be slaughtered after the same has been certified by the inspector, as hereinafter provided, to be fit for human food, the said company or corporation shall be subject to a fine in each case of $250, recoverable, with costs of suit, before any court of competent jurisdiction; said fines and penalties to be paid over to the auditor of public accounts, which sum or sums shall be credited to the educational fund." "SECTION 6. Be it further enacted, &c., That the governor of the State of Louisiana shall appoint a competent person, clothed with police powers, to act as inspector of all stock that is to be slaughtered, and whose duty it will be to examine closely all animals intended to be slaughtered, to ascertain whether they are sound and fit for human food or not, and if sound and fit for human food, to furnish a certificate stating that fact to the owners of the animals inspected, and without said certificate no animals can be slaughtered for sale in the slaughterhouses of said company or corporation. The owner of said animals so inspected to pay the inspector 10 cents for each and every animal so inspected, one-half of which fee the said inspector shall retain for his services, and the other half of said fee shall be Page 83 U. S. 42 paid over to the auditor of public accounts, said payment to be made quarterly. Said inspector shall give a good and sufficient bond to the State, in the sum of $5,000, with sureties subject to the approval of the governor of the State of Louisiana, for the faithful performance of his duties. Said inspector shall be fined for dereliction of duty $50 for each neglect. Said inspector may appoint as many deputies as may be necessary. The half of the fees collected as provided above, and paid over to the auditor of public accounts, shall be placed to the credit of the educational fund." "SECTION 7. Be it further enacted, &c., That all persons slaughtering or causing to be slaughtered cattle or other animals in said slaughterhouses shall pay to the said company or corporation the following rates or perquisites, viz.: for all beeves, $1 each; for all hogs and calves, 50 cents each; for all sheep, goats, and lambs, 30 cents each, and the said company or corporation shall be entitled to the head, feet, gore, and entrails of all animals excepting hogs, entering the slaughterhouses and killed therein, it being understood that the heart and liver are not considered as a part of the gore and entrails, and that the said heart and liver of all animals slaughtered in the slaughterhouses of the said company or corporation shall belong, in all cases, to the owners of the animals slaughtered." "SECTION 8. Be it .further enacted, &c., That all the fines and penalties incurred for violations of this act shall be recoverable in a civil suit before any court of competent jurisdiction, said suit to be brought and prosecuted by said company or corporation in all cases where the privileges granted to the said company or corporation by the provisions of this act are violated or interfered with; that one-half of all the fines and penalties recovered by the said company or corporation [ sic in copy -- REP.] in consideration of their prosecuting the violation of this act, and the other half shall be paid over to the auditor of public accounts, to the credit of the educational fund." "SECTION 9. Be it further enacted, &c., That said Crescent City Livestock Landing and Slaughter-House Company shall have the right to construct a railroad from their buildings to the limits of the city of New Orleans, and shall have the right to run cars thereon, drawn by horses or other locomotive power, as they may see fit; said railroad to be built on either of the public roads running along the levee on each side of the Mississippi Page 83 U. S. 43 River. The said company or corporation shall also have the right to establish such steam ferries as they may see fit to run on the Mississippi River between their buildings and any points or places on either side of said river." "SECTION 10. Be it further enacted, &c., That at the expiration of twenty-five years from and after the passage of this act, the privileges herein granted shall expire." The parish of Orleans containing (as was said [ Footnote 1 ]) an area of 150 square miles, the parish of Jefferson of 384, and the parish of St. Bernard of 620, the three parishes together 1154 square miles, and they having between two and three hundred thousand people resident therein, and, prior to the passage of the act above quoted, about 1,000 persons employed daily in the business of procuring, preparing, and selling animal food, the passage of the act necessarily produced great feeling. Some hundreds of suits were brought on the one side or on the other; the butchers, not included in the "monopoly" as it was called, acting sometimes in combinations, in corporations, and companies and sometimes by themselves, the same counsel, however, apparently representing pretty much all of them. The ground of the opposition to the slaughterhouse company's pretensions, so far as any cases were finally passed on in this court, was that the act of the Louisiana legislature made a monopoly and was a violation of the most important provisions of the thirteenth and fourteenth Articles of Amendment to the Constitution of the United States. The language relied on of these articles is thus: " AMENDMENT XIII" "either slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction." " AMENDMENT XIV" "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. " Page 83 U. S. 44 "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court of Louisiana decided in favor of the company, and five of the cases came into this court under the 25th section of the Judiciary Act in December, 1870, where they were the subject of a preliminary motion by the plaintiffs in error for an order in the nature of a supersedeas. After this, that is to say, in March, 1871, a compromise was sought to be effected, and certain parties professing, apparently, to act in a representative way in behalf of the opponents to the company, referring to a compromise that they assumed had been effected, agreed to discontinue "all writs of error concerning the said company, now pending in the Supreme Court of the United States;" stipulating further "that their agreement should be sufficient authority for any attorney to appear and move for the dismissal of all said suits." Some of the cases were thus confessedly dismissed. But the three of which the names are given as a subtitle at the head of this report were, by certain of the butchers, asserted not to have been dismissed. And Messrs. M. H. Carpenter, J. S. Black, and T. J. Durant, in behalf of the new corporation, having moved to dismiss them also as embraced in the agreement, affidavits were filed on the one side and on the other; the affidavits of the butchers opposed to the "monopoly" affirming that they were plaintiffs in error in these three cases, and that they never consented to what had been done, and that no proper authority had been given to do it. This matter was directed to be heard with the merits. The case being advanced was first heard on these, January 11th, 1872; Mr. Justice Nelson being indisposed and not in his seat. Being ordered for reargument, it was heard again February 3d, 4th, and 5th, 1873. Page 83 U. S. 57 Mr. Justice MILLER, now, April 14th, 1873, delivered the opinion of the court. These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Livestock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State. The cases named on a preceding page, * with others which have been brought here and dismissed by agreement, were all decided by the Supreme Court of Louisiana in favor of the Slaughter-House Company, as we shall hereafter call it for the sake of brevity, and these writs are brought to reverse those decisions. The records were filed in this court in 1870, and were argued before it at length on a motion made by plaintiffs in error for an order in the nature of an injunction or supersedeas, Page 83 U. S. 58 pending the action of the court on the merits. The opinion on that motion is reported in 77 U. S. 10 Wallace 273. On account of the importance of the questions involved in these cases, they were, by permission of the court, taken up out of their order on the docket and argued in January, 1872. At that hearing, one of the justices was absent, and it was found, on consultation, that there was a diversity of views among those who were present. Impressed with the gravity of the questions raised in the argument, the court, under these circumstances, ordered that the cases be placed on the calendar and reargued before a full bench. This argument was had early in February last. Preliminary to the consideration of those questions is a motion by the defendant to dismiss the cases on the ground that the contest between the parties has been adjusted by an agreement made since the records came into this court, and that part of that agreement is that these writs should be dismissed. This motion was heard with the argument on the merits, and was much pressed by counsel. It is supported by affidavits and by copies of the written agreement relied on. It is sufficient to say of these that we do not find in them satisfactory evidence that the agreement is binding upon all the parties to the record who are named as plaintiffs in the several writs of error, and that there are parties now before the court, in each of the three cases, the names of which appear on a preceding page, * who have not consented to their dismissal, and who are not bound by the action of those who have so consented. They have a right to be heard, and the motion to dismiss cannot prevail. The records show that the plaintiffs in error relied upon, and asserted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court Page 83 U. S. 59 to review the judgment of the State court on those questions is clear, and is imperative. The statute thus assailed as unconstitutional was passed March 8th, 1869, and is entitled "An act to protect the health of the city of New Orleans, to locate the stock landings and slaughterhouses, and to incorporate the Crescent City Livestock Landing aud Slaughter-House Company." The first section forbids the landing or slaughtering of animals whose flesh is intended for food within the city of New Orleans and other parishes and boundaries named and defined, or the keeping or establishing any slaughterhouses or abattoirs within those limits except by the corporation thereby created, which is also limited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition. The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers. The third and fourth sections authorize the company to establish and erect within certain territorial limits, therein defined, one or more stockyards, stock landings, and slaughterhouses, and imposes upon it the duty of erecting, on or before the first day of June, 1869, one grand slaughterhouse of sufficient capacity for slaughtering five hundred animals per day. It declares that the company, after it shall have prepared all the necessary buildings, yards, and other conveniences for that purpose, shall have the sole and exclusive privilege of conducting and carrying on the livestock landing and slaughterhouse business within the limits and privilege granted by the act, and that all such animals shall be landed at the stock landings and slaughtered at the slaughterhouses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed. Section five orders the closing up of all other stock landings Page 83 U. S. 60 and slaughterhouses after the first day of June, in the parishes of Orleans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughterhouses under a heavy penalty for each refusal. Another section fixes a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered by an officer appointed by the governor of the State for that purpose. These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us. This statute is denounced not only as creating a monopoly and conferring odious and exclusive privileges upon a small number of persons at the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritorious class of citizens -- the whole of the butchers of the city -- of the right to exercise their trade, the business to which they have been trained and on which they depend for the support of themselves and their families, and that the unrestricted exercise of the business of butchering is necessary to the daily subsistence of the population of the city. But a critical examination of the act hardly justifies these assertions. It is true that it grants, for a period of twenty-five years, exclusive privileges. And whether those privileges are at the expense of the community in the sense of a curtailment of any of their fundamental rights, or even in the sense of doing them an injury, is a question open to considerations to be hereafter stated. But it is not true that it deprives the butchers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or furnishing the people of the city with the necessary daily supply of animal food. The act divides itself into two main grants of privilege, the one in reference to stock landings and stockyards, and Page 83 U. S. 61 the other to slaughterhouses. That the landing of livestock in large droves, from steamboats on the bank of the river, and from railroad trains, should, for the safety and comfort of the people and the care of the animals, be limited to proper places, and those not numerous it needs no argument to prove. Nor can it be injurious to the general community that, while the duty of making ample preparation for this is imposed upon a few men, or a corporation, they should, to enable them to do it successfully, have the exclusive right of providing such landing places, and receiving a fair compensation for the service. It is, however, the slaughterhouse privilege which is mainly relied on to justify the charges of gross injustice to the public and invasion of private right. It is not, and cannot be successfully controverted that it is both the right and the duty of the legislative body -- the supreme power of the State or municipality -- to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively, it is indispensable that all persons who slaughter animals for food shall do it in those places and nowhere else. The statute under consideration defines these localities and forbids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering. On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so to slaughter in their houses, and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place, and to pay a reasonable compensation for the use of the accommodations furnished him at that place. The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the Page 83 U. S. 62 duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit. The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the States, however it may now be questioned in some of its details. "Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all," says Chancellor Kent, [ Footnote 2 ] "be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community." This is called the police power, and it is declared by Chief Justice Shaw [ Footnote 3 ] that it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise. This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private social life, and the beneficial use of property. "It extends," says another eminent judge, [ Footnote 4 ] "to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State, . . . and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the legislature to do this, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned. " Page 83 U. S. 63 The regulation of the place and manner of conducting the slaughtering of animals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterwards, are among the most necessary and frequent exercises of this power. It is not, therefore, needed that we should seek for a comprehensive definition, but rather look for the proper source of its exercise. In Gibbons v. Ogden, [ Footnote 5 ] Chief Justice Marshall, speaking of inspection laws passed by the States, says: "They form a portion of that immense mass of legislation which controls everything within the territory of a State not surrendered to the General Government -- all which can be most advantageously administered by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts. No direct general power over these objects is granted to Congress, and consequently they remain subject to State legislation." The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln. [ Footnote 6 ] In that case, the defendant was prosecuted for failing to comply with a statute of New York which required of every master of a vessel arriving from a foreign port in that of New York City to report the names of all his passengers, with certain particulars of their age, occupation, last place of settlement, and place of their birth. It was argued that this act was an invasion of the exclusive right of Congress to regulate commerce. And it cannot be denied that such a statute operated at least indirectly upon the commercial intercourse between the citizens of the United States and of foreign countries. But notwithstanding this, it was held to be an exercise of the police power properly within the control of the State, and unaffected by the clause of the Constitution which conferred on Congress the right to regulate commerce. Page 83 U. S. 64 To the same purpose are the recent cases of the The License Tax, [ Footnote 7 ] and United States v. De Witt. [ Footnote 8 ] In the latter case, an act of Congress which undertook as a part of the internal revenue laws to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inflammable at less than a prescribed temperature, was held to be void because, as a police regulation, the power to make such a law belonged to the States, and did not belong to Congress. It cannot be denied that the statute under consideration is aptly framed to remove from the more densely populated part of the city the noxious slaughterhouses, and large and offensive collections of animals necessarily incident to the slaughtering business of a large city, and to locate them where the convenience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the act for this purpose are appropriate, are stringent, and effectual. But it is said that, in creating a corporation for this purpose, and conferring upon it exclusive privileges -- privileges which it is said constitute a monopoly -- the legislature has exceeded its power. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has on the corporation which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corporation, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever a legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers necessary to effect the desired and lawful purpose, seems hardly to admit of debate. The proposition is ably discussed and affirmed in the case of McCulloch v. The State of Maryland [ Footnote 9 ] in relation to the power of Congress to organize Page 83 U. S. 65 the Bank of the United States to aid in the fiscal operations of the government. It can readily be seen that the interested vigilance of the corporation created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock landing and slaughtering business for the good of the city than the ordinary efforts of the officers of the law. Unless, therefore, it can be maintained that the exclusive privilege granted by this charter to the corporation is beyond the power of the legislature of Louisiana, there can be no just exception to the validity of the statute. And, in this respect, we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege is well defined, and its enforcement well guarded. The prices or charges to be made by the company are limited by the statute, and we are not advised that they are, on the whole, exorbitant or unjust. The proposition is therefore reduced to these terms: can any exclusive privileges be granted to any of its citizens, or to a corporation, by the legislature of a State? The eminent and learned counsel who has twice argued the negative of this question has displayed a research into the history of monopolies in England and the European continent only equalled by the eloquence with which they are denounced. But it is to be observed that all such references are to monopolies established by the monarch in derogation of the rights of his subjects, or arise out of transactions in which the people were unrepresented, and their interests uncared for. The great Case of Monopolies, reported by Coke and so fully stated in the brief, was undoubtedly a contest of the commons against the monarch. The decision is based upon the ground that it was against common law, and the argument was aimed at the unlawful assumption of power by the crown, for whoever doubted the authority of Parliament to change or modify the common law? The discussion in the House of Commons cited from Macaulay clearly Page 83 U. S. 66 establishes that the contest was between the crown and the people represented in Parliament. But we think it may be safely affirmed that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have, from time immemorial to the present day, continued to grant to persons and corporations exclusive privileges -- privileges denied to other citizens -- privileges which come within any just definition of the word monopoly, as much as those now under consideration, and that the power to do this has never been questioned or denied. Nor can it be truthfully denied that some of the most useful and beneficial enterprises set on foot for the general good have been made successful by means of these exclusive rights, and could only have been conducted to success in that way. It may, therefore, be considered as established that the authority of the legislature of Louisiana to pass the present statute is ample unless some restraint in the exercise of that power be found in the constitution of that State or in the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited. If any such restraint is supposed to exist in the constitution of the State, the Supreme Court of Louisiana having necessarily passed on that question, it would not be open to review in this court. The plaintiffs in error, accepting this issue, allege that the statute is a violation of the Constitution of the United States in these several particulars: That it creates an involuntary servitude forbidden by the thirteenth article of amendment; That it abridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs the equal protection of the laws; and, That it deprives them of their property without due process of law, contrary to the provisions of the first section of the fourteenth article of amendment. Page 83 U. S. 67 This court is thus called upon for the first time to give construction to these articles. We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and pervading in their consequences, so profoundly interesting to the people of this country, and so important in their bearing upon the relations of the United States, of the several States to each other, and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. We have given every opportunity for a full hearing at the bar; we have discussed it freely and compared views among ourselves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go. Twelve articles of amendment were added to the Federal Constitution soon after the original organization of the government under it in 1789. Of these, all but the last were adopted so soon afterwards as to justify the statement that they were practically contemporaneous with the adoption of the original; and the twelfth, adopted in eighteen hundred and three, was so nearly so as to have become, like all the others, historical and of another age. But within the first eight years, three other articles of amendment of vast importance have been added by the voice of the people to that now venerable instrument. The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history, for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights, Page 83 U. S. 68 additional powers to the Federal government; additional restraints upon those of the States. Fortunately, that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt. The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery. In that struggle, slavery, as a, legalized social relation, perished. It perished as a necessity of the bitterness and force of the conflict. When the armies of freedom found themselves upon the soil of slavery, they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard-pressed in the contest, these men (for they proved themselves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts when he declared slavery abolished in them all. But the war being over, those who had succeeded in reestablishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored Union as one of its fundamental articles. Hence, the thirteenth article of amendment of that instrument. Page 83 U. S. 69 Its two short sections seem hardly to admit of construction, so vigorous is their expression and so appropriate to the purpose we have indicated. "1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction." "2. Congress shall have power to enforce this article by appropriate legislation." To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government -- a declaration designed to establish the freedom of four millions of slaves -- and with a microscopic search endeavor to find in it a reference to servitudes which may have been attached to property in certain localities requires an effort, to say the least of it. That a personal servitude was meant is proved by the use of the word "involuntary," which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant. The word servitude is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that, in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded if only the word slavery had been used. The case of the apprentice slave, held under a law of Maryland, liberated by Chief Justice Chase on a writ of habeas corpus under this article, illustrates this course of observation. [ Footnote 10 ] And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration. Page 83 U. S. 70 The process of restoring to their proper relations with the Federal government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865 and before the assembling of Congress, developed the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies which claimed to be in their normal relations with the Federal government were laws which imposed upon the colored race onerous disabilities and burdens and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value, while they had lost the protection which they had received from their former owners from motives both of interest and humanity. They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to reside on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony in the courts in any case where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their protection were insufficient or were not enforced. These circumstances, whatever of falsehood or misconception may have been mingled with their presentation, forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that, by the thirteenth article of amendment, they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection until they Page 83 U. S. 71 ratified that article by a formal vote of their legislative bodies. Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked, as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage. Hence, the fifteenth amendment, which declares that "the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude." The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, Page 83 U. S. 72 mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth. We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican of Chinese race within our territory, this amendment may safely be trusted to make it void. And so, if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood, is that, in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished as far as constitutional law can accomplish it. The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether Page 83 U. S. 73 this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution. To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. The next observation is more important in view of the arguments of counsel in the present case. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Page 83 U. S. 74 Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. The language is, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. " It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and, with a purpose. Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment. Page 83 U. S. 75 If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such and those belonging to the citizen of the State as such, the latter must rest for their security and protection where they have heretofore rested, for they are not embraced by this paragraph of the amendment. The first occurrence of the words "privileges and immunities" in our constitutional history is to be found in the fourth of the articles of the old Confederation. It declares "that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States, and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively." In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the article of the Confederation, we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase. Fortunately, we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1823. [ Footnote 11 ] Page 83 U. S. 76 "The inquiry," he says, "is what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole." This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland, [ Footnote 12 ] while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure. In the case of Paul v. Virginia, [ Footnote 13 ] the court, in expounding this clause of the Constitution, says that "the privileges and immunities secured to citizens of each State in the several States by the provision in question are those privileges and immunities which are common to the citizens in the latter Page 83 U. S. 77 States under the constitution and laws by virtue of their being citizens." The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the States -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow if the proposition of the Page 83 U. S. 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges Page 83 U. S. 79 and immunities of citizens of the United States which no State can abridge until some case involving those privileges may make it necessary to do so. But lest it should be said that no such privileges and immunities are to he found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its national character, its Constitution, or its laws. One of these is well described in the case of Crandall v. Nevada. [ Footnote 14 ] It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, "to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which operations of foreign commerce are conducted, to the sub-treasuries, land offices, and courts of justice in the several States." And quoting from the language of Chief Justice Taney in another case, it is said "that, for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States; " and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada. Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, Page 83 U. S. 80 are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered. But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the thirteenth amendment under consideration. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws." The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the constitutions of nearly all the States as a restraint upon the power of the States. This law, then, has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government. We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it Page 83 U. S. 81 is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. "Nor shall any State deny to any person within its jurisdiction the equal protection of the laws." In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment. In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate the powers of the National government from those of the State governments, and though this line has Page 83 U. S. 82 never been very well defined in public opinion, such a division has continued from that day to this. The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government. Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation. But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and an even hand the balance between State and Federal power, and we trust that such may continue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution or of any of its parts. Page 83 U. S. 83 The judgments of the Supreme Court of Louisiana in these cases are AFFIRMED. * The Butchers' Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company. Paul Esteban, L. Ruch, J. P. Rouede, W. Maylie, S. Firmberg, B. Beaubay, William Fagan, J. D. Broderick, N. Seibel, M. Lannes, J. Gitzinger, J. P. Aycock, D. Verges, The Live-Stock Dealers' and Butchers' Association of New Orleans, and Charles Cavaroc v. The State of Louisiana, ex rel. S. Belden, Attorney-General. The Butchers' Benevolent Association of New Orleans v. The Crescent City Live-Stock Landing and Slaughter-House Company. [ Footnote 1 ] See infra, pp. 83 U. S. 85 , 83 U. S. 86 . [ Footnote 2 ] 2 Commentaries 340. [ Footnote 3 ] Commonwealth v. Alger, 7 Cushing 84. [ Footnote 4 ] Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont 149. [ Footnote 5 ] 22 U. S. 9 Wheaton 203. [ Footnote 6 ] 36 U. S. 11 Peters 102. [ Footnote 7 ] 72 U. S. 5 Wallace 471. [ Footnote 8 ] 76 U. S. 9 id., 41. [ Footnote 9 ] 17 U. S. 4 Wheaton 316. [ Footnote 10 ] Matter of Turner, 1 Abbott United States Reports 84. [ Footnote 11 ] 4 Washington's Circuit Court 371. [ Footnote 12 ] 79 U. S. 12 Wallace 430. [ Footnote 13 ] 75 U. S. 8 id., 180. [ Footnote 14 ] 73 U. S. 6 Wallace 36. Mr. Justice FIELD, dissenting. I am unable to agree with the majority of the court in these cases, and will proceed to state the reasons of my dissent from their judgment. The cases grow out of the act of the legislature of the State of Louisiana, entitled "An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughterhouses, and to incorporate 'The Crescent City Live-Stock Landing and Slaughter-House Company,'" which was approved on the eighth of March, 1869, and went into operation on the first of June following. The act creates the corporation mentioned in its title, which is composed of seventeen persons designated by name, and invests them and their successors with the powers usually conferred upon corporations in addition to their special and exclusive privileges. It first declares that it shall not be lawful, after the first day of June, 1869, to "land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landing, yards, slaughterhouses, or abattoirs within the city of New Orleans or the parishes of Orleans, Jefferson, and St. Bernard," except as provided in the act, and imposes a penalty of two hundred and fifty dollars for each violation of its provisions. It then authorizes the corporation mentioned to establish and erect within the parish of St. Bernard and the corporate limits of New Orleans, below the United States barracks, on the east side of the Mississippi, or at any point below a designated railroad depot on the west side of the river, "wharves, stables, sheds, yards, and buildings, necessary to land, stable, shelter, protect, and preserve all kinds of horses, mules, cattle, and other animals," and provides that cattle and other animals, destined for sale or slaughter in the city of New Orleans or its environs shall be landed at the landings and yards of the company, and be there Page 83 U. S. 84 yarded, sheltered, and protected, if necessary, and that the company shall be entitled to certain prescribed fees for the use of its wharves, and for each animal landed, and be authorized to detain the animals until the fees are paid, and, if not paid within fifteen days, to take proceedings for their sale. Every person violating any of these provisions, or landing, yarding, or keeping animals elsewhere, is subjected to a fine of two hundred and fifty dollars. The act then requires the corporation to erect a grand slaughterhouse of sufficient dimensions to accommodate all butchers, and in which five hundred animals may be slaughtered a day, with a sufficient number of sheds and stables for the stock received at the port of New Orleans, at the same time authorizing the company to erect other landing-places and other slaughterhouses at any points consistent with the provisions of the act. The act then provides that, when the slaughterhouses and accessory buildings have been completed and thrown open for use, public notice thereof shall be given for thirty days, and within that time, "all other stock-landings and slaughterhouses within the parishes of Orleans, Jefferson, and St. Bernard shall be closed, and it shall no longer be lawful to slaughter cattle, hogs, calves, sheep, or goats, the meat of which is determined [destined] for sale within the parishes aforesaid, under a penalty of one hundred dollars for each and every offence." The act then provides that the company shall receive for every animal slaughtered in its buildings certain prescribed fees, besides the head, feet, gore, and entrails of all animals except of swine. Other provisions of the act require the inspection of the animals before they are slaughtered, and allow the construction of railways to facilitate communication with the buildings of the company and the city of New Orleans. But it is only the special and exclusive privileges conferred by the act that this court has to consider in the cases before it. These privileges are granted for the period of twenty-five years. Their exclusive character not only follows Page 83 U. S. 85 from the provisions I have cited, but it is declared in express terms in the act. In the third section, the language is that the corporation "shall have the sole and exclusive privilege of conducting and carrying on the livestock, landing, and slaughterhouse business within the limits and privileges granted by the provisions of the act." And in the fourth section, the language is that, after the first of June, 1869, the company shall have "the exclusive privilege of having landed at their landing-places all animals intended for sale or slaughter in the parishes of Orleans and Jefferson," and "the exclusive privilege of having slaughtered" in its slaughterhouses all animals the meat of which is intended for sale in these parishes. In order to understand the real character of these special privileges, it is necessary to know the extent of country and of population which they affect. The parish of Orleans contains an area of country of 150 square miles; the parish of Jefferson 384 square miles, and the parish of St. Bernard 620 square miles. The three parishes together contain an area of 1154 square miles, and they have a population of between two and three hundred thousand people. The plaintiffs in error deny the validity of the act in question so far as it confers the special and exclusive privileges mentioned. The first case before us was brought by an association of butchers in the three parishes against the corporation to prevent the assertion and enforcement of these privileges. The second case was instituted by the attorney general of the State, in the name of the State, to protect the corporation in the enjoyment of these privileges and to prevent an association of stock dealers and butchers from acquiring a tract of land in the same district with the corporation upon which to erect suitable buildings for receiving, keeping, and slaughtering cattle and preparing animal food for market. The third case was commenced by the corporation itself to restrain the defendants from carrying on a business similar to its own in violation of its alleged exclusive privileges. The substance of the averments of the plaintiffs in error Page 83 U. S. 86 is this: that, prior to the passage of the act in question, they were engaged in the lawful and necessary business of procuring and bringing to the parishes of Orleans, Jefferson, and St. Bernard animals suitable for human food, and in preparing such food for market; that, in the prosecution of this business, they had provided in these parishes suitable establishments for landing, sheltering, keeping, and slaughtering cattle and the sale of meat; that, with their association about four hundred persons were connected, and that, in the parishes named, about a thousand persons were thus engaged in procuring, preparing, and selling animal food. And they complain that the business of landing, yarding, and keeping, within the parishes named, cattle intended for sale or slaughter, which was lawful for them to pursue before the first day of June, 1869, is made by that act unlawful for anyone except the corporation named, and that the business of slaughtering cattle and preparing animal food for market, which it was lawful for them to pursue in these parishes before that day, is made by that act unlawful for them to pursue afterwards except in the buildings of the company, and upon payment of certain prescribed fees, and a surrender of a valuable portion of each animal slaughtered. And they contend that the lawful business of landing, yarding, sheltering, and keeping cattle intended for sale or slaughter, which they in common with every individual in the community of the three parishes had a right to follow, cannot be thus taken from them and given over for a period of twenty-five years to the sole and exclusive enjoyment of a corporation of seventeen persons or of anybody else. And they also contend that the lawful and necessary business of slaughtering cattle and preparing animal food for market, which they and all other individuals had a right to follow, cannot be thus restricted within this territory of 1154 square miles to the buildings of this corporation, or be subjected to tribute for the emolument of that body. No one will deny the abstract justice which lies in the position of the plaintiffs in error, and I shall endeavor to Page 83 U. S. 87 show that the position has some support in the fundamental law of the country. It is contended in justification for the act in question that it was adopted in the interest of the city, to promote its cleanliness and protect its health, and was the legitimate exercise of what is termed the police power of the State. That power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it, and, when these are not in conflict with any constitutional prohibitions or fundamental principles, they cannot be successfully assailed in a judicial tribunal. With this power of the State and its legitimate exercise I shall not differ from the majority of the court. But under the pretence of prescribing a police regulation, the State cannot be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to secure against abridgment. In the law in question there are only two provisions which can properly be called police regulations -- the one which requires the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When these requirements are complied with, the sanitary purposes of the act are accomplished. In all other particulars, the act is a mere grant to a corporation created by it of special and exclusive privileges by which the health of the city is in no way promoted. It is plain that if the corporation can, without endangering the health of the public, carry on the business of landing, keeping, and slaughtering cattle within a district below the city embracing an area of over a thousand square miles, it would not endanger the public health if other persons were also permitted to carry on the same business within the same district under similar conditions as to the inspection of the animals. The health of the city might require the removal from its limits and suburbs of all buildings for keeping and slaughtering cattle, but no such Page 83 U. S. 88 object could possibly justify legislation removing such buildings from a large part of the State for the benefit of a single corporation. The pretence of sanitary regulations for the grant of the exclusive privileges is a shallow one which merits only this passing notice. It is also sought to justify the act in question on the same principle that exclusive grants for ferries, bridges, and turnpikes are sanctioned. But it can find no support there. Those grants are of franchises of a public character appertaining to the government. Their use usually requires the exercise of the sovereign right of eminent domain. It is for the government to determine when one of them shall be granted, and the conditions upon which it shall be enjoyed. It is the duty of the government to provide suitable roads, bridges, and ferries for the convenience of the public, and if it chooses to devolve this duty to any extent, or in any locality, upon particular individuals or corporations, it may of course stipulate for such exclusive privileges connected with the franchise as it may deem proper, without encroaching upon the freedom or the just rights of others. The grant, with exclusive privileges, of a right thus appertaining to the government, is a very different thing from a grant, with exclusive privileges, of a right to pursue one of the ordinary trades or callings of life, which is a right appertaining solely to the individual. Nor is there any analogy between this act of Louisiana and the legislation which confers upon the inventor of a new and useful improvement an exclusive right to make and sell to others his invention. The government in this way only secures to the inventor the temporary enjoyment of that which, without him, would not have existed. It thus only recognizes in the inventor a temporary property in the product of his own brain. The act of Louisiana presents the naked case, unaccompanied by any public considerations, where a right to pursue a lawful and necessary calling, previously enjoyed by every citizen, and in connection with which a thousand persons were daily employed, is taken away and vested exclusively Page 83 U. S. 89 for twenty-five years, for an extensive district and a large population, in a single corporation, or its exercise is for that period restricted to the establishments of the corporation, and there allowed only upon onerous conditions. If exclusive privileges of this character can be granted to a corporation of seventeen persons, they may, in the discretion of the legislature, be equally granted to single individual. If they may be granted for twenty-five years, they may be equally granted for a century, and in perpetuity. If they may be granted for the landing and keeping of animals intended for sale or slaughter, they may be equally granted for the landing and storing of grain and other products of the earth, or for any article of commerce. If they may be granted for structures in which animal food is prepared for market, they may be equally granted for structures in which farinaceous or vegetable food is prepared. They may be granted for any of the pursuits of human industry, even in its most simple and common forms. Indeed, upon the theory on which the exclusive privileges granted by the act in question are sustained, there is no monopoly, in the most odious form, which may not be upheld. The question presented is, therefore, one of the gravest importance not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment, the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it. The counsel for the plaintiffs in error have contended with great force that the act in question is also inhibited by the thirteenth amendment. That amendment prohibits slavery and involuntary servitude, except as a punishment for crime, but I have not supposed it was susceptible of a construction which would cover the enactment in question. I have been so accustomed to regard it as intended to meet that form of slavery which had Page 83 U. S. 90 previously prevailed in this country, and to which the recent civil war owed its existence, that I was not prepared, nor am I yet, to give to it the extent and force ascribed by counsel. Still it is evidence that the language of the amendment is not used in a restrictive sense. It is not confined to African slavery alone. It is general and universal in its application. Slavery of white men as well as of black men is prohibited, and not merely slavery in the strict sense of the term, but involuntary servitude in every form. The words "involuntary servitude" have not been the subject of any judicial or legislative exposition, that I am aware of, in this country, except that which is found in the Civil Rights Act, which will be hereafter noticed. It is, however, clear that they include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make everyone born in this country a freeman, and, as such, to give to him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor. A prohibition to him to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive him of the rights of a freeman, and would place him, as respects others, in a condition of servitude. A person allowed to pursue only one trade or calling, and only in one locality of the country, would not be, in the strict sense of the term, in a condition of slavery, but probably none would deny that he would be in a condition of servitude. He certainly would not possess the liberties nor enjoy the privileges of a freeman. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, Page 83 U. S. 91 and would equally constitute an element of servitude. The counsel of the plaintiffs in error therefore contend that "wherever a law of a State, or a law of the United States, makes a discrimination between classes of persons which deprives the one class of their freedom or their property or which makes a caste of them to subserve the power, pride, avarice, vanity, or vengeance of others," there involuntary servitude exists within the meaning of the thirteenth amendment. It is not necessary, in my judgment, for the disposition of the present case in favor of the plaintiffs in error, to accept as entirely correct this conclusion of counsel. It, however, finds support in the act of Congress known as the Civil Rights Act, which was framed and adopted upon a construction of the thirteenth amendment, giving to its language a similar breadth. That amendment was ratified on the eighteenth of December, 1865, [ Footnote 2/1 ] and, in April of the following year, the Civil Rights Act was passed. [ Footnote 2/2 ] Its first section declares that all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are "citizens of the United States," and that "such citizens, of every race and color, without regard to any previous condition of slavery, or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens." This legislation was supported upon the theory that citizens of the United States, as such, were entitled to the rights and privileges enumerated, and that to deny to any such citizen equality in these rights and privileges with others was, to the extent of the denial, subjecting him to an involuntary Page 83 U. S. 92 servitude. Senator Trumbull, who drew the act and who was its earnest advocate in the Senate, stated, on opening the discussion upon it in that body, that the measure was intended to give effect to the declaration of the amendment, and to secure to all persons in the United States practical freedom. After referring to several statutes passed in some of the Southern States discriminating between the freedmen and white citizens, and after citing the definition of civil liberty given by Blackstone, the Senator said: "I take it that any statute which is not equal to all, and which deprives any citizen of civil rights which are secured to other citizens, is an unjust encroachment upon his liberty, and it is in fact a badge of servitude which by the Constitution is prohibited. [ Footnote 2/3 ]" By the act of Louisiana, within the three parishes named, a territory exceeding one thousand one hundred square miles, and embracing over two hundred thousand people, every man who pursues the business of preparing animal food for market must take his animals to the buildings of the favored company, and must perform his work in them, and for the use of the buildings must pay a prescribed tribute to the company, and leave with it a valuable portion of each animal slaughtered. Every man in these parishes who has a horse or other animal for sale must carry him to the yards and stables of this company and for their use pay a like tribute. He is not allowed to do his work in his own buildings, or to take his animals to his own stables or keep them in his own yards, even though they should be erected in the same district as the buildings, stables, and yards of the company, and that district embraces over eleven hundred square miles. The prohibitions imposed by this act upon butchers and dealers in cattle in these parishes, and the special privileges conferred upon the favored corporation, are similar in principle and as odious in character as the restrictions imposed in the last century upon the peasantry in some parts of France, where, as says a French Page 83 U. S. 93 writer, the peasant was prohibited "to hunt on his own lands, to fish in his own waters, to grind at his own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his instruments at his own grindstone, to make his own wine, his oil, and his cider at his own press, . . . or to sell his commodities at the public market." The exclusive right to all these privileges was vested in the lords of the vicinage. "The history of the most execrable tyranny of ancient times," says the same writer, "offers nothing like this. This category of oppressions cannot be applied to a free man, or to the peasant, except in violation of his rights." But if the exclusive privileges conferred upon the Louisiana corporation can be sustained, it is not perceived why exclusive privileges for the construction and keeping of ovens, machines, grindstones, wine-presses, and for all the numerous trades and pursuits for the prosecution of which buildings are required, may not be equally bestowed upon other corporations or private individuals, and for periods of indefinite duration. It is not necessary, however, as I have said, to rest my objections to the act in question upon the terms and meaning of the thirteenth amendment. The provisions of the fourteenth amendment, which is properly a supplement to the thirteenth, cover, in my judgment, the case before us, and inhibit any legislation which confers special and exclusive privileges like these under consideration. The amendment was adopted to obviate objections which had been raised and pressed with great force to the validity of the Civil Rights Act, and to place the common rights of American citizens under the protection of the National government. It first declares that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." It then declares that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due Page 83 U. S. 94 process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The first clause of this amendment determines who are citizens of the United States, and how their citizenship is created. Before its enactment, there was much diversity of opinion among jurists and statesmen whether there was any such citizenship independent of that of the State, and, if any existed, as to the manner in which it originated. With a great number, the opinion prevailed that there was no such citizenship independent of the citizenship of the State. Such was the opinion of Mr. Calhoun and the class represented by him. In his celebrated speech in the Senate upon the Force Bill in 1833, referring to the reliance expressed by a senator upon the fact that we are citizens of the United States, he said: "If by citizen of the United States he means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of our population. Notwithstanding all the pomp and display of eloquence on the occasion, every citizen is a citizen of some State or Territory, and, as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States. [ Footnote 2/4 ]" In the Dred Scott case, this subject of citizenship of the United States was fully and elaborately discussed. The exposition in the opinion of Mr. Justice Curtis has been generally accepted by the profession of the country as the one containing the soundest views of constitutional law. And he held that, under the Constitution, citizenship of the United States in reference to natives was dependent upon citizenship in the several States, under their constitutions and laws. Page 83 U. S. 95 The Chief Justice, in that case, and a majority of the court with him, held that the words "people of the United States" and "citizens" were synonymous terms; that the people of the respective States were the parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought to this country and sold as slaves were not, and could not be, citizens within the meaning of the Constitution. The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. They are thus affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive Page 83 U. S. 96 their existence from its legislation, and cannot be destroyed by its power. The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence. What, then, are the privileges and immunities which are secured against abridgment by State legislation? In the first section of the Civil Rights Act, Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right "to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property." That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation Page 83 U. S. 97 of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment. [ Footnote 2/5 ] The terms "privileges" and "immunities" are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell, [ Footnote 2/6 ] Mr. Justice Washington said he had "no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental, which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;" and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be "all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole." This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments. Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. In the discussions Page 83 U. S. 98 in Congress upon the passage of the Civil Rights Act, repeated reference was made to this language of Mr. Justice Washington. It was cited by Senator Trumbull with the observation that it enumerated the very rights belonging to a citizen of the United States set forth in the first section of the act, and with the statement that all persons born in the United States, being declared by the act citizens of the United States, would thenceforth be entitled to the rights of citizens, and that these were the great fundamental rights set forth in the act; and that they were set forth "as appertaining to every freeman." The privileges and immunities designated in the second section of the fourth article of the Constitution are, then, according to the decision cited, those which of right belong to the citizens of all free governments, and they can be enjoyed under that clause by the citizens of each State in the several States upon the same terms and conditions as they are enjoyed by the citizens of the latter States. No discrimination can be made by one State against the citizens of other States in their enjoyment, nor can any greater imposition be levied than such as is laid upon its own citizens. It is a clause which insures equality in the enjoyment of these rights between citizens of the several States whilst in the same State. Nor is there anything in the opinion in the case of Paul v. Virginia, [ Footnote 2/7 ] which at all militates against these views, as is supposed by the majority of the court. The act of Virginia of 1866 which was under consideration in that case provided that no insurance company not incorporated under the laws of the State should carry on its business within the State without previously obtaining a license for that purpose, and that it should not receive such license until it had deposited with the treasurer of the State bonds of a specified character, to an amount varying from thirty to fifty thousand dollars. No such deposit was required of insurance companies incorporated by the State, for carrying on Page 83 U. S. 99 their business within the State; and in the case cited, the validity of the discriminating provisions of the statute of Virginia between her own corporations and the corporations of other States was assailed. It was contended that the statute in this particular was in conflict with that clause of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." But the court answered, that corporations were not citizens within the meaning of this clause; that the term citizens as there used applied only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature and possessing only the attributes which the legislature had prescribed; that, though it had been held that where contracts or rights of property were to be enforced by or against a corporation, the courts of the United States would, for the purpose of maintaining jurisdiction, consider the corporation as representing citizens of the State, under the laws of which it was created, and to this extent would treat a corporation was a citizen within the provision of the Constitution extending the judicial power of the United States to controversies between citizens of different States, it had never been held in any case which had come under its observation, either in the State or Federal courts, that a corporation was a citizen within the meaning of the clause in question, entitling the citizens of each State to the privileges and immunities of citizens in the several States. And the court observed that the privileges and immunities secured by that provision were those privileges and immunities which were common to the citizens in the latter States, under their constitution and laws, by virtue of their being citizens; that special privileges enjoyed by citizens in their own States were not secured in other States by the provision; that it was not intended by it to give to the laws of one State any operation in other States; that they could have no such operation except by the permission, expressed or implied, of those States; and that the special privileges which they conferred must, therefore, be enjoyed at home unless the assent Page 83 U. S. 100 of other States to their enjoyment therein were given. And so the court held that a corporation, being a grant of special privileges to the corporators, had no legal existence beyond the limits of the sovereignty where created, and that the recognition of its existence by other States, and the enforcement of its contracts made therein, depended purely upon the assent of those States, which could be granted upon such terms and conditions as those States might think proper to impose. The whole purport of the decision was that citizens of one State do not carry with them into other States any special privileges or immunities, conferred by the laws of their own States, of a corporate or other character. That decision has no pertinency to the questions involved in this case. The common privileges and immunities which of right belong to all citizens, stand on a very different footing. These the citizens of each State do carry with them into other States, and are secured by the clause in question in their enjoyment upon terms of equality with citizens of the latter States. This equality in one particular was enforced by this court in the recent case of Ward v. The State of Maryland, reported in the 12th of Wallace. A statute of that State required the payment of a larger sum from a nonresident trader for a license to enable him to sell his merchandise in the State than it did of a resident trader, and the court held that the statute, in thus discriminating against the nonresident trader, contravened the clause securing to the citizens of each State the privileges and immunities of citizens of the several States. The privilege of disposing of his property, which was an essential incident to his ownership possessed by the nonresident, was subjected by the statute of Maryland to a greater burden than was imposed upon a like privilege of her own citizens. The privileges of the nonresident were in this particular abridged by that legislation. What the clause in question did for the protection of the citizens of one State against hostile and discriminating legislation of other States, the fourteenth amendment does for Page 83 U. S. 101 the protection of every citizen of the United States against hostile and discriminating legislation against him in favor of others, whether they reside in the same or in different States. If, under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States, under the fourteenth amendment, the same equality is secured between citizens of the United States. It will not be pretended that, under the fourth article of the Constitution, any State could create a monopoly in any known trade or manufacture in favor of her own citizens, or any portion of them, which would exclude an equal participation in the trade or manufacture monopolized by citizens of other States. She could not confer, for example, upon any of her citizens the sole right to manufacture shoes, or boots, or silk, or the sole right to sell those articles in the State so as to exclude nonresident citizens from engaging in a similar manufacture or sale. The nonresident citizens could claim equality of privilege under the provisions of the fourth article with the citizens of the State exercising the monopoly as well as with others, and thus, as respects them, the monopoly would cease. If this were not so, it would be in the power of the State to exclude at any time the citizens of other States from participation in particular branches of commerce or trade, and extend the exclusion from time to time so as effectually to prevent any traffic with them. Now what the clause in question does for the protection of citizens of one State against the creation of monopolies in favor of citizens of other States, the fourteenth amendment does for the protection of every citizen of the United States against the creation of any monopoly whatever. The privileges and immunities of citizens of the United States, of every one of them, is secured against abridgment in any form by any State. The fourteenth amendment places them under the guardianship of the National authority. All monopolies in any known trade or manufacture are an invasion of these privileges, for they encroach upon the liberty of citizens to acquire property and pursue happiness, and were Page 83 U. S. 102 held void at common law in the great Case of Monopolies, decided during the reign of Queen Elizabeth. A monopoly is defined "to be an institution or allowance from the sovereign power of the State by grant, commission, or otherwise, to any person or corporation, for the sole buying, selling, making, working, or using of anything, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade." All such grants relating to any known trade or manufacture have been held by all the judges of England, whenever they have come up for consideration, to be void at common law as destroying the freedom of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it into the power of the grantees to enhance the price of commodities. The definition embraces, it will be observed, not merely the sole privilege of buying and selling particular articles, or of engaging in their manufacture, but also the sole privilege of using anything by which others may be restrained of the freedom or liberty they previously had in any lawful trade, or hindered in such trade. It thus covers in every particular the possession and use of suitable yards, stables, and buildings for keeping and protecting cattle and other animals, and for their slaughter. Such establishments are essential to the free and successful prosecution by any butcher of the lawful trade of preparing animal food for market. The exclusive privilege of supplying such yards, buildings, and other conveniences for the prosecution of this business in a large district of country, granted by the act of Louisiana to seventeen persons, is as much a monopoly as though the act had granted to the company the exclusive privilege of buying and selling the animals themselves. It equally restrains the butchers in the freedom and liberty they previously had and hinders them in their lawful trade. The reasons given for the judgment in the Case of Monopolies apply with equal force to the case at bar. In that case, a patent had been granted to the plaintiff giving him the sole Page 83 U. S. 103 right to import playing cards, and the entire traffic in them, and the sole right to make such cards within the realm. The defendant, in disregard of this patent, made and sold some gross of such cards and imported others, and was accordingly sued for infringing upon the exclusive privileges of the plaintiff. As to a portion of the cards made and sold within the realm, he pleaded that he was a haberdasher in London and a free citizen of that city, and, as such, had a right to make and sell them. The court held the plea good and the grant void, as against the common law and divers acts of Parliament. "All trades," said the court, "as well mechanical as others, which prevent idleness (the bane of the commonwealth) and exercise men and youth in labor for the maintenance of themselves and their families, and for the increase of their substance, to serve the queen when occasion shall require, are profitable for the commonwealth, and therefore the grant to the plaintiff to have the sole making of them is against the common law and the benefit and liberty of the subject. [ Footnote 2/8 ]" The case of Davenant and Hurdis was cited in support of this position. In that case, a company of merchant tailors in London, having power by charter to make ordinances for the better rule and government of the company so that they were consonant to law and reason, made an ordinance that any brother of the society who should have any cloth dressed by a clothworker not being a brother of the society should put one-half of his cloth to some brother of the same society who exercised the art of a clothworker, upon pain of forfeiting ten shillings, "and it was adjudged that the ordinance, although it had the countenance of a charter, was against the common law, because it was against the liberty of the subject; for every subject, by the law, has freedom and liberty to put his cloth to be dressed by what clothworker he pleases, and cannot be restrained to certain persons, for that, in effect, would be a monopoly, and, therefore, such ordinance, by color of a charter or any grant by charter to such effect, would be void. " Page 83 U. S. 104 Although the court, in its opinion, refers to the increase in prices and deterioration in quality of commodities which necessarily result from the grant of monopolies, the main ground of the decision was their interference with the liberty of the subject to pursue for his maintenance and that of his family any lawful trade or employment. This liberty is assumed to be the natural right of every Englishman. The struggle of the English people against monopolies forms one of the most interesting and instructive chapters in their history. It finally ended in the passage of the statute of 21st James I, by which it was declared "that all monopolies and all commissions, grants, licenses, charters, and letters-patent, to any person or persons, bodies politic or corporate whatsoever, of or for the sole buying, selling, making, working, or using of anything" within the realm or the dominion of Wales were altogether contrary to the laws of the realm and utterly void, with the exception of patents for new inventions for a limited period, and for printing, then supposed to belong to the prerogative of the king, and for the preparation and manufacture of certain articles and ordnance intended for the prosecution of war. The common law of England, as is thus seen, condemned all monopolies in any known trade or manufacture, and declared void all grants of special privileges whereby others could be deprived of any liberty which they previously had, or be hindered in their lawful trade. The statute of James I, to which I have referred, only embodied the law as it had been previously declared by the courts of England, although frequently disregarded by the sovereigns of that country. The common law of England is the basis of the jurisprudence of the United States. It was brought to this country by the colonists, together with the English statutes, and was established here so far as it was applicable to their condition. That law and the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their circumstances, were claimed by the Congress of the United Colonies in 1774 as a part of their "indubitable rights and liberties." [ Footnote 2/9 ] Page 83 U. S. 105 Of the statutes the benefits of which was thus claimed, the statute of James I against monopolies was one of the most important. And when the Colonies separated from the mother country, no privilege was more fully recognized or more completely incorporated into the fundamental law of the country than that every free subject in the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the country declared as self-evident truths that the Creator had endowed all men "with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men." If it be said that the civil law, and not the common law, is the basis of the jurisprudence of Louisiana, I answer that the decree of Louis XVI, in 1776, abolished all monopolies of trades and all special privileges of corporations, guilds, and trading companies, and authorized every person to exercise, without restraint, his art, trade, or profession, and such has been the law of France and of her colonies ever since, and that law prevailed in Louisiana at the time of her cession to the United States. Since then, notwithstanding the existence in that State of the civil law as the basis of her jurisprudence, freedom of pursuit has been always recognized as the common right of her citizens. But were this otherwise, the fourteenth amendment secures the like protection to all citizens in that State against any abridgment of their common rights, as in other States. That amendment was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes. If the trader in London could plead that he was a free citizen of that city against the enforcement to his injury of monopolies, surely, under the fourteenth amendment, every Page 83 U. S. 106 citizen of the United States should be able to plead his citizenship of the republic as a protection against any similar invasion of his privileges and immunities. So fundamental has this privilege of every citizen to be free from disparaging and unequal enactments in the pursuit of the ordinary avocations of life been regarded that few instances have arisen where the principle has been so far violated as to call for the interposition of the courts. But whenever this has occurred, with the exception of the present cases from Louisiana, which are the most barefaced and flagrant of all, the enactment interfering with the privilege of the citizen has been pronounced illegal and void. When a case under the same law under which the present cases have arisen came before the Circuit Court of the United States in the District of Louisiana, there was no hesitation on the part of the court in declaring the law, in its exclusive features, to be an invasion of one of the fundamental privileges of the citizen. [ Footnote 2/10 ] The presiding justice, in delivering the opinion of the court, observed that it might be difficult to enumerate or define what were the essential privileges of a citizen of the United States, which a State could not by its laws invade, but that, so far as the question under consideration was concerned, it might be safely said that "it is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation and without being restricted by any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments." And again: "There is no more sacred right of citizenship than the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor." In the City of Chicago v. Rumpff, [ Footnote 2/11 ] which was before the Supreme Court of Illinois, we have a case similar in all its Page 83 U. S. 107 features to the one at bar. That city being authorized by its charter to regulate and license the slaughtering of animals within its corporate limits, the common council passed what was termed an ordinance in reference thereto, whereby a particular building was designated for the slaughtering of all animals intended for sale or consumption in the city, the owners of which were granted the exclusive right for a specified period to have all such animals slaughtered at their establishment, they to be paid a specific sum for the privilege of slaughtering there by all persons exercising it. The validity of this action of the corporate authorities was assailed on the ground of the grant of exclusive privileges, and the court said: "The charter authorizes the city authorities to license or regulate such establishments. Where that body has made the necessary regulations, required for the health or comfort of the inhabitants, all persons inclined to pursue such an occupation should have an opportunity of conforming to such regulations, otherwise the ordinance would be unreasonable, and tend to oppression. Or, if they should regard it for the interest of the city that such establishments should be licensed, the ordinance should be so framed that all persons desiring it might obtain licenses by conforming to the prescribed terms and regulations for the government of such business. We regard it neither as a regulation nor a license of the business to confine it to one building or to give it to one individual. Such an action is oppressive, and creates a monopoly that never could have been contemplated by the General Assembly. It impairs the rights of all other persons, and cuts them off from a share in not only a legal, but a necessary, business. Whether we consider this as an ordinance or a contract, it is equally unauthorized as being opposed to the rules governing the adoption of municipal by-laws. The principle of equality of rights to the corporators is violated by this contract. If the common council may require all of the animals for the consumption of the city to be slaughtered in a single building, or on a particular lot, and the owner be paid a specific sum for the privilege, what would prevent the making a Page 83 U. S. 108 similar contract with some other person that all of the vegetables, or fruits, the flour, the groceries, the dry goods, or other commodities should be sold on his lot and he receive a compensation for the privilege? We can see no difference in principle." It is true that the court in this opinion was speaking of a municipal ordinance, and not of an act of the legislature of a State. But, as it is justly observed by counsel, a legislative body is no more entitled to destroy the equality of rights of citizens, nor to fetter the industry of a city, than a municipal government. These rights are protected from invasion by the fundamental law. In the case of the Norwich Gaslight Company v. The Norwich City Gas Company, [ Footnote 2/12 ] which was before the Supreme Court of Connecticut, it appeared that the common council of the city of Norwich had passed a resolution purporting to grant to one Treadway, his heirs and assigns, for the period of fifteen years, the right to lay gas pipes in the streets of that city, declaring that no other person or corporation should, by the consent of the common council, lay gas pipes in the streets during that time. The plaintiffs, having purchased of Treadway, undertook to assert an exclusive right to use the streets for their purposes, as against another company which was using the streets for the same purposes. And the court said: "As, then, no consideration whatever, either of a public or private character, was reserved for the grant; and as the business of manufacturing and selling gas is an ordinary business, like the manufacture of leather, or any other article of trade in respect to which the government has no exclusive prerogative, we think that, so far as the restriction of other persons than the plaintiffs from using the streets for the purpose of distributing gas by means of pipes can fairly be viewed as intended to operate as a restriction upon its free manufacture and sale, it comes directly within the definition and description of a monopoly, and, although we have no direct constitutional provision against a monopoly, Page 83 U. S. 109 yet the whole theory of a free government is opposed to such grants, and it does not require even the aid which may be derived from the Bill of Rights, the first section of which declares 'that no man or set of men are entitled to exclusive public emoluments or privileges from the community,' to render them void." In the Mayor of the City of Hudson v. Thorne, [ Footnote 2/13 ] an application was made to the chancellor of New York to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson upon a vacant lot owned by them, intended to be used as a hay-press. The common council of the city had passed an ordinance directing that no person should erect, or construct, or cause to be erected or constructed, any wooden or frame barn, stable, or hay-press of certain dimensions within certain specified limits in the city without its permission. It appeared, however, that there were such buildings already in existence, not only in compact parts of the city but also within the prohibited limits, the occupation of which for the storing and pressing of hay the common council did not intend to restrain. And the chancellor said: "If the manufacture of pressed hay within the compact parts of the city is dangerous in causing or promoting fires, the common council have the power expressly given by their charter to prevent the carrying on of such manufacture; but as all by-laws must be reasonable, the common council cannot make a by-law which shall permit one person to carry on the dangerous business and prohibit another who has an equal right from pursuing the same business." In all these cases, there is a recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declaration that all grants of exclusive privileges, in contravention of this equality, are against common right, and void. This equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, Page 83 U. S. 110 throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but, when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and, unless adhered to in the legislation of the country, our government will be a republic only in name. The fourteenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right should be respected. How widely this equality has been departed from, how entirely rejected and trampled upon by the act of Louisiana, I have already shown. And it is to me a matter of profound regret that its validity is recognized by a majority of this court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated. [ Footnote 2/14 ] As stated by the Supreme Court of Connecticut in Page 83 U. S. 111 the case cited, grants of exclusive privileges, such as is made by the act in question, are opposed to the whole theory of free government, and it requires no aid from any bill of rights to render them void. That only is a free government, in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws. [ Footnote 2/15 ] I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY to state that they concur with me in this dissenting opinion. [ Footnote 2/1 ] The proclamation of its ratification was made on that day (13 Stat. at Large 774). [ Footnote 2/2 ] 14 id. 27. [ Footnote 2/3 ] Congressional Globe, 1st Session, 39th Congress, part 1, page 474. [ Footnote 2/4 ] Calhoun's Works, vol. 2, p. 242. [ Footnote 2/5 ] May 31st, 1870; 16 Stat. at Large 144. [ Footnote 2/6 ] 4 Washington's Circuit Court 380. [ Footnote 2/7 ] 75 U. S. 8 Wallace 168. [ Footnote 2/8 ] Coke's Reports, part 11, page 86. [ Footnote 2/9 ] Journals of Congress, vol. i, pp. 28-30. [ Footnote 2/10 ] Live-Stock &c. Association v. The Crescent City, &c., Company, 1 Abbott's United States Reports 398. [ Footnote 2/11 ] 45 Illinois 90. [ Footnote 2/12 ] 25 Connecticut 19. [ Footnote 2/13 ] 7 Paige 261. [ Footnote 2/14 ] "The property which every man has in his own labor," says Adam Smith, "as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper." (Smith's Wealth of Nations, b. 1, ch. 10, part 2.) In the edict of Louis XVI, in 1776, giving freedom to trades and professions, prepared by his minister, Turgot, he recites the contributions that had been made by the guilds and trade companies, and says: "It was the allurement of these fiscal advantages, undoubtedly, that prolonged the illusion and concealed the immense injury they did to industry and their infraction of natural right. This illusion had extended so far that some persons asserted that the right to work was a royal privilege which the king might sell, and that his subjects were bound to purchase from him. We hasten to correct this error, and to repel the conclusion. God, in giving to man wants and desires rendering labor necessary for their satisfaction, conferred the right to labor upon all men, and this property is the first, most sacred, and imprescriptible of all." He, therefore, regards it "as the first duty of his justice, and the worthiest act of benevolence, to free his subjects from any restriction upon this inalienable right of humanity." [ Footnote 2/15 ] "Civil liberty, the great end of all human society and government, is that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws." 1 Sharswood's Blackstone 127, note 8. Mr. Justice BRADLEY, also dissenting. I concur in the opinion which has just been read by Mr. Justice Field, but desire to add a few observations for the purpose of more fully illustrating my views on the important question decided in these cases, and the special grounds on which they rest. The fourteenth amendment to the Constitution of the United States, section 1, declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. The legislature of Louisiana, under pretence of making a police regulation for the promotion of the public health, passed an act conferring upon a corporation, created by the act, the exclusive right, for twenty-five years, to have and maintain slaughterhouses, landings for cattle, and yards for Page 83 U. S. 112 confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory containing nearly twelve hundred square miles, including the city of New Orleans; and prohibiting all other persons from building, keeping, or having slaughterhouses, landings for cattle, and yards for confining cattle intended for slaughter within the said limits; and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughterhouses and works of the favored company to be slaughtered, and a payment of a fee to the company for such act. It is contended that this prohibition abridges the privileges and immunities of citizens of the United States, especially of the plaintiffs in error, who were particularly affected thereby, and whether it does so or not is the simple question in this case. And the solution of this question depends upon the solution of two other questions, to-wit: First. Is it one of the rights and privileges of a citizen of the United States to pursue such civil employment as he may choose to adopt, subject to such reasonable regulations as may be prescribed by law? Secondly. Is a monopoly, or exclusive right, given to one person to the exclusion of all others, to keep slaughterhouses, in a district of nearly twelve hundred square miles, for the supply of meat for a large city, a reasonable regulation of that employment which the legislature has a right to impose? The first of these questions is one of vast importance, and lies at the very foundations of our government. The question is now settled by the fourteenth amendment itself, that citizenship of the United States is the primary citizenship in this country, and that State citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, Page 83 U. S. 113 and an equality of rights with every other citizen, and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. And when the spirit of lawlessness, mob violence, and sectional hate can be so completely repressed as to give full practical effect to this right, we shall be a happier nation, and a more prosperous one, than we now are. Citizenship of the United States ought to be, and, according to the Constitution, is, a sure and undoubted title to equal rights in any and every States in this Union, subject to such regulations as the legislature may rightfully prescribe. If a man be denied full equality before the law, he is denied one of the essential rights of citizenship as a citizen of the United States. Every citizen, then, being primarily a citizen of the United States, and, secondarily, a citizen of the State where he resides, what, in general, are the privileges and immunities of a citizen of the United States? Is the right, liberty, or privilege of choosing any lawful employment one of them? If a State legislature should pass a law prohibiting the inhabitants of a particular township, county, or city, from tanning leather or making shoes, would such a law violate any privileges or immunities of those inhabitants as citizens of the United States, or only their privileges and immunities as citizens of that particular State? Or if a State legislature should pass a law of caste, making all trades and professions, or certain enumerated trades and professions, hereditary, so that no one could follow any such trades or professions except that which was pursued by his father, would such a law violate the privileges and immunities of the people of that State as citizens of the United States, or only as citizens of the State? Would they have no redress but to appeal to the courts of that particular State? This seems to me to be the essential question before us for consideration. And, in my judgment, the right of any citizen to follow whatever lawful employment he chooses to adopt (submitting himself to all lawful regulations) is one of Page 83 U. S. 114 his most valuable rights, and one which the legislature of a State cannot invade, whether restrained by its own constitution or not. The right of a State to regulate the conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly restricted. But there are certain fundamental rights which this right of regulation cannot infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights themselves. I speak now of the rights of citizens of any free government. Granting for the present that the citizens of one government cannot claim the privileges of citizens in another government, that, prior to the union of our North American States, the citizens of one State could not claim the privileges of citizens in another State, or that, after the union was formed, the citizens of the United States, as such, could not claim the privileges of citizens in any particular State, yet the citizens of each of the States and the citizens of the United States would be entitled to certain privileges and immunities as citizens at the hands of their own government -- privileges and immunities which their own governments respectively would be bound to respect and maintain. In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted by express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges and immunities attach as well to citizenship of the United States as to citizenship of the States. The people of this country brought with them to its shores the rights of Englishmen, the rights which had been wrested from English sovereigns at various periods of the nation's history. One of these fundamental rights was expressed in these words, found in Magna Charta: "No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him or condemn Page 83 U. S. 115 him but by lawful judgment of his peers or by the law of the land." English constitutional writers expound this article as rendering life, liberty, and property inviolable except by due process of law. This is the very right which the plaintiffs in error claim in this case. Another of these rights was that of habeas corpus, or the right of having any invasion of personal liberty judicially examined into, at once, by a competent judicial magistrate. Blackstone classifies these fundamental rights under three heads, as the absolute rights of individuals, to-wit: the right of personal security, the right of personal liberty, and the right of private property. And, of the last, he says: "The third absolute right, inherent in every Englishman, is that of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land." The privileges and immunities of Englishmen were established and secured by long usage and by various acts of Parliament. But it may be said that the Parliament of England has unlimited authority, and might repeal the laws which have from time to time been enacted. Theoretically, this is so, but practically it is not. England has no written constitution, it is true, but it has an unwritten one, resting in the acknowledged, and frequently declared, privileges of Parliament and the people, to violate which in any material respect would produce a revolution in an hour. A violation of one of the fundamental principles of that constitution in the Colonies, namely, the principle that recognizes the property of the people as their own, and which, therefore, regards all taxes for the support of government as gifts of the people through their representatives, and regards taxation without representation as subversive of free government, was the origin of our own revolution. This, it is true, was the violation of a political right, but personal rights were deemed equally sacred, and were claimed by the very first Congress of the Colonies, assembled in 1774, as the undoubted inheritance of the people of this country; and the Declaration of Independence, which Page 83 U. S. 116 was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: "That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." Here again we have the great three-fold division of the rights of freemen, asserted as the rights of man. Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government. For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one's calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed. I think sufficient has been said to show that citizenship is not an empty name, but that, in this country, at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to State citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people. On this point, the often-quoted language of Mr. Justice Washington, in Corfield v. Coryell, * is very instructive. Being Page 83 U. S. 117 called upon to expound that clause in the fourth article of the Constitution which declares that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States," he says: "The inquiry is what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong, of right, to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign. What these fundamental privileges are it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole; the right of a citizen of one State to pass through, or to reside in, any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State, may be mentioned as some of the particular privileges and immunities of citizens which are clearly embraced by the general description of privileges deemed to be fundamental." It is pertinent to observe that both the clause of the Constitution referred to and Justice Washington, in his comment on it, speak of the privileges and immunities of citizens in a State, not of citizens of a State. It is the privileges and immunities of citizens, that is, of citizens as such, that are to be accorded to citizens of other States when they are found in any State; or, as Justice Washington says, "privileges and immunities which are, in their nature, fundamental; Page 83 U. S. 118 which belong, of right, to the citizens of all free governments." It is true the courts have usually regarded the clause referred to as securing only an equality of privileges with the citizens of the State in which the parties are found. Equality before the law is undoubtedly one of the privileges and immunities of every citizen. I am not aware that any case has arisen in which it became necessary to vindicate any other fundamental privilege of citizenship; although rights have been claimed which were not deemed fundamental, and have been rejected as not within the protection of this clause. Be this, however, as it may, the language of the clause is as I have stated it, and seems fairly susceptible of a broader interpretation than that which makes it a guarantee of mere equality of privileges with other citizens. But we are not bound to resort to implication, or to the constitutional history of England, to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself. The Constitution, it is true, as it stood prior to the recent amendments, specifies, in terms, only a few of the personal privileges and immunities of citizens, but they are very comprehensive in their character. The States were merely prohibited from passing bills of attainder, ex post facto laws, laws impairing the obligation of contracts, and perhaps one or two more. But others of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government; such as the right of habeas corpus, the right of trial by jury, of free exercise of religious worship, the right of free speech and a free press, the right peaceably to assemble for the discussion of public measures, the right to be secure against unreasonable searches and seizures, and above all, and including almost all the rest, the right of not being deprived of life, liberty, or property without due process of law. These and still others are specified in the original Constitution, or in the early amendments of it, as among the privileges and immunities Page 83 U. S. 119 of citizens of the United States, or, what is still stronger for the force of the argument, the rights of all persons, whether citizens or not. But even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are. It was not necessary to say in words that the citizens of the United States should have and exercise all the privileges of citizens; the privilege of buying, selling, and enjoying property; the privilege of engaging in any lawful employment for a livelihood; the privilege of resorting to the laws for redress of injuries, and the like. Their very citizenship conferred these privileges, if they did not possess them before. And these privileges they would enjoy whether they were citizens of any State or not. Inhabitants of Federal territories and new citizens, made such by annexation of territory or naturalization, though without any status as citizens of a State, could, nevertheless, as citizens of the United States, lay claim to every one of the privileges and immunities which have been enumerated, and among these none is more essential and fundamental than the right to follow such profession or employment as each one may choose, subject only to uniform regulations equally applicable to all. II. The next question to be determined in this case is: is a monopoly or exclusive right, given to one person, or corporation, to the exclusion of all others, to keep slaughterhouses in a district of nearly twelve hundred square miles, for the supply of meat for a great city, a reasonable regulation of that employment which the legislature has a right to impose? The keeping of a slaughterhouse is part of, and incidental to, the trade of a butcher -- one of the ordinary occupations of human life. To compel a butcher, or rather all the butchers of a large city and an extensive district, to slaughter their cattle in another person's slaughterhouse and pay him a toll therefor is such a restriction upon the trade as materially to interfere with its prosecution. It is onerous, unreasonable, arbitrary, and unjust. It has none of the Page 83 U. S. 120 qualities of a police regulation. If it were really a police regulation, it would undoubtedly be within the power of the legislature. That portion of the act which requires all slaughterhouses to be located below the city, and to be subject to inspection, &c., is clearly a police regulation. That portion which allows no one but the favored company to build, own, or have slaughterhouses is not a police regulation, and has not the faintest semblance of one. It is one of those arbitrary and unjust laws, made in the interest of a few scheming individuals, by which some of the Southern States have, within the past few years, been so deplorably oppressed and impoverished. It seems to me strange that it can be viewed in any other light. The granting of monopolies, or exclusive privileges to individuals or corporations is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James. A fierce struggle for the suppression of such monopolies, and for abolishing the prerogative of creating them, was made, and was successful. The statute of 21st James abolishing monopolies was one of those constitutional landmarks of English liberty which the English nation so highly prizes and so jealously preserves. It was a part of that inheritance which our fathers brought with them. This statute abolished all monopolies except grants for a term of years to the inventors of new manufactures. This exception is the groundwork of patents for new inventions and copyrights of books. These have always been sustained as beneficial to the state. But all other monopolies were abolished as tending to the impoverishment of the people and to interference with their free pursuits. And ever since that struggle, no English-speaking people have ever endured such an odious badge of tyranny. It has been suggested that this was a mere legislative act, and that the British Parliament, as well as our own legislatures, have frequently disregarded it by granting exclusive privileges for erecting ferries, railroads, markets, and other establishments of a public kind. It requires but a slight Page 83 U. S. 121 acquaintance with legal history to know that grants of this kind of franchises are totally different from the monopolies of commodities or of ordinary callings or pursuits. These public franchises can only be exercised under authority from the government, and the government may grant them on such conditions as it sees fit. But even these exclusive privileges are becoming more and more odious, and are getting to be more and more regarded as wrong in principle, and as inimical to the just rights and greatest good of the people. But to cite them as proof of the power of legislatures to create mere monopolies, such as no free and enlightened community any longer endures, appears to me, to say the least, very strange and illogical. Lastly: can the Federal courts administer relief to citizens of the United States whose privileges and immunities have been abridged by a State? Of this I entertain no doubt. Prior to the fourteenth amendment, this could not be done, except in a few instances, for the want of the requisite authority. As the great mass of citizens of the United States were also citizens of individual States, many of their general privileges and immunities would be the same in the one capacity as in the other. Having this double citizenship, and the great body of municipal laws intended for the protection of person and property being the laws of the State, and no provision being made, and no machinery provided by the Constitution, except in a few specified cases, for any interference by the General Government between a State and its citizens, the protection of the citizen in the enjoyment of his fundamental privileges and immunities (except where a citizen of one State went into another State) was largely left to State laws and State courts, where they will still continue to be left unless actually invaded by the unconstitutional acts or delinquency of the State governments themselves. Admitting, therefore, that formerly the States were not prohibited from infringing any of the fundamental privileges and immunities of citizens of the United States, except Page 83 U. S. 122 in a few specified cases, that cannot be said now, since the adoption of the fourteenth amendment. In my judgment, it was the intention of the people of this country in adopting that amendment to provide National security against violation by the States of the fundamental rights of the citizen. The first section of this amendment, after declaring that all persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the State wherein they reside, proceeds to declare further that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws;" and that Congress shall have power to enforce by appropriate legislation the provisions of this article. Now here is a clear prohibition on the States against making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States. If my views are correct with regard to what are the privileges and immunities of citizens, it follows conclusively that any law which establishes a sheer monopoly, depriving a large class of citizens of the privilege of pursuing a lawful employment, does abridge the privileges of those citizens. The amendment also prohibits any State from depriving any person (citizen or otherwise) of life, liberty, or property, without due process of law. In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws, contrary to the last clause of the section. The constitutional question is distinctly raised in these cases; the constitutional right is expressly claimed; it was Page 83 U. S. 123 violated by State law, which was sustained by the State court, and we are called upon in a legitimate and proper way to afford redress. Our jurisdiction and our duty are plain and imperative. It is futile to argue that none but persons of the African race are intended to be benefited by this amendment. They may have been the primary cause of the amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed. The mischief to be remedied was not merely slavery and its incidents and consequences, but that spirit of insubordination and disloyalty to the National government which had troubled the country for so many years in some of the States, and that intolerance of free speech and free discussion which often rendered life and property insecure, and led to much unequal legislation. The amendment was an attempt to give voice to the strong National yearning for that time and that condition of things, in which American citizenship should be a sure guaranty of safety, and in which every citizen of the United States might stand erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman, without fear of violence or molestation. But great fears are expressed that this construction of the amendment will lead to enactments by Congress interfering with the internal affairs of the States, and establishing therein civil and criminal codes of law for the government of the citizens, and thus abolishing the State governments in everything but name; or else, that it will lead the Federal courts to draw to their cognizance the supervision of State tribunals on every subject of judicial inquiry, on the plea of ascertaining whether the privileges and immunities of citizens have not been abridged. In my judgment, no such practical inconveniences would arise. Very little, if any, legislation on the part of Congress would be required to carry the amendment into effect. Like the prohibition against passing a law impairing the obligation of a contract, it would execute itself. The point would Page 83 U. S. 124 be regularly raised in a suit at law, and settled by final reference to the Federal court. As the privileges and immunities protected are only those fundamental ones which belong to every citizen, they would soon become so far defined as to cause but a slight accumulation of business in the Federal courts. Besides, the recognized existence of the law would prevent its frequent violation. But even if the business of the National courts should be increased, Congress could easily supply the remedy by increasing their number and efficiency. The great question is what is the true construction of the amendment? When once we find that, we shall find the means of giving it effect. The argument from inconvenience ought not to have a very controlling influence in questions of this sort. The National will and National interest are of far greater importance. In my opinion the judgment of the Supreme Court of Louisiana ought to be reversed. * 4 Washington 380. Mr. Justice SWAYNE, dissenting. I concur in the dissent in these cases and in the views expressed by my brethren, Mr. Justice Field and Mr. Justice Bradley. I desire, however, to submit a few additional remarks. The first eleven amendments to the Constitution were intended to be checks and limitations upon the government which that instrument called into existence. They had their origin in a spirit of jealousy on the part of the States which existed when the Constitution was adopted. The first ten were proposed in 1789 by the first Congress at its first session after the organization of the government. The eleventh was proposed in 1794, and the twelfth in 1803. The one last mentioned regulates the mode of electing the President and Vice-President. It neither increased nor diminished the power of the General Government, and may be said in that respect to occupy neutral ground. No further amendments were made until 1865, a period of more than sixty years. The thirteenth amendment was proposed by Congress on the 1st of February, 1865, the fourteenth on Page 83 U. S. 125 the 16th of June, 1866, and the fifteenth on the 27th of February, 1869. These amendments are a new departure, and mark an important epoch in the constitutional history of the country. They trench directly upon the power of the States, and deeply affect those bodies. They are, in this respect, at the opposite pole from the first eleven. [ Footnote 3/1 ] Fairly construed, these amendments may be said to rise to the dignity of a new Magna Charta. The thirteenth blotted out slavery and forbade forever its restoration. It struck the fetters from four millions of human beings, and raised them at once to the sphere of freemen. This was an act of grace and justice performed by the Nation. Before the war, it could have been done only by the States where the institution existed, acting severally and separately from each other. The power then rested wholly with them. In that way, apparently, such a result could never have occurred. The power of Congress did not extend to the subject, except in the Territories. The fourteenth amendment consists of five sections. The first is as follows: "All persons born or naturalized within the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The fifth section declares that Congress shall have power to enforce the provisions of this amendment by appropriate legislation. The fifteenth amendment declares that the right to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. Until this amendment was adopted the subject Page 83 U. S. 126 to which it relates was wholly within the jurisdiction of the States. The General Government was excluded from participation. The first section of the fourteenth amendment is alone involved in the consideration of these cases. No searching analysis is necessary to eliminate its meaning. Its language is intelligible and direct. Nothing can be more transparent. Every word employed has an established signification. There is no room for construction. There is nothing to construe. Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out. (1) Citizens of the States and of the United States are defined. (2) It is declared that no State shall, by law, abridge the privileges or immunities of citizens of the United States. (3) That no State shall deprive any person, whether a citizen or not, of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. A citizen of a State is ipso facto a citizen of the United States. No one can be the former without being also the latter; but the latter, by losing his residence in one State without acquiring it in another, although he continues to be the latter, ceases for the time to be the former. "The privileges and immunities" of a citizen of the United States include, among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation. The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others, local in their character, arising from his relation to the State, and, in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection. All those which belong to the citizen of a State, except as a bills of attainder, ex post facto Page 83 U. S. 127 laws, and laws impairing the obligation of contracts, [ Footnote 3/2 ] are left to the guardianship of the bills of rights, constitutions, and laws of the States respectively. Those rights may all be enjoyed in every State by the citizens of every other State by virtue of clause 2, section 4, article 1, of the Constitution of the United States as it was originally framed. This section does not in anywise affect them; such was not its purpose. In the next category, obviously ex industria, to prevent, as far as may be, the possibility of misinterpretation, either as to persons or things, the phrases "citizens of the United States" and "privileges and immunities" are dropped, and more simple and comprehensive terms are substituted. The substitutes are "any person," and "life," "liberty," and "property," and "the equal protection of the laws." Life, liberty, and property are forbidden to be taken "without due process of law," and "equal protection of the laws" is guaranteed to all. Life is the gift of God, and the right to preserve it is the most sacred of the rights of man. Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny. Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and as such merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies to a large extent at the foundation of most other forms of property, and of all solid individual and national prosperity. "Due process of law" is the application of the law as it exists in the fair and regular course of administrative procedure. "The equal protection of the laws" places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness. [ Footnote 3/3 ] Page 83 U. S. 128 It is admitted that the plaintiffs in error are citizens of the United States, and persons within the jurisdiction of Louisiana. The cases before us, therefore, present but two questions. (1) Does the act of the legislature creating the monopoly in question abridge the privileges and immunities of the plaintiffs in error as citizens of the United States? (2) Does it deprive them of liberty or property without due process of law, or deny them the equal protection of the laws of the State, they being persons "within its jurisdiction?" Both these inquiries I remit for their answer as to the facts to the opinions of my brethren, Mr. Justice Field and Mr. Justice Bradley. They are full and conclusive upon the subject. A more flagrant and indefensible invasion of the rights of many for the benefit of a few has not occurred in the legislative history of the country. The response to both inquiries should be in the affirmative. In my opinion, the cases, as presented in the record, are clearly within the letter and meaning of both the negative categories of the sixth section. The judgments before us should, therefore, be reversed. These amendments are all consequences of the late civil war. The prejudices and apprehension as to the central government which prevailed when the Constitution was adopted were dispelled by the light of experience. The public mind became satisfied that there was less danger of tyranny in the head than of anarchy and tyranny in the members. The provisions of this section are all eminently conservative in their character. They are a bulwark of defence, and can never be made an engine of oppression. The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language "citizens of the United States" was meant all such citizens; and by "any person" Page 83 U. S. 129 was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men. It is objected that the power conferred is novel and large. The answer is that the novelty was known, and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to everyone within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact all are entitled to enjoy. Without such authority, any government claiming to be national is glaringly defective. The construction adopted by the majority of my brethren is, in my judgment, much too narrow. It defeats, by a limitation not anticipated, the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation, it turns, as it were, what was meant for bread into a stone. By the Constitution as it stood before the war, ample protection was given against oppression by the Union, but little was given against wrong and oppression by the States. That want was intended to be supplied by this amendment. Against the former, this court has been called upon more than once to interpose. Authority of the same amplitude was intended to be conferred as to the latter. But this arm of our jurisdiction is, in these cases, stricken down by the judgment just given. Nowhere than in this court ought the will of the nation, as thus expressed, to be more liberally construed or more cordially executed. This determination of the majority seems to me to lie far in the other direction. Page 83 U. S. 130 I earnestly hope that the consequences to follow may prove less serious and far-reaching than the minority fear they will be. [ Footnote 3/1 ] Barron v. Baltimore , 7 Peters 243; Livingston v. Moore, ib. 32 U. S. 551 ; Fox v. Ohio , 5 Howard 410, 429 [argument of counsel -- omitted]; Smith v. Maryland , 18 id. 71; Pervear v. Commonwealth , 5 Wallace 476; Twitchell v. Commonwealth , 7 id. 321. [ Footnote 3/2 ] Constitution of the United States, Article I, Section 10. [ Footnote 3/3 ] Corfield v. Coryell, 4 Washington 380; Lemmon v. The People, 26 Barbour 274, and 20 New York 626; Conner v. Elliott , 18 Howard 593; Murray v. McCarty, 2 Mumford 399; Campbell v. Morris, 3 Harris & McHenry 554; Towles's Case, 5 Leigh 748; State v. Medbury, 3 Rhode Island 142; 1 Tucker's Blackstone 145; 1 Cooley's Blackstone 125, 128.

The U.S. Supreme Court case, *The Slaughterhouse Cases* (1872), dealt with a Louisiana law granting a corporation exclusive rights to slaughterhouses and cattle yards in certain parishes, including New Orleans. The Court upheld the state's power to grant such exclusive rights as a valid police regulation for the health and comfort of the people. The main issue was whether the 13th and 14th Amendments prohibited this grant of power. The Court interpreted these amendments as primarily intended to protect the freedom and rights of African Americans, and thus, found the state's action unrelated to race or class permissible. This decision highlighted the Court's view of federal versus state authority and the scope of post-Civil War amendments.

Due Process

Buck v. Bell

https://supreme.justia.com/cases/federal/us/274/200/

U.S. Supreme Court Buck v. Bell, 274 U.S. 200 (1927) Buck v. Bell No. 292 Argued April 22, 1927 Decided May 2, 1927 274 U.S. 200 ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA Syllabus 1. The Virginia statute providing for the sexual sterilization of inmates of institutions supported by the State who shall be found to be afflicted with an hereditary form of insanity or imbecility, is within the power of the State under the Fourteenth Amendment. P. 274 U. S. 207 . 2. Failure to extend the provision to persons outside the institutions named does not render it obnoxious to the Equal Protection Clause. P. 274 U. S. 208 . 143 Va. 310, affirmed. ERROR to a judgment of the Supreme Court of Appeals of the State of Virginia which affirmed a judgment ordering Page 274 U. S. 201 the Superintendent of the State Colony of Epileptics and Feeble Minded to perform the operation of salpingectomy on Carrie Buck, the plaintiff in error. Page 274 U. S. 205 Mr. JUSTICE HOLMES delivered the opinion of the Court. This is a writ of error to review a judgment of the Supreme Court of Appeals of the State of Virginia affirming a judgment of the Circuit Court of Amherst County by which the defendant in error, the superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck, the plaintiff in error, for the purpose of making her sterile. 143 Va. 310. The case comes here upon the contention that the statute authorizing the judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process of law and the equal protection of the laws. Carrie Buck is a feeble minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the latter part of 1924. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, &c.; that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who, if now discharged, would become Page 274 U. S. 206 a menace, but, if incapable of procreating, might be discharged with safety and become self-supporting with benefit to themselves and to society, and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &c. The statute then enacts that, whenever the superintendent of certain institutions, including the above-named State Colony, shall be of opinion that it is for the best interests of the patients and of society that an inmate under his care should be sexually sterilized, he may have the operation performed upon any patient afflicted with hereditary forms of insanity, imbecility, &c., on complying with the very careful provisions by which the act protects the patients from possible abuse. The superintendent first presents a petition to the special board of directors of his hospital or colony, stating the facts and the grounds for his opinion, verified by affidavit. Notice of the petition and of the time and place of the hearing in the institution is to be served upon the inmate, and also upon his guardian, and if there is no guardian, the superintendent is to apply to the Circuit Court of the County to appoint one. If the inmate is a minor, notice also is to be given to his parents, if any, with a copy of the petition. The board is to see to it that the inmate may attend the hearings if desired by him or his guardian. The evidence is all to be reduced to writing, and, after the board has made its order for or against the operation, the superintendent, or the inmate, or his guardian, may appeal to the Circuit Court of the County. The Circuit Court may consider the record of the board and the evidence before it and such other admissible evidence as may be offered, and may affirm, revise, or reverse the order of the board and enter such order as it deems just. Finally any party may apply to the Supreme Court of Appeals, which, if it grants the appeal, is to hear the case upon the record of the trial Page 274 U. S. 207 in the Circuit Court, and may enter such order as it thinks the Circuit Court should have entered. There can be no doubt that, so far as procedure is concerned, the rights of the patient are most carefully considered, and, as every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law. The attack is not upon the procedure, but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited, and that Carrie Buck "is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization," and thereupon makes the order. In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist, and, if they exist, they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11 . Three generations of imbeciles are enough. Page 274 U. S. 208 But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course, so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached. Judgment affirmed. MR. JUSTICE BUTLER dissents.

In the case of Buck v. Bell, the U.S. Supreme Court upheld the constitutionality of a Virginia statute authorizing the forced sterilization of patients in state institutions who were deemed to be afflicted with hereditary forms of insanity or imbecility. The Court found that the statute did not violate the Fourteenth Amendment's due process and equal protection clauses, emphasizing the state's interest in promoting the health and welfare of its citizens. The Court's decision set a precedent for the forced sterilization of individuals deemed unfit to reproduce, with Justice Holmes famously stating, "three generations of imbeciles are enough."

Due Process

Allgeyer v. Louisiana

https://supreme.justia.com/cases/federal/us/165/578/

U.S. Supreme Court Allgeyer v. Louisiana, 165 U.S. 578 (1897) Allgeyer v. Louisiana No. 446 Submitted January 6, 1897 Decided March 1897 165 U.S. 578 ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA Syllabus The provision in Act No. 66 of the Louisiana laws of 1894 that "any person, firm or corporation . . . who in any manner whatever does an act in that state to effect, for himself or for another, insurance on property then in that state, in any marine insurance company which has not complied in all respects with the laws of the state, shall be subject to a fine," etc., when applied to a contract of insurance made in the New York, with an insurance company of that state, where the premiums were paid, and where the losses were to be paid, is a violation of the Constitution of the United States. Hooper v. California, 155 U. S. 648 , distinguished from this case, and it is further held that by the decision in this case it is not intended to Page 165 U. S. 579 throw any doubt upon, or in the least to shake the authority of, that case. When or how far the police power of the state may be legitimately exercised with regard to such subjects must be left for determination in each case as it arises. The Legislature of Louisiana, in the year 1894, passed an act known as Act No. 66 of the acts of that year. It is entitled "An act to prevent persons, corporations or firms from dealing with marine insurance companies that have not complied with law." The act reads as follows: " Be it enacted by the General Assembly of the State of Louisiana that any person, firm or corporation who shall fill up, sign, or issue in this state any certificate of insurance under an open marine policy, or who in any manner whatever does any act in this state to effect for himself or for another insurance on property then in this state in any marine insurance company which has not complied in all respects with the laws of this state shall be subject to a fine of one thousand dollars for each offense, which shall be sued for in any competent court by the Attorney General for the benefit of the charity hospitals in New Orleans and Shreveport." By reason of the provisions of this act, the State of Louisiana on the 21st of December, 1894, filed its petition in one of the courts of first instance for the Parish of Orleans, and alleged in substance that the defendants, E. Allgeyer & Co., had violated the statute by mailing in New Orleans a letter of advice or certificate of marine insurance on the 27th of October, 1894, to the Atlantic Mutual Insurance Company of New York, advising that company of the shipment of 100 bales of cotton to foreign ports in accordance with the terms of an open marine policy, etc. The state sought to recover for three violations of the act the sum of $3,000. The defendants filed an answer in which, among other things, they averred that the above-named act was unconstitutional in that it deprived them of their property without due process of law and denied them the equal protection of Page 165 U. S. 580 the laws in violation of the Constitution of the State of Louisiana and also of the Constitution of the United States. They also set up that the business concerning which defendants were sought to be made liable, and the contracts made in reference to such business, were beyond the jurisdiction of the State of Louisiana, and that the defendants were not amenable to any penalties imposed by its laws; that the contracts of insurance made by defendants were made with an insurance company in the State of New York, where the premiums were paid and where the losses thereunder, if any, were also to be paid; that the contracts were New York contracts, and that, under the Constitution of the United States, the defendants had the right to do and perform any act or acts within the State of Louisiana which might be necessary and proper for the execution of those contracts, and that insofar as Act No. 66 of the General Assembly of the State of Louisiana of the year 1894 might be construed to prevent or interfere with the execution of such contracts, the same was unconstitutional and in violation of the Constitution of both the State of Louisiana and the United States. The case was tried upon an agreed statement of facts, as follows: the Atlantic Mutual Insurance Company is a corporation, created by the laws of the State of New York and domiciled and carrying on business in that state, and the defendants made a contract with that company for an open policy of marine insurance for $200,000 on account of themselves and to cover cotton in bales purchased and shipped by them on which drafts might be drawn for the purchaser upon "Whom it might Concern." By the terms of the policy, among other things, it was stated: "Shipments applicable to this policy, to be reported to this company by mail or telegraph the day purchased, warranted not to cover cotton in charge of carriers on shore or during inland transportation. No risk is to be insured by this policy until a letter signed by _____, and addressed to the president of this company, detailing the name of the vessel, particulars of the shipment, with description of the property and amount to be insured, is deposited in the post office at _____, which must be done Page 165 U. S. 581 while the property is in good safety, and in all cases prior to the departure of the risk from _____, a duplicate of such letter to be sent by the following mail. A new and separate policy to be issued for each risk, the premium on which is to be paid in cash upon the delivery of such policy in New York to E. Allgeyer & Company." The Atlantic Mutual Insurance Company is engaged in the business of marine insurance, and has appointed no agent in the State of Louisiana, and has not complied with the conditions required by the laws of that state for the doing of business within the same by insurance companies incorporated and domiciled out of the state. On the 23d of October, 1894, the defendants mailed to that company a communication, stating insurance was wanted by defendants for account of same (the open policy); loss, if any, payable at Paris, in French currency, etc., for $3,400 on 100 bales of cotton, which at the time of the communication, were within the State of Louisiana. The premiums to be paid under the contract of insurance, and the loss or losses under the same, were payable in the City of New York, the premiums being remitted by the defendants from New Orleans by exchange. Defendants are exporters of cotton from the port of New Orleans to ports in Great Britain and on the continent of Europe. They sell cotton in New Orleans to purchasers at said ports. For the price of every sale of cotton made by them, they, in accordance with the general custom of business, draw a bill of exchange against the purchaser, attaching to the same the bill of lading for the cotton and an order on the Atlantic Mutual Insurance Company for a new and separate policy of insurance, spoken of in the open policy, and the form of the said order is as follows: "Attached to draft No. ___ on _____, from E. Allgeyer & Co., New Orleans, 189, to Atlantic Mutual Ins. Co., New York." "Marks and numbers, ___." "Please deliver to _____ ________or order special policy for Page 165 U. S. 582 $_____ on _____ bales cotton, per _____, from New Orleans to _____." "Respectfully," "E. Allgeyer & Co." "Per __________" This bill of exchange, with the bill of lading attached, is sometimes negotiated with banks in the City of New York; sometimes it is not negotiated at all, but forwarded direct for collection from the purchaser of the cotton. The bill of exchange, with bill of lading and order for insurance attached, in either case is sent from New Orleans first to New York, where, after its negotiation or before being forwarded from thence for collection, the order for insurance is presented to the Atlantic Mutual Insurance Company. Upon this showing, the insurance company in New York issues and delivers to the holder of the exchange and bill of lading when the former has been negotiated, or to the agent of defendant when the exchange has not been negotiated, a new and a separate policy of insurance for the cotton, in accordance with the contract made with the defendants and evidenced by the policy above mentioned and described. This new and separate policy, when received, is attached to the bill of exchange. The exchange cannot be negotiated in New York unless it is accompanied by both the bill of lading and order for insurance and unless the new and separate policy issued by the company is attached to it the purchaser of the cotton is under no obligation to pay the bill drawn on him for the price of the cotton. The new and separate policy delivered to the holder of the exchange and bill of lading in New York, or to defendants' agent there, as the case may be, is for the benefit of the holder of the latter, or of defendants, according as the exchange has been negotiated or not. The holder of the exchange becomes the owner of the cotton covered by the bill of lading attached, and is the owner of the policy of insurance covering the same in the event of a loss within the terms of the policy. The business thus described is conducted as above by the general custom and agreement of all parties concerned. Page 165 U. S. 583 The court of first instance before which the trial was had ordered that plaintiff's demand be rejected and that judgment in favor of the defendants be given. An appeal was taken from that judgment to the supreme court of the state, which, after argument before it and due consideration, reversed the judgment of the court below and gave judgment in favor of the plaintiff for $1,000, as for one violation of the statute, being the only one which was proved. State v. Allgeyer, 48 La.Ann. 104. The plaintiffs in error ask a review in this Court of the judgment entered against them by directions of the Supreme Court of Louisiana. MR. JUSTICE PECKHAM, after stating the facts, delivered the opinion of the Court. There is no doubt of the power of the state to prohibit foreign insurance companies from doing business within its limits. The state can impose such conditions as it pleases upon the doing of any business by those companies within its borders, and unless the conditions be complied with, the prohibition may be absolute. The cases upon this subject are cited in the opinion of the Court in Hooper v. California, 155 U. S. 648 . A conditional prohibition in regard to foreign insurance companies doing business within the State of Louisiana is to be found in article 236 of the Constitution of that state, which reads as follows: "No foreign corporation shall do any business in this state without having one or more known places of business and an authorized agent or agents in the state upon whom process may be served." It is not claimed in this suit that the Atlantic Mutual Insurance Company has violated this provision of the constitution by doing business within the state. Page 165 U. S. 584 In Louisiana v. Williams, 46 La.Ann. 922, the Supreme Court of that state held that an open policy of marine insurance, similar in all respects to the one herein described and made by a foreign insurance company not doing business within the state and having no agent therein, must be considered as made at the domicile of the company issuing the open policy, and that where in such case the insurance company had no agent in Louisiana, it could not be considered as doing an insurance business within the state. The learned counsel for the state also admits in his brief the fact that the contract ( i.e. the open policy) was entered into at New York City. In the course of the opinion delivered in this case by the Supreme Court of Louisiana, that court said: "The open policy in this case is conceded to be a New York contract; hence the special insurance effected on the cotton complained of here was a New York contract." "The question presented is the simple proposition whether, under the act, a party while in the state can insure property in Louisiana in a foreign insurance company, which has not complied with the laws of the state, under an open policy -- the special contract of insurance and the open policy being contracts made and entered into beyond the limits of the state." " * * * *" "We are not dealing with the contract. If it be legal in New York, it is valid elsewhere. We are concerned only with the fact of its having been entered into by a citizen of Louisiana while within her limits affecting property within her territorial limits. It is the act of the party, and not the contract, which we are to consider. The defendants who made the contract did so while they were in the state, and it had reference to property located within the state. Such a contract is in violation of the laws of the state, and the defendants who made it were within the jurisdiction of the state, and must be necessarily subject to its penalties unless there is some inhibition in the federal or state constitution, or that it violates one of those inalienable rights relating Page 165 U. S. 585 to persons and property that are inherent, although not expressed, in the organic law. It does not forbid the carrying on by the insurance company of its legalized business within the state. It is a means of preventing its doing so without subscribing to certain conditions which are recognized as legitimate and proper. It does not destroy the constitutional right of the citizens of New York to do business within the State of Louisiana or of the citizens of Louisiana from insuring property. It says to the citizens of New York engaged in insurance business that they must, like its own citizens, pay a license and have an authorized agent in the state as prerequisite to their doing said business within its state, and says to its own citizens: you shall not make a contract while in the state with any foreign insurance company which has not complied with the laws. You shall not in this manner contravene the public policy of the state in aiding and assisting in the violation of the laws of the state. The sovereignty of the state would be a mockery if it had not the power to compel its citizens to respect its laws." " * * * *" "The defendants while in the state undoubtedly insured their property located in the state in a foreign insurance company under an open policy. The instant the letter or communication was mailed or telegraphed, the property was insured. The act of insurance was done within the state, and the offense denounced by the statute was complete." " * * * *" "There is in the statute an apparent interference with the liberty of defendants in restricting their rights to place insurance on property of their own whenever and in what company they desired, but in exercising this liberty, they would interfere with the policy of the state that forbids insurance companies which have not complied with the laws of the state from doing business within its limits. Individual liberty of action must give way to the greater right of the collective people in the assertion of well defined policy designed and intended for the general welfare." The general contract contained in the open policy, as well Page 165 U. S. 586 as the special insurance upon each shipment of goods of which notice is given to the insurance company, being contracts made in New York and valid there, the State of Louisiana claims notwithstanding such facts that the defendants have violated the act of 1894 by doing an act in that state to effect for themselves insurance on their property then in that state in a marine insurance company which had not complied in all respects with the laws of that state, and that such violation consisted in the act of mailing a letter or sending a telegram to the insurance company in New York describing the cotton upon which the defendants desired the insurance under the open marine policy to attach. It is claimed on the part of the state that its legislature had the power to provide that such an act should be illegal, and to subject the offender to the penalties provided in the statute. It is said by the supreme court that the validity of such a statute has been decided in principle in this Court in the case of Hooper v. California, 155 U. S. 648 . We think the distinction between that case and the one at bar is plain and material. The State of California made it a misdemeanor for a person in that state to procure insurance for a resident of the state from an insurance company not incorporated under its laws, and which had not filed a bond required by those laws relative to insurance. Hooper was a resident of San Francisco, and was the agent of the firm of Johnson & Higgins, who were insurance brokers residing and having their principal place of business in the City of New York, but having also a place of business in the City and County of San Francisco, of which the defendant had charge as their employee and agent. In response to a request from a Mr. Mott, a resident of the State of California, the defendant Hooper procured through his principals, Johnson & Higgins, an insurance upon the steamer Alliance, belonging to said Mott, in the China Mutual Insurance Company, which was a company not then and there incorporated under the laws of California, and not having itself or by its agent filed the bond required by those laws relating to insurance. The policy was delivered by the defendant Hooper to Mott, the insured, at Page 165 U. S. 587 San Francisco, who thereupon paid Hooper, as agent of Johnson & Higgins, the premium for the insurance. The case states that "all the verbal acts of Mott, the insured, and also of the defendant, and all his acts as agent in procuring said insurance, were done in the City and County of San Francisco." The Court held that the whole transaction amounted to procuring insurance within the State of California by Hooper, residing there and for a resident in the state, from an insurance company not incorporated under its laws and which had not filed the bond required by the laws of the state relative to insurance; that Hooper, the defendant, acted as the agent of his principals in New York City, who were average adjusters and brokers there, and who had a place of business in San Francisco, and that Hooper, as such broker, having applied for the insurance to his principals in New York City, received the policy from them for delivery in San Francisco, and the premium was there paid. Upon the question as to the place where the contract was made, MR. JUSTICE WHITE, speaking for the Court, said: "It is claimed, however, that irrespective of this [commerce] clause, the conviction here was illegal -- first because the statute is, by its terms, invalid in that it undertakes to forbid the procurement of a contract outside of the state, and secondly because the evidence shows that the contract was in fact entered into without the territory of California. The language of the Statute is not fairly open to this construction. It punishes 'every person who in this state procures or agrees to procure for a resident of this state any insurance,' etc. The words 'who in this state' cannot be read out of the law in order to nullify it under the Constitution." In the case before us, the contract was made beyond the territory of the State of Louisiana, and the only thing that the facts show was done within that state was the mailing of a letter of notification, as above mentioned, which was done after the principal contract had been made. The distinction between a contract made within and that made without the state is again referred to by MR. JUSTICE WHITE in the same case, as follows: "It is said that the Page 165 U. S. 588 right of a citizen to contract for insurance for himself is guarantied by the Fourteenth Amendment, and that therefore he cannot be deprived by the state of the capacity to so contract through an agent. The Fourteenth Amendment, however, does not guaranty the citizen the right to make within his state, either directly or indirectly, a contract the making whereof is constitutionally forbidden by the state. The proposition that because a citizen might make such a contract for himself beyond the confines of his state, therefore he might authorize an agent to violate in his behalf the laws of his state, within her own limits, involves a clear non sequitur, and ignores the vital distinction between acts done within and acts done beyond a state's jurisdiction. " We do not intend to throw any doubt upon or in the least to shake the authority of the Hooper case, but the facts of that case and the principle therein decided are totally different from the case before us. In this case, the only act which it is claimed was a violation of the statute in question consisted in sending the letter through the mail notifying the company of the property to be covered by the policy already delivered. We have, then, a contract which it is conceded was made outside and beyond the limits of the jurisdiction of the State of Louisiana, being made and to be performed within the State of New York, where the premiums were to be paid, and losses, if any, adjusted. The letter of notification did not constitute a contract made or entered into within the State of Louisiana. It was but the performance of an act rendered necessary by the provisions of the contract already made between the parties outside of the state. It was a mere notification that the contract already in existence would attach to that particular property. In any event, the contract was made in New York, outside of the jurisdiction of Louisiana, even though the policy was not to attach to the particular property until the notification was sent. It is natural that the state court should have remarked that there is in this "statute an apparent interference with the liberty of defendants in restricting their rights to place Page 165 U. S. 589 insurance on property of their own whenever and in what company they desired." Such interference is not only apparent, but it is real, and we do not think that it is justified for the purpose of upholding what the state says is its policy with regard to foreign insurance companies which had not complied with the laws of the state for doing business within its limits. In this case, the company did no business within the state, and the contracts were not therein made. The Supreme Court of Louisiana says that the act of writing within that state the letter of notification was an act therein done to effect an insurance on property then in the state, in a marine insurance company which had not complied with its laws, and such act was therefore prohibited by the statute. As so construed, we think the statute is a violation of the Fourteenth Amendment of the federal Constitution in that it deprives the defendants of their liberty without due process of law. The statute which forbids such act does not become due process of law, because it is inconsistent with the provisions of the Constitution of the Union. The "liberty" mentioned in that amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to br free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. It was said by Mr. Justice Bradley in Butchers' Union Company v. Crescent City Company, 111 U. S. 746 , 111 U. S. 762 , in the course of his concurring opinion in that case, that "the right to follow any of the common occupations of life is an inalienable right. It was formulated as such under the phrase 'pursuit of happiness' in the Declaration of Independence, which commenced with the fundamental proposition that 'all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, Page 165 U. S. 590 liberty, and the pursuit of happiness.' This right is a large ingredient in the civil liberty of the citizen." Again, on page 111 U. S. 764 , the learned Justice said: "I hold that the liberty of pursuit -- the right to follow any of the ordinary callings of life -- is one of the privileges of a citizen of the United States." And again, on page 111 U. S. 765 : "But if it does not abridge the privileges and immunities of a citizen of the United States to prohibit him from pursuing his chosen calling, and giving to others the exclusive right of pursuing it, it certainly does deprive him (to a certain extent) of his liberty, for it takes from him the freedom of adopting and following the pursuit which he prefers, which, as already intimated, is a material part of the liberty of the citizen." It is true that these remarks were made in regard to questions of monopoly, but they well describe the rights which are covered by the word "liberty," as contained in the Fourteenth Amendment. Again, in Powell v. Pennsylvania, 127 U. S. 678 , 127 U. S. 684 , MR. JUSTICE HARLAN, in stating the opinion of the Court, said: "The main proposition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property, as guarantied by the Fourteenth Amendment. The Court assents to this general proposition as embodying a sound principle of constitutional law." It was there held, however, that the legislation under consideration in that case did not violate any of the constitutional rights of the plaintiff in error. The foregoing extracts have been made for the purpose of showing what general definitions have been given in regard to the meaning of the word "liberty" as used in the amendment, but we do not intend to hold that in no such case can the state exercise its police power. When and how far such power may be legitimately exercised with regard to these subjects must be left for determination to each case as it arises. Has not a citizen of a state, under the provisions of the federal Constitution above mentioned, a right to contract outside Page 165 U. S. 591 of the state for insurance on his property -- a right of which state legislation cannot deprive him? We are not alluding to acts done within the state by an insurance company or its agents doing business therein, which are in violation of the state statutes. Such acts come within the principle of the Hooper case, supra, and would be controlled by it. When we speak of the liberty to contract for insurance or to do an act to effectuate such a contract already existing, we refer to and have in mind the facts of this case, where the contract was made outside the state, and as such was a valid and proper contract. The act done within the limits of the state, under the circumstances of this case and for the purpose therein mentioned, we hold a proper act -- one which the defendants were at liberty to perform and which the state legislature had no right to prevent at least with reference to the federal Constitution. To deprive the citizen of such a right as herein described without due process of law is illegal. Such a statute as this in question is not due process of law, because it prohibits an act which under the federal Constitution the defendants had a right to perform. This does not interfere in any way with the acknowledged right of the state to enact such legislation in the legitimate exercise of its police or other powers as to it may seem proper. In the exercise of such right, however, care must be taken not to infringe upon those other rights of the citizen which are protected by the federal Constitution. In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, must be embraced the right to make all proper contracts in relation thereto, and although it may be conceded that this right to contract in relation to persons or property or to do business within the jurisdiction of the state may be regulated, and sometimes prohibited, when the contracts or business conflict with the policy of the state as contained in its statutes, yet the power does not and cannot extend to prohibiting a citizen from making contracts of the nature involved in this case outside of the limits and jurisdiction of the state, and which are also to be performed outside of such jurisdiction, nor can the Page 165 U. S. 592 state legally prohibit its citizens from doing such an act as writing this letter of notification, even though the property which is the subject of the insurance may at the time when such insurance attaches be within the limits of the state. The mere fact that a citizen may be within the limits of a particular state does not prevent his making a contract outside its limits while he himself remains within it. Milliken v. Pratt, 125 Mass. 374; Tilson v. Blair , 21 Wall. 241. The contract in this case was thus made. It was a valid contract, made outside of the state, to be performed outside of the state, although the subject was property temporarily within the state. As the contract was valid in the place where made and where it was to be performed, the party to the contract, upon whom is devolved the right or duty to send the notification in order that the insurance provided for by the contract may attach to the property specified in the shipment mentioned in the notice, must have the liberty to do that act and to give that notification within the limits of the state, any prohibition of the state statute to the contrary notwithstanding. The giving of the notice is a mere collateral matter. It is not the contract itself, but is an act performed pursuant to a valid contract, which the state had no right or jurisdiction to prevent its citizen from making outside the limits of the state. The Atlantic Mutual Insurance Company of New York has done no business of insurance within the State of Louisiana, and has not subjected itself to any provisions of the statute in question. It had the right to enter into a contract in New York with citizens of Louisiana for the purpose of insuring the property of its citizens, even if that property were in the State of Louisiana, and correlatively the citizens of Louisiana had the right without the State of entering into contract with an insurance company for the same purpose. Any act of the state legislature which should prevent the entering into such a contract, or the mailing within the State of Louisiana of such a notification as is mentioned in this case, is an improper and illegal interference with the conduct of the citizen, although residing in Louisiana, in his right to contract and to Page 165 U. S. 593 carry out the terms of a contract validly entered into outside and beyond the jurisdiction of the state. In such a case as the facts here present, the policy of the state in forbidding insurance companies which had not complied with the laws of the state from doing business within its limits cannot be so carried out as to prevent the citizen from writing such a letter of notification as was written by the plaintiffs in error in the State of Louisiana, when it is written pursuant to a valid contract made outside the state and with reference to a company which is not doing business within its limits. For these reasons, we think the statute in question, No. 66 of the Laws of Louisiana of 1894, was a violation of the federal Constitution, and afforded no justification for the judgment awarded by that court against the plaintiffs in error. That judgment must therefore be Reversed, and the case remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with his opinion.

The Supreme Court ruled that a Louisiana statute prohibiting residents from purchasing insurance from out-of-state companies that had not complied with state laws was unconstitutional. The Court held that the statute violated the Constitution by interfering with citizens' rights to make contracts outside the state and conduct business across state lines. This case established the principle that state regulations cannot restrict individuals' freedom to engage in lawful activities outside the state's borders.

Due Process

Pierce v. Society of Sisters

https://supreme.justia.com/cases/federal/us/268/510/

U.S. Supreme Court Pierce v. Society of Sisters, 268 U.S. 510 (1925) Pierce v. Society of Sisters Nos. 583, 584 Argued March 16, 17, 1925 Decided June 1, 1925 268 U.S. 510 APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON Syllabus 1. The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. P. 268 U. S. 535 . 2. The Oregon Compulsory Education Act (Oreg. Ls., § 5259) which, with certain exemptions, requires every parent, guardian or other person having control of a child between the ages of eight and sixteen years to send him to the public school in the district where he resides, for the period during which the school is held for the current year, is an unreasonable interference with the liberty of the parents and guardians to direct the upbringing of the children, and in that respect violates the Fourteenth Amendment. P. 268 U. S. 534 . 3. In a proper sense, it is true that corporations cannot claim for themselves the liberty guaranteed by the Fourteenth Amendment, and, in general, no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power by the State upon the ground that he will be deprived of patronage; 4. But where corporations owning and conducting schools are threatened with destruction of their business and property through the improper and unconstitutional compulsion exercised by this statute upon parents and guardians, their interest is direct and immediate, and entitles them to protection by injunction. Truax v. Raich, 239 U. S. 33 . P. 268 U. S. 535 . 5. The Act, being intended to have general application, cannot be construed in its application to such corporations as an exercise of power to amend their charters. Berea College v. Kentucky, 211 U. S. 45 . P. 268 U. S. 535 . 6. Where the injury threatened by an unconstitutional statute is present and real before the statute is to be effective, and will Page 268 U. S. 511 become irreparable if relief be postponed to that time, a suit to restrain future enforcement of the statute is not premature. P. 268 U. S. 536 . 296 Fed. 928, affirmed. APPEALS from decrees of the District Court granting preliminary injunctions restraining the Governor, and other officials, of the State of Oregon from threatening or attempting to enforce an amendment to the school law -- an initiative measure adopted by the people November 7, 1922, to become effective in 1926 -- requiring parents and others having control of young children to send them to the primary schools of the State. The plaintiffs were two Oregon corporations owning and conducting schools. Page 268 U. S. 529 MR. JUSTICE McREYNOLDS delivered the opinion of the Court. These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining Page 268 U. S. 530 appellants from threatening or attempting to enforce the Compulsory Education Act * adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon. Jud.Code, § 266. They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection. The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him "to a public school for the period of time a public school shall be held during the current year" in the district where the child resides, and failure so to do is declared a misdemeanor. There are Page 268 U. S. 531 exemptions not specially important here -- for children who are not normal, or who have completed he eighth grade, or who reside at considerable distances from any public school, or whose parents or guardians hold special permits from the County Superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees' business and greatly diminish the value of their property. Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal Page 268 U. S. 532 property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools, many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee's charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative -- the annual income from primary schools exceeds thirty thousand dollars -- and the successful conduct of this requires long-time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute. After setting out the above facts, the Society's bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents' choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that, unless enforcement of the measure is enjoined the corporation's business and property will suffer irreparable injury. Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged Page 268 U. S. 533 in owning, operating and conducting for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. The average attendance is one hundred, and the annual fees received for each student amount to some eight hundred dollars. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses of study conform to the requirements of the State Board of Education. Military instruction and training are also given, under the supervision of an Army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers of the State and County, have publicly announced that the Act of November 7, 1922, is valid, and have declared their intention to enforce it. By reason of the statute and threat of enforcement, appellee's business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn. The Academy's bill states the foregoing facts and then alleges that the challenged Act contravenes the corporation's rights guaranteed by the Fourteenth Amendment and that, unless appellants are restrained from proclaiming its validity and threatening to enforce it, irreparable injury will result. The prayer is for an appropriate injunction. No answer was interposed in either cause, and, after proper notices, they were heard by three judges (Jud.Code § 266) on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the Page 268 U. S. 534 deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property, and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable teachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage, and thereby destroy their owners' business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury, and the suits were not premature. No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare. The inevitable practical result of enforcing the Act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education. Under the doctrine of Meyer v. Nebraska, 262 U. S. 390 , we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children Page 268 U. S. 535 under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243 , 203 U. S. 255 ; Western Turf Association v. Greenberg, 204 U. S. 359 , 204 U. S. 363 . But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action. Truax v. Raich, 239 U. S. 33 ; Truax v. Corrigan, 257 U. S. 312 ; Terrace v. Thompson, 263 U. S. 197 . The courts of the State have not construed the Act, and we must determine its meaning for ourselves. Evidently it was expected to have general application, and cannot be construed as though merely intended to amend the charters of certain private corporations, as in Berea College v. Kentucky, 211 U. S. 45 . No argument in favor of such view has been advanced. Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived Page 268 U. S. 536 of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers. Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229 ; Duplex Printing Press Co. v. Deering, 254 U. S. 443 ; American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 ; Nebraska District v. McKelvie, 262 U. S. 404 ; Truax v. Corrigan, supra, and cases there cited. The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well recognized function of courts of equity. The decrees below are Affirmed. * " Be it Enacted by the People of the State of Oregon: " "Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as follows:" "Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any parent, guardian or other person in the State of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day's failure to send such child to a public school shall constitute a separate offense; provided, that, in the following cases, children shall not be required to attend public schools:" "(a) Children Physically Unable -- Any child who is abnormal, subnormal or physically unable to attend school." "(b) Children Who Have Completed the Eighth Grade -- Any child who has completed the eighth grade, in accordance with the provisions of the state course of study." "(c) Distance from school -- Children between the ages of eight and ten years, inclusive, whose place of residence is more than one and one-half miles, and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from public school; provided, however, that, if transportation to and from school is furnished by the school district, this exemption shall not apply." "(d) Private Instruction -- Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such permission shall not extend longer than the end of the current school year. Such child must report to the county school superintendent or some person designated by him at least once every three months and take an examination in the work covered. If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county superintendent shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year." "If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, on conviction thereof, be subject to a fine of not less than $5, nor more than $100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court." "This Act shall take effect and be and remain in force from and after the first day of September, 1926."

The Supreme Court ruled in Pierce v. Society of Sisters that the Oregon Compulsory Education Act, which mandated children to attend public school, was an unconstitutional violation of parents' and guardians' liberty to direct their children's upbringing. The Court recognized the fundamental right of parents to make decisions regarding their children's education, and corporations providing alternative education were entitled to protection from the law's impact on their business. The case affirmed the importance of educational freedom and parental rights in the United States.

Due Process

Dred Scott v. Sandford

https://supreme.justia.com/cases/federal/us/60/393/

U.S. Supreme Court Scott v. Sandford, 60 U.S. 19 How. 393 393 (1856) Scott v. Sandford 60 U.S. (19 How.) 393 Syllabus I 1. Upon a writ of error to a Circuit Court of the United States, the transcript of the record of all the proceedings in the case is brought before the court, and is open to inspection and revision. 2. When a plea to the jurisdiction, in abatement, is overruled by the court upon demurrer, and the defendant pleads in bar, and upon these pleas the final judgment of the court is in his favor -- if the plaintiff brings a writ of error, the judgment of the court upon the plea in abatement is before this court, although it was in favor of the plaintiff -- and if the court erred in overruling it, the judgment must be reversed, and a mandate issued to the Circuit Court to dismiss the case for want of jurisdiction. 3. In the Circuit Courts of the United States, the record must show that the case is one in which, by the Constitution and laws of the United States, the court had jurisdiction -- and if this does not appear, and the judgment must be reversed by this court -- and the parties cannot be consent waive the objection to the jurisdiction of the Circuit Court. 4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States. 5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its "people or citizens." Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. 6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves. 7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of Page 60 U. S. 394 the United States, nor entitle them to the rights and privileges secured to citizens by that instrument. 8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State. 9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted. 10. The plaintiff having admitted, by his demurrer to the plea in abatement, that his ancestors were imported from Africa and sold as slaves, he is not a citizen of the State of Missouri according to the Constitution of the United States, and was not entitled to sue in that character in the Circuit Court. 11. This being the case, the judgment of the court below in favor of the plaintiff on the plea in abatement was erroneous. II 1. But if the plea in abatement is not brought up by this writ of error, the objection to the citizenship of the plaintiff is still apparent on the record, as he himself, in making out his case, states that he is of African descent, was born a slave, and claims that he and his family became entitled to freedom by being taken by their owner to reside in a Territory where slavery is prohibited by act of Congress, and that, in addition to this claim, he himself became entitled to freedom by being taken to Rock Island, in the State of Illinois, and being free when he was brought back to Missouri, he was, by the laws of that State, a citizen. 2. If, therefore, the facts he states do not give him or his family a right to freedom, the plaintiff is still a slave, and not entitled to sue as a "citizen," and the judgment of the Circuit Court was erroneous on that ground also, without any reference to the plea in abatement. 3. The Circuit Court can give no judgment for plaintiff or defendant in a case where it has not jurisdiction, no matter whether there be a plea in abatement or not. And unless it appears upon the face of the record, when brought here by writ of error, that the Circuit Court had jurisdiction, the judgment must be reversed. The case of Capron v. Van Noorden , 2 Cranch 126, examined, and the principles thereby decided reaffirmed. 4. When the record, as brought here by writ of error, does not show that the Circuit Court had jurisdiction, this court has jurisdiction to review and correct the error like any other error in the court below. It does not and cannot dismiss the case for want of jurisdiction here, for that would leave the erroneous judgment of the court below in full force, and the party injured without remedy. But it must reverse the judgment and, as in any other case of reversal, send a mandate to the Circuit Court to conform its judgment to the opinion of this court. 5. The difference of the jurisdiction in this court in the cases of writs of error to State courts and to Circuit Courts of the United States pointed out, and the mistakes made as to the jurisdiction of this court in the latter case by confounding it with its limited jurisdiction in the former. 6. If the court reverses a judgment upon the ground that it appears by a particular part of the record that the Circuit Court had not jurisdiction, it does not take away the jurisdiction of this court to examine into and correct, by a reversal of the judgment, any other errors, either as to the jurisdiction or any other matter, where it appears from other parts of the record that the Circuit Court had fallen into error. On the contrary, it is the daily and familiar practice of this court to reverse on several grounds where more than one error appears to have been committed. And the error of a Circuit Court in its jurisdiction Page 60 U. S. 395 stands on the same ground, and is to be treated in the same manner as any other error upon whish its judgment is founded. 7. The decision, therefore, that the judgment of the Circuit Court upon the plea in abatement is erroneous is no reason why the alleged error apparent in the exception should not also be examined, and the judgment reversed on that ground also, if it discloses a want of jurisdiction in the Circuit Court. 8. It is often the duty of this court, after having decided that a particular decision of the Circuit Court was erroneous, to examine into other alleged errors and to correct them if they are found to exist. And this has been uniformly done by this court when the questions are in any degree connected with the controversy and the silence of the court might create doubts which would lead to further useless litigation. III 1. The facts upon which the plaintiff relies did not give him his freedom and make him a citizen of Missouri. 2. The clause in the Constitution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States in the treaty of peace. It does not apply to territory acquired by the present Federal Government by treaty or conquest from a foreign nation. 3. The United States, under the present Constitution, cannot acquire territory to be held as a colony, to be governed at its will and pleasure. But it may acquire territory which, at the time, has not a population that fits it to become a State, and may govern it as a Territory until it has a population which, in the judgment of Congress, entitled it to be admitted as a State of the Union. 4. During the time it remains a Territory, Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United States, and may establish a Territorial Government, and the form of the local Government must be regulated by the discretion of Congress, but with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States in respect to the rights of persons or rights of property. IV 1. The territory thus acquired is acquired by the people of the United States for their common and equal benefit through their agent and trustee, the Federal Government. Congress can exercise no power over the rights of persons or property of a citizen in the Territory which is prohibited by the Constitution. The Government and the citizen, whenever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution. 2. Congress have no right to prohibit the citizens of any particular State or States from taking up their home there while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. The territory is acquired for their equal and common benefit, and if open to any, it must be open to all upon equal and the same terms. 3. Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognises as property. 4. The Constitution of the United States recognises slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind. 5. The act of Congress, therefore, prohibiting a citizen of the United States from Page 60 U. S. 396 taking with him his slaves when he removes to the Territory in question to reside is an exercise of authority over private property which is not warranted by the Constitution, and the removal of the plaintiff by his owner to that Territory gave him no title to freedom. V 1. The plaintiff himself acquired no title to freedom by being taken by his owner to Rock Island, in Illinois, and brought back to Missouri. This court has heretofore decided that the status or condition of a person of African descent depended on the laws of the State in which he resided. 2. It has been settled by the decisions of the highest court in Missouri that, by the laws of that State, a slave does not become entitled to his freedom where the owner takes him to reside in a State where slavery is not permitted and afterwards brings him back to Missouri. Conclusion. It follows that it is apparent upon the record that the court below erred in its judgment on the plea in abatement, and also erred in giving judgment for the defendant, when the exception shows that the plaintiff was not a citizen of the United States. And the Circuit Court had no jurisdiction, either in the cases stated in the plea in abatement or in the one stated in the exception, its judgment in favor of the defendant is erroneous, and must be reversed. This case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri. It was an action of trespass vi et armis instituted in the Circuit Court by Scott against Sandford. Prior to the institution of the present suit, an action was brought by Scott for his freedom in the Circuit Court of St. Louis county (State court), where there was a verdict and judgment in his favor. On a writ of error to the Supreme Court of the State, the judgment below was reversed and the case remanded to the Circuit Court, where it was continued to await the decision of the case now in question. The declaration of Scott contained three counts: one, that Sandford had assaulted the plaintiff; one, that he had assaulted Harriet Scott, his wife; and one, that he had assaulted Eliza Scott and Lizzie Scott, his children. Sandford appeared, and filed the following plea: "DRED SCOTT )" "v. ) Plea to the Jurisdiction of the Court." "JOHN F. A. SANDFORD )" " APRIL TERM, 1854." "And the said John F. A. Sandford, in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action and each and every of them (if any such have accrued to the said Dred Scott) accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to-wit: the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because Page 60 U. S. 397 he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify. Wherefore, he prays judgment whether this court can or will take further cognizance of the action aforesaid." "JOHN F. A. SANDFORD" To this plea there was a demurrer in the usual form, which was argued in April, 1854, when the court gave judgment that the demurrer should be sustained. In May, 1854, the defendant, in pursuance of an agreement between counsel, and with the leave of the court, pleaded in bar of the action: 1. Not guilty. 2. That the plaintiff was a negro slave, the lawful property of the defendant, and, as such, the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do. 3. That with respect to the wife and daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them, only acted in the same manner and in virtue of the same legal right. In the first of these pleas, the plaintiff joined issue, and to the second and third filed replications alleging that the defendant, of his own wrong and without the cause in his second and third pleas alleged, committed the trespasses, &c. The counsel then filed the following agreed statement of facts, viz: In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. I n that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838. In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. Page 60 U. S. 398 In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838. In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks. In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves. At the times mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times. Further proof may be given on the trial for either party. It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county; that there was a verdict and judgment in his favor; that, on a writ of error to the Supreme Court, the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case. In May, 1854, the cause went before a jury, who found the following verdict, viz: "As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, &c., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, &c., in the second and third counts mentioned, the said Harriet, wife of Page 60 U. S. 399 said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant." Whereupon, the court gave judgment for the defendant. After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions. On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts, ( see agreement above.) No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instruction, viz: "That, upon the facts agreed to by the parties, they ought to find for the plaintiff. The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted." The court then gave the following instruction to the jury, on motion of the defendant: "The jury are instructed, that upon the facts in this case, the law is with the defendant." The plaintiff excepted to this instruction. Upon these exceptions, the case came up to this court. Mr. Chief Justice TANEY delivered the opinion of the court. This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court, and as the questions in controversy are of the highest importance, and the court was at that time much pressed by the ordinary business of the term, it was deemed advisable to continue the case and direct a re-argument on some of the points in order that we might have an opportunity of giving to the whole subject a more deliberate Page 60 U. S. 400 consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion. There are two leading questions presented by the record: 1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And 2. If it had jurisdiction, is the judgment it has given erroneous or not? The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the defendant in the State of Missouri, and he brought this action in the Circuit Court of the United States for that district to assert the title of himself and his family to freedom. The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the court jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of New York. The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood and who were brought into this country and sold as slaves. To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, and gave judgment that the defendant should answer over. And he thereupon put in sundry pleas in bar, upon which issues were joined, and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error. Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement. That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated. If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed. It is suggested, however, that this plea is not before us, and that, as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error, and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court. Page 60 U. S. 401 But, in making this objection, we think the peculiar and limited jurisdiction of courts of the United States has not been adverted to. This peculiar and limited jurisdiction has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England and in the different States of the Union which have adopted the common law rules. In these last-mentioned courts, where their character and rank are analogous to that of a Circuit Court of the United States -- in other words, where they are what the law terms courts of general jurisdiction -- they are presumed to have jurisdiction unless the contrary appears. No averment in the pleadings of the plaintiff is necessary, in order to give jurisdiction. If the defendant objects to it, he must plead it specially, and unless the fact on which he relies is found to be true by a jury, or admitted to be true by the plaintiff, the jurisdiction cannot be disputed in an appellate court. Now it is not necessary to inquire whether, in courts of that description, a party who pleads over in bar when a plea to the jurisdiction has been ruled against him does or does not waive his plea, nor whether, upon a judgment in his favor on the pleas in bar and a writ of error brought by the plaintiff, the question upon the plea in abatement would be open for revision in the appellate court. Cases that may have been decided in such courts, or rules that may have been laid down by common law pleaders, can have no influence in the decision in this court. Because, under the Constitution and laws of the United States, the rules which govern the pleadings in its courts in questions of jurisdiction stand on different principles, and are regulated by different laws. This difference arises, as we have said, from the peculiar character of the Government of the United States. For although it is sovereign and supreme in its appropriate sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it, and neither the legislative, executive, nor judicial departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. And in regulating the judicial department, the cases in which the courts of the United States shall have jurisdiction are particularly and specifically enumerated and defined, and they are not authorized to take cognizance of any case which does not come within the description therein specified. Hence, when a plaintiff sues in a court of the United States, it is necessary that he should Page 60 U. S. 402 show, in his pleading, that the suit he brings is within the jurisdiction of the court, and that he is entitled to sue there. And if he omits to do this, and should, by any oversight of the Circuit Court, obtain a judgment in his favor, the judgment would be reversed in the appellate court for want of jurisdiction in the court below. The jurisdiction would not be presumed, as in the case of a common law English or State court, unless the contrary appeared. But the record, when it comes before the appellate court, must show affirmatively that the inferior court had authority under the Constitution to hear and determine the case. And if the plaintiff claims a right to sue in a Circuit Court of the United States under that provision of the Constitution which gives jurisdiction in controversies between citizens of different States, he must distinctly aver in his pleading that they are citizens of different States, and he cannot maintain his suit without showing that fact in the pleadings. This point was decided in the case of Bingham v. Cabot , in 3 Dall. 382, and ever since adhered to by the court. And in Jackson v. Ashton , 8 Pet. 148, it was held that the objection to which it was open could not be waived by the opposite party, because consent of parties could not give jurisdiction. It is needless to accumulate cases on this subject. Those already referred to, and the cases of Capron v. Van Noorden, in 2 Cr. 126, and Montalet v. Murray, 4 Cr. 46, are sufficient to show the rule of which we have spoken. The case of Capron v. Van Noorden strikingly illustrates the difference between a common law court and a court of the United States. If, however, the fact of citizenship is averred in the declaration, and the defendant does not deny it and put it in issue by plea in abatement, he cannot offer evidence at the trial to disprove it, and consequently cannot avail himself of the objection in the appellate court unless the defect should be apparent in some other part of the record. For if there is no plea in abatement, and the want of jurisdiction does not appear in any other part of the transcript brought up by the writ of error, the undisputed averment of citizenship in the declaration must be taken in this court to be true. In this case, the citizenship is averred, but it is denied by the defendant in the manner required by the rules of pleading, and the fact upon which the denial is based is admitted by the demurrer. And, if the plea and demurrer, and judgment of the court below upon it, are before us upon this record, the question to be decided is whether the facts stated in the plea are sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. Page 60 U. S. 403 We think they are before us. The plea in abatement and the judgment of the court upon it are a part of the judicial proceedings in the Circuit Court and are there recorded as such, and a writ of error always brings up to the superior court the whole record of the proceedings in the court below. And in the case of the United States v. Smith , 11 Wheat. 171, this court said, that the case being brought up by writ of error, the whole record was under the consideration of this court. And this being the case in the present instance, the plea in abatement is necessarily under consideration, and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. This is certainly a very serious question, and one that now for the first time has been brought for decision before this court. But it is brought here by those who have a right to bring it, and it is our duty to meet it and decide it. The question is simply this: can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution? It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word "citizen" is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves. The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate Page 60 U. S. 404 right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments as much so as if an ocean had separated the red man from the white, and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war, and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race, and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States, and if an individual should leave his nation or tribe and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people. We proceed to examine the case as presented by the pleadings. The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate Page 60 U. S. 405 and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them. It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted. In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons, yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the Page 60 U. S. 406 rights and immunities which the Constitution and laws of the State attached to that character. It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family which the Constitution brought into existence, but were intended to be excluded from it. The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country or who might afterwards be imported, who had then or should afterwards be made free in any State, and to put it in the power of a single State to make him a citizen of the United States and endue him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts? The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts. It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State Page 60 U. S. 407 which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States. It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State whose rights and liberties had been outraged by the English Government, and who declared their independence and assumed the powers of Government to defend their rights by force of arms. In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. And in no nation was this opinion more firmly fixed or more Page 60 U. S. 408 uniformly acted upon than by the English Government and English people. They not only seized them on the coast of Africa and sold them or held them in slavery for their own use, but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and were far more extensively engaged in this commerce than any other nation in the world. The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought and sold as such, in every one of the thirteen colonies which united in the Declaration of Independence and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time. The legislation of the different colonies furnishes positive and indisputable proof of this fact. It would be tedious, in this opinion, to enumerate the various laws they passed upon this subject. It will be sufficient, as a sample of the legislation which then generally prevailed throughout the British colonies, to give the laws of two of them, one being still a large slaveholding State and the other the first State in which slavery ceased to exist. The province of Maryland, in 1717, ch. 13, s. 5, passed a law declaring "that if any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court where such marriage so happens shall think fit, to be applied by them towards the support of a public school within the said county. And any white man or white woman who shall intermarry as aforesaid with any negro or mulatto, such white man or white woman shall become servants during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid." The other colonial law to which we refer was passed by Massachusetts in 1705 (chap. 6). It is entitled "An act for the better preventing of a spurious and mixed issue," &c., and it provides, that "if any negro or mulatto shall presume to smite or strike any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at Page 60 U. S. 409 the discretion of the justices before whom the offender shall be convicted." And "that none of her Majesty's English or Scottish subjects, nor of any other Christian nation, within this province, shall contract matrimony with any negro or mulatto; nor shall any person, duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her Majesty, for and towards the support of the Government within this province, and the other moiety to him or them that shall inform and sue for the same, in any of her Majesty's courts of record within the province, by bill, plaint, or information." We give both of these laws in the words used by the respective legislative bodies because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood the degraded condition of this unhappy race. They were still in force when the Revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the men who framed the Declaration of Independence and established the State Constitutions and Governments. They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage. And no distinction in this respect was made between the free negro or mulatto and the slave, but this stigma of the deepest degradation was fixed upon the whole race. We refer to these historical facts for the purpose of showing the fixed opinions concerning that race upon which the statesmen of that day spoke and acted. It is necessary to do this in order to determine whether the general terms used in the Constitution of the United States as to the rights of man and the rights of the people was intended to include them, or to give to them or their posterity the benefit of any of its provisions. The language of the Declaration of Independence is equally conclusive: It begins by declaring that, "[w]hen in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to Page 60 U. S. 410 assume among the powers of the earth the separate and equal station to which the laws of nature and nature's God entitle them, a decent respect for the opinions of mankind requires that they should declare the causes which impel them to the separation." It then proceeds to say: "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed." The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. Yet the men who framed this declaration were great men -- high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others, and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection. This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language. The brief preamble sets forth by whom it was formed, for what purposes, and for whose benefit and protection. It declares Page 60 U. S. 411 that it is formed by the people of the United States -- that is to say, by those who were members of the different political communities in the several States -- and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen. It does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood that no further description or definition was necessary. But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed. One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808 if it thinks proper. And the importation which it thus sanctions was unquestionably of persons of the race of which we are speaking, as the traffic in slaves in the United States had always been confined to them. And by the other provision the States pledge themselves to each other to maintain the right of property of the master by delivering up to him any slave who may have escaped from his service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directly sanctioned and authorized for twenty years by the people who framed the Constitution. And by the second, they pledge themselves to maintain and uphold the right of the master in the manner specified, as long as the Government they then formed should endure. And these two provisions show conclusively that neither the description of persons therein referred to nor their descendants were embraced in any of the other provisions of the Constitution, for certainly these two clauses were not intended to confer on them or their posterity the blessings of liberty, or any of the personal rights so carefully provided for the citizen. No one of that race had ever migrated to the United States voluntarily; all of them had been brought here as articles of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery, and they were identified in the public mind with the race to which they belonged, and regarded as a part of the slave population rather than the free. It is obvious that they were not Page 60 U. S. 412 even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union. Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them. It is very true that, in that portion of the Union where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence, and when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race, but because it was discovered from experience that slave labor was unsuited to the climate and productions of these States, for some of the States where it had ceased or nearly ceased to exist were actively engaged in the slave trade, procuring cargoes on the coast of Africa and transporting them for sale to those parts of the Union where their labor was found to be profitable and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided. And it can hardly be supposed that, in the States where it was then countenanced in its worst form -- that is, in the seizure and transportation -- the people could have regarded those who were emancipated as entitled to equal rights with themselves. And we may here again refer in support of this proposition to the plain and unequivocal language of the laws of the several States, some passed after the Declaration of Independence and before the Constitution was adopted and some since the Government went into operation. We need not refer on this point particularly to the laws of the present slaveholding States. Their statute books are full of provisions in relation to this class in the same spirit with the Maryland law which we have before quoted. They have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed at the time of the Declaration of Independence. As relates to these States, it is too plain for argument that they have never been regarded as a part of the people or citizens of the State, nor supposed to possess any political rights which the dominant race might not withhold or grant at their pleasure. Page 60 U. S. 413 And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States, and the correctness of this decision is recognized, and the same doctrine affirmed, in 1 Meigs's Tenn.Reports, 331. And if we turn to the legislation of the States where slavery had worn out, or measures taken for its speedy abolition, we shall find the same opinions and principles equally fixed and equally acted upon. Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person with any negro, Indian, or mulatto, and inflicts a penalty of fifty pounds upon anyone who shall join them in marriage, and declares all such marriage absolutely null and void, and degrades thus the unhappy issue of the marriage by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their revised code published in 1836. This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall offend in this respect to imprisonment not exceeding six months in the common jail or to hard labor, and to a fine of not less than fifty nor more than two hundred dollars, and, like the law of 1786, it declares the marriage to be absolutely null and void. It will be seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty. So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the first to put an end to slavery within its own territory, but was the first to fix a mark of reprobation upon the African slave trade. The law last mentioned was passed in October, 1788, about nine months after the State had ratified and adopted the present Constitution of the United States, and, by that law, it prohibited its own citizens, under severe penalties, from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in the State to be null and void. But up to the time of the adoption of the Constitution, there is nothing in the legislation of the State indicating any change of opinion as to the relative rights and position of the white and black races in this country, or indicating that it meant to place the latter, when free, upon a level with its citizens. And certainly nothing which would have led the slaveholding States to suppose that Connecticut designed to claim for them, under Page 60 U. S. 414 the new Constitution, the equal rights and privileges and rank of citizens in every other State. The first step taken by Connecticut upon this subject was as early as 1774, wen it passed an act forbidding the further importation of slaves into the State. But the section containing the prohibition is introduced by the following preamble: "And whereas the increase of slaves in this State is injurious to the poor, and inconvenient." This recital would appear to have been carefully introduced in order to prevent any misunderstanding of the motive which induced the Legislature to pass the law, and places it distinctly upon the interest and convenience of the white population -- excluding the inference that it might have been intended in any degree for the benefit of the other. And in the act of 1784, by which the issue of slaves born after the time therein mentioned were to be free at a certain age, the section is again introduced by a preamble assigning a similar motive for the act. It is in these words: "Whereas sound policy requires that the abolition of slavery should be effected as soon as may be consistent with the rights of individuals, and the public safety and welfare" -- showing that the right of property in the master was to be protected, and that the measure was one of policy, and to prevent the injury and inconvenience to the whites of a slave population in the State. And still further pursuing its legislation, we find that, in the same statute passed in 1774, which prohibited the further importation of slaves into the State, there is also a provision by which any negro, Indian, or mulatto servant who was found wandering out of the town or place to which he belonged without a written pass such as is therein described was made liable to be seized by anyone, and taken before the next authority to be examined and delivered up to his master -- who was required to pay the charge which had accrued thereby. And a subsequent section of the same law provides that if any free negro shall travel without such pass, and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Constitution of the United States was adopted, and was not repealed till 1797. So that, up to that time, free negroes and mulattoes were associated with servants and slaves in the police regulations established by the laws of the State. And again, in 1833, Connecticut passed another law which made it penal to set up or establish any school in that State for the instruction of persons of the African race not inhabitants of the State, or to instruct or teach in any such school or Page 60 U. S. 415 institution, or board or harbor for that purpose, any such person without the previous consent in writing of the civil authority of the town in which such school or institution might be. And it appears by the case of Crandall v. The State, reported in 10 Conn. Rep. 340, that upon an information filed against Prudence Crandall for a violation of this law, one of the points raised in the defence was that the law was a violation of the Constitution of the United States, and that the persons instructed, although of the African race, were citizens of other States, and therefore entitled to the rights and privileges of citizens in the State of Connecticut. But Chief Justice Dagget, before whom the case was tried, held that persons of that description were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States. The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question. We have made this particular examination into the legislative and judicial action of Connecticut because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union, and if we find that, at the time the Constitution was adopted, they were not even there raised to the rank of citizens, but were still held and treated as property, and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else. A brief notice of the laws of two other States, and we shall pass on to other considerations. By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State but free white citizens, and the same provision is found in a subsequent collection of the laws made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it. Page 60 U. S. 416 Again, in 1822, Rhode Island, in its revised code, passed a law forbidding persons who were authorized to join persons in marriage from joining in marriage any white person with any negro, Indian, or mulatto, under the penalty of two hundred dollars, and declaring all such marriages absolutely null and void, and the same law was again reenacted in its revised code of 1844. So that, down to the last-mentioned period, the strongest mark of inferiority and degradation was fastened upon the African race in that State. It would be impossible to enumerate and compress in the space usually allotted to an opinion of a court the various laws, marking the condition of this race which were passed from time to time after the Revolution and before and since the adoption of the Constitution of the United States. In addition to those already referred to, it is sufficient to say that Chancellor Kent, whose accuracy and research no one will question, states in the sixth edition of his Commentaries (published in 1848, 2 vol., 258, note b) that in no part of the country except Maine did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights. The legislation of the States therefore shows in a manner not to be mistaken the inferior and subject condition of that race at the time the Constitution was adopted and long afterwards, throughout the thirteen States by which that instrument was framed, and it is hardly consistent with the respect due to these States to suppose that they regarded at that time as fellow citizens and members of the sovereignty, a class of beings whom they had thus stigmatized, whom, as we are bound out of respect to the State sovereignties to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation, or, that, when they met in convention to form the Constitution, they looked upon them as a portion of their constituents or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights and privileges and rank, in the new political body throughout the Union which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police Page 60 U. S. 417 regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State. It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them. Besides, this want of foresight and care would have been utterly inconsistent with the caution displayed in providing for the admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. No State was willing to permit another State to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen anyone born in the United States who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class. And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much Page 60 U. S. 418 more important power -- that is, the power of transforming into citizens a numerous class of persons who, in that character, would be much more dangerous to the peace and safety of a large portion of the Union than the few foreigners one of the States might improperly naturalize. The Constitution upon its adoption obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States anyone, no matter where he was born or what might be his character or condition, and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory. A clause similar to the one in the Constitution in relation to the rights and immunities of citizens of one State in the other States was contained in the Articles of Confederation. But there is a difference of language which is worthy of note. The provision in the Articles of Confederation was "that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States." It will be observed that, under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term free inhabitant, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizenship in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words "free inhabitants," it is very clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not, for the fifth section of the ninth article provides that Congress should have the power "to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of white inhabitants in such State, which requisition should be binding." Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject -- the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for a moment be supposed that a class of Page 60 U. S. 419 persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words "free inhabitants," in the preceding article, to whom privileges and immunities were so carefully secured in every State. But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word inhabitant, which might be construed to include an emancipated slave, is omitted, and the privilege is confined to citizens of the State. And this alteration in words would hardly have been made unless a different meaning was intended to be conveyed or a possible doubt removed. The just and fair inference is that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given -- and the word citizen was on that account substituted for the words free inhabitant. The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted, and also every description of persons who were not fully recognised as citizens in the several States. This, upon any fair construction of the instruments to which we have referred, was evidently the object and purpose of this change of words. To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the Government went into operation, will be abundantly sufficient to show this. The two first are particularly worthy of notice, because many of the men who assisted in framing the Constitution, and took an active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they meant when they used the words "people of the United States" and "citizen" in that well-considered instrument. The first of these acts is the naturalization law, which was passed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens " to aliens being free white persons. " Now the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of anyone, of any color, who was born under allegiance to another Government. But the language of the law above quoted shows that citizenship Page 60 U. S. 420 at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the Government. Congress might, as we before said, have authorized the naturalization of Indians because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. No one supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word white was not used with any particular reference to them. Neither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore there was no necessity for using particular words to exclude them. It would seem to have been used merely because it followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery and governed at their own pleasure. Another of the early laws of which we have spoken is the first militia law, which was passed in 1792 at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word "citizen" to exclude unnaturalized foreigners, the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free, but it is repudiated, and rejected from the duties and obligations of citizenship in marked language. The third act to which we have alluded is even still more decisive; it was passed as late as 1813, 2 Stat. 809, and it provides: "That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States. " Page 60 U. S. 421 Here the line of distinction is drawn in express words. Persons of color, in the judgment of Congress, were not included in the word citizens, and they are described as another and different class of persons, and authorized to be employed, if born in the United States. And even as late as 1820, chap. 104, sec. 8, in the charter to the city of Washington, the corporation is authorized "to restrain and prohibit the nightly and other disorderly meetings of slaves, free negroes, and mulattoes," thus associating them together in its legislation, and, after prescribing the punishment that may be inflicted on the slaves, proceeds in the following words: "And to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offence; and in case of the inability of any such free negro or mulatto, to pay any such penalty and cost thereon, to cause him or her to be confined to labor for any time not exceeding six calendar months." And in a subsequent part of the same section, the act authorizes the corporation "to prescribe the terms and conditions upon which free negroes and mulattoes may reside in the city." This law, like the laws of the States, shows that this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens. And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized "citizens" of the United States, "fellow citizens," a constituent part of the sovereignty, would be an abuse of terms, and not calculated to exalt the character of an American citizen in the eyes of other nations. The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The question was brought officially before the late William Wirt, when he was the Attorney General of the United States, in 1821, and he decided that the words "citizens of the United States" were used in the acts of Congress in the same sense as in the Constitution, and that free persons of color were not citizens within the meaning of the Constitution and laws; and this opinion has been confirmed by that of the late Attorney General, Caleb Cushing, in a recent case, and acted upon by the Secretary of State, who refused to grant passports to them as "citizens of the United States." But it is said that a person may be a citizen, and entitled to Page 60 U. S. 422 that character, although he does not possess all the rights which may belong to other citizens -- as, for example, the right to vote, or to hold particular offices -- and that yet, when he goes into another State, he is entitled to be recognised there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship. This argument overlooks the language of the provision in the Constitution of which we are speaking. Undoubtedly a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote, and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens. So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union, foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States does not apply to them. Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognised as citizens, but belong to an inferior and subject race, and may deny him the privileges and immunities enjoyed by its citizens. But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, will all the privileges and immunities which belong to citizens of the Page 60 U. S. 423 State. And if persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them, for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and enforce them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitution would be unmeaning, and could have no operation, and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in question. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African race were not included under the name of citizens of a State, and were not in the contemplation of the framers of the Constitution when these privileges and immunities were provided for the protection of the citizen in other States. The case of Legrand v. Darnall , 2 Peters 664, has been referred to for the purpose of showing that this court has decided that the descendant of a slave may sue as a citizen in a court of the United States, but the case itself shows that the question did not arise and could not have arisen in the case. It appears from the report that Darnall was born in Maryland, and was the son of a white man by one of his slaves, and his father executed certain instruments to manumit him, and devised to him some landed property in the State. This property Darnall afterwards sold to Legrand, the appellant, who gave his notes for the purchase money. But becoming afterwards apprehensive that the appellee had not been emancipated according to the laws of Maryland, he refused to pay the notes until he could be better satisfied as to Darnall's right to convey. Darnall, in the meantime, had taken up his residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the Circuit Court for the district of Maryland. The whole proceeding, as appears by the report, was an amicable one, Legrand being perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing him to pay unless he could make him a good one. In point of fact, the whole proceeding was under the direction of the counsel who argued the case for the appellee, who was the mutual friend of the parties and confided in by both of them, and whose only Page 60 U. S. 424 object was to have the rights of both parties established by judicial decision in the most speedy and least expensive manner. Legrand, therefore, raised no objection to the jurisdiction of the court in the suit at law, because he was himself anxious to obtain the judgment of the court upon his title. Consequently, there was nothing in the record before the court to show that Darnall was of African descent, and the usual judgment and award of execution was entered. And Legrand thereupon filed his bill on the equity side of the Circuit Court, stating that Darnall was born a slave, and had not been legally emancipated, and could not therefore take the land devised to him, nor make Legrand a good title, and praying an injunction to restrain Darnall from proceeding to execution on the judgment, which was granted. Darnall answered, averring in his answer that he was a free man, and capable of conveying a good title. Testimony was taken on this point, and at the hearing, the Circuit Court was of opinion that Darnall was a free man and his title good, and dissolved the injunction and dismissed the bill; and that decree was affirmed here, upon the appeal of Legrand. Now it is difficult to imagine how any question about the citizenship of Darnall, or his right to sue in that character, can be supposed to have arisen or been decided in that case. The fact that he was of African descent was first brought before the court upon the bill in equity. The suit at law had then passed into judgment and award of execution, and the Circuit Court, as a court of law, had no longer any authority over it. It was a valid and legal judgment, which the court that rendered it had not the power to reverse or set aside. And unless it had jurisdiction as a court of equity to restrain him from using its process as a court of law, Darnall, if he thought proper, would have been at liberty to proceed on his judgment, and compel the payment of the money, although the allegations in the bill were true and he was incapable of making a title. No other court could have enjoined him, for certainly no State equity court could interfere in that way with the judgment of a Circuit Court of the United States. But the Circuit Court as a court of equity certainly had equity jurisdiction over its own judgment as a court of law, without regard to the character of the parties, and had not only the right, but it was its duty -- no matter who were the parties in the judgment -- to prevent them from proceeding to enforce it by execution if the court was satisfied that the money was not justly and equitably due. The ability of Darnall to convey did not depend upon his citizenship, but upon his title to freedom. And if he was free, he could hold and Page 60 U. S. 425 convey property, by the laws of Maryland, although he was not a citizen. But if he was by law still a slave, he could not. It was therefore the duty of the court, sitting as a court of equity in the latter case, to prevent him from using its process as a court of common law to compel the payment of the purchase money when it was evident that the purchaser must lose the land. But if he was free, and could make a title, it was equally the duty of the court not to suffer Legrand to keep the land and refuse the payment of the money upon the ground that Darnall was incapable of suing or being sued as a citizen in a court of the United States. The character or citizenship of the parties had no connection with the question of jurisdiction, and the matter in dispute had no relation to the citizenship of Darnall. Nor is such a question alluded to in the opinion of the court. Besides, we are by no means prepared to say that there are not many cases, civil as well as criminal, in which a Circuit Court of the United States may exercise jurisdiction although one of the African race is a party; that broad question is not before the court. The question with which we are now dealing is whether a person of the African race can be a citizen of the United States, and become thereby entitled to a special privilege by virtue of his title to that character, and which, under the Constitution, no one but a citizen can claim. It is manifest that the case of Legrand and Darnall has no bearing on that question, and can have no application to the case now before the court. This case, however, strikingly illustrates the consequences that would follow the construction of the Constitution which would give the power contended for to a State. It would. in effect. give it also to an individual. For if the father of young Darnall had manumitted him in his lifetime, and sent him to reside in a State which recognised him as a citizen, he might have visited and sojourned in Maryland when he pleased, and as long as he pleased, as a citizen of the United States, and the State officers and tribunals would be compelled by the paramount authority of the Constitution to receive him and treat him as one of its citizens, exempt from the laws and police of the State in relation to a person of that description, and allow him to enjoy all the rights and privileges of citizenship without respect to the laws of Maryland, although such laws were deemed by it absolutely essential to its own safety. The only two provisions which point to them and include them treat them as property and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution; and as it is a Government Page 60 U. S. 426 of special, delegated, powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society, require. The States evidently intended to reserve this power exclusively to themselves. No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty. What the construction was at that time we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people." And, upon a full and careful consideration of the subject, Page 60 U. S. 427 the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts, and consequently that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous. We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before the court upon this writ of error; but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial, for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and, upon their return to Missouri, became citizens of that State. Now if the removal of which he speaks did not give them their freedom, then, by his own admission, he is still a slave, and whatever opinions may be entertained in favor of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen. The principle of law is too well settled to be disputed that a court can give no judgment for either party where it has no jurisdiction; and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs is, like that on the plea in abatement, erroneous, and the suit ought to have been dismissed by the Circuit Court for want of jurisdiction in that court. But, before we proceed to examine this part of the case, it may be proper to notice an objection taken to the judicial authority of this court to decide it, and it has been said that, as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception, and that anything it may say upon that part of the case will be extrajudicial, and mere obiter dicta. This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to revise the judgment of a Circuit Court, and to reverse it for any error apparent on the record, Page 60 U. S. 428 whether it be the error of giving judgment in a case over which it had no jurisdiction or any other material error, and this too whether there is a plea in abatement or not. The objection appears to have arisen from confounding writs of error to a State court with writs of error to a Circuit Court of the United States. Undoubtedly, upon a writ of error to a State court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record. But writs of error to a State court and to a Circuit Court of the United States are regulated by different laws, and stand upon entirely different principles. And in a writ of error to a Circuit Court of the United States, the whole record is before this court for examination and decision, and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but it is the judicial duty of the court to examine the whole case as presented by the record; and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment and remand the case. And certainly an error in passing a judgment upon the merits in favor of either party, in a case which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit. The plea in abatement is not a plea to the jurisdiction of this court, but to the jurisdiction of the Circuit Court. And it appears by the record before us that the Circuit Court committed an error in deciding that it had jurisdiction upon the facts in the case admitted by the pleadings. I t is the duty of the appellate tribunal to correct this error, but that could not be done by dismissing the case for want of jurisdiction here -- for that would leave the erroneous judgment in full force, and the injured party without remedy. And the appellate court therefore exercises the power for which alone appellate courts are constituted, by reversing the judgment of the court below for this error. It exercises its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit Court, as they appear upon the record brought up by the writ of error. The correction of one error in the court below does not deprive the appellate court of the power of examining further into the record, and correcting any other material errors which may have been committed by the inferior court. There is certainly no rule of law nor any practice nor any decision of a Page 60 U. S. 429 court which even questions this power in the appellate tribunal. On the contrary, it is the daily practice of this court, and of all appellate courts where they reverse the judgment of an inferior court for error, to correct by its opinions whatever errors may appear on the record material to the case, and they have always held it to be their duty to do so where the silence of the court might lead to misconstruction or future controversy and the point has been relied on by either side and argued before the court. In the case before us, we have already decided that the Circuit Court erred in deciding that it had jurisdiction upon the facts admitted by the pleadings. And it appears that, in the further progress of the case, it acted upon the erroneous principle it had decided on the pleadings, and gave judgment for the defendant where, upon the facts admitted in the exception, it had no jurisdiction. We are at a loss to understand upon what principle of law, applicable to appellate jurisdiction, it can be supposed that this court has not judicial authority to correct the last-mentioned error because they had before corrected the former, or by what process of reasoning it can be made out that the error of an inferior court in actually pronouncing judgment for one of the parties in a case in which it had no jurisdiction cannot be looked into or corrected by this court because we have decided a similar question presented in the pleadings. The last point is distinctly presented by the facts contained in the plaintiff's own bill of exceptions, which he himself brings here by this writ of error. It was the point which chiefly occupied the attention of the counsel on both sides in the argument -- and the judgment which this court must render upon both errors is precisely the same. It must, in each of them, exercise jurisdiction over the judgment, and reverse it for the errors committed by the court below; and issue a mandate to the Circuit Court to conform its judgment to the opinion pronounced by this court, by dismissing the case for want of jurisdiction in the Circuit Court. This is the constant and invariable practice of this court where it reverses a judgment for want of jurisdiction in the Circuit Court. It can scarcely be necessary to pursue such a question further. The want of jurisdiction in the court below may appear on the record without any plea in abatement. This is familiarly the case where a court of chancery has exercised jurisdiction in a case where the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript when brought here by appeal. So also where it appears that a court of admiralty has exercised jurisdiction in a case belonging exclusively Page 60 U. S. 430 to a court of common law. In these cases, there is no plea in abatement. And for the same reason, and upon the same principles, where the defect of jurisdiction is patent on the record, this court is bound to reverse the judgment although the defendant has not pleaded in abatement to the jurisdiction of the inferior court. The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we have referred in a previous part of this opinion, are directly in point. In the last-mentioned case, Capron brought an action against Van Noorden in a Circuit Court of the United States without showing, by the usual averments of citizenship, that the court had jurisdiction. There was no plea in abatement put in, and the parties went to trial upon the merits. The court gave judgment in favor of the defendant with costs. The plaintiff thereupon brought his writ of error, and this court reversed the judgment given in favor of the defendant and remanded the case with directions to dismiss it because it did not appear by the transcript that the Circuit Court had jurisdiction. The case before us still more strongly imposes upon this court the duty of examining whether the court below has not committed an error in taking jurisdiction and giving a judgment for costs in favor of the defendant, for in Capron v. Van Noorden, the judgment was reversed, because it did not appear that the parties were citizens of different States. They might or might not be . But in this case it does appear that the plaintiff was born a slave, and if the facts upon which he relies have not made him free, then it appears affirmatively on the record that he is not a citizen, and consequently his suit against Sandford was not a suit between citizens of different States, and the court had no authority to pass any judgment between the parties. The suit ought, in this view of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford is erroneous, and must be reversed. It is true that the result either way, by dismissal or by a judgment for the defendant, makes very little, if any, difference in a pecuniary or personal point of view to either party. But the fact that the result would be very nearly the same to the parties in either form of judgment would not justify this court in sanctioning an error in the judgment which is patent on the record, and which, if sanctioned, might be drawn into precedent, and lead to serious mischief and injustice in some future suit. We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom. Page 60 U. S. 431 The case, as he himself states it, on the record brought here by his writ of error, is this: The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the army of the United States. In the year 1834, he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling from said last-mentioned date until the year 1838. In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838. In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the consent of Dr. Emerson, who then claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks. In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them, and each of them, as slaves. In considering this part of the controversy, two questions arise: 1. Was he, together with his family, free in Missouri by reason of the stay in the territory of the United States hereinbefore Page 60 U. S. 432 mentioned? And 2. If they were not, is Scott himself free by reason of his removal to Rock Island, in the State of Illinois, as stated in the above admissions? We proceed to examine the first question. The act of Congress upon which the plaintiff relies declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon anyone who is held as a slave under the have of anyone of the States. The counsel for the plaintiff has laid much stress upon that article in the Constitution which confers on Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards acquired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more. A brief summary of the history of the times, as well as the careful and measured terms in which the article is framed will show the correctness of this proposition. It will be remembered that, from the commencement of the Revolutionary war, serious difficulties existed between the States in relation to the disposition of large and unsettled territories which were included in the chartered limits of some of the States. And some of the other States, and more especially Maryland, which had no unsettled lands, insisted that as the unoccupied lands, if wrested from Great Britain, would owe their preservation to the common purse and the common sword, the money arising from them ought to be applied in just proportion among the several States to pay the expenses of the war, and ought not to be appropriated to the use of the State in whose chartered limits they might happen Page 60 U. S. 433 to lie, to the exclusion of the other States, by whose combined efforts and common expense the territory was defended and preserved against the claim of the British Government. These difficulties caused much uneasiness during the war, while the issue was in some degree doubtful, and the future boundaries of the United States yet to be defined by treaty, if we achieved our independence. The majority of the Congress of the Confederation obviously concurred in opinion with the State of Maryland, and desired to obtain from the States which claimed it a cession of this territory, in order that Congress might raise money on this security to carry on the war. This appears by the resolution passed on the 6th of September, 1780, strongly urging the States to cede these lands to the United States, both for the sake of peace and union among themselves, and to maintain the public credit; and this was followed by the resolution of October 10th, 1780, by which Congress pledged itself that if the lands were ceded, as recommended by the resolution above mentioned, they should be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty and freedom and independence as other States. But these difficulties became much more serious after peace took place, and the boundaries of the United States were established. Every State, at that time, felt severely the pressure of its war debt; but in Virginia and some other States, there were large territories of unsettled lands, the sale of which would enable them to discharge their obligations without much inconvenience, while other States which had no such resource saw before them many years of heavy and burdensome taxation, and the latter insisted, for the reasons before stated, that these unsettled lands should be treated as the common property of the States, and the proceeds applied to their common benefit. The letters from the statesmen of that day will show how much this controversy occupied their thoughts, and the dangers that were apprehended from it. It was the disturbing element of the time, and fears were entertained that it might dissolve the Confederation by which the States were then united. These fears and dangers were, however, at once removed, when the State of Virginia, in 1784, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio, and which was within the acknowledged limits of the State. The only object of the State in making Page 60 U. S. 434 this cession was to put an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded because it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better or more conveniently governed by the United States. The example of Virginia was soon afterwards followed by other States, and, at the time of the adoption of the Constitution, all of the States, similarly situated had ceded their unappropriated lands, except North Carolina and Georgia. The main object for which these cessions were desired and made was on account of their money value, and to put an end to a dangerous controversy as to who was justly entitled to the proceeds when the lands should be sold. It is necessary to bring this part of the history of these cessions thus distinctly into view because it will enable us the better to comprehend the phraseology of the article in the Constitution so often referred to in the argument. Undoubtedly the powers of sovereignty and the eminent domain were ceded with the land. This was essential in order to make it effectual and to accomplish its objects. But it must be remembered that, at that time, there was no Government of the United States in existence with enumerated and limited powers; what was then called the United States were thirteen separate, sovereign, independent States which had entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereignties, meeting together, as equals, to discuss and decide on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legislative, executive, or judicial power. It was little more than a congress of ambassadors, authorized to represent separate nations in matters in which they had a common concern. It was this Congress that accepted the cession from Virginia. They had no power to accept it under the Articles of Confederation. But they had an undoubted right, as independent sovereignties, to accept any cession of territory for their common benefit, which all of them assented to; and it is equally clear that as their common property, and having no superior to control them, they had the right to exercise absolute dominion over it, subject only to the restrictions which Virginia had imposed in her act of cession. There was, as we have said, no Government of the United States then in existence Page 60 U. S. 435 with special enumerated and limited powers. The territory belonged to sovereignties who, subject to the limitations above mentioned, had a right to establish any form of government they pleased by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory as they might deem proper. It was by a Congress, representing the authority of these several and separate sovereignties and acting under their authority and command (but not from any authority derived from the Articles of Confederation), that the instrument usually called the Ordinance of 1787 was adopted, regulating in much detail the principles and the laws by which this territory should be governed; and, among other provisions, slavery is prohibited in it. We do not question the power of the States, by agreement among themselves, to pass this ordinance, nor its obligatory force in the territory while the confederation or league of the States in their separate sovereign character continued to exist. This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia belonged to the several confederated States as common property, and they had united in establishing in it a system of government and jurisprudence in order to prepare it for admission as States according to the terms of the cession. They were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling within its sphere of action throughout the United States; but this Government was to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution or necessarily to be implied from the language of the instrument and the objects it was intended to accomplish; and as this league of States would, upon the adoption of the new Government, cease to have any power over the territory, and the ordinance they had agreed upon be incapable of execution, and a mere nullity, it was obvious that some provision was necessary to give the new Government sufficient power to enable it to carry into effect the objects for which it was ceded, and the compacts and agreements which the States had made with each other in the exercise of their powers of sovereignty. It was necessary that the lands should be sold to pay the war debt; that a Government and system of jurisprudence should be maintained in it to protect the citizens of the United States who should migrate to the territory, in their rights of person and of property. It was also necessary that the new Government, about to be Page 60 U. S. 436 adopted should be authorized to maintain the claim of the United States to the unappropriated lands in North Carolina and Georgia, which had not then been ceded but the cession of which was confidently anticipated upon some terms that would be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military stores, munitions, and ships of war, which were the common property of the States, when acting in their independent characters as confederates, which neither the new Government nor anyone else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which give Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new Government the property then held in common by the States, and to give to that Government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire. The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses when it speaks of the political power to be exercised in the government of the territory, all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any territory, nor of Territories, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to the territory of the United States -- that is, to a territory then in existence, and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing, in other words, making sale of the lands, or raising money from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposition and sale of the lands -- that is, the power of making needful rules and regulations respecting the territory. And whatever construction may now be given to these words, everyone, we think, Page 60 U. S. 437 must admit that they are not the words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new Government might afterwards itself obtain by cession from a State, either for its seat of Government or for forts, magazines, arsenals, dockyards, and other needful buildings. And the same power of making needful rules respecting the territory is, in precisely the same language, applied to the other property belonging to the United States -- associating the power over the territory in this respect with the power over movable or personal property -- that is, the ships, arms, and munitions of war, which then belonged in common to the State sovereignties. And it will hardly be said that this power, in relation to the last-mentioned objects, was deemed necessary to be thus specially given to the new Government in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service. No one, it is believed, would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution. Nor can it, upon any fair construction, be applied to any property but that which the new Government was about the receive from the confederated States. And if this be true as to this property, it must be equally true and limited as to the territory, which is so carefully and precisely coupled with it -- and like it referred to as property in the power granted. The concluding words of the clause appear to render this construction irresistible, for, after the provisions we have mentioned, it proceeds to say, "that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." Now, as we have before said, all of the States except North Carolina and Georgia had made the cession before the Constitution was adopted, according to the resolution of Congress of October 10, 1780. The claims of other States that the unappropriated lands in these two States should be applied to the common benefit in like manner was still insisted on, but refused by the States. And this member of the clause in question evidently applies to them, and can apply to nothing else. It was to exclude the conclusion that either party, by adopting the Constitution, would surrender what they deemed their rights. And when the latter provision relates so obviously to the unappropriated lands not yet ceded by the States, and the first clause makes provision for those then actually ceded, it is Page 60 U. S. 438 impossible, by any just rule of construction, to make the first provision general, and extend to all territories, which the Federal Government might in any way afterwards acquire, when the latter is plainly and unequivocally confined to a particular territory; which was a part of the same controversy, and involved in the same dispute, and depended upon the same principles. The union of the two provisions in the same clause shows that they were kindred subjects, and that the whole clause is local, and relates only to lands within the limits of the United States which had been or then were claimed by a State, and that no other territory was in the mind of the framers of the Constitution or intended to be embraced in it. Upon any other construction, it would be impossible to account for the insertion of the last provision in the place where it is found, or to comprehend why or for what object it was associated with the previous provision. This view of the subject is confirmed by the manner in which the present Government of the United States dealt with the subject as soon as it came into existence. It must be borne in mind that the same States that formed the Confederation also formed and adopted the new Government, to which so large a portion of their former sovereign powers were surrendered. It must also be borne in mind that all of these same States which had then ratified the new Constitution were represented in the Congress which passed the first law for the government of this territory, and many of the members of that legislative body had been deputies from the States under the Confederation -- had united in adopting the Ordinance of 1787 and assisted in forming the new Government under which they were then acting, and whose powers they were then exercising. And it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance that they regarded it as the act of the States done in the exercise of their legitimate powers at the time. The new Government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo anything that had been done. And among the earliest laws passed under the new Government is one reviving the Ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. This law introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that this ordinance may continue to have full effect, and proceeds to make only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen. It appears, therefore, that this Congress regarded the purposes Page 60 U. S. 439 to which the land in this Territory was to be applied and the form of government and principles of jurisprudence which were to prevail there, while it remained in the Territorial state, as already determined on by the States when they had full power and right to make the decision, and that the new Government, having received it in this condition, ought to carry substantially into effect the plans and principles which had been previously adopted by the States, and which no doubt the States anticipated when they surrendered their power to the new Government. And if we regard this clause of the Constitution as pointing to this Territory, with a Territorial Government already established in it, which had been ceded to the States for the purposes hereinbefore mentioned -- every word in it is perfectly appropriate and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a Territory at the time. We can, then, easily account for the manner in which the first Congress legislated on the subject -- and can also understand why this power over the territory was associated in the same clause with the other property of the United States, and subjected to the like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present Government and to give it in such territory a despotic and unlimited power over persons and property such as the confederated States might exercise in their common property, it would be difficult to account for the phraseology used when compared with other grants of power -- and also for its association with the other provisions in the same clause. The Constitution has always been remarkable for the felicity of its arrangement of different subjects and the perspicuity and appropriateness of the language it uses. But if this clause is construed to extend to territory acquired by the present Government from a foreign nation, outside of the limits of any charter from the British Government to a colony, it would be difficult to say why it was deemed necessary to give the Government the power to sell any vacant lands belonging to the sovereignty which might be found within it, and, if this was necessary, why the grant of this power should precede the power to legislate over it and establish a Government there, and still more difficult to say why it was deemed necessary so specially and particularly to grant the power to make needful rules and regulations in relation to any personal or movable property it might acquire there. For the words other property necessarily, by every known rule of interpretation, must mean Page 60 U. S. 440 property of a different description from territory or land. And the difficulty would perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that "nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State," or to say how any particular State could have claims in or to a territory ceded by a foreign Government, or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connection. The words "needful rules and regulations" would seem also to have been cautiously used for some definite object. They are not the words usually employed by statesmen when they mean to give the powers of sovereignty, or to establish a Government, or to authorize its establishment. Thus, in the law to renew and keep alive the Ordinance of 1787 and to reestablish the Government, the title of the law is: "An act to provide for the government of the territory northwest of the river Ohio." And in the Constitution, when granting the power to legislate over the territory that may be selected for the seat of Government independently of a State, it does not say Congress shall have power "to make all needful rules and regulations respecting the territory," but it declares that "Congress shall have power to exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States." The words "rules and regulations" are usually employed in the Constitution in speaking of some particular specified power which it means to confer on the Government, and not, as we have seen, when granting general powers of legislation. As, for example, in the particular power to Congress "to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;" "to establish an uniform rule of naturalization;" "to coin money and regulate the value thereof." And to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the Government might afterwards acquire is to use them in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular Territory, in which a Government and laws had already been established but which would require some alterations to adapt it to the new Government, the words are peculiarly applicable and appropriate for that purpose. Page 60 U. S. 441 The necessity of this special provision in relation to property and the rights or property held in common by the confederated States is illustrated by the first clause of the sixth article. This clause provides that "all debts, contracts, and engagements entered into before the adoption of this Constitution shall be as valid against the United States under this Government as under the Confederation." This provision, like the one under consideration, was indispensable if the new Constitution was adopted. The new Government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But, when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several States would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions were indispensable to transfer to the new Government the property and rights which at that time they held in common, and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory and other property of the United States provided for the first, and the clause last quoted provided for the other. They have no connection with the general powers and rights of sovereignty delegated to the new Government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a Government. Indeed, a similar provision was deemed necessary in relation to treaties made by the Confederation; and when, in the clause next succeeding the one of which we have last spoken, it is declared that treaties shall be the supreme law of the land, care is taken to include, by express words, the treaties made by the confederated States. The language is: "and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Whether, therefore, we take the particular clause in question, by itself, or in connection with the other provisions of the Constitution, we think it clear that it applies only to the particular Page 60 U. S. 442 territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new Government might afterwards obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercised in this Territory, while it remained under a Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory afterwards acquired by the Federal Government. We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us. But the case of the American and Ocean Insurance Companies v. Canter , 1 Pet. 511, has been quoted as establishing a different construction of this clause of the Constitution. There is, however, not the slightest conflict between the opinion now given and the one referred to, and it is only by taking a single sentence out of the latter and separating it from the context that even an appearance of conflict can be shown. We need not comment on such a mode of expounding an opinion of the court. Indeed, it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opinion would appear to be in direct conflict with that now given, but the words which immediately follow that sentence show that the court did not mean to decide the point, but merely affirmed the power of Congress to establish a Government in the Territory, leaving it an open question whether that power was derived from this clause in the Constitution, or was to be necessarily inferred from a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead. The passage referred to is in page 26 U. S. 542 , in which the court, in speaking of the power of Congress to establish a Territorial Government in Florida until it should become a State, uses the following language: "In the meantime, Florida continues to be a Territory of the United States, governed by that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a Territory belonging to the United States which has not, by becoming a State, acquired the means of self-government may result necessarily from the facts that it is not within the jurisdiction of any particular Page 60 U. S. 443 State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source from which the power is derived, the possession of it is unquestionable. " It is thus clear from the whole opinion on this point that the court did not mean to decide whether the power was derived from the clause in the Constitution or was the necessary consequence of the right to acquire. They do decide that the power in Congress is unquestionable, and in this we entirely concur, and nothing will be found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court -- that is, as " the inevitable consequence of the right to acquire territory. " And what still more clearly demonstrates that the court did not mean to decide the question, but leave it open for future consideration, is the fact that the case was decided in the Circuit Court by Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to the territory then within the limits of the United States, and not to Florida, which had been acquired by cession from Spain. This part of his opinion will be found in the note in page 517 of the report [argument of counsel -- omitted]. But he does not dissent from the opinion of the Supreme Court, thereby showing that, in his judgment as well as that of the court, the case before them did not call for a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the same reserve. And in page 26 U. S. 546 , speaking of the power of Congress to authorize the Territorial Legislature to establish courts there, the court say: "They are legislative courts, created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States." It has been said that the construction given to this clause is new, and now for the first time brought forward. The case of which we are speaking, and which has been so much discussed, shows that the fact is otherwise. It shows that precisely the same question came before Mr. Justice Johnson, at his circuit, thirty years ago -- was fully considered by him, and the same construction given to the clause in the Constitution which is now given by this court. And that upon an appeal Page 60 U. S. 444 from his decision the same question was brought before this court, but was not decided because a decision upon it was not required by the case before the court. There is another sentence in the opinion which has been commented on, which even in a still more striking manner shows how one may mislead or be misled by taking out a single sentence from the opinion of a court, and leaving out of view what precedes and follows. It is in page 26 U. S. 546 , near the close of the opinion, in which the court say: "In legislating for them," (the territories of the United States) "Congress exercises the combined powers of the General and of a State Government." And it is said that, as a State may unquestionably prohibit slavery within its territory, this sentence decides in effect that Congress may do the same in a Territory of the United States, exercising there the powers of a State as well as the power of the General Government. The examination of this passage in the case referred to would be more appropriate when we come to consider in another part of this opinion what power Congress can constitutionally exercise in a Territory, over the rights of person or rights of property of a citizen. But, as it is in the same case with the passage we have before commented on, we dispose of it now, as it will save the court from the necessity of referring again to the case. And it will be seen upon reading the page in which this sentence is found that it has no reference whatever to the power of Congress over rights of person or rights of property, but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise. The law of Congress establishing a Territorial Government in Florida provided that the Legislature of the Territory should have legislative powers over "all rightful objects of legislation, but no law should be valid which was inconsistent with the laws and Constitution of the United States." Under the power thus conferred, the Legislature of Florida passed an act erecting a tribunal at Key West to decide cases of salvage. And in the case of which we are speaking, the question arose whether the Territorial Legislature could be authorized by Congress to establish such a tribunal, with such powers, and one of the parties, among other objections, insisted that Congress could not under the Constitution authorize the Legislature of the Territory to establish such a tribunal with such powers, but that it must be established by Congress itself, and that a sale of cargo made under its order to pay salvors was void as made without legal authority, and passed no property to the purchaser. Page 60 U. S. 445 It is in disposing of this objection that the sentence relied on occurs, and the court begin that part of the opinion by stating with great precision the point which they are about to decide. They say: "It has been contended that by the Constitution of the United States, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and that the whole of the judicial power must be vested 'in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish.' Hence it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the Territorial Legislature." And after thus clearly stating the point before them and which they were about to decide, they proceed to show that these Territorial tribunals were not constitutional courts, but merely legislative, and that Congress might therefore delegate the power to the Territorial Government to establish the court in question, and they conclude that part of the opinion in the following words: "Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the General and State Governments." Thus it will be seen by these quotations from the opinion that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the opinion of the tribunal, that in organizing the judicial department of the Government in a Territory of the United States, Congress does not act under, and is not restricted by, the third article in the Constitution, and is not bound, in a Territory, to ordain and establish courts in which the judges hold their offices during good behaviour, but may exercise the discretionary power which a State exercises in establishing its judicial department and regulating the jurisdiction of its courts, and may authorize the Territorial Government to establish, or may itself establish, courts in which the judges hold their offices for a term of years only, and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the General and a State Government. It exercises the discretionary power of a State Government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behaviour, and it exercises the power of the General Government in investing that Page 60 U. S. 446 court with admiralty jurisdiction, over which the General Government had exclusive jurisdiction in the Territory. No one, we presume, will question the correctness of that opinion; nor is there anything in conflict with it in the opinion now given. The point decided in the case cited has no relation to the question now before the court. That depended on the construction of the third article of the Constitution, in relation to the judiciary of the United States, and the power which Congress might exercise in a Territory in organizing the judicial department of the Government. The case before us depends upon other and different provisions of the Constitution altogether separate and apart from the one above mentioned. The question as to what courts Congress may ordain or establish in a Territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is not authorized by the Constitution to pass, are widely different -- are regulated by different and separate articles of the Constitution, and stand upon different principles. And we are satisfied that no one who reads attentively the page in Peters' Reports to which we have referred can suppose that the attention of the court was drawn for a moment to the question now before this court, or that it meant in that case to say that Congress had a right to prohibit a citizen of the United States from taking any property which he lawfully held into a Territory of the United States. This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States while it remains a Territory and until it shall be admitted as one of the States of the Union. There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance to be ruled and governed at its own pleasure, nor to enlarge its territorial limits in any way except by the admission of new States. That power is plainly given, and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character. And indeed the power exercised by Congress to acquire territory and establish a Government there, according to its own unlimited discretion, was viewed with great jealousy by the Page 60 U. S. 447 leading statesmen of the day. And in the Federalist No. 38, written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated States, by the cession from Virginia, and the establishment of a Government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power. We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given, and, in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority, and, as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial, and whatever the political department of the Government shall recognise as within the limits of the United States, the judicial department is also bound to recognise and to administer in it the laws of the United States so far as they apply, and to maintain in the Territory the authority and rights of the Government and also the personal rights and rights of property of individual citizens as secured by the Constitution. All we mean to say on this point is that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a Territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution and its distribution of powers for the rules and principles by which its decision must be governed. Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States cannot be ruled as mere colonists, dependent upon the will of the General Government and to be governed by any laws it may think proper to impose. The principle upon which our Governments rest and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in Page 60 U. S. 448 their internal and domestic concerns, and bound together as one people by a General Government, possessing certain enumerated and restricted powers delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it throughout the dominion of the United States. A power, therefore, in the General Government to obtain and hold colonies and dependent territories over which they might legislate without restriction would be inconsistent with its own existence in its present form. Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted. At the time when the Territory in question was obtained by cession from France, it contained no population fit to be associated together and admitted as a State, and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government, and in a condition to be admitted on equal terms with the other States as a member of the Union. But, as we have before said, it was acquired by the General Government as the representative and trustee of the people of the United States, and it must therefore be held in that character for their common and equal benefit, for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union. But, until that time arrives, it is undoubtedly necessary that some Government should be established in order to organize society and to protect the inhabitants in their persons and property, and as the people of the United States could act in this matter only through the Government which represented them and the through which they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, but it was its duty, to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages anticipated from its acquisition and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be established Page 60 U. S. 449 necessarily rested in the discretion of Congress. It was their duty to establish the one that would be best suited for the protection and security of the citizens of the United States and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory as to the number and character of its inhabitants and their situation in the Territory. In some cases, a Government consisting of persons appointed by the Federal Government would best subserve the interests of the Territory when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of civil authority would be absolutely necessary to organize and preserve civilized society and prepare it to become a State, and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress, acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of the citizen who might go there to reside, or for any other lawful purpose. It was acquired by the exercise of this discretion, and it must be held and governed in like manner until it is fitted to be a State. But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it, and it cannot, when it enters a Territory of the United States, put off its character and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out, and the Federal Government Page 60 U. S. 450 can exercise no power over his person or property beyond what that instrument confers, nor lawfully deny any right which it has reserved. A reference to a few of the provisions of the Constitution will illustrate this proposition. For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble and to petition the Government for the redress of grievances. Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel anyone to be a witness against himself in a criminal proceeding. These powers, and others in relation to rights of person which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government, and the rights of private property have been guarded with equal care. Thus, the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted, nor take private property for public use without just compensation. The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are Page 60 U. S. 451 concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt under the plea of implied or incidental powers. And if Congress itself cannot do this -- if it is beyond the powers conferred on the Federal Government -- it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government established by its authority to violate the provisions of the Constitution. It seems, however, to be supposed that there is a difference between property in a slave and other property and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it have been dwelt upon in the argument. But, in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government and interfering with their relation to each other. The powers of the Government and the rights of the citizen under it are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government or take from the citizens the rights they have reserved. And if the Constitution recognises the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government. Now, as we have already said in an earlier part of this opinion upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United States in every State that might desire it for twenty years. And the Government in express terms is pledged to protect Page 60 U. S. 452 it in all future time if the slave escapes from his owner. This is done in plain words -- too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights. Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned is not warranted by the Constitution, and is therefore void, and that neither Dred Scott himself nor any of his family were made free by being carried into this territory, even if they had been carried there by the owner with the intention of becoming a permanent resident. We have so far examined the case, as it stands under the Constitution of the United States, and the powers thereby delegated to the Federal Government. But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States, and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri. Our notice of this part of the case will be very brief, for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham , reported in 10th Howard 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterwards brought back to Kentucky. And this court held that their status or condition as free or slave depended upon the laws of Kentucky when they were brought back into that State, and not of Ohio, and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case. So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status as free or slave depended on the laws of Missouri, and not of Illinois. It has, however, been urged in the argument that, by the laws of Missouri, he was free on his return, and that this case Page 60 U. S. 453 therefore cannot be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may at one time have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant, and that the Circuit Court of the United States had no jurisdiction when, by the laws of the State, the plaintiff was a slave and not a citizen. Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State, was fully argued there, and that court decided that neither the plaintiff nor his family were entitled to freedom, and were still the slaves of the defendant, and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reverse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court. The case of Strader and others v. Graham is directly in point, and, indeed, independent of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy. But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case. And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the Page 60 U. S. 454 State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had, in open violation of law, entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings. Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri in the sense in which that word is used in the Constitution, and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued directing the suit to be dismissed for want of jurisdiction. Mr. Justice WAYNE. Concurring as I do entirely in the opinion of the court as it has been written and read by the Chief Justice -- without any qualification of its reasoning or its conclusions -- I shall neither read nor file an opinion of my own in this case, which I prepared when I supposed it might be necessary and proper for me to do so. The opinion of the court meets fully and decides every point which was made in the argument of the case by the counsel on either side of it. Nothing belonging to the case has been left undecided, nor has any point been discussed and decided which was not called for by the record or which was not necessary for the judicial disposition of it in the way that it has been done, by more than a majority of the court. In doing this, the court neither sought nor made the case. It was brought to us in the course of that administration of the laws which Congress has enacted, for the review of cases from the Circuit Courts by the Supreme Court. In our action upon it, we have only discharged our duty as a distinct and efficient department of the Government, as the framers of the Constitution meant the judiciary to be and as the States of the Union and the people of those States intended it should be when they ratified the Constitution of the United States. The case involves private rights of value, and constitutional principles of the highest importance about which there had Page 60 U. S. 455 become such a difference of opinion, that the peace and harmony of the country required the settlement of them by judicial decision. It would certainly be a subject of regret that the conclusions of the court have not been assented to by all of its members if I did not know from its history and my own experience how rarely it has happened that the judges have been unanimous upon constitutional questions of moment and if our decision in this case had not been made by as large a majority of them as has been usually had on constitutional questions of importance. Two of the judges, Mr. Justices McLean and Curtis, dissent from the opinion of the court. A third, Mr. Justice Nelson, gives a separate opinion upon a single point in the case with which I concur, assuming that the Circuit Court had jurisdiction, but he abstains altogether from expressing any opinion upon the eighth section of the act of 1820, known commonly as the Missouri Compromise law, and six of us declare that it was unconstitutional. But it has been assumed that this court has acted extrajudicially in giving an opinion upon the eighth section of the act of 1820 because, as it has decided that the Circuit Court had no jurisdiction of the case, this court had no jurisdiction to examine the case upon its merits. But the error of such an assertion has arisen in part from a misapprehension of what has been heretofore decided by the Supreme Court in cases of a like kind with that before us, in part from a misapplication to the Circuit Courts of the United States of the rules of pleading concerning pleas to the jurisdiction which prevail in common law courts, and from its having been forgotten that this case was not brought to this court by appeal or writ of error from a State court, but by a writ of error to the Circuit Court of the United States. The cases cited by the Chief Justice to show that this court has now only done what it has repeatedly done before in other cases, without any question of its correctness, speak for themselves. The differences between the rules concerning pleas to the jurisdiction in the courts of the United States and common law courts have been stated and sustained by reasoning and adjudged cases, and it has been shown that writs of error to a State court and to the Circuit Courts of the United States are to be determined by different laws and principles. In the first, it is our duty to ascertain if this court has jurisdiction, under the twenty-fifth section of the Judiciary Act, to review the case from the State court, and if it shall be found that it has not, the case is at end so far as this court is concerned, for our power Page 60 U. S. 456 to review the case upon its merits has been made, by the twenty-fifth section, to depend upon its having jurisdiction, when it has not, this court cannot criticise, controvert, or give any opinion upon the merits of a case from a State court. But in a case brought to this court, by appeal or by writ of error from a Circuit Court of the United States, we begin a review of it not by inquiring if this court has jurisdiction, but if that court has it. If the case has been decided by that court upon its merits, but the record shows it to be deficient in those averments which by the law of the United States must be made by the plaintiff in the action to give the court jurisdiction of his case, we send it back to the court from which it was brought with directions to be dismissed though it has been decided there upon its merits. So, in a case containing the averments by the plaintiff which are necessary to give the Circuit Court jurisdiction, if the defendant shall file his plea in abatement denying the truth of them, and the plaintiff shall demur to it, and the court should erroneously sustain the plaintiff's demurrer, or declare the plea to be insufficient, and by doing so require the defendant to answer over by a plea to the merits, and shall decide the case upon such pleading, this court has the same authority to inquire into the jurisdiction of that court to do so, and to correct its error in that regard, that it had in the other case to correct its error, in trying a case in which the plaintiff had not made those averments which were necessary to give the court jurisdiction. In both cases, the record is resorted to to determine the point of jurisdiction, but, as the power of review of cases from a Federal court by this court is not limited by the law to a part of the case, this court may correct an error upon the merits, and there is the same reason for correcting an erroneous judgment of the Circuit Court where the want of jurisdiction appears from any part of the record that there is for declaring a want of jurisdiction for a want of necessary averments. Any attempt to control the court from doing so by the technical common law rules of pleading in cases of jurisdiction, when a defendant has been denied his plea to it, would tend to enlarge the jurisdiction of the Circuit Court by limiting this court's review of its judgments in that particular. But I will not argue a point already so fully discussed. I have every confidence in the opinion of the court upon the point of jurisdiction, and do not allow myself to doubt that the error of a contrary conclusion will be fully understood by all who shall read the argument of the Chief Justice. I have already said that the opinion of the court has my unqualified assent. Page 60 U. S. 457 Mr. Justice NELSON. I shall proceed to state the grounds upon which I have arrived at the conclusion that the judgment of the court below should be affirmed. The suit was brought in the court below by the plaintiff for the purpose of asserting his freedom and that of Harriet, his wife, and two children. The defendant plead in abatement to the suit that the cause of action, if any, accrued to the plaintiff out of the jurisdiction of the court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that the said plaintiff is not a citizen of the State of Missouri, as alleged in the declaration, because he is a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves. To this plea the plaintiff demurred, and the defendant joined in demurrer. The court below sustained the demurrer, holding that the plea was insufficient in law to abate the suit. The defendant then plead over in bar of the action: 1. The general issue. 2. That the plaintiff was a negro slave, the lawful property of the defendant. And 3. That Harriet, the wife of said plaintiff, and the two children, were the lawful slaves of the said defendant. Issue was taken upon these pleas, and the cause went down to trial before the court and jury, and an agreed state of facts was presented upon which the trial proceeded and resulted in a verdict for the defendant, under the instructions of the court. The facts agreed upon were substantially as follows: That, in the year 1834, the plaintiff, Scott, was a negro slave of Dr. Emerson, who was a surgeon in the army of the United States, and in that year he took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At this date, Dr. Emerson removed, with the plaintiff, from the Rock Island post to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory of Upper Louisiana, and north of the latitude thirty-six degrees thirty minutes, and north of the State of Missouri. That he held the plaintiff in slavery at Fort Snelling from the last-mentioned date until the year 1838. That, in the year 1835, Harriet, mentioned in the declaration, was a negro slave of Major Taliaferro, who belonged to the army of the United States, and in that year he took her to Fort Snelling, already mentioned, and kept her there as a slave until the year 1836, and then sold and delivered her to Dr. Emerson, who held her in slavery at Fort Snelling until the year 1838. That, in the year 1836, the plaintiff and Harriet Page 60 U. S. 458 were married at Fort Snelling with the consent of their master. The two children, Eliza and Lizzie, are the fruit of this marriage. The first is about fourteen years of age, and was born on board the steamboat Gipsey, north of the State of Missouri, and upon the Mississippi river, the other, about seven years of age, was born in the State of Missouri at the military post called Jefferson Barracks. In 1838, Dr. Emerson removed the plaintiff Harriet and their daughter Eliza from Fort Snelling to the State of Missouri, where they have ever since resided. And that, before the commencement of this suit, they were sold by the Doctor to Sandford, the defendant, who has claimed and held them as slaves ever since. The agreed case also states that the plaintiff brought a suit for his freedom, in the Circuit Court of the State of Missouri, on which a judgment was rendered in his favor, but that, on a writ of error from the Supreme Court of the State, the judgment of the court below was reversed, and the cause remanded to the circuit for a new trial. On closing the testimony in the court below, the counsel for the plaintiff prayed the court to instruct the jury, upon the agreed state of facts, that they ought to find for the plaintiff, when the court refused, and instructed them that, upon the facts, the law was with the defendant. With respect to the plea in abatement, which went to the citizenship of the plaintiff and his competency to bring a suit in the Federal courts, the common law rule of pleading is that, upon a judgment against the plea on demurrer, and that the defendant answer over, and the defendant submits to the judgment and pleads over to the merits, the plea in abatement is deemed to be waived, and is not afterwards to be regarded as a part of the record in deciding upon the rights regarded as a part of the record in deciding upon the rights of the parties. There is some question, however, whether this rule of pleading applies to the peculiar system and jurisdiction of the Federal courts. As, in these courts, if the facts appearing on the record show that the Circuit Court had no jurisdiction, its judgment will be reversed in the appellate court for that cause, and the case remanded with directions to be dismissed. In the view we have taken of the case, it will not be necessary to pass upon this question, and we shall therefore proceed at once to an examination of the case upon its merits. The question upon the merits, in general terms, is whether or not the removal of the plaintiff, who was a slave, with his master from the State of Missouri to the State of Illinois, with a view to a temporary residence, and after such residence and Page 60 U. S. 459 return to the slave State, such residence in the free State works an emancipation. As appears from an agreed statement of facts, this question has been before the highest court of the State of Missouri, and a judgment rendered that this residence in the free State has no such effect, but, on the contrary, that his original condition continued unchanged. The court below, the Circuit Court of the United States for Missouri, in which this suit was afterwards brought, followed the decision of the State court, and rendered a like judgment against the plaintiff. The argument against these decisions is that the laws of Illinois forbidding slavery within her territory had the effect to set the slave free while residing in that State, and to impress upon him the condition and status of a freeman, and that, by force of these laws, this status and condition accompanied him on his return to the slave State, and, of consequence, he could not be there held as a slave. This question has been examined in the courts of several of the slaveholding States, and different opinions expressed and conclusions arrived at. We shall hereafter refer to some of them, and to the principles upon which they are founded. Our opinion is that the question is one which belongs to each State to decide for itself, either by its Legislature or courts of justice, and hence, in respect to the case before us, to the State of Missouri -- a question exclusively of Missouri law, and which, when determined by that State, it is the duty of the Federal courts to follow it. In other words, except in cases where the power is restrained by the Constitution of the United States, the law of the State is supreme over the subject of slavery within its jurisdiction. As a practical illustration of the principle, we may refer to the legislation of the free States in abolishing slavery and prohibiting its introduction into their territories. Confessedly, except as restrained by the Federal Constitution, they exercised, and rightfully, complete and absolute power over the subject. Upon what principle, then, can it be denied to the State of Missouri? The power flows from the sovereign character of the States of the Union, sovereign not merely as respects the Federal Government -- except as they have consented to its limitation -- but sovereign as respects each other. Whether, therefore, the State of Missouri will recognise or give effect to the laws of Illinois within her territories on the subject of slavery is a question for her to determine. Nor is there any constitutional power in this Government that can rightfully control her. Page 60 U. S. 460 Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory, and her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held, and the condition, capacity, and state of all persons therein, and also the remedy and modes of administering justice. And it is equally true that no State or nation can affect or bind property out of its territory, or persons not residing within it. No State therefore can enact laws to operate beyond its own dominions, and if it attempts to do so, it may be lawfully refused obedience. Such laws can have no inherent authority extraterritorially. This is the necessary result of the independence of distinct and separate sovereignties. Now it follows from these principles that whatever force or effect the laws of one State or nation may have in the territories of another must depend solely upon the laws and municipal regulations of the latter, upon its own jurisprudence and polity, and upon its own express or tacit consent. Judge Story observes in his Conflict of Laws, p. 24, "that a State may prohibit the operation of all foreign laws, and the rights growing out of them, within its territories. . . . And that, when its code speaks positively on the subject, it must be obeyed by all persons who are within reach of its sovereignty; when its customary unwritten or common law speaks directly on the subject, it is equally to be obeyed." Nations, from convenience and comity and from mutual interest and a sort of moral necessity to do justice, recognise and administer the laws of other countries. But of the nature, extent, and utility of them respecting property or the state and condition of persons within her territories, each nation judges for itself, and is never bound, even upon the ground of comity, to recognise them if prejudicial to her own interests. The recognition is purely from comity, and not from any absolute or paramount obligation. Judge Story again observes, p. 398, "that the true foundation and extent of the obligation of the laws of one nation within another is the voluntary consent of the latter, and is inadmissible when they are contrary to its known interests." And he adds, "in the silence of any positive rule affirming or denying or restraining the operation of the foreign laws, courts of justice presume the tacit adoption of them by their own Government unless they are repugnant to its policy or prejudicial to its interests." See also 2 Kent Com., p. 457, 38 U. S. 13 Peters 519, 38 U. S. 589 . These principles fully establish that it belongs to the sovereign Page 60 U. S. 461 State of Missouri to determine by her laws the question of slavery within her jurisdiction, subject only to such limitations as may be found in the Federal Constitution, and further that the laws of other States of the Confederacy, whether enacted by their Legislatures or expounded by their courts, can have no operation within her territory or affect rights growing out of her own laws on the subject. This is the necessary result of the independent and sovereign character of the State. The principle is not peculiar to the State of Missouri, but is equally applicable to each State belonging to the Confederacy. The laws of each have no extraterritorial operation within the jurisdiction of another except such as may be voluntarily conceded by her laws or courts of justice. To the extent of such concession upon the rule of comity of nations, the foreign law may operate, as it then becomes a part of the municipal law of the State. When determined that the foreign law shall have effect, the municipal law of the State retires and gives place to the foreign law. In view of these principles, let us examine a little more closely the doctrine of those who maintain that the law of Missouri is not to govern the status and condition of the plaintiff. They insist that the removal and temporary residence with his master in Illinois, where slavery is inhibited, had the effect to set him free, and that the same effect is to be given to the law of Illinois, within the State of Missouri, after his return. Why was he set free in Illinois? Because the law of Missouri, under which he was held as a slave, had no operation by its own force extraterritorially, and the State of Illinois refused to recognise its effect within her limits, upon principles of comity, as a state of slavery was inconsistent with her laws and contrary to her policy. But how is the case different on the return of the plaintiff to the State of Missouri? Is she bound to recognise and enforce the law of Illinois? For unless she is the status and condition of the slave upon his return remains the same as originally existed. Has the law of Illinois any greater force within the jurisdiction of Missouri than the laws of the latter within that of the former? Certainly not. They stand upon an equal footing. Neither has any force extraterritorially except what may be voluntarily conceded to them. It has been supposed by the counsel for the plaintiff that a rule laid down by Huberus had some bearing upon this question. Huberus observes that "personal qualities, impressed by the laws of any place, surround and accompany the person wherever he goes, with this effect: that in every place he enjoys and is subject to the same law which other persons of his Page 60 U. S. 462 class elsewhere enjoy or are subject to." De Confl.Leg., lib. 1, tit. 3, sec. 12, 1 Story Con.Laws, pp. 59, 60. The application sought to be given to the rule was this: that as Dred Scott was free while residing in the State of Illinois, by the laws of that State, on his return to the State of Missouri, he carried with him the personal qualities of freedom, and that the same effect must be given to his status there as in the former State. But the difficulty in the case is in the total misapplication of the rule. These personal qualities to which Huberus refers are those impressed upon the individual by the law of the domicil; it is this that the author claims should be permitted to accompany the person into whatever country he might go, and should supersede the law of the place where he had taken up a temporary residence. Now as the domicil of Scott was in the State of Missouri, where he was a slave, and from whence he was taken by his master into Illinois for a temporary residence, according to the doctrine of Huberus, the law of his domicil would have accompanied him, and, during his residence there, he would remain in the same condition as in the State of Missouri. In order to have given effect to the rule, as claimed in the argument, it should have been first shown that a domicil had been acquired in the free State, which cannot be pretended upon the agreed facts in the case. But the true answer to the doctrine of Huberus is that the rule, in any aspect in which it may be viewed, has no bearing upon either side of the question before us, even if conceded to the extent laid down by the author, for he admits that foreign Governments give effect to these laws of the domicil no further than they are consistent with their own laws and not prejudicial to their own subjects; in other words, their force and effect depend upon the law of comity of the foreign Government. We should add also that this general rule of Huberus, referred to, has not been admitted in the practice of nations, nor is it sanctioned by the most approved jurists of international law. Story Con., sec. 91, 96, 103, 104; 2 Kent. Com., p. 457, 458; 1 Burge Con.Laws, pp. 12, 127. We come now to the decision of this court in the case of Strader et al. v. Graham , 10 How. 2. The case came up from the Court of Appeals, in the State of Kentucky. The question in the case was whether certain slaves of Graham, a resident of Kentucky, who had been employed temporarily at several places in the State of Ohio with their master's consent and had returned to Kentucky into his service, had thereby Page 60 U. S. 463 become entitled to their freedom. The Court of Appeals held that they had not. The case was brought to this court under the twenty-fifth section of the Judiciary Act. This court held that it had no jurisdiction, for the reason the question was one that belonged exclusively to the State of Kentucky. The Chief Justice, in delivering the opinion of the court, observed that "every State has an undoubted right to determine the status or domestic and social condition of the persons domiciled within its territory, except insofar as the powers of the States in this respect are restrained, or duties and obligations imposed upon them, by the Constitution of the United States. There is nothing in the Constitution of the United States, he observes that can in any degree control the law of Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom or slavery after their return depended altogether upon the laws of that State, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for herself whether their employment in another State should or should not make them free on their return." It has been supposed, in the argument on the part of the plaintiff that the eighth section of the act of Congress passed March 6, 1820, 3 St. at Large, p. 544, which prohibited slavery north of thirty-six degrees thirty minutes, within which the plaintiff and his wife temporarily resided at Fort Snelling, possessed some superior virtue and effect, extraterritorially and within the State of Missouri, beyond that of the laws of Illinois or those of Ohio in the case of Strader et al. v. Graham. A similar ground was taken and urged upon the court in the case just mentioned, under the Ordinance of 1787, which was enacted during the time of the Confederation and reenacted by Congress after the adoption of the Constitution with some amendments adapting it to the new Government. 1 St. at Large p. 50. In answer to this ground, the Chief Justice, in delivering the opinion of the court, observed: "The argument assumes that the six articles which that ordinance declares to be perpetual are still in force in the States since formed within the territory and admitted into the Union. If this proposition could be maintained, it would not alter the question, for the regulations of Congress, under the old Confederation or the present Constitution, for the government of a particular Territory could have no force beyond its limits. It certainly could not restrict the power of the States within their respective territories, nor in any manner interfere with their laws and institutions, nor give this court control over them. " Page 60 U. S. 464 "The ordinance in question, he observes, if still in force, could have no more operation than the laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master or the slaves in that State." This view, thus authoritatively declared, furnishes a conclusive answer to the distinction attempted to be set up between the extraterritorial effect of a State law and the act of Congress in question. It must be admitted that Congress possesses no power to regulate or abolish slavery within the States, and that, if this act had attempted any such legislation, it would have been a nullity. And yet the argument here, if there be any force in it, leads to the result that effect may be given to such legislation, for it is only by giving the act of Congress operation within the State of Missouri that it can have any effect upon the question between the parties. Having no such effect directly, it will be difficult to maintain upon any consistent reasoning that it can be made to operate indirectly upon the subject. The argument, we think, in any aspect in which it may be viewed, is utterly destitute of support upon any principles of constitutional law, as, according to that, Congress has no power whatever over the subject of slavery within the State, and is also subversive of the established doctrine of international jurisprudence, as, according to that, it is an axiom that the laws of one Government have no force within the limits of another or extraterritorially except from the consent of the latter. It is perhaps not unfit to notice in this connection that many of the most eminent statesmen and jurists of the country entertain the opinion that this provision of the act of Congress, even within the territory to which it relates, was not authorized by any power under the Constitution. The doctrine here contended for not only upholds its validity in the territory, but claims for it effect beyond and within the limits of a sovereign State -- an effect, as insisted, that displaces the laws of the State and substitutes its own provisions in their place. The consequences of any such construction are apparent. If Congress possesses the power under the Constitution to abolish slavery in a Territory, it must necessarily possess the like power to establish it. It cannot be a one-sided power, as may suit the convenience or particular views of the advocates. It is a power, if it exists at all, over the whole subject, and then, upon the process of reasoning which seeks to extend its influence beyond the Territory and within the limits of a State, if Congress should establish, instead of abolish, slavery, we do Page 60 U. S. 465 not see but that, if a slave should be removed from the Territory into a free State, his status would accompany him, and continue notwithstanding its laws against slavery. The laws of the free State, according to the argument, would be displaced, and the act of Congress, in its effect, be substituted in their place. We do not see how this conclusion could be avoided if the construction against which we are contending should prevail. We are satisfied, however, it is unsound, and that the true answer to it is that even conceding, for the purposes of the argument that this provision of the act of Congress is valid within the Territory for which it was enacted, it can have no operation or effect beyond its limits or within the jurisdiction of a State. It can neither displace its laws nor change the status or condition of its inhabitants. Our conclusion therefore is, upon this branch of the case, that the question involved is one depending solely upon the law of Missouri, and that the Federal court sitting in the State and trying the case before us was bound to follow it. The remaining question for consideration is what is the law of the State of Missouri on this subject? And it would be a sufficient answer to refer to the judgment of the highest court of the State in the very case were it not due to that tribunal to state somewhat at large the course of decision and the principles involved on account of some diversity of opinion in the cases. As we have already stated, this case was originally brought in the Circuit Court of the State, which resulted in a judgment for the plaintiff. The case was carried up to the Supreme Court for revision. That court reversed the judgment below and remanded the cause to the circuit for a new trial. In that state of the proceeding, a new suit was brought by the plaintiff in the Circuit Court of the United States, and tried upon the issues and agreed case before us, and a verdict and judgment for the defendant that court following the decision of the Supreme Court of the State. The judgment of the Supreme Court is reported in the 15 Misso.R. p. 576. The court placed the decision upon the temporary residence of the master with the slaves in the State and Territory to which they removed, and their return to the slave State, and upon the principles of international law that foreign laws have no extraterritorial force except such as the State within which they are sought to be enforced may see fit to extend to them, upon the doctrine of comity of nations. This is the substance of the grounds of the decision. The same question has been twice before that court since, and the same judgment given, 15 Misso.R. 595, 17 Ib. 434. It must be admitted, therefore, as the settled law of the State, Page 60 U. S. 466 and, according to the decision in the case of Strader et al. v. Graham, is conclusive of the case in this court. It is said, however that the previous cases and course of decision in the State of Missouri on this subject were different, and that the courts had held the slave to be free on his return from a temporary residence in the free State. We do not see, were this to be admitted, that the circumstance would show that the settled course of decision, at the time this case was tried in the court below, was not to be considered the law of the State. Certainly it must be unless the first decision of a principle of law by a State court is to be permanent and irrevocable. The idea seems to be that the courts of a State are not to change their opinions, or, if they do, the first decision is to be regarded by this court as the law of the State. It is certain, if this be so in the case before us, it is an exception to the rule governing this court in all other cases. But what court has not changed its opinions? What judge has not changed his? Waiving, however, this view, and turning to the decisions of the courts of Missouri, it will be found that there is no discrepancy between the earlier and the present cases upon this subject. There are some eight of them reported previous to the decision in the case before us, which was decided in 1852. The last of the earlier cases was decided in 1836. In each one of these, with two exceptions, the master or mistress removed into the free State with the slave, with a view to a permanent residence -- in other words, to make that his or her domicil. And in several of the cases, this removal and permanent residence were relied on as the ground of the decision in favor of the plaintiff. All these cases, therefore, are not necessarily in conflict with the decision in the case before us, but consistent with it. In one of the two excepted cases, the master had hired the slave in the State of Illinois from 1817 to 1825. In the other, the master was an officer in the army, and removed with his slave to the military post of Fort Snelling, and at Prairie du Chien, in Michigan, temporarily, while acting under the orders of his Government. It is conceded the decision in this case was departed from in the case before us, and in those that have followed it. But it is to be observed that these subsequent cases are in conformity with those in all the slave States bordering on the free -- in Kentucky, 2 Marsh. 476, 5 B. Munroe 176, 9 ib. 565 -- in Virginia, 1 Rand. 15, 1 Leigh 172, 10 Grattan 495 -- in Maryland, 4 Harris and McHenry 295, 322, 325. In conformity also with the law of England on this subject, Ex parte Grace, 2 Hagg.Adm.R. 94, and with the opinions of the Page 60 U. S. 467 most eminent jurists of the country. Story's Confl. 396a, 2 Kent Com. 258 n., 18 Pick. 193, Chief Justice Shaw. See Corresp. between Lord Stowell and Judge Story, 1 vol. Life of Story, p. 552, 558. Lord Stowell, in communicating his opinion in the case of the slave Grace to Judge Story, states, in his letter, what the question was before him, namely: "Whether the emancipation of a slave brought to England insured a complete emancipation to him on his return to his own country, or whether it only operated as a suspension of slavery in England, and his original character devolved on him again upon his return." He observed, "the question had never been examined since an end was put to slavery fifty years ago," having reference to the decision of Lord Mansfield in the Case of Somersett, but the practice, he observed, "has regularly been that on his return to his own country, the slave resumed his original character of slave." And so Lord Stowell held in the case. Judge Story, in his letter in reply, observes: "I have read with great attention your judgment in the slave case, &c. Upon the fullest consideration which I have been able to give the subject, I entirely concur in your views. If I had been called upon to pronounce a judgment in a like case, I should have certainly arrived at the same result." Again he observes: "In my native State (Massachusetts), the state of slavery is not recognised as legal, and yet, if a slave should come hither and afterwards return to his own home, we should certainly think that the local law attached upon him, and that his servile character would be redintegrated." We may remark in this connection that the case before the Maryland court, already referred to, and which was decided in 1799, presented the same question as that before Lord Stowell, and received a similar decision. This was nearly thirty years before the decision in that case, which was in 1828. The Court of Appeals observed, in deciding the Maryland case, that "however the laws of Great Britain in such instances, operating upon such persons there, might interfere so as to prevent the exercise of certain acts by the masters, not permitted, as in the case of Somersett, yet, upon the bringing Ann Joice into this State (then the province of Maryland), the relation of master and slave continued in its extent, as authorized by the laws of this State." And Luther Martin, one of the counsel in that case, stated, on the argument that the question had been previously decided the same way in the case of slaves returning from a residence in Pennsylvania, where they had become free under her laws. The State of Louisiana, whose courts had gone further in Page 60 U. S. 468 holding the slave free on his return from a residence in a free State than the courts of her sister States, has settled the law by an act of her Legislature in conformity with the law of the court of Missouri in the case before us. Sess. Law, 1846. The case before Lord Stowell presented much stronger features for giving effect to the law of England in the case of the slave Grace than exists in the cases that have arisen in this country, for in that case the slave returned to a colony of England over which the Imperial Government exercised supreme authority. Yet, on the return of the slave to the colony, from a temporary residence in England, he held that the original condition of the slave attached. The question presented in cases arising here is as to the effect and operation to be given to the laws of a foreign State on the return of the slave within an independent sovereignty. Upon the whole, it must be admitted that the current of authority both in England and in this country is in accordance with the law as declared by the courts of Missouri in the case before us, and we think the court below was not only right, but bound to follow it. Some question has been made as to the character of the residence in this case in the free State. But we regard the facts as set forth in the agreed case as decisive. The removal of Dr. Emerson from Missouri to the military posts was in the discharge of his duties as surgeon in the army, and under the orders of his Government. He was liable at any moment to be recalled, as he was in 1838, and ordered to another post. The same is also true as it respects Major Taliaferro. In such a case, the officer goes to his post for a temporary purpose, to remain there for an uncertain time, and not for the purpose of fixing his permanent abode. The question we think too plain to require argument. The case of the Attorney General v. Napier, 6 Welsh, Hurtst. and Gordon Exch. Rep. 217, illustrates and applies the principle in the case of an officer of the English army. A question has been alluded to, on the argument, namely, the right of the master with his slave of transit into or through a free State, on business or commercial pursuits, or in the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the United States, which is not before us. This question depends upon different considerations and principles from the one in hand, and turns upon the rights and privileges secured to a common citizen of the republic under the Constitution of the United States. When that question arises, we shall be prepared to decide it. Page 60 U. S. 469 Our conclusion is that the judgment of the court below should be affirmed. Mr. Justice GRIER. I concur in the opinion delivered by Mr. Justice Nelson on the questions discussed by him. I also concur with the opinion of the court as delivered by the Chief Justice that the act of Congress of 6th March, 1820, is unconstitutional and void and that, assuming the facts as stated in the opinion, the plaintiff cannot sue as a citizen of Missouri in the courts of the United States. But that the record shows a prima facie case of jurisdiction, requiring the court to decide all the questions properly arising in it, and as the decision of the pleas in bar shows that the plaintiff is a slave, and therefore not entitled to sue in a court of the United States, the form of the judgment is of little importance, for, whether the judgment be affirmed or dismissed for want of jurisdiction, it is justified by the decision of the court, and is the same in effect between the parties to the suit. Mr. Justice DANIEL. It may with truth be affirmed that since the establishment of the several communities now constituting the States of this Confederacy, there never has been submitted to any tribunal within its limits questions surpassing in importance those now claiming the consideration of this court. Indeed it is difficult to imagine, in connection with the systems of polity peculiar to the United States, a conjuncture of graver import than that must be, within which it is aimed to comprise and to control not only the faculties and practical operation appropriate to the American Confederacy as such, but also the rights and powers of its separate and independent members, with reference alike to their internal and domestic authority and interests and the relations they sustain to their confederates. To my mind it is evident that nothing less than the ambitious and far-reaching pretension to compass these objects of vital concern is either directly essayed or necessarily implied in the positions attempted in the argument for the plaintiff in error. How far these positions have any foundation in the nature of the rights and relations of separate, equal, and independent Governments, or in the provisions of our own Federal compact, or the laws enacted under and in pursuance of the authority of that compact will be presently investigated. In order correctly to comprehend the tendency and force of those positions, it is proper here succinctly to advert to the Page 60 U. S. 470 facts upon which the questions of law propounded in the argument have arisen. This was an action of trespass vi et armis instituted in the Circuit Court of the United States for the district of Missouri, in the name of the plaintiff in error, a negro held as a slave, for the recovery of freedom for himself, his wife, and two children, also negroes. To the declaration in this case the defendant below, who is also the defendant in error, pleaded in abatement that the court could not take cognizance of the cause because the plaintiff was not a citizen of the State of Missouri, as averred in the declaration, but was a negro of African descent, and that his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and hence it followed, from the second section of the third article of the Constitution, which creates the judicial power of the United States with respect to controversies between citizens of different States that the Circuit Court could not take cognizance of the action. To this plea in abatement, a demurrer having been interposed on behalf of the plaintiff, it was sustained by the court. After the decision sustaining the demurrer, the defendant, in pursuance of a previous agreement between counsel, and with the leave of the court, pleaded in bar of the action: 1st, not guilty, 2dly that the plaintiff was a negro slave, the lawful property of the defendant, and as such the defendant gently laid his hands upon him, and thereby had only restrained him, as the defendant had a right to do, 3dly that with respect to the wife and daughters of the plaintiff, in the second and third counts of the declaration mentioned, the defendant had, as to them, only acted in the same manner, and in virtue of the same legal right. Issues having been joined upon the above pleas in bar, the following statement, comprising all the evidence in the cause, was agreed upon and signed by the counsel of the respective parties, viz: "In the year 1834, the plaintiff was a negro slave belonging to Doctor Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river in the Territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six Page 60 U. S. 471 degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling from said last-mentioned date until the year 1838." "In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson, hereinbefore named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838." "In the year 1836, the plaintiff and said Harriet, at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at a military post called Jefferson barracks." "In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever since resided." "Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves." "At the times mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times." "Further proof may be given on the trial for either party." "R. M. FIELD, for Plaintiff " "H. A. GARLAND, for Defendant. " "It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis county that there was a verdict and judgment in his favor that on a writ of error to the Supreme Court, the judgment below was reversed, and the Page 60 U. S. 472 cause remanded to the Circuit Court, where it has been continued to await the decision of this case." "FIELD, for Plaintiff " "GARLAND, for Defendant " Upon the aforegoing agreed facts, the plaintiff prayed the court to instruct the jury that they ought to find for the plaintiff, and upon the refusal of the instruction thus prayed for, the plaintiff excepted to the court's opinion. The court then, upon the prayer of the defendant, instructed the jury that upon the facts of this case agreed as above, the law was with the defendant. To this opinion also the plaintiff's counsel excepted, as he did to the opinion of the court denying to the plaintiff a new trial after the verdict of the jury in favor of the defendant. The question first in order presented by the record in this cause is that which arises upon the plea in abatement, and the demurrer to that plea, and upon this question, it is my opinion that the demurrer should have been overruled, and the plea sustained. On behalf of the plaintiff, it has been urged that by the pleas interposed in bar of a recovery in the court below (which pleas both in fact and in law are essentially the same with the objections averred in abatement), the defence in abatement has been displaced or waived that it could therefore no longer be relied on in the Circuit Court, and cannot claim the consideration of this court in reviewing this cause. This position is regarded as wholly untenable. On the contrary, it would seem to follow conclusively from the peculiar character of the courts of the United States, as organized under the Constitution and the statutes, and as defined by numerous and unvarying adjudications from this bench, that there is not one of those courts whose jurisdiction and powers can be deduced from mere custom or tradition, not one whose jurisdiction and powers must not be traced palpably to, and invested exclusively by, the Constitution and statutes of the United States, not one that is not bound, therefore, at all times, and at all stages of its proceedings, to look to and to regard the special and declared extent and bounds of its commission and authority. There is no such tribunal of the United States as a court of general jurisdiction, in the sense in which that phrase is applied to the superior courts under the common law, and even with respect to the courts existing under that system, it is a well settled principle that consent can never give jurisdiction. The principles above stated, and the consequences regularly deducible from them, have, as already remarked, been repeatedly Page 60 U. S. 473 and unvaryingly propounded from this bench. Beginning with the earliest decisions of this court, we have the cases of Bingham v. Cabot et al. , 3 Dallas 382, Turner v. Eurille , 4 Dallas 7, Abercrombie v. Dupuis, 1 Cranch 343 [omitted], Wood v. Wagnon , 2 Cranch 9, The United States v. The brig Union et al. , 4 Cranch 216, Sullivan v. The Fulton Steamboat Company , 6 Wheaton 450, Mollan et al. v. Torrence , 9 Wheaton 537, Brown v. Keene , 8 Peters 112, and Jackson v. Ashton , 8 Peters 148, ruling, in uniform and unbroken current, the doctrine that it is essential to the jurisdiction of the courts of the United States that the facts upon which it is founded should appear upon the record. Nay, to such an extent and so inflexibly has this requisite to the jurisdiction been enforced that in the case of Capron v. Van Noorden , 2 Cranch 126, it is declared that the plaintiff in this court may assign for error his own omission in the pleadings in the court below where they go to the jurisdiction. This doctrine has been, if possible, more strikingly illustrated in a later decision, the case of The State of Rhode Island v. The State of Massachusetts, in the 12th of Peters. In this case, on page 37 U. S. 718 of the volume, this court, with reference to a motion to dismiss the cause for want of jurisdiction, have said: " However late this objection has been made, or may be made, in any cause in an inferior or appellate court of the United States, it must be considered and decided before any court can move one farther step in the cause, as any movement is necessarily to exercise the jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit, to adjudicate or exercise any judicial power over them. The question is whether on the case before the court their action is judicial or extrajudicial, with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. A motion to dismiss a cause pending in the courts of the United States is not analogous to a plea to the jurisdiction of a court of common law or equity in England; there, the superior courts have a general jurisdiction over all persons within the realm and all causes of action between them. It depends on the subject matter, whether the jurisdiction shall be exercised by a court of law or equity, but that court to which it appropriately belongs can act judicially upon the party and the subject of the suit unless it shall be made apparent to the court that the judicial determination of the case has been withdrawn from the court of general jurisdiction to an inferior and limited one. It is a necessary presumption that the court of general jurisdiction can act upon the given case when nothing to the Page 60 U. S. 474 contrary appears; hence has arisen the rule that the party claiming an exemption from its process must set out the reason by a special plea in abatement, and show that some inferior court of law or equity has the exclusive cognizance of the case; otherwise the superior court must proceed in virtue of its general jurisdiction. A motion to dismiss therefore cannot be entertained, as it does not disclose a case of exception, and, if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. There are other classes of cases where the objection to the jurisdiction is of a different nature, as on a bill in chancery that the subject matter is cognizable only by the King in Council, or that the parties defendant cannot be brought before any municipal court on account of their sovereign character or the nature of the controversy, or to the very common cases which present the question, whether the cause belong to a court of law or equity. To such cases, a plea in abatement would not be applicable, because the plaintiff could not sue in an inferior court. The objection goes to a denial of any jurisdiction of a municipal court in the one class of cases, and to the jurisdiction of any court of equity or of law in the other, on which last the court decides according to its discretion." "An objection to jurisdiction on the ground of exemption from the process of the court in which the suit is brought, or the manner in which a defendant is brought into it, is waived by appearance and pleading to issue, but when the objection goes to the power of the court over the parties or the subject matter, the defendant need not, for he cannot, give the plaintiff a better writ. Where an inferior court can have no jurisdiction of a case of law or equity, the ground of objection is not taken by plea in abatement, as an exception of the given case from the otherwise general jurisdiction of the court; appearance does not cure the defect of judicial power, and it may be relied on by plea, answer, demurrer, or at the trial or hearing. As a denial of jurisdiction over the subject matter of a suit between parties within the realm, over which and whom the court has power to act, cannot be successful in an English court of general jurisdiction, a motion like the present could not be sustained consistently with the principles of its constitution. But as this court is one of limited and special original jurisdiction, its action must be confined to the particular cases, controversies, and parties over which the Constitution and laws have authorized it to act, any proceeding without the limits prescribed is coram non judice, and its action a nullity. And whether the want or excess of power is objected by a party or is apparent Page 60 U. S. 475 to the court, it must surcease its action or proceed extrajudicially." In the constructing of pleadings either in abatement or in bar, every fact or position constituting a portion of the public law, or of known or general history, is necessarily implied. Such fact or position need not be specially averred and set forth; it is what the world at large and every individual are presumed to know -- nay, are bound to know and to be governed by. If, on the other hand, there exist facts or circumstances by which a particular case would be withdrawn or exempted from the influence of public law or necessary historical knowledge, such facts and circumstances form an exception to the general principle, and these must be specially set forth and established by those who would avail themselves of such exception. Now the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know -- that the African negro race never have been acknowledged as belonging to the family of nations; that, as amongst them, there never has been known or recognised by the inhabitants of other countries anything partaking of the character of nationality, or civil or political polity; that this race has been by all the nations of Europe regarded as subjects of capture or purchase, as subjects of commerce or traffic; and that the introduction of that race into every section of this country was not as members of civil or political society, but as slaves, as property in the strictest sense of the term. In the plea in abatement, the character or capacity of citizen on the part of the plaintiff is denied, and the causes which show the absence of that character or capacity are set forth by averment. The verity of those causes, according to the settled rules of pleading, being admitted by the demurrer, it only remained for the Circuit Court to decide upon their legal sufficiency to abate the plaintiff's action. And it now becomes the province of this court to determine whether the plaintiff below (and in error here), admitted to be a negro of African descent, whose ancestors were of pure African blood and were brought into this country and sold as negro slaves -- such being his status, and such the circumstances surrounding his position -- whether he can, by correct legal induction from that status and those circumstances, be clothed with the character and capacities of a citizen of the State of Missouri? It may be assumed as a postulate that to a slave, as such, there appertains and can appertain no relation, civil or political, with the State or the Government. He is himself strictly property, to be used in subserviency to the interests, the convenience, Page 60 U. S. 476 or the will, of his owner, and to suppose, with respect to the former, the existence of any privilege or discretion, or of any obligation to others incompatible with the magisterial rights just defined, would be by implication, if not directly, to deny the relation of master and slave, since none can possess and enjoy as his own that which another has a paramount right and power to withhold. Hence it follows necessarily that a slave, the peculium or property of a master, and possessing within himself no civil nor political rights or capacities, cannot be a CITIZEN. For who, it may be asked, is a citizen? What do the character and status of citizen import? Without fear of contradiction, it does not import the condition of being private property, the subject of individual power and ownership. Upon a principle of etymology alone, the term citizen, as derived from civitas, conveys the ideas of connection or identification with the State or Government, and a participation of its functions. But beyond this, there is not, it is believed, to be found in the theories of writers on Government or in any actual experiment heretofore tried, an exposition of the term citizen which has not been understood as conferring the actual possession and enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of privileges, civil and political. Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says: "Nations or States are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their mutual strength. Such a society has her affairs and her interests, she deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself." Again, in the first chapter of the first book of the Treatise just quoted, the same writer, after repeating his definition of a State, proceeds to remark that, "from the very design that induces a number of men to form a society which has its common interests and which is to act in concert, it is necessary that there should be established a public authority to order and direct what is to be done by each in relation to the end of the association. This political authority is the sovereignty. " Again, this writer remarks: "The authority of all over each member essentially belongs to the body politic, or the State." By this same writer it is also said: "The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or natural-born citizens are those born in the country of parents who are citizens. As society Page 60 U. S. 477 cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights." Again: "I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country." Vattel, Book 1, cap. 19, p. 101. From the views here expressed, and they seem to be unexceptionable, it must follow that, with the slave, with one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon common, that is, upon equal interests and powers. He could not at the same time be the sovereign and the slave. But it has been insisted in argument that the emancipation of a slave, effected either by the direct act and assent of the master or by causes operating in contravention of his will, produces a change in the status or capacities of the slave such as will transform him from a mere subject of property into a being possessing a social, civil, and political equality with a citizen. In other words, will make him a citizen of the State within which he was, previously to his emancipation, a slave. It is difficult to conceive by what magic the mere surcease or renunciation of an interest in a subject of property, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked how such a result could be accomplished by means wholly extraneous and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the analogies of history. The institution of slavery, as it exists and has existed from the period of its introduction into the United States, though more humane and mitigated in character than was the same institution either under the republic or the empire of Rome, bears, both in its tenure and in the simplicity incident to the Page 60 U. S. 478 mode of its exercise, a closer resemblance to Roman slavery than it does to the condition of villanage, as it formerly existed in England. Connected with the latter, there were peculiarities, from custom or positive regulation, which varied it materially from the slavery of the Romans or from slavery at any period within the United States. But with regard to slavery amoungst the Romans, it is by no means true that emancipation, either during the republic or the empire, conferred, by the act itself, or implied, the status or the rights of citizenship. The proud title of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was maintained throughout the duration of the republic, and until a late period of the eastern empire, and at last was in effect destroyed less by an elevation of the inferior classes than by the degradation of the free, and the previous possessors of rights and immunities civil and political, to the indiscriminate abasement incident to absolute and simple despotism. By the learned and elegant historian of the Decline and Fall of the Roman Empire, we are told that, "In the decline of the Roman empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honor with titles and emoluments his generals, magistrates, and senators, and his precarious indulgence communicated some rays of their glory to their wives and children. But, in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. T he voice of a Roman could no longer enact his laws, or create the annual ministers of his powers; his constitutional rights might have checked the arbitrary will of a master, and the bold adventurer from Germany or Arabia was admitted with equal favor to the civil and military command which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Caesars had scrupulously guarded the distinction of ingenuous and servile birth, which was decided by the condition of the mother. The slaves who were liberated by a generous master immediately entered into the middle class of libertini, or freedmen, but they could never be enfranchised from the duties of obedience and gratitude, whatever were the fruits of Page 60 U. S. 479 their industry, their patron and his family inherited the third part, or even the whole, of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave obtained without reserve or delay the station of a citizen, and at length the dignity of an ingenuous birth was created or supposed by the omnipotence of the emperor. [ Footnote 1 ]" The above account of slavery and its modifications will be found in strictest conformity with the Institutes of Justinian. Thus, in book 1st, title 3d, it is said: "The first general division of persons in respect to their rights is into freemen and slaves." The same title, sec. 4th: "Slaves are born such, or become so. They are born such of bondwomen; they become so either by the law of nations, as by capture, or by the civil law." Section 5th: "In the condition of slaves there is no diversity, but among free persons there are many. Thus some are ingenui or freemen, others libertini or freedmen." Tit. 4th. DE INGENUIS. "A freeman is one who is born free by being born in matrimony, of parents who both are free, or both freed, or of parents one free and the other freed. But one born of a free mother, although the father be a slave or unknown, is free." Tit. 5th. DE LIBERTINIS. "Freedmen are those who have been manumitted from just servitude." Section third of the same title states that "freedmen were formerly distinguished by a threefold division." But the emperor proceeds to say: "Our piety leading us to reduce all things into a better state, we have amended our laws, and reestablished the ancient usage, for anciently liberty was simple and undivided -- that is, was conferred upon the slave as his manumittor possessed it, admitting this single difference that the person manumitted became only a freed man, although his manumittor was a free man." And he further declares: "We have made all freed men in general become citizens of Rome, regarding neither the age of the manumitted, nor the manumittor, nor the ancient forms of manumission. We have also introduced many new methods by which slaves may become Roman citizens." By the references above given, it is shown, from the nature and objects of civil and political associations and upon the direct authority of history, that citizenship was not conferred Page 60 U. S. 480 by the simple fact of emancipation, but that such a result was deduced therefrom in violation of the fundamental principles of free political association, by the exertion of despotic will to establish, under a false and misapplied denomination, one equal and universal slavery, and to effect this result required the exertions of absolute power -- of a power both in theory and practice, being in its most plenary acceptation the SOVEREIGNTY, THE STATE ITSELF -- it could not be produced by a less or inferior authority, much less by the will or the act of one who, with reference to civil and political rights, was himself a slave. The master might abdicate or abandon his interest or ownership in his property, but his act would be a mere abandonment. It seems to involve an absurdity to impute to it the investiture of rights which the sovereignty alone had power to impart. There is not perhaps a community in which slavery is recognised in which the power of emancipation and the modes of its exercise are not regulated by law -- that is, by the sovereign authority, and none can fail to comprehend the necessity for such regulation for the preservation of order and even of political and social existence. By the argument for the plaintiff in error, a power equally despotic is vested in every member of the association, and the most obscure or unworthy individual it comprises may arbitrarily invade and derange its most deliberate and solemn ordinances. At assumptions anomalous as these, so fraught with mischief and ruin, the mind at once is revolted, and goes directly to the conclusions that to change or to abolish a fundamental principle of the society must be the act of the society itself -- of the sovereignty, and that none other can admit to a participation of that high attribute. It may further expose the character of the argument urged for the plaintiff to point out some of the revolting consequences which it would authorize. If that argument possesses any integrity, it asserts the power in any citizen, or quasi citizen, or a resident foreigner of anyone of the States, from a motive either of corruption or caprice, not only to infract the inherent and necessary authority of such State, but also materially to interfere with the organization of the Federal Government and with the authority of the separate and independent States. He may emancipate his negro slave, by which process he first transforms that slave into a citizen of his own State; he may next, under color of article fourth, section second, of the Constitution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regulations of necessity or policy, ordained by those States for their internal happiness or safety. Nay, more: this manumitted slave Page 60 U. S. 481 may, by a proceeding springing from the will or act of his master alone, be mixed up with the institutions of the Federal Government, to which he is not a party, and in opposition to the laws of that Government which, in authorizing the extension by naturalization of the rights and immunities of citizens of the United States to those not originally parties to the Federal compact, have restricted that boon to free white aliens alone. If the rights and immunities connected with or practiced under the institutions of the United States can by any indirection be claimed or deduced from sources or modes other than the Constitution and laws of the United States, it follows that the power of naturalization vested in Congress is not exclusive -- that it has in effect no existence, but is repealed or abrogated. But it has been strangely contended that the jurisdiction of the Circuit Court might be maintained upon the ground that the plaintiff was a resident of Missouri, and that, for the purpose of vesting the court with jurisdiction over the parties, residence within the State was sufficient. The first, and to my mind a conclusive, reply to this singular argument is presented in the fact that the language of the Constitution restricts the jurisdiction of the courts to cases in which the parties shall be citizens, and is entirely silent with respect to residence. A second answer to this strange and latitudinous notion is that it so far stultifies the sages by whom the Constitution was framed as to impute to them ignorance of the material distinction existing between citizenship and mere residence or domicil, and of the well known facts that a person confessedly an alien may be permitted to reside in a country in which he can possess no civil or political rights, or of which he is neither a citizen nor subject, and that, for certain purposes, a man may have a domicil in different countries, in no one of which he is an actual personal resident. The correct conclusions upon the question here considered would seem to be these: That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as property merely, and as such was not and could not be a party or an actor, much less a peer in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty -- the State -- exerted Page 60 U. S. 482 to that end, either in the form of legislation or in some other mode of operation. It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That, so far as rights and immunities appertaining to citizens have been defined and secured by the Constitution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former, and it has been expressly excluded by every act of Congress providing for the creation of citizens by naturalization, these laws, as has already been remarked, being restricted to free white aliens exclusively. But it is evident that, after the formation of the Federal Government by the adoption of the Constitution, the highest exertion of State power would be incompetent to bestow a character or status created by the Constitution or conferred in virtue of its authority only. Upon those, therefore, who were not originally parties to the Federal compact, or who are not admitted and adopted as parties thereto, in the mode prescribed by its paramount authority, no State could have power to bestow the character or the rights and privileges exclusively reserved by the States for the action of the Federal Government by that compact. The States, in the exercise of their political power, might, with reference to their peculiar Government and jurisdiction, guaranty the rights of person and property, and the enjoyment of civil and political privileges, to those whom they should be disposed to make the objects of their bounty, but they could not reclaim or exert the powers which they had vested exclusively in the Government of the United States. They could not add to or change in any respect the class of persons to whom alone the character of citizen of the United States appertained at the time of the adoption of the Federal Constitution. They could not create citizens of the United States by any direct or indirect proceeding. According to the view taken of the law as applicable to the demurrer to the plea in abatement in this cause, the questions subsequently raised upon the several pleas in bar might be passed by as requiring neither a particular examination nor an adjudication directly upon them. upon them. But as these questions are intrinsically of primary interest and magnitude, and have been elaborately discussed in argument, and as with respect to them the opinions of a majority of the court, including my own, are perfectly coincident, to me it seems proper that they should here be fully considered, and, so far as it is practicable for this court to accomplish such an end, finally put to rest. Page 60 U. S. 483 The questions then to be considered upon the several pleas in bar, and upon the agreed statement of facts between the counsel, are: 1st. Whether the admitted master and owner of the plaintiff, holding him as his slave in the State of Missouri, and in conformity with his rights guarantied to him by the laws of Missouri then and still in force, by carrying with him for his own benefit and accommodation, and as his own slave, the person of the plaintiff into the State of Illinois, within which State slavery had been prohibited by the Constitution thereof, and by retaining the plaintiff during the commorancy of the master within the State of Illinois, had, upon his return with his slave into the State of Missouri, forfeited his rights as master by reason of any supposed operation of the prohibitory provision in the Constitution of Illinois, beyond the proper territorial jurisdiction of the latter State? 2d. Whether a similar removal of the plaintiff by his master from the State of Missouri, and his retention in service at a point included within no State, but situated north of thirty-six degrees thirty minutes of north latitude, worked a forfeiture of the right of property of the master, and the manumission of the plaintiff? In considering the first of these questions, the acts or declarations of the master, as expressive of his purpose to emancipate, may be thrown out of view, since none will deny the right of the owner to relinquish his interest in any subject of property at any time or in any place. The inquiry here bears no relation to acts or declarations of the owner as expressive of his intent or purpose to make such a relinquishment; it is simply a question whether, irrespective of such purpose and in opposition thereto, that relinquishment can be enforced against the owner of property within his own country, in defiance of every guaranty promised by its laws, and this through the instrumentality of a claim to power entirely foreign and extraneous with reference to himself, to the origin and foundation of his title, and to the independent authority of his country. A conclusive negative answer to such an inquiry is at once supplied by announcing a few familiar and settled principles and doctrines of public law. Vattel, in his chapter the the general principles of the laws of nations, section 15th, tells us that "nations, being free and independent of each other in the same manner that men are naturally free and independent, the second general law of their society is that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature." "The natural society of nations," says this writer, "cannot subsist unless the natural rights of each be respected." In Page 60 U. S. 484 section 16th he says, "as a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes for her -- of what it is proper or improper for her to do, and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such a particular manner, for any attempt at such compulsion would be an infringement on the liberty of nations." Again, in section 18th of the same chapter, "nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not produce any difference. A small republic is no less a sovereign state than the most powerful kingdom." So, in section 20: "A nation, then, is mistress of her own actions, so long as they do not affect the proper and perfect rights of any other nation -- so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty, but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her. Since nations are free, independent, and equal, and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfill her duties, the effect of the whole is to produce, at least externally, in the eyes of mankind, a perfect equality of rights between nations in the administration of their affairs and in the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment." Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that "nations are equal in respect to each other, and entitled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners. This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a necessary consequence of this equality that each nation has a right to govern itself as it may think proper, and no one nation is entitled to dictate a form of government or religion, or a course of internal Page 60 U. S. 485 policy, to another. This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage, the interference of Russia, Prussia, and Austria for the dismemberment of Poland, the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of internal revolution and reform." With reference to this right of self-government in independent sovereign States, an opinion has been expressed which, whilst it concedes this right as inseparable from and as a necessary attribute of sovereignty and independence, asserts nevertheless some implied and paramount authority of a supposed international law, to which this right of self-government must be regarded and exerted as subordinate, and from which independent and sovereign States can be exempted only by a protest, or by some public and formal rejection of that authority. With all respect for those by whom this opinion has been professed, I am constrained to regard it as utterly untenable, as palpably inconsistent, and as presenting in argument a complete felo de se. Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right. For the position here combatted, no respectable authority has been, and none it is thought can be, adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law. Neither the Case of Lewis Somersett, Howell's State Trials, vol. 20, so often vaunted as the proud evidence of devotion to freedom under a Government which has done as much perhaps to extend the reign of slavery as all the world besides, nor does any decision founded upon the authority of Somersett's Case, when correctly expounded, assail or impair the principle of national equality enunciated by each and all of the publicists already referred to. In the case of Somersett, although the applicant for the habeas corpus and the individual claiming property in that applicant were both subjects and residents Page 60 U. S. 486 within the British empire, yet the decision cannot be correctly understood as ruling absolutely and under all circumstances against the right of property in the claimant. That decision goes no farther than to determine that, within the realm of England, there was no authority to justify the detention of an individual in private bondage. If the decision in Somersett's Case had gone beyond this point, it would have presented the anomaly of a repeal by laws enacted for and limited in their operation to the realm alone, of other laws and institutions established for places and subjects without the limits of the realm of England, laws and institutions at that very time, and long subsequently, sanctioned and maintained under the authority of the British Government, and which the full and combined action of the King and Parliament was required to abrogate. But could the decision in Somersett's Case be correctly interpreted as ruling the doctrine which it has been attempted to deduce from it, still that doctrine must be considered as having been overruled by the lucid and able opinion of Lord Stowell in the more recent case of the slave Grace, reported in the second volume of Haggard, p. 94, in which opinion, whilst it is conceded by the learned judge that there existed no power to coerce the slave whilst in England that yet, upon her return to the island of Antigua, her status as a slave was revived, or, rather, that the title of the owner to the slave as property had never been extinguished, but had always existed in that island. If the principle of this decision be applicable as between different portions of one and the same empire, with how much more force does it apply as between nations or Governments entirely separate, and absolutely independent of each other? For in this precise attitude the States of this Union stand with reference to this subject, and with reference to the tenure of every description of property vested under their laws and held within their territorial jurisdiction. A strong illustration of the principle ruled by Lord Stowell, and of the effect of that principle even in a case of express contract, is seen in the case of Lewis v. Fullerton, decided by the Supreme Court of Virginia and reported in the first volume of Randolph, p. 15. The case was this: a female slave, the property of a citizen of Virginia, whilst with her master in the State of Ohio, was taken from his possession under a writ of habeas corpus, and set at liberty. Soon, or immediately after, by agreement between this slave and her master, a deed was executed in Ohio by the latter containing a stipulation that this slave should return to Virginia, and after a service of two years in that State, should there be free. The law of Virginia Page 60 U. S. 487 regulating emancipation required that deeds of emancipation should, within a given time from their date, be recorded in the court of the county in which the grantor resided, and declared that deeds with regard to which this requisite was not complied with should be void. Lewis, an infant son of this female, under the rules prescribed in such cases, brought an action in forma pauperis in one of the courts of Virginia for the recovery of his freedom, claimed in virtue of the transactions above mentioned. Upon an appeal to the Supreme Court from a judgment against the plaintiff, Roane, Justice, in delivering the opinion of the court, after disposing of other questions discussed in that case, remarks: "As to the deed of emancipation contained in the record that deed, taken in connection with the evidence offered in support of it, shows that it had a reference to the State of Virginia, and the testimony shows that it formed a part of this contract, whereby the slave Milly was to be brought back (as she was brought back) into the State of Virginia. Her object was therefore to secure her freedom by the deed within the State of Virginia after the time should have expired for which she had indented herself and when she should be found abiding within the State of Virginia." "If, then, this contract had an eye to the State of Virginia for its operation and effect, the lex loci ceases to operate. In that case, it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws to effectuate an emancipation, for what of a due recording in the county court, as was decided in the case of Givens v. Mann in this court. It is also ineffectual within the Commonwealth of Virginia for another reason. The lex loci is also to be taken subject to the exception that it is not to be enforced in another country when it violates some moral duty or the policy of that country or is not consistent with a positive right secured to a third person or party by the laws of that country in which it is sought to be enforced. In such a case, we are told, ' magis jus nostrum, quam jus alienum servemus. ' Huberus, tom. 2, lib. 1, tit. 3, 2 Fontblanque, p. 444." "That third party in this instance is the Commonwealth of Virginia, and her policy and interests are also to be attended to. These turn the scale against the lex loci in the present instance." The second or last-mentioned position assumed for the plaintiff under the pleas in bar, as it rests mainly if not solely upon the provision of the act of Congress of March 6, 1820, prohibiting slavery in Upper Louisiana north of thirty-six degrees thirty minutes north latitude, popularly called the Missouri Compromise, that assumption renews the question, formerly so Page 60 U. S. 488 zealously debated, as to the validity of the provision in the act of Congress, and upon the constitutional competency of Congress to establish it. Before proceeding, however, to examine the validity of the prohibitory provision of the law, it may, so far as the rights involved in this cause are concerned, be remarked that conceding to that provision the validity of a legitimate exercise of power, still this concession could by no rational interpretation imply the slightest authority for its operation beyond the territorial limits comprised within its terms, much less could there be inferred from it a power to destroy or in any degree to control rights, either of person or property, entirely within the bounds of a distinct and independent sovereignty -- rights invested and fortified by the guaranty of that sovereignty. These surely would remain in all their integrity, whatever effect might be ascribed to the prohibition within the limits defined by its language. But, beyond and in defiance of this conclusion, inevitable and undeniable as it appears, upon every principle of justice or sound induction, it has been attempted to convert this prohibitory provision of the act of 1820 not only into a weapon with which to assail the inherent -- the necessarily inherent -- powers of independent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Constitution of every citizen of the United States within the length and breadth of the nation. In this attempt, there is asserted a power in Congress, whether from incentives of interest, ignorance, faction, partiality, or prejudice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of all -- the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locality only. It may be that, with respect to future cases, like the one now before the court, there is felt an assurance of the impotence of such a pretension; still, the fullest conviction of that result can impart to it no claim to forbearance, nor dispense with the duty of antipathy and disgust at its sinister aspect, whenever it may be seen to scowl upon the justice, the order, the tranquillity, and fraternal feeling which are the surest, nay, the only, means of promoting or preserving the happiness and prosperity of the nation, and which were the great and efficient incentives to the formation of this Government. The power of Congress to impose the prohibition in the eighth section of the act of 1820 has been advocated upon an attempted construction of the second clause of the third section Page 60 U. S. 489 of the fourth article of the Constitution, which declares that "Congress shall have power to dispose of and to make all needful rules and regulations respecting the territory and other property belonging to the United States." In the discussions in both houses of Congress at the time of adopting this eighth section of the act of 1820, great weight was given to the peculiar language of this clause, viz: territory and other property belonging to the United States, as going to show that the power of disposing of and regulating thereby vested in Congress was restricted to a proprietary interest in the territory or land comprised therein, and did not extend to the personal or political rights of citizens or settlers, inasmuch as this phrase in the Constitution, " territory or other property, " identified territory with property, and inasmuch as citizens or persons could not be property, and especially were not property belonging to the United States. And upon every principle of reason or necessity, this power to dispose of and to regulate the territory of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz., the nation. Scarcely anything more illogical or extravagant can be imagined than the attempt to deduce from this provision in the Constitution a power to destroy or in any wise to impair the civil and political rights of the citizens of the United States, and much more so the power to establish inequalities amongst those citizens by creating privileges in one class of those citizens, and by the disfranchisement of other portions or classes by degrading them from the position they previously occupied. There can exist no rational or natural connection or affinity between a pretension like this and the power vested by the Constitution in Congress with regard to the Territories; on the contrary, there is an absolute incongruity between them. But whatever the power vested in Congress, and whatever the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the United States, and one to be disposed of and regulated for the benefit and under the authority of the United States. Congress was made simply the agent or trustee for the United States, and could not, without a breach of trust and a fraud, appropriate the subject of the trust to any other beneficiary or cestui que trust than the United States, or to the people of the United States, upon equal grounds, legal or equitable. Congress could not appropriate that subject to any one class or portion of the people, to the exclusion of others, politically and constitutionally equals, but every citizen would, if any one Page 60 U. S. 490 could claim it, have the like rights of purchase, settlement, occupation, or any other right, in the national territory. Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves, than the fact that the same instrument which imparts to Congress its very existence and its every function guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation, and farther that the only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty. Can there be imputed to the sages and patriots by whom the Constitution was framed, or can there be detected in the text of that Constitution, or in any rational construction or implication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slaveholder of an equality with his fellow citizens, and of the formal and solemn assurance for the security and enjoyment of his property, and a warrant given, as it were uno flatu, to another to rob him of that property, or to subject him to proscription and disfranchisement for possessing or for endeavoring to retain it? The injustice and extravagance necessarily implied in a supposition like this cannot be rationally imputed to the patriotic or the honest, or to those who were merely sane. A conclusion in favor of the prohibitory power in Congress, as asserted in the eighth section of the act of 1820, has been attempted, as deducible from the precedent of the ordinance of the convention of 1787, concerning the cession by Virginia of the territory northwest of the Ohio, the provision in which ordinance, relative to slavery, it has been attempted to impose upon other and subsequently acquired territory. The first circumstance which, in the consideration of this provision, impresses itself upon my mind is its utter futility and want of authority. This court has, in repeated instances, ruled that whatever may have been the force accorded to this Ordinance of 1787 at the period of its enactment, its authority and effect ceased, and yielded to the paramount authority of the Constitution, from the period of the adoption of the latter. Such is the principle ruled in the cases of Pollard's Lessee v. Hagan , 3 How. 212, Parmoli v. The First Municipality of Page 60 U. S. 491 New Orleans, 3 How. 589, Strader v. Graham , 16 How. 82. But apart from the superior control of the Constitution, and anterior to the adoption of that instrument, it is obvious that the inhibition in question never had and never could have any legitimate and binding force. We may seek in vain for any power in the convention either to require or to accept a condition or restriction upon the cession like that insisted on, a condition inconsistent with, and destructive of, the object of the grant. The cession was, as recommended by the old Congress in 1780, made originally and completed in terms to the United States, and for the benefit of the United States, i.e., for the people, all the people, of the United States. The condition subsequently sought to be annexed in 1787 (declared, too, to be perpetual and immutable), being contradictory to the terms and destructive of the purposes of the cession, and after the cession was consummated, and the powers of the ceding party terminated, and the rights of the grantees, the people of the United States, vested, must necessarily so far have been ab initio void. With respect to the power of the convention to impose this inhibition, it seems to be pertinent in this place to recur to the opinion of one contemporary with the establishment of the Government, and whose distinguished services in the formation and adoption of our national charter point him out as the artifex maximus of our Federal system. James Madison, in the year 1819, speaking with reference to the prohibitory power claimed by Congress, then threatening the very existence of the Union, remarks of the language of the second clause of the third section of article fourth of the Constitution "that it cannot be well extended beyond a power over the territory as property, and the power to make provisions really needful or necessary for the government of settlers, until ripe for admission into the Union." Again, he says, "with respect to what has taken place in the Northwest territory, it may be observed that the ordinance giving it is distinctive character on the subject of slaveholding proceeded from the old Congress, acting with the best intentions, but under a charter which contains no shadow of the authority exercised, and it remains to be decided how far the States formed within that territory, and admitted into the Union, are on a different footing from its other members as to their legislative sovereignty. As to the power of admitting new States into the Federal compact, the questions offering themselves are whether Congress can attach conditions, or the new States concur in conditions, which after admission would abridge or enlarge the constitutional rights of legislation common to other States; whether Congress can, by a compact Page 60 U. S. 492 with a new State, take power either to or from itself, or place the new member above or below the equal rank and rights possessed by the others; whether all such stipulations expressed or implied would not be nullities, and be so pronounced when brought to a practical test. It falls within the scope of your inquiry to state the fact that there was a proposition in the convention to discriminate between the old and the new States by an article in the Constitution. The proposition, happily, was rejected. The effect of such a discrimination is sufficiently evident. [ Footnote 2 ]" In support of the Ordinance of 1787, there may be adduced the semblance at least of obligation deductible from compact, the form of assent or agreement between the grantor and grantee, but this form or similitude, as is justly remarked by Mr. Madison, is rendered null by the absence of power or authority in the contracting parties and by the more intrinsic and essential defect of incompatibility with the rights and avowed purposes of those parties, and with their relative duties and obligations to others. If, then, with the attendant formalities of assent or compact, the restrictive power claimed was void as to the immediate subject of the ordinance, how much more unfounded must be the pretension to such a power as derived from that source ( viz., the Ordinance of 1787) with respect to territory acquired by purchase or conquest under the supreme authority of the Constitution -- territory not the subject of mere donation, but obtained in the name of all, by the combined efforts and resources of all, and with no condition annexed or pretended. In conclusion, my opinion is that the decision of the Circuit Court upon the law arising upon the several pleas in bar is correct, but that it is erroneous in having sustained the demurrer to the plea in abatement of the jurisdiction; that, for this error, the decision of the Circuit Court should be reversed, and the cause remanded to that court with instructions to abate the action for the reason set forth and pleaded in the plea in abatement. In the aforegoing examination of this cause, the circumstance that the questions involved therein had been previously adjudged between these parties by the court of the State of Missouri has not been adverted to, for although it has been ruled by this court that in instances of concurrent jurisdiction, the court first obtaining possession or cognizance of the controversy should retain and decide it, yet, as in this case there had Page 60 U. S. 493 been no plea, either of a former judgment or of autre action pendent, it was thought that the fact of a prior decision, however conclusive it might have been if regularly pleaded, could not be incidentally taken into view. [ Footnote 1 ] Vide Gibbons's Decline and Fall of the Roman Empire. London edition of 1825, vol. 3d, chap. 44, p. 183. [ Footnote 2 ] Letter from James Madison to Robert Walsh, November 27th, 1819, on the subject of the Missouri Compromise. Mr. Justice CAMPBELL. I concur in the judgment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibility involved in its determination, induce me to file a separate opinion. The case shows that the plaintiff, in the year 1834, was a negro slave in Missouri, the property of Dr. Emerson, a surgeon in the army of the United States. In 1834, his master took him to the military station at Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, in the present Minnesota, then Wisconsin, Territory. While at Fort Snelling, the plaintiff married a slave who was there with her master, and two children have been born of this connection, one during the journey of the family in returning to Missouri, and the other after their return to that State. Since 1838, the plaintiff and the members of his family have been in Missouri in the condition of slaves. The object of this suit is to establish their freedom. The defendant, who claims the plaintiff and his family, under the title of Dr. Emerson, denied the jurisdiction of the Circuit Court by the plea that the plaintiff was a negro of African blood, the descendant of Africans who had been imported and sold in this country as slaves, and thus he had no capacity as a citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, a trial was then had upon the general issue, and special pleas to the effect that the plaintiff and his family were slaves belonging to the defendant. My opinion in this case is not affected by the plea to the jurisdiction, and I shall not discuss the questions it suggests. The claim of the plaintiff to freedom depends upon the effect to be given to his absence from Missouri, in company with his master, in Illinois and Minnesota, and this effect is to be ascertained by a reference to the laws of Missouri. For the trespass complained of was committed upon one claiming to be a freeman and a citizen, in that State, and who had been living for years under the dominion of its laws. And the rule is that whatever is a justification where the thing is done, must be a justification in the forum where the case is tried. 20 How.St.Tri., 234, Cowp.S.C. 161. The Constitution of Missouri recognises slavery as a legal condition, extends guaranties to the masters of slaves, and invites Page 60 U. S. 494 immigrants to introduce them, as property, by a promise of protection. The laws of the State charge the master with the custody of the slave, and provide for the maintenance and security of their relation. The Federal Constitution and the acts of Congress provide for the return of escaping slaves within the limits of the Union. No removal of the slave beyond the limits of the State, against the consent of the master, nor residence there in another condition, would be regarded as an effective manumission by the courts of Missouri, upon his return to the State. " Sicut liberis captis status restituitur sic servus domino. " Nor can the master emancipate the slave within the State except through the agency of a public authority. The inquiry arises whether the manumission of the slave is effected by his removal, with the consent of the master, to a community where the law of slavery does not exist, in a case where neither the master nor slave discloses a purpose to remain permanently, and where both parties have continued to maintain their existing relations. What is the law of Missouri in such a case? Similar inquiries have arisen in a great number of suits, and the discussions in the State courts have relieved the subject of much of its difficulty. 12 B.M.Ky.R. 545, Foster v. Foster, 10 Gratt.Va.R. 485, 4 Har. and McH.Md.R. 295, Scott v. Emerson, 15 Misso. 576, 4 Rich.S.C.R., 186, 17 Misso. 434, 15 Misso. 596, 5 B.M. 173, 8 B.M. 540, 633, 9 B.M. 565, 5 Leigh 614, 1 Raud. 15, 18 Pick. 193. The result of these discussions is that, in general, the status or civil and political capacity of a person is determined in the first instance by the law of the domicil where he is born; that the legal effect on persons arising from the operation of the law of that domicil is not indelible, but that a new capacity or status may be acquired by a change of domicil. That questions of status are closely connected with considerations arising out of the social and political organization of the State where they originate, and each sovereign power must determine them within its own territories. A large class of cases has been decided upon the second of the propositions above stated in the Southern and Western courts -- cases in which the law of the actual domicil was adjudged to have altered the native condition and status of the slave although he had never actually possessed the status of freedom in that domicil. Rankin v. Lydia, 2 A.K.M., Herny v. Decker, Walk. 36, 4 Mart. 385, 1 Misso. 472, Hunter v. Fulcher, 1 Leigh. I do not impugn the authority of these cases. No evidence is found in the record to establish the existence of a domicil Page 60 U. S. 495 acquired by the master and slave either in Illinois or Minnesota. The master is described as an officer of the army who was transferred from one station to another along the Western frontier in the line of his duty and who, after performing the usual tours of service, returned to Missouri; these slaves returned to Missouri with him, and had been there for near fifteen years in that condition when this suit was instituted. But absence in the performance of military duty, without more, is a fact of no importance in determining a question of a change of domicil. Questions of that kind depend upon acts and intentions, and are ascertained from motives, pursuits, the condition of the family and fortune of the party, and no change will be inferred unless evidence shows that one domicil was abandoned and there was an intention to acquire another. 11 L. and Eq. 6, 6 Exch. 217, 6 M. and W. 511, 2 Curt.Ecc.R. 368. The cases first cited deny the authority of a foreign law to dissolve relations which have been legally contracted in the State where the parties are and have their actual domicil -- relations which were never questioned during their absence from that State -- relations which are consistent with the native capacity and condition of the respective parties, and with the policy of the State where they reside, but which relations were inconsistent with the policy or laws of the State or Territory within which they had been for a time, and from which they had returned, with these relations undisturbed. It is upon the assumption that the law of Illinois or Minnesota was indelibly impressed upon the slave and its consequences carried into Missouri that the claim of the plaintiff depends. The importance of the case entitles the doctrine on which it rests to a careful examination. It will be conceded that, in countries where no law or regulation prevails opposed to the existence and consequences of slavery, persons who are born in that condition in a foreign State would not be liberated by the accident of their introgression. The relation of domestic slavery is recognised in the law of nations, and the interference of the authorities of one State with the rights of a master belonging to another, without a valid cause, is a violation of that law. Wheat. Law of Na., 724, 5 Stats. at Large 601, Calh.Sp., 378, Reports of the Com. U.S. and G.B. 187, 238, 241. The public law of Europe formerly permitted a master to reclaim his bondsman, within a limited period, wherever he could find him, and one of the capitularies of Charlemagne abolishes the rule of prescription. He directs, "that wheresoever, within the bounds of Italy, either the runaway slave of the king, or of Page 60 U. S. 496 the church, or of any other man shall be found by his master, he shall be restored without any bar or prescription of years, yet upon the provision that the master be a Frank or German, or of any other nation (foreign,) but if he be a Lombard or a Roman, he shall acquire or receive his slaves by that law which has been established from ancient times among them." Without referring for precedents abroad or to the colonial history for similar instances, the history of the Confederation and Union affords evidence to attest the existence of this ancient law. In 1783, Congress directed General Washington to continue his remonstrances to the commander of the British forces respecting the permitting negroes belonging to the citizens of these States to leave New York, and to insist upon the discontinuance of that measure. In 1788, the resident minister of the United States at Madrid was instructed to obtain from the Spanish Crown orders to its Governors in Louisiana and Florida "to permit and facilitate the apprehension of fugitive slaves from the States, promising that the States would observe the like conduct respecting fugitives from Spanish subjects." The committee that made the report of this resolution consisted of Hamilton, Madison, and Sedgwick, 2 Hamilton's Works, 473, and the clause in the Federal Constitution providing for the restoration of fugitive slaves is a recognition of this ancient right, and of the principle that a change of place does not effect a change of condition. The diminution of the power of a master to reclaim his escaping bondsman in Europe commenced in the enactment of laws of prescription in favor of privileged communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany, Carcassonne, Beziers, Toulouse, and Paris, in France, acquired privileges on this subject at an early period. The ordinance of William the Conqueror that a residence of any of the servile population of England, for a year and a day, without being claimed, in any city, burgh, walled town, or castle of the King, should entitle them to perpetual liberty is a specimen of these laws. The earliest publicist who has discussed this subject is Bodin, a jurist of the sixteenth century whose work was quoted in the early discussions of the courts in France and England on this subject. He says: "In France, although there be some remembrance of old servitude, yet it is not lawful here to make a slave or to buy anyone of others, insomuch as the slaves of strangers, so soon as they set their foot within France, become frank and free, as was determined by an old decree of the court of Paris against an ambassador of Spain, who had brought a slave with him into France." He states another case, which arose in the city of Toulouse, of a Genoese merchant, who had Page 60 U. S. 497 carried a slave into that city on his voyage from Spain, and when the matter was brought before the magistrates, the "procureur of the city, out of the records, showed certain ancient privileges given unto them of Tholouse, wherein it was granted that slaves, so soon as they should come into Tholouse, should be free." These cases were cited with much approbation in the discussion of the claims of the West India slaves of Verdelin for freedom, in 1738, before the judges in admiralty, 15 Causes Celebres p. 1, 2 Masse Droit Com., sec. 58, and were reproduced before Lord Mansfield, in the cause of Somersett, in 1772. Of the cases cited by Bodin, it is to be observed that Charles V of France exempted all the inhabitants of Paris from serfdom or other feudal incapacities in 1371, and this was confirmed by several of his successors, 3 Dulaire Hist. de Par. 546, Broud. Court. de Par. 21, and the ordinance of Toulouse is preserved as follows: " Civitas Tholosana fuit et erit sine fine libera, adeo ut servi et ancillae, sclavi et sclavae, dominos sive dominas habentes, cum rebus vel sine rebus suis, ad Tholosam vel infra terminos extra urbem terminatos accedentes acquirant libertatem. " Hist. de Langue, tome 3, p. 69; ibid. 6, p. 8, Loysel Inst. b. 1, sec. 6. The decisions were made upon special ordinances, or charters, which contained positive prohibitions of slavery, and where liberty had been granted as a privilege, and the history of Paris furnishes but little support for the boast that she was a " sacro sancta civitas, " where liberty always had an asylum, or for the "self-complacent rhapsodies" of the French advocates in the case of Verdelin, which amused the grave lawyers who argued the case of Somersett. The case of Verdelin was decided upon a special ordinance, which prescribed the conditions on which West India slaves might be introduced into France, and which had been disregarded by the master. The Case of Somersett was that of a Virginia slave carried to England by his master in 1770, and who remained there two years. For some cause, he was confined on a vessel destined to Jamaica, where he was to be sold. Lord Mansfield, upon a return to a habeas corpus, states the question involved. "Here, the person of the slave himself," he says, "is the immediate subject of inquiry, can any dominion, authority, or coercion be exercised in this country, according to the American laws?" He answers: "The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme, and yet many of those consequences are absolutely contrary to the municipal law of England." Again, he says: "The return states that the slave departed, and refused to serve, whereupon he was kept to be sold abroad. . . . So high Page 60 U. S. 498 an act of dominion must be recognised by the law of the country where it is used. The power of the master over his slave has been extremely different in different countries. . . . The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created are erased from the memory. It is so odious that nothing can be suffered to support it but positive law." That there is a difference in the systems of States which recognise and which do not recognise the institution of slavery cannot be disguised. Constitutional law, punitive law, police, domestic economy, industrial pursuits, and amusements, the modes of thinking and of belief of the population of the respective communities all show the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal Convention, in the deliberations on the plan of the Constitution. Mr. Madison observed "that the States were divided into different interests not by their difference of size, but by other different interests, not by their difference of size, but by other circumstances, the most material of which resulted from climate, but principally from the effects of their having or not having slaves. These two causes concur in forming the great division of interests in the United States." The question to be raised with the opinion of Lord Mansfield, therefore, is not in respect to the incongruity of the two systems, but whether slavery was absolutely contrary to the law of England, for if it was so, clearly, the American laws could not operate there. Historical research ascertains that, at the date of the Conquest, the rural population of England were generally in a servile condition, and under various names denoting noting slight variances in condition, they were sold with the land like cattle, and were a part of its living money. Traces of the existence of African slaves are to be found in the early chronicles. Parliament in the time of Richard II, and also of Henry VIII, refused to adopt a general law of emancipation. Acts of emancipation by the last-named monarch and by Elizabeth are preserved. The African slave trade had been carried on, under the unbounded protection of the Crown, for near two centuries when the case of Somersett was heard, and no motion for its suppression had ever been submitted to Parliament, while it was forced upon and maintained in unwilling colonies by the Parliament and Crown of England at that moment. Fifteen thousand negro slaves were then living in that island, where they had been introduced under the counsel of the most illustrious jurists of the realm, and such slaves had been publicly Page 60 U. S. 499 sold for near a century in the markets of London. In the northern part of the kingdom of Great Britain, there existed a class of from 30,000 to 40,000 persons, of whom the Parliament said, in 1775, 15 George III, chap. 28, "many colliers, coal-heavers, and salters are in a state of slavery or bondage, bound to the collieries and salt works where they work for life, transferable with the collieries and salt works when their original masters have no use for them, and whereas the emancipating or setting free the colliers, coal-heavers, and salters in Scotland, who are now in a state of servitude, gradually and upon reasonable conditions, would be the means of increasing the number of colliers, coal-heavers, and salters, to the great benefit of the public, without doing any injury to the present masters, and would remove the reproach of allowing such a state of servitude to exist in a free country," &c., and again, in 1799, "they declare that many colliers and coal-heavers still continue in a state of bondage" No statute, from the Conquest till the 15 George III, had been passed upon the subject of personal slavery. These facts have led the most eminent civilian of England to question the accuracy of this judgment, and to insinuate that, in this judgment, the offence of ampliare jurisdictionem by private authority was committed by the eminent magistrate who pronounced it. This sentence is distinguishable from those cited from the French courts in this: that there positive prohibitions existed against slavery, and the right to freedom was conferred on the immigrant slave by positive law, whereas here the consequences of slavery merely -- that is the public policy -- were found to be contrary to the law of slavery. The case of the slave Grace, 2 Hagg., with four others, came before Lord Stowell in 1827, by appeals from the West India vice admiralty courts. They were cases of slaves who had returned to those islands, after a residence in Great Britain, and where the claim to freedom was first presented in the colonial forum. The learned judge in that case said: "This suit fails in its foundation. She (Grace) was not a free person, no injury is done her by her continuance in slavery, and she has no pretensions to any other station than that which was enjoyed by every slave of a family. If she depends upon such freedom conveyed by a mere residence in England, she complains of a violation of right which she possessed no longer than whilst she resided in England, but which totally expired when that residence ceased, and she was imported into Antigua." The decision of Lord Mansfield was, "that so high an act of dominion" as the master exercises over his slave, in sending him abroad for sale, could not be exercised in England Page 60 U. S. 500 under the American laws, and contrary to the spirit of their own. The decision of Lord Stowell is that the authority of the English laws terminated when the slave departed from England. That the laws of England were not imported into Antigua with the slave upon her return, and that the colonial forum had no warrant for applying a foreign code to dissolve relations which had existed between persons belonging to that island, and which were legal according to its own system. There is no distinguishable difference between the case before us and that determined in the admiralty of Great Britain. The complaint here, in my opinion, amounts to this: that the judicial tribunals of Missouri have not denounced as odious the Constitution and laws under which they are organized, and have not superseded them on their own private authority for the purpose of applying the laws of Illinois, or those passed by Congress for Minnesota, in their stead. The eighth section of the act of Congress of the 6th of March, 1820, 3 Statutes at Large 545, entitled, "An act to authorize the people of Missouri to form a State Government," &c., is referred to as affording the authority to this court to pronounce the sentence which the Supreme Court of Missouri felt themselves constrained to refuse. That section of the act prohibits slavery in the district of country west of the Mississippi, north of thirty-six degrees thirty minutes north latitude, which belonged to the ancient province of Louisiana, not included in Missouri. It is a settled doctrine of this court that the Federal Government can exercise no power over the subject of slavery within the States, nor control the intermigration of slaves, other than fugitives, among the States. Nor can that Government affect the duration of slavery within the States, other than by a legislation over the foreign slave trade. The power of Congress to adopt the section of the act above cited must therefore depend upon some condition of the Territories which distinguishes them from States, and subjects them to a control more extended. The third section of the fourth article of the Constitution is referred to as the only and all-sufficient grant to support this claim. It is that "new States may be admitted by the Congress to this Union, but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of State, without the consent of the Legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property Page 60 U. S. 501 belonging to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State." It is conceded in the decisions of this court that Congress may secure the rights of the United States in the public domain, provide for the sale or lease of any part of it, and establish the validity of the titles of the purchasers, and may organize Territorial Governments, with powers of legislation. 44 U. S. 3 How. 212, 53 U. S. 12 How. 1, 26 U. S. 1 Pet. 511, 38 U. S. 13 P. 436, 57 U. S. 16 H. 164. But the recognition of a plenary power in Congress to dispose of the public domain or to organize a Government over it does not imply a corresponding authority to determine the internal polity or to adjust the domestic relations or the persons who may lawfully inhabit the territory in which it is situated. A supreme power to make needful rules respecting the public domain, and a similar power of framing laws to operate upon persons and things within the territorial limits where it lies, are distinguished by broad lines of demarcation in American history. This court has assisted us to define them. In Johnson v. McIntosh , 8 Wheat. 595-543, they say: "According to the theory of the British Constitution, all vacant lands are vested in the Crown, and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative." "All the lands we hold were originally granted by the Crown, and the establishment of a royal Government has never been considered as impairing its right to grant lands within the chartered limits of such colony." And the British Parliament did claim a supremacy of legislation coextensive with the absoluteness of the dominion of the sovereign over the Crown lands. The American doctrine, to the contrary, is embodied in two brief resolutions of the people of Pennsylvania in 1774: 1st. "That the inhabitants of these colonies are entitled to the same rights and liberties, within the colonies that the subjects born in England are entitled within the realm." 2d. "That the power assumed by Parliament to bind the people of these colonies by statutes, in all cases whatever, is unconstitutional, and therefore the source of these unhappy difficulties." The Congress of 1774, in their statement of rights and grievances, affirm "a free and exclusive power of legislation" in their several Provincial Legislatures, "in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed." 1 Jour.Cong. 32. The unanimous consent of the people of the colonies, then, Page 60 U. S. 502 to the power of their sovereign, "to dispose of and make all needful rules and regulations respecting the territory" of the Crown, in 1774, was deemed by them as entirely consistent with opposition, remonstrance, the renunciation of allegiance, and proclamation of civil war, in preference to submission to his claim of supreme power in the territories. I pass now to the evidence afforded during the Revolution and Confederation. The American Revolution was not a social revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them. It was a political revolution, by which thirteen dependent colonies became thirteen independent States. "The Declaration of Independence was not," says Justice Chase, "a declaration that the United Colonies jointly, in a collective capacity, were independent States, &c., but that each of them was a sovereign and independent State -- that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power on earth." 3 U. S. 3 Dall. 199, 4 Cr. 212. These sovereign and independent States, being united as a Confederation, by various public acts of cession became jointly interested in territory and concerned to dispose of and make all needful rules and regulations respecting it. It is a conclusion not open to discussion in this court "that there was no territory within the (original) United States that was claimed by them in any other right than that of some of the confederate States." Harcourt v. Gaillord , 12 Wh. 523. "The question whether the vacant lands within the United States," says Chief Justice Marshall, "became joint property or belonged to the separate States was a momentous question which threatened to shake the American Confederacy to its foundations. This important and dangerous question has been compromised, and the compromise is not now to be contested." 6 C.R. 87. The cessions of the States to the Confederation were made on the condition that the territory ceded should be laid out and formed into distinct republican States, which should be admitted as members to the Federal Union having the same rights of sovereignty, freedom, and independence as the other States. The first effort to fulfil this trust was made in 1785 by the offer of a charter or compact to the inhabitants who might come to occupy the land. Those inhabitants were to form for themselves temporary State Governments, founded on the Constitutions of any of the States but to be alterable at the will of their Legislature, and Page 60 U. S. 503 permanent Governments were to succeed these whenever the population became sufficiently numerous to authorize the State to enter the Confederacy, and Congress assumed to obtain powers from the States to facilitate this object. Neither in the deeds of cession of the States nor in this compact was a sovereign power for Congress to govern the Territories asserted. Congress retained power, by this act, "to dispose of and to make rules and regulations respecting the public domain," but submitted to the people to organize a Government harmonious with those of the confederate States. The next stage in the progress of colonial government was the adoption of the Ordinance of 1787 by eight States, in which the plan of a Territorial Government, established by act of Congress, is first seen. This was adopted while the Federal Convention to form the Constitution was sitting. The plan placed the Government in that hands of a Governor, Secretary, and Judges, appointed by Congress, and conferred power on them to select suitable laws from the codes of the States until the population should equal 5,000. A Legislative Council, elected by the people, was then to be admitted to a share of the legislative authority, under the supervision of Congress, and States were to be formed whenever the number of the population should authorize the measure. This ordinance was addressed to the inhabitants as a fundamental compact, and six of its articles define the conditions to be observed in their Constitution and laws. These conditions were designed to fulfill the trust in the agreements of cession that the States to be formed of the ceded Territories should be "distinct republican States." This ordinance was submitted to Virginia in 1788, and the 5th article, embodying as it does a summary of the entire act, was specifically ratified and confirmed by that State. This was an incorporation of the ordinance into her act of cession. It was conceded in the argument that the authority of Congress was not adequate to the enactment of the ordinance, and that it cannot be supported upon the Articles of Confederation. To a part of the engagements, the assent of nine States was required, and for another portion no provision had been made in those articles. Mr. Madison said, in a writing nearly contemporary, but before the confirmatory act of Virginia, "Congress have proceeded to form new States, to erect temporary Governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy; all this has been done, and done without the least color of constitutional authority." Federalist No. 38. Richard Henry Lee, one of the committee who reported the ordinance to Congress, Page 60 U. S. 504 transmitted it to General Washington (15th July, 1787), saying, "It seemed necessary, for the security of property among uninformed and perhaps licentious people, as the greater part of those who go there are, that a strong-toned Government should exist, and the rights of property be clearly defined." The consent of all the States represented in Congress, the consent of the Legislature of Virginia, the consent of the inhabitants of the Territory, all concur to support the authority of this enactment. It is apparent in the frame of the Constitution that the Convention recognised its validity, and adjusted parts of their work with reference to it. The authority to admit new States into the Union, the omission to provide distinctly for Territorial Governments, and the clause limiting the foreign slave trade to States then existing, which might not prohibit it, show that they regarded this Territory as provided with Government and organized permanently with a restriction on the subject of slavery. Justice Chase, in the opinion already cited, says of the Government before, and it is in some measure true during the Confederation that "the powers of Congress originated from necessity, and arose out of and were only limited by events, or, in other words, they were revolutionary in their very nature. Their extent depended upon the exigencies and necessities of public affairs," and there is only one rule of construction, in regard to the acts done, which will fully support them, viz., that the powers actually exercised were rightfully exercised wherever they were supported by the implied sanction of the State Legislatures and by the ratifications of the people. The clauses in the 3d section of the 4th article of the Constitution, relative to the admission of new States and the disposal and regulation of the territory of the United States, were adopted without debate in the Convention. There was a warm discussion on the clauses that relate to the subdivision of the States, and the reservation of the claims of the United States and each of the States from any prejudice. The Maryland members revived the controversy in regard to the Crown lands of the Southwest. There was nothing to indicate any reference to a government of Territories not included within the limits of the Union, and the whole discussion demonstrates that the Convention was consciously dealing with a Territory whose condition, as to government, had been arranged by a fundamental and unalterable compact. An examination of this clause of the Constitution, by the light of the circumstances in which the Convention was placed, will aid us to determine its significance. The first clause is "that new States may be admitted by the Congress to this Page 60 U. S. 505 Union." The condition of Kentucky, Vermont, Rhode Island, and the new States to be formed in the Northwest suggested this as a necessary addition to the powers of Congress. The next clause, providing for the subdivision of States and the parties to consent to such an alteration, was required by the plans on foot for changes in Massachusetts, New York, Pennsylvania, North Carolina, and Georgia. The clause which enables Congress to dispose of and make regulations respecting the public domain was demanded by the exigencies of an exhausted treasury and a disordered finance, for relief by sales, and the preparation for sales, of the public lands, and the last clause that nothing in the Constitution should prejudice the claims of the United States or a particular State was to quiet the jealousy and irritation of those who had claimed for the United States all the unappropriated lands. I look in vain among the discussions of the time for the assertion of a supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress. This disturbing element of the Union entirely escaped the apprehensive previsions of Samuel Adams, George Clinton, Luther Martin, and Patrick Henry, and in respect to dangers from power vested in a central Government over distant settlements, colonies, or provinces, their instincts were always alive. Not a word escaped them to warn their countrymen that here was a power to threaten the landmarks of this federative Union, and, with them, the safeguards of popular and constitutional liberty, or that, under this article, there might be introduced, on our soil, a single Government over a vast extent of country -- a Government foreign to the persons over whom it might be exercised and capable of binding those not represented, by statutes, in all cases whatever. I find nothing to authorize these enormous pretensions, nothing in the expositions of the friends of the Constitution, nothing in the expressions of alarm by its opponents -- expressions which have since been developed as prophecies. Every portion of the United States was then provided with a municipal Government, which this Constitution was not designed to supersede, but merely to modify as to its conditions. The compacts of cession by North Carolina and Georgia are subsequent to the Constitution. They adopt the Ordinance of 1787, except the clause respecting slavery. But the precautionary repudiation of that article forms an argument quite as satisfactory to the advocates for Federal power, as its introduction Page 60 U. S. 506 would have done. The refusal of a power to Congress to legislate in one place seems to justify the seizure of the same power when another place for its exercise is found. This proceeds from a radical error which lies at the foundation of much of this discussion. It is that the Federal Government may lawfully do whatever is not directly prohibited by the Constitution. This would have been a fundamental error if no amendments to the Constitution had been made. But the final expression of the will of the people of the States, in the 10th amendment, is that the powers of the Federal Government are limited to the grants of the Constitution. Before the cession of Georgia was made, Congress asserted rights, in respect to a part of her territory, which require a passing notice. In 1798 and 1800, acts for the settlement of limits with Georgia, and to establish a Government in the Mississippi Territory, were adopted. A Territorial Government was organized between the Chattahoochee and Mississippi rivers. This was within the limits of Georgia. These acts dismembered Georgia. They established a separate Government upon her soil, while they rather derisively professed "that the establishment of that Government shall in no respects impair the rights of the State of Georgia, either to the jurisdiction or soil of the Territory." The Constitution provided that the importation of such persons as any of the existing States shall think proper to admit shall not be prohibited by Congress before 1808. By these enactments, a prohibition was placed upon the importation of salves into Georgia, although her Legislature had made none. This court have repeatedly affirmed the paramount claim of Georgia to this Territory. They have denied the existence of any title in the United States. 6 C.R. 87, 25 U. S. 12 Wh. 523, 44 U. S. 3 How. 212, 54 U. S. 13 How. 381. Yet these acts were cited in the argument as precedents to show the power of Congress in the Territories. These statutes were the occasion of earnest expostulation and bitter remonstrance on the part of the authorities of the State, and the memory of their injustice and wrong remained long after the legal settlement of the controversy by the compact of 1802. A reference to these acts terminates what I have to say upon the Constitutions of the Territory within the original limits of the United States. These Constitutions were framed by the concurrence of the States making the cessions and Congress, and were tendered to immigrants who might be attracted to the vacant territory. The legislative powers of the officers of this Government were limited to the selection of laws from the States, and provision was made for the introduction of popular institutions, and their emancipation Page 60 U. S. 507 from Federal control whenever a suitable opportunity occurred. The limited reservation of legislative power to the officers of the Federal Government was excused on the plea of necessity, and the probability is that the clauses respecting slavery embody some compromise among the statesmen of that time; beyond these, the distinguishing features of the system which the patriots of the Revolution had claimed as their birthright from Great Britain predominated in them. The acquisition of Louisiana in 1803 introduced another system into the United States. This vast province was ceded or Spain. To establish a Government constituted on similar principles, and with like conditions, was not an unnatural proceeding. But there was great difficulty in finding constitutional authority for the measure. The third section of the fourth article of the Constitution was introduced into the Constitution on the motion of Mr. Gouverneur Morris. In 1803, he was appealed to for information in regard to its meaning. He answers: "I am very certain I had it not in contemplation to insert a decree de coercendo imperio in the Constitution of America. . . . I knew then as well as I do now that all North America must at length be annexed to us. Happy indeed, if the lust of dominion stop here. It would therefore have been perfectly utopian to oppose a paper restriction to the violence of popular sentiment in a popular Government." 3 Mor.Writ. 185. A few days later, he makes another reply to his correspondent. "I perceive," he says, "I mistook the drift of your inquiry, which substantially is whether Congress can admit, as a new State, territory which did not belong to the United States when the Constitution was made. In my opinion, they cannot. I always thought, when we should acquire Canada and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND ALLOW THEM NO VOICE in our councils. In wording the third SECTION OF THE fourth article, I went as far as circumstances would permit to establish the exclusion. CANDOR OBLIGES ME TO ADD MY BELIEF THAT HAD IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE." 3 Mor.Writ. 192. The first Territorial Government of Louisiana was an Imperial one, founded upon a French or Spanish model. For a time, the Governor, Judges, Legislative Council, Marshal, Secretary, and officers of the militia were appointed by the President. [ Footnote 2/1 ] Page 60 U. S. 508 Besides these anomalous arrangements, the acquisition gave rise to jealous inquiries as to the influence it would exert in determining the men and States that were to be "the arbiters and rulers" of the destinies of the Union, and unconstitutional opinions, having for their aim to promote sectional divisions, were announced and developed. "Something," said an eminent statesman, "something has suggested to the members of Congress the policy of acquiring geographical majorities. This is a very direct step towards disunion, for it must foster the geographical enmities by which alone it can be effected. This something must be a contemplation of particular advantages to be derived from such majorities, and is it not notorious that they consist of nothing else but usurpations over persons and property, by which they can regulate the internal wealth and prosperity of States and individuals? " The most dangerous of the efforts to employ a geographical political power to perpetuate a geographical preponderance in the Union is to be found in the deliberations upon the act of the 6th of March, 1820, before cited. The attempt consisted of a proposal to exclude Missouri from a place in the Union unless her people would adopt a Constitution containing a prohibition upon the subject of slavery according to a prescription of Congress. The sentiment is now general, if not universal, that Congress had no constitutional power to impose the restriction. This was frankly admitted at the bar in the course of this argument. The principles which this court have pronounced condemn the pretension then made on behalf of the legislative department. In Groves v. Slaughter, 15 Pet., the Chief Justice said: "The power over this subject is exclusively with the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to be brought within its limits." Justice McLean said: "The Constitution of the United States operates alike in all the States, and one State has the same power over the subject of slavery as every other State." In Pollard's Lessee v. Hagan , 3 How. 212, the court said: "The United States have no constitutional capacity to exercise municipal Page 60 U. S. 509 jurisdiction, sovereignty, or eminent domain within the limits of a State or elsewhere except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by treaty or compact." This is a necessary consequence resulting from the nature of the Federal Constitution, which is a federal compact among the States establishing a limited Government, with powers delegated by the people of distinct and independent communities, who reserved to their State Governments, and to themselves, the powers they did not grant. This claim to impose a restriction upon the people of Missouri involved a denial of the constitutional relations between the people of the States and Congress, and affirmed a concurrent right for the latter, with their people, to constitute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Constitution. The new States would have become members of a Union defined in part by the Constitution and in part by Congress. They would not have been admitted to "this Union." Their sovereignty would have been restricted by Congress, as well as the Constitution. The demand was unconstitutional and subversive, but was prosecuted with an energy and aroused such animosities among the people that patriots whose confidence had not failed during the Revolution began to despair for the Constitution. [ Footnote 2/2 ] Amid the utmost violence of this extraordinary contest, the expedient contained in the eighth section of this act was proposed to moderate it, and to avert the catastrophe it menaced. It was not seriously debated, nor were its constitutional aspects severely scrutinized by Congress. For the first time in the history of the country has its operation been embodied in a case at law and been presented to this court for their judgment. The inquiry is whether there are conditions in the Constitutions of the Territories which subject the capacity and status of persons within their limits to the direct action of Congress. Can Congress determine the condition and status of persons who inhabit the Territories? The Constitution permits Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This power applies as well to territory belonging to the United States within the States as beyond them. It comprehends all the public domain, wherever it may be. The argument is that Page 60 U. S. 510 the power to make "ALL needful rules and regulations" "is a power of legislation," "a full legislative power," "that it includes all subjects of legislation in the territory," and is without any limitations, except the positive prohibitions which affect all the powers of Congress. Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave whose master might carry him to it. And why not? Because no power has been conferred on Congress. This is a conclusion universally admitted. But the power to "make rules and regulations respecting the territory" is not restrained by State lines, nor are there any constitutional prohibitions upon its exercise in the domain of the United States within the States, and whatever rules and regulations respecting territory Congress may constitutionally make are supreme, and are not dependent on the situs of "the territory." The author of the Farmer's Letters, so famous in the ante-revolutionary history, thus states the argument made by the American loyalists in favor of the claim of the British Parliament to legislate in all cases whatever over the colonies: "It has been urged with great vehemence against us," he says, "and it seems to be thought their FORT by our adversaries that a power of regulation is a power of legislation, and a power of legislation, if constitutional, must be universal and supreme, in the utmost sense of the word. It is therefore concluded that the colonies, by acknowledging the power of regulation, acknowledged every other power." This sophism imposed upon a portion of the patriots of that day. Chief Justice Marshall, in his life of Washington, says "that many of the best-informed men in Massachusetts had perhaps adopted the opinion of the parliamentary right of internal government over the colonies; . . . that the English statute book furnishes many instances of its exercise; . . . that in no case recollected was their authority openly controverted;" and "that the General Court of Massachusetts, on a late occasion, openly recognised the principle." Marsh.Wash., v. 2, p. 75, 76. But the more eminent men of Massachusetts rejected it, and another patriot of the time employs the instance to warn us of "the stealth with which oppression approaches," and "the enormities towards which precedents travel." And the people of the United States, as we have seen, appealed to the last argument, rather than acquiesce in their authority. Could it have been the purpose of Washington and his illustrious associates, by the use of ambiguous, equivocal, and expansive Page 60 U. S. 511 words, such as "rules," "regulations," "territory," to reestablish in the Constitution of their country that fort which had been prostrated amid the toils and with the sufferings and sacrifices of seven years of war? Are these words to be understood as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores -- in a word, as George III would have understood them -- or are we to look for their interpretation to Patrick Henry or Samuel Adams, to Jefferson, and Jay, and Dickinson, to the sage Franklin, or to Hamilton, who, from his early manhood, was engaged in combating British constructions of such words? We know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance of the States observed the same liberal principle. That the Union of the Constitution is a union formed of equal States, and that new States, when admitted, were to enter "this Union." Had another union been proposed in "any pointed manner," it would have encountered not only "strong," but successful, opposition. The disunion between Great Britain and her colonies originated in the antipathy of the latter to "rules and regulations" made by a remote power respecting their internal policy. In forming the Constitution, this fact was ever present in the minds of its authors. The people were assured by their most trusted statesmen "that the jurisdiction of the Federal Government is limited to certain enumerated objects, which concern all members of the republic," and "that the local or municipal authorities form distinct portions of supremacy, no more subject within their respective spheres to the general authority than the general authority is subject to them within its own sphere." Still this did not content them. Under the lead of Hancock and Samuel Adams, of Patrick Henry and George Mason, they demanded an explicit declaration that no more power was to be exercised than they had delegated. And the Ninth and Tenth Amendments to the Constitution were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance. Is it probable, therefore that the supreme and irresponsible power, which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who conducted the counsels of the people in the formation of this Constitution? When Page 60 U. S. 512 the questions that came to the surface upon the acquisition of Louisiana were presented to the mind of Jefferson, he wrote: "I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution." The publication of the journals of the Federal Convention in 1819, of the debates reported by Mr. Madison in 1840, and the mass of private correspondence of the early statesmen before and since, enable us to approach the discussion of the aims of those who made the Constitution with some insight and confidence. I have endeavored, with the assistance of these, to find a solution for the grave and difficult question involved in this inquiry. My opinion is that the claim for Congress of supreme power in the Territories, under the grant to "dispose of and make all needful rules and regulations respecting territory," is not supported by the historical evidence drawn from the Revolution, the Confederation, or the deliberations which preceded the ratification of the Federal Constitution. The Ordinance of 1787 depended upon the action of the Congress of the Confederation, the assent of the State of Virginia, and the acquiescence of the people who recognised the validity of that plea of necessity which supported so many of the acts of the Governments of that time, and the Federal Government accepted the ordinance as a recognised and valid engagement of the Confederation. In referring to the precedents of 1798 and 1800, I find the Constitution was plainly violated by the invasion of the rights of a sovereign State, both of soil and jurisdiction, and in reference to that of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the Government. Mr. John Quincy Adams, at a later period, says of the last act "that the President found Congress mounted to the pitch of passing those acts without inquiring where they acquired the authority, and he conquered his own scruples as they had done theirs." But this court cannot undertake for themselves the same conquest. They acknowledge that our peculiar security Page 60 U. S. 513 is in the possession of a written Constitution, and they cannot make it blank paper by construction. They look to its delineation of the operations of the Federal Government, and they must not exceed the limits it marks out, in their administration. The court have said "that Congress cannot exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, beyond what has been delegated." We are then to find the authority for supreme power in the Territories in the Constitution. What are the limits upon the operations of a Government invested with legislative, executive, and judiciary powers, and charged with the power to dispose of and to make all needful rules and regulations respecting a vast public domain? The feudal system would have recognised the claim made on behalf of the Federal Government for supreme power over persons and things in the Territories as an incident to this title -- that is the title to dispose of and make rules and regulations respecting it. The Norman lawyers of William the Conqueror would have yielded an implicit assent to the doctrine that a supreme sovereignty is an inseparable incident to a grant to dispose of and to make all needful rules and regulations respecting the public domain. But an American patriot, in contrasting the European and American systems, may affirm "that European sovereigns give lands to their colonists, but reserve to themselves a power to control their property, liberty, and privileges, but the American Government sells the lands belonging to the people of the several States ( i.e., United States) to their citizens, who are already in the possession of personal and political rights which the Government did not give and cannot take away." And the advocates for Government sovereignty in the Territories have been compelled to abate a portion of the pretensions originally made in its behalf, and to admit that the constitutional prohibitions upon Congress operate in the Territories. But a constitutional prohibition is not requisite to ascertain a limitation upon the authority of of the several departments of the Federal Government. Nor are the States or people restrained by any enumeration or definition of their rights or liberties. To impair or diminish either, the department must produce an authority from the people themselves, in their Constitution, and, as we have seen, a power to make rules and regulations respecting the public domain does not confer a municipal sovereignty over persons and things upon it. But as this is "thought their fort" by our adversaries, I propose a more definite examination of it. We have seen, Congress does not Page 60 U. S. 514 dispose of or make rules and regulations respecting domain belonging to themselves, but belonging to the United States. These conferred on their mandatory, Congress, authority to dispose of the territory which belonged to them in common, and to accomplish that object beneficially and effectually, they gave an authority to make suitable rules and regulations respecting it. When the power of disposition is fulfilled, the authority to make rules and regulations terminates, for it attaches only upon territory "belonging to the United States." Consequently, the power to make rules and regulations, from the nature of the subject, is restricted to such administrative and conservatory acts as are needful for the preservation of the public domain and its preparation for sale or disposition. The system of land surveys, the reservations for schools, internal improvements, military sites, and public buildings, the preemption claims of settlers, the establishment of land offices and boards of inquiry to determine the validity of land titles, the modes of entry and sale, and of conferring titles, the protection of the lands from trespass and waste, the partition of the public domain into municipal subdivisions, having reference to the erection of Territorial Governments and States, and perhaps the selection, under their authority, of suitable laws for the protection of the settlers until there may be a sufficient number of them to form a self-sustaining municipal Government -- these important rules and regulations will sufficiently illustrate the scope and operation of the 3d section of the 4th article of the Constitution. But this clause in the Constitution does not exhaust the powers of Congress within the territorial subdivisions, or over the persons who inhabit them. Congress may exercise there all the powers of Government which belong to them as the Legislature of the United States, of which these Territories make a part. Loughborough v. Blake , 5 Wheat. 317. Thus, the laws of taxation, for the regulation of foreign, Federal, and Indian commerce, and so for the abolition of the slave trade, for the protection of copyrights and inventions, for the establishment of postal communication and courts of justice, and for the punishment of crimes are as operative there as within the States. I admit that to mark the bounds for the jurisdiction of the Government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and in a great measure is beyond the cognizance of the judiciary department of that Government. How much municipal power may be exercised by the people of the Territory before their admission to the Union, the courts of justice cannot decide. This must depend, for Page 60 U. S. 515 the most part, on political considerations, which cannot enter into the determination of a case of law or equity. I do not feel called upon to define the jurisdiction of Congress. It is sufficient for the decision of this case to ascertain whether the residuary sovereignty of the States or people has been invaded by the 8th section of the act of 6th March, 1820, I have cited, insofar as it concerns the capacity and status of persons in the condition and circumstances of the plaintiff and his family. These States, at the adoption of the Federal Constitution, were organized communities, having distinct systems of municipal law, which, though derived from a common source and recognising in the main similar principles, yet in some respects had become unlike, and, on a particular subject, promised to be antagonistic. Their systems provided protection for life, liberty, and property among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions, for the most part, were placed beyond the control of the Federal Government. The Constitution allows Congress to coin money, and regulate its value, to regulate foreign and Federal commerce, to secure, for a limited period, to authors and inventors a property in their writings and discoveries, and to make rules concerning captures in war, and, within the limits of these powers, it has exercised, rightly, to a greater or less extent, the power to determine what shall and what shall not be property. But the great powers of war and negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to and depend upon the municipal laws of the States to ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held. Whatever these Constitutions and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognise to be property. And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually obligatory. They are, respectively, the depositories of such powers of legislation as the people were willing to surrender, and their duty is to cooperate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpaired. Page 60 U. S. 516 A proscription, therefore, of the Constitution and laws of one or more States, determining property, on the part of the Federal Government, by which the stability of its social system may be endangered is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to preserve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to secure to all their citizens the enjoyment of the rights which were not surrendered to the Federal Government. The provident care of the statesmen who projected the Constitution was signalized by such a distribution of the powers of Government as to exclude many of the motives and opportunities for promoting provocations and spreading discord among the States, and for guarding against those partial combinations, so destructive of the community of interest, sentiment, and feeling, which are so essential to the support of the Union. The distinguishing features of their system consist in the exclusion of the Federal Government from the local and internal concerns of, and in the establishment of an independent internal Government within, the States. And it is a significant fact in the history of the United States that those controversies which have been productive of the greatest animosity, and have occasioned most peril to the peace of the Union, have had their origin in the well sustained opinion of a minority among the people that the Federal Government had overstepped its constitutional limits to grant some exclusive privilege, or to disturb the legitimate distribution of property or power among the States or individuals. Nor can a more signal instance of this be found than is furnished by the act before us. No candid or rational man can hesitate to believe that if the subject of the eighth section of the act of March, 1820, had never been introduced into Congress and made the basis of legislation, no interest common to the Union would have been seriously affected. And certainly the creation within this Union of large confederacies of unfriendly and frowning States, which has been the tendency and, to an alarming extent, the result produced by the agitation arising from it does not commend it to the patriot or statesman. This court have determined that the intermigration of slaves was not committed to the jurisdiction or control of Congress. Wherever a master is entitled to go within the United States, his slave may accompany him without any impediment from or fear of Congressional Page 60 U. S. 517 legislation or interference. The question then arises whether Congress, which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognise and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the continuance of those relations, within the Territories. And the citation of State statutes prohibiting the immigration of slaves, and of the decisions of State courts enforcing the forfeiture of the master's title in accordance with their rule, only darkens the discussion. For the question is have Congress the municipal sovereignty in the Territories which the State Legislatures have derived from the authority of the people, and exercise in the States? And this depends upon the construction of the article in the Constitution before referred to. And, in my opinion that clause confers no power upon Congress to dissolve the relations of the master and slave on the domain of the United States, either within or without any of the States. The eighth section of the act of Congress of the 6th of March, 1820, did not, in my opinion, operate to determine the domestic condition and status of the plaintiff and his family during their sojourn in Minnesota Territory, or after their return to Missouri. The question occurs as to the judgment to be given in this case. It appeared upon the trial that the plaintiff, in 1834, was in a state of slavery in Missouri, and he had been in Missouri for near fifteen years in that condition when this suit was brought. Nor does it appear that he at any time possessed another state or condition de facto. His claim to freedom depends upon his temporary relocation, from the domicil of his origin, in company with his master, to communities where the law of slavery did not prevail. My examination is confined to the case as it was submitted upon uncontested evidence, upon appropriate issues to the jury, and upon the instructions given and refused by the court upon that evidence. My opinion is that the opinion of the Circuit Court was correct upon all the claims involved in those issues, and that the verdict of the jury was justified by the evidence and instructions. The jury have returned that the plaintiff and his family are slaves. Upon this record, it is apparent that this is not a controversy between citizens of different States, and that the plaintiff, at no period of the life which has been submitted to the view of the court, has had a capacity to maintain a suit in the courts Page 60 U. S. 518 of the United States. And in so far as the argument of the Chief Justice upon the plea in abatement has a reference to the plaintiff or his family in any of the conditions or circumstances of their lives as presented in the evidence, I concur in that portion of his opinion. I concur in the judgment which expresses the conclusion that the Circuit Court should not have rendered a general judgment. The capacity of the plaintiff to sue is involved in the pleas in bar, and the verdict of the jury discloses an incapacity under the Constitution. Under the Constitution of the United States, his is an incapacity to sue in their courts, while, by the laws of Missouri, the operation of the verdict would be more extensive. I think it a safe conclusion to enforce the lesser disability imposed by the Constitution of the United States, and leave to the plaintiff all his rights in Missouri. I think the judgment should be affirmed, on the ground that the Circuit Court had no jurisdiction, or that the case should be reversed and remanded that the suit may be dismissed. [ Footnote 2/1 ] Mr. Varnum said: "The bill provided such a Government as had never been known in the United States." Mr. Eustis: "The Government laid down in this bill is certainly a new thing in the United States." Mr. Lucas: "It has been remarked that this bill establishes elementary principles never previously introduced in the Government of any Territory of the United States. Granting the truth of this observation," &c. Mr. Macon: "My first objection to the principle contained in this section is that it establishes a species of government unknown to the United States." Mr. Boyle: "Were the President an angel instead of a man, I would not clothe him with this power." Mr. G. W. Campbell: "On examining the section, it will appear that it really establishes a complete despotism." Mr. Sloan: "Can anything be more repugnant to the principles of just government? Can anything be more despotic?" -- Annals of Congress, 1803-1804 [ Footnote 2/2 ] Mr. Jefferson wrote: "The Missouri question is the most portentous one that ever threatened our Union. In the gloomiest moments of the revolutionary war, I never had any apprehension equal to that I feel from this source." Mr. Justice CATRON. The defendant pleaded to the jurisdiction of the Circuit Court that the plaintiff was a negro of African blood, the descendant of Africans, who had been imported and sold in this country as slaves, and thus had no capacity as a citizen of Missouri to maintain a suit in the Circuit Court. The court sustained a demurrer to this plea, and a trial was had upon the pleas, of the general issue, and also that the plaintiff and his family were slaves, belonging to the defendant. In this trial, a verdict was given for the defendant. The judgment of the Circuit Court upon the plea in abatement is not open, in my opinion, to examination in this court upon the plaintiff's writ. The judgment was given for him conformably to the prayer of his demurrer. He cannot assign an error in such a judgment. Tidd's Pr. 1163, 2 Williams's Saund. 46a, 2 Iredell N.C. 87, 2 W. and S. 391. Nor does the fact that the judgment was given on a plea to the jurisdiction avoid the application of this rule. Capron v. Van Noorden, 2 Cr. 126, 6 Wend. 465, 7 Met. 598, 5 Pike 1005. The declaration discloses a case within the jurisdiction of the court -- a controversy between citizens of different States. The plea in abatement, impugning these jurisdictional averments, was waived when the defendant answered to the declaration by pleas to the merits. The proceedings on that plea remain a part of the technical record, to show the history of the case, but are not open to the review of this court by a writ Page 60 U. S. 519 of error. The authorities are very conclusive on this point. Shepherd v. Graves , 14 How. 505, Bailey v. Dozier , 6 How. 23, 1 Stewart (Alabama) 46, 10 Ben. Monroe (Kentucky) 555, 2 Stewart (Alabama) 370, 443, 2 Scammon (Illinois) 78. Nor can the court assume as admitted facts the averments of the plea from the confession of the demurrer. That confession was for a single object, and cannot be used for any other purpose than to test the validity of the plea. Tompkins v. Ashley, 1 Moody and Mackin 32, 33 Maine 96, 100. There being nothing in controversy here but the merits, I will proceed to discuss them. The plaintiff claims to have acquired property in himself, and became free, by being kept in Illinois during two years. The Constitution, laws, and policy, of Illinois are somewhat peculiar respecting slavery. Unless the master becomes an inhabitant of that State, the slaves he takes there do not acquire their freedom, and if they return with their master to the slave State of his domicil, they cannot assert their freedom after their return. For the reasons and authorities on this point, I refer to the opinion of my brother Nelson, with which I not only concur, but think his opinion is the most conclusive argument on the subject within my knowledge. It is next insisted for the plaintiff that his freedom (and that of his wife and eldest child) was obtained by force of the act of Congress of 1820, usually known as the Missouri Compromise Act, which declares: "That in all that territory ceded by France to the United States, which lies north of thirty-six degrees thirty minutes north latitude, slavery and involuntary servitude shall be, and are hereby, forever prohibited. " From this prohibition, the territory now constituting the State of Missouri was excepted, which exception to the stipulation gave it the designation of a compromise. The first question presented on this act is whether Congress had power to make such compromise. For if power was wanting, then no freedom could be acquired by the defendant under the act. That Congress has no authority to pass laws and bind men's rights beyond the powers conferred by the Constitution is not open to controversy. But it is insisted that, by the Constitution, Congress has power to legislate for and govern the Territories of the United States, and that, by force of the power to govern, laws could be enacted prohibiting slavery in any portion of the Louisiana Territory, and, of course, to abolish slavery in all parts of it whilst it was or is governed as a Territory. My opinion is that Congress is vested with power to govern Page 60 U. S. 520 the Territories of the United States by force of the third section of the fourth article of the Constitution. And I will state my reasons for this opinion. Almost every provision in that instrument has a history that must be understood before the brief and sententious language employed can be comprehended in the relations its authors intended. We must bring before us the state of things presented to the Convention, and in regard to which it acted, when the compound provision was made, declaring: 1st. That "new States may be admitted by the Congress into this Union." 2d. "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. And nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or any particular State." Having ascertained the historical facts giving rise to these provisions, the difficulty of arriving at the true meaning of the language employed will be greatly lessened. The history of these facts is substantially as follows: The King of Great Britain, by his proclamation of 1763, virtually claimed that the country west of the mountains had been conquered from France, and ceded to the Crown of Great Britain by the treaty of Paris of that year, and he says: "We reserve it under our sovereignty, protection, and dominion, for the use of the Indians." This country was conquered from the Crown of Great Britain, and surrendered to the United States by the treaty of peace of 1783. The colonial charters of Virginia, North Carolina, and Georgia included it. Other States set up pretensions of claim to some portions of the territory north of the Ohio, but they were of no value, as I suppose. 18 U. S. 5 Wheat. 375. As this vacant country had been won by the blood and treasure of all the States, those whose charters did not reach it insisted that the country belonged to the States united, and that the lands should be disposed of for the benefit of the whole, and to which end the western territory should be ceded to the States united. The contest was stringent and angry long before the Convention convened, and deeply agitated that body. As a matter of justice, and to quiet the controversy, Virginia consented to cede the country north of the Ohio as early as 1783, and, in 1784, the deed of cession was executed by her delegates in the Congress of the Confederation conveying to the United States in Congress assembled, for the benefit of said States, "all right, title, and claim, as well of soil as of jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the Virginia Page 60 U. S. 521 charter, situate, lying, and being to the northwest of the river Ohio." In 1787 (July 13), the ordinance was passed by the old Congress to govern the Territory. Massachusetts had ceded her pretension of claim to western territory in 1785, Connecticut hers in 1786, and New York had ceded hers. In August, 1787, South Carolina ceded to the Confederation her pretension of claim to territory west of that State. And North Carolina was expected to cede hers, which she did do in April, 1790. And so Georgia was confidently expected to cede her large domain, now constituting the territory of the States of Alabama and Mississippi. At the time the Constitution was under consideration, there had been ceded to the United States, or was shortly expected to be ceded, all the western country from the British Canada line to Florida and from the head of the Mississippi almost to its mouth, except that portion which now constitutes the State of Kentucky. Although Virginia had conferred on the Congress of the Confederation power to govern the Territory north of the Ohio, still it cannot be denied, as I think, that power was wanting to admit a new State under the Articles of Confederation. With these facts prominently before the Convention, they proposed to accomplish these ends: 1st. To give power to admit new States. 2d. To dispose of the public lands in the Territories, and such as might remain undisposed of in the new States after they were admitted. And, thirdly, to give power to govern the different Territories as incipient States not of the Union, and fit them for admission. No one in the Convention seems to have doubted that these powers were necessary. As early as the third day of its session (May 29th), Edmund Randolph brought forward a set of resolutions containing nearly all the germs of the Constitution, the tenth of which is as follows: "Resolved, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole." August 18th, Mr. Madison submitted, in order to be referred to the committee of detail, the following powers as proper to be added to those of the General Legislature: "To dispose of the unappropriated lands of the United States. . . . To institute temporary Governments for new States arising therein." 3 Madison Papers 1353. Page 60 U. S. 522 These, with the resolution that a district for the location of the seat of Government should be provided, and some others, were referred, without a dissent, to the committee of detail to arrange and put them into satisfactory language. Gouverneur Morris constructed the clauses, and combined the views of a majority on the two provisions, to admit new States, and secondly, to dispose of the public lands and to govern the Territories in the meantime, between the cessions of the States and the admission into the Union of new States arising in the ceded territory. 3 Madison Papers 1456 to 1466. It was hardly possible to separate the power "to make all needful rules and regulations" respecting the government of the territory and the disposition of the public lands. North of the Ohio, Virginia conveyed the lands, and vested the jurisdiction in the thirteen original States, before the Constitution was formed. She had the sole title and sole sovereignty, and the same power to cede, on any terms she saw proper that the King of England had to grant the Virginia colonial charter of 1609, or to grant the charter of Pennsylvania to William Penn. The thirteen States, through their representatives and deputed ministers in the old Congress, had the same right to govern that Virginia had before the cession. Baldwin's Constitutional Views 90. And the sixth article of the Constitution adopted all engagements entered into by the Congress of the Confederation as valid against the United States, and that the laws made in pursuance of the new Constitution to carry out this engagement should be the supreme law of the land, and the judges bound thereby. To give the compact and the ordinance which was part of it full effect under the new Government, the Act of August 7th, 1789, was passed, which declares, "Whereas, in order that the ordinance of the United States in Congress assembled, for the government of the Territory northwest of the river Ohio, may have full effect, it is requisite that certain provisions should be made so as to adapt the same to the present Constitution of the United States." It is then provided that the Governor and other officers should be appointed by the President, with the consent of the Senate, and be subject to removal, &c., in like manner that they were by the old Congress, whose functions had ceased. By the powers to govern given by the Constitution, those amendments to the ordinance could be made, but Congress guardedly abstained from touching the compact of Virginia further than to adapt it to the new Constitution. It is due to myself to say that it is asking much of a judge Page 60 U. S. 523 who has for nearly twenty years been exercising jurisdiction from the western Missouri line to the Rocky Mountains and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had been all the while acting in mistake, and as an usurper. More than sixty years have passed away since Congress has exercised power to govern the Territories by its legislation directly or by Territorial charters, subject to repeal at all times, and it is now too late to call that power into question, if this court could disregard its own decisions, which it cannot do, as I think. It was held in the case of Cross v. Harrison , 16 How. 193-194, that the sovereignty of California was in the United States in virtue of the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power to admit new States into the Union. That decision followed preceding ones, there cited. The question was then presented, how it was possible for the judicial mind to conceive that the United States Government, created solely by the Constitution, could, by a lawful treaty, acquire territory over which the acquiring power had no jurisdiction to hold and govern it, by force of the instrument under whose authority the country was acquired, and the foregoing was the conclusion of this court on the proposition. What was there announced was most deliberately done, and with a purpose. The only question here is, as I think, how far the power of Congress is limited. As to the Northwest Territory, Virginia had the right to abolish slavery there, and she did so agree in 1787, with the other States in the Congress of the Confederation, by assenting to and adopting the Ordinance of 1787 for the government of the Northwest Territory. She did this also by an act of her Legislature, passed afterwards, which was a treaty in fact. Before the new Constitution was adopted, she had as much right to treat and agree as any European Government had. And, having excluded slavery, the new Government was bound by that engagement by article six of the new Constitution. This only meant that slavery should not exist whilst the United States exercised the power of government, in the Territorial form, for, when a new State came in, it might do so with or without slavery. My opinion is that Congress had no power, in face of the compact between Virginia and the twelve other States, to force slavery into the Northwest Territory, because there it was bound to that "engagement," and could not break it. Page 60 U. S. 524 In 1790, North Carolina ceded her western territory, now the State of Tennessee, and stipulated that the inhabitants thereof should enjoy all the privileges and advantages of the ordinance for governing the territory north of the Ohio river, and that Congress should assume the government, and accept the cession, under the express conditions contained in the ordinance: Provided, "That no regulation made, or to be made, by Congress, shall tend to emancipate slaves." In 1802, Georgia ceded her western territory to the United States, with the provision that the Ordinance of 1787 should in all its parts extend to the territory ceded, "that article only excepted which forbids slavery." Congress had no more power to legislate slavery out from the North Carolina and Georgia cessions than it had power to legislate slavery in, north of the Ohio. No power existed in Congress to legislate at all, affecting slavery, in either case. The inhabitants, as respected this description of property, stood protected whilst they were governed by Congress, in like manner that they were protected before the cession was made, and when they were, respectively, parts of North Carolina and Georgia. And how does the power of Congress stand west of the Mississippi river? The country there was acquired from France by treaty in 1803. It declares that the First Consul, in the name of the French Republic, doth hereby cede to the United States, in full sovereignty, the colony or province of Louisiana, with all the rights and appurtenances of the said territory. And, by article third, that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States, and in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess." Louisiana was a province where slavery was not only lawful, but where property in slaves was the most valuable of all personal property. The province was ceded as a unit, with an equal right pertaining to all its inhabitants, in every part thereof, to own slaves. It was, to a great extent, a vacant country, having in it few civilized inhabitants. No one portion of the colony of a proper size for a State of the Union had a sufficient number of inhabitants to claim admission into the Union. To enable the United States to fulfil the treaty, additional population was indispensable, and obviously desired with anxiety by both sides so that the whole country should, as soon as possible, become States of the Union. And for this Page 60 U. S. 525 contemplated future population, the treaty as expressly provided as it did for the inhabitants residing in the province when the treaty was made. All these were to be protected " in the meantime, " that is to say, at all times, between the date of the treaty and the time when the portion of the Territory where the inhabitants resided was admitted into the Union as a State. At the date of the treaty, each inhabitant had the right to the free enjoyment of his property, alike with his liberty and his religion, in every part of Louisiana; the province then being one country, he might go everywhere in it and carry his liberty, property, and religion with him, and in which he was to be maintained and protected until he became a citizen of a State of the Union of the United States. This cannot be denied to the original inhabitants and their descendants. And, if it be true that immigrants were equally protected, it must follow that they can also stand on the treaty. The settled doctrine in the State courts of Louisiana is that a French subject coming to the Orleans Territory, after the treaty of 1803 was made and before Louisiana was admitted into the Union, and being an inhabitant at the time of the admission, became a citizen of the United States by that act that he was one of the inhabitants contemplated by the third article of the treaty, which referred to all the inhabitants embraced within the new State on its admission. That this is the true construction I have no doubt. If power existed to draw a line at thirty-six degrees thirty minutes north, so Congress had equal power to draw the line on the thirtieth degree -- that is due west from the city of New Orleans -- and to declare that, north of that line, slavery should never exist. Suppose this had been done before 1812, when Louisiana came into the Union, and the question of infraction of the treaty had then been presented on the present assumption of power to prohibit slavery; who doubts what the decision of this court would have been on such an act of Congress, yet the difference between the supposed line and that on thirty-six degrees thirty minutes north is only in the degree of grossness presented by the lower line. The Missouri Compromise line of 1820 was very aggressive; it declared that slavery was abolished forever throughout a country reaching from the Mississippi river to the Pacific ocean, stretching over thirty-two degrees of longitude and twelve and a half degrees of latitude on its eastern side, sweeping over four-fifths, to say no more, of the original province of Louisiana. That the United States Government stipulated in favor of Page 60 U. S. 526 the inhabitants to the extent here contended for has not been seriously denied, as far as I know, but the argument is that Congress had authority to repeal the third article of the treaty of 1803, insofar as it secured the right to hold slave property in a portion of the ceded territory, leaving the right to exist in other parts. In other words, that Congress could repeal the third article entirely, at its pleasure. This I deny. The compacts with North Carolina and Georgia were treaties also, and stood on the same footing of the Louisiana treaty, on the assumption of power to repeal the one, it must have extended to all, and Congress could have excluded the slaveholder of North Carolina from the enjoyment of his lands in the Territory now the State of Tennessee, where the citizens of the mother State were the principal proprietors. And so in the case of Georgia. Her citizens could have been refused the right to emigrate to the Mississippi or Alabama Territory unless they left their most valuable and cherished property behind them. The Constitution was framed in reference to facts then existing or likely to arise; the instrument looked to no theories of Government. In the vigorous debates in the Convention, as reported by Mr. Madison and others, surrounding facts and the condition and necessities of the country gave rise to almost every provision; and among those facts, it was prominently true that Congress dare not be intrusted with power to provide that, if North Carolina or Georgia ceded her western territory, the citizens of the State (in either case) could be prohibited, at the pleasure of Congress, from removing to their lands, then granted to a large extent, in the country likely to be ceded unless they left their slaves behind. That such an attempt, in the face of a population fresh from the war of the Revolution and then engaged in war with the great confederacy of Indians extending from the mouth of the Ohio to the Gulf of Mexico, would end in open revolt all intelligent men knew. In view of these facts, let us inquire how the question stands by the terms of the Constitution, aside from the treaty? How it stood in public opinion when the Georgia cession was made, in 1802, is apparent from the fact that no guaranty was required by Georgia of the United States for the protection of slave property. The Federal Constitution was relied on to secure the rights of Georgia and her citizens during the Territorial condition of the country. She relied on the indisputable truths that the States were by the Constitution made equals in political rights, and equals in the right to participate in the common property of all the States united, and held in trust for Page 60 U. S. 527 them. The Constitution having provided that "The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States," the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States, respectively. The cited clause is not that citizens of the United States shall have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State by virtue of that great fundamental condition of the Union -- the equality of the States. Congress cannot do indirectly what the Constitution prohibits directly. If the slaveholder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact, it will follow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the amount of thousand of millions, might be almost as effectually excluded from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves were left behind. Just as well might Congress have said to those of the North, you shall not introduce into the territory south of said line your cattle or horses, as the country is already overstocked, nor can you introduce your tools of trade, or machines, as the policy of Congress is to encourage the culture of sugar and cotton south of the line, and so to provide that the Northern people shall manufacture for those of the South, and barter for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as the slaveholder was for thirty years, by the Missouri restriction. If Congress could prohibit one species of property, lawful throughout Louisiana when it was acquired, and lawful in the State from whence it was brought, so Congress might exclude any or all property. The case before us will illustrate the construction contended for. Dr. Emerson was a citizen of Missouri; he had an equal right to go to the Territory with every citizen of other States. This is undeniable, as I suppose. Scott was Dr. Emerson's lawful property in Missouri; he carried his Missouri title with him, and the precise question here is whether Congress had the power to annul that title. It is idle to say that, if Congress could not defeat the title directly, that it might be done Page 60 U. S. 528 indirectly, by drawing a narrow circle around the slave population of Upper Louisiana and declaring that, if the slave went beyond it, he should be free. Such assumption is mere evasion, and entitled to no consideration. And it is equally idle to contend that, because Congress has express power to regulate commerce among the Indian tribes and to prohibit intercourse with the Indians, that therefore Dr. Emerson's title might be defeated within the country ceded by the Indians to the United States as early as 1805, and which embraces Fort Snelling. Am.State Papers, vol. 1, p. 734. We must meet the question whether Congress had the power to declare that a citizen of a State, carrying with him his equal rights secured to him through his State, could be stripped of his goods and slaves and be deprived of any participation in the common property? If this be the true meaning of the Constitution, equality of rights to enjoy a common country (equal to a thousand miles square) may be cut off by a geographical line, and a great portion of our citizens excluded from it. Ingenious indirect evasions of the Constitution have been attempted and defeated heretofore. In the Passenger Cases, 7 How.R., the attempt was made to impose a tax on the masters, crews, and passengers of vessels, the Constitution having prohibited a tax on the vessel itself, but this Court held the attempt to be a mere evasion, and pronounced the tax illegal. I admit that Virginia could, and lawfully did, prohibit slavery northwest of the Ohio by her charter of cession, and that the territory was taken by the United States with this condition imposed. I also admit that France could, by the treaty of 1803, have prohibited slavery in any part of the ceded territory, and imposed it on the United States as a fundamental condition of the cession, in the meantime, till new States were admitted in the Union. I concur with Judge Baldwin that Federal power is exercised over all the territory within the United States, pursuant to the Constitution and the conditions of the cession, whether it was a part of the original territory of a State of the Union or of a foreign State, ceded by deed or treaty, the right of the United States in or over it depends on the contract of cession, which operates to incorporate as well the Territory as its inhabitants into the Union. Baldwin's Constitutional Views 84. My opinion is that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress. And, secondly that the Act of 1820, known as the Missouri Page 60 U. S. 529 Compromise, violates the most leading feature of the Constitution -- a feature on which the Union depends and which secures to the respective States and their citizens and entire EQUALITY of rights, privileges, and immunities. On these grounds, I hold the compromise act to have been void, and consequently that the plaintiff, Scott, can claim no benefit under it. For the reasons above stated, I concur with my brother judges that the plaintiff Scott is a slave, and was so when this suit was brought. Mr. Justice McLEAN and Mr. Justice CURTIS dissented. Mr. Justice McLEAN dissenting. This case is before us on a writ of error from the Circuit Court for the district of Missouri. An action of trespass was brought which charges the defendant with an assault and imprisonment of the plaintiff, and also of Harriet Scott, his wife, Eliza and Lizzie, his two children, on the ground that they were his slaves, which was without right on his part and against law. The defendant filed a plea in abatement, "that said causes of action, and each and every of them, if any such accrued to the said Dred Scott, accrued out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to-wit, said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify, wherefore he prays judgment whether the court can or will take further cognizance of the action aforesaid." To this a demurrer was filed which, on argument, was sustained by the court, the plea in abatement being held insufficient; the defendant was ruled to plead over. Under this rule, he pleaded: 1. Not guilty, 2. That Dred Scott was a negro slave, the property of the defendant, and 3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the plaintiff, were the lawful slaves of the defendant. Issue was joined on the first plea, and replications of de injuria were filed to the other pleas. The parties agreed to the following facts: In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, Dr. Emerson took the plaintiff from the State of Missouri to Page 60 U. S. 530 the post of Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, Dr. Emerson removed the plaintiff from Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi river, in the territory Known as Upper Louisiana, acquired by the United States of France, and situate north of latitude thirty-six degrees thirty minutes north, and north of the State of Missouri. Dr. Emerson held the plaintiff in slavery, at Fort Snelling from the last-mentioned date until the year 1838. In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, Major Taliaferro took Harriet to Fort Snelling, a military post situated as hereinbefore stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave, at Fort Snelling, unto Dr. Emerson, who held her in slavery at that place until the year 1838. In the year 1836, the plaintiff and Harriet were married at Fort Snelling, with the consent of Dr. Emerson, who claimed to be their master and owner. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri at the military post called Jefferson Barracks. In the year 1838, Dr. Emerson removed the plaintiff and said Harriet and their daughter Eliza from Fort Snelling to the State of Missouri, where they have ever since resided. Before the commencement of the suit, Dr. Emerson sold and conveyed the plaintiff, Harriet, Eliza, and Lizzie, to the defendant as slaves, and he has ever since claimed to hold them as slaves. At the times mentioned in the plaintiff's declaration, the defendant, claiming to be the owner, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than he might lawfully do if they were of right his slaves at such times. In the first place, the plea to the jurisdiction is not before us on this writ of error. A demurrer to the plea was sustained, which ruled the plea bad, and the defendant, on leave, pleaded over. The decision on the demurrer was in favor of the plaintiff, and, as the plaintiff prosecutes this writ of error, he does not complain of the decision on the demurrer. The defendant Page 60 U. S. 531 might have complained of this decision, as against him, and have prosecuted a writ of error to reverse it. But as the case, under the instruction of the court to the jury, was decided in his favor, of course he had no ground of complaint. But it is said, if the court, on looking at the record, shall clearly perceive that the Circuit Court had no jurisdiction, it is a ground for the dismissal of the case. This may be characterized as rather a sharp practice, and one which seldom, if ever, occurs. No case was cited in the argument as authority, and not a single case precisely in point is recollected in our reports. The pleadings do not show a want of jurisdiction. This want of jurisdiction can only be ascertained by a judgment on the demurrer to the special plea. No such case, it is believed, can be cited. But if this rule of practice is to be applied in this case, and the plaintiff in error is required to answer and maintain as well the points ruled in his favor, as to show the error of those ruled against him, he has more than an ordinary duty to perform. Under such circumstances, the want of jurisdiction in the Circuit Court must be so clear as not to admit of doubt. Now the plea which raises the question of jurisdiction, in my judgment, is radically defective. The gravamen of the plea is this: "That the plaintiff is a negro of African descent, his ancestors being of pure African blood, and were brought into this country and sold as negro slaves." There is no averment in this plea which shows or conduces to show an inability in the plaintiff to sue in the Circuit Court. It does not allege that the plaintiff had his domicil in any other State, nor that he is not a free man in Missouri. He is averred to have had a negro ancestry, but this does not show that he is not a citizen of Missouri within the meaning of the act of Congress authorizing him to sue in the Circuit Court. It has never been held necessary, to constitute a citizen within the act, that he should have the qualifications of an elector. Females and minors may sue in the Federal courts, and so may any individual who has a permanent domicil in the State under whose laws his rights are protected, and to which he owes allegiance. Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is "a freeman." Being a freeman, and having his domicil in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him. It has often been held that the jurisdiction, as regards parties, can only be exercised between citizens of different States, Page 60 U. S. 532 and that a mere residence is not sufficient, but this has been said to distinguish a temporary from a permanent residence. To constitute a good plea to the jurisdiction, it must negative those qualities and rights which enable an individual to sue in the Federal courts. This has not been done, and on this ground the plea was defective, and the demurrer was properly sustained. No implication can aid a plea in abatement or in bar; it must be complete in itself; the facts stated, if true, must abate or bar the right of the plaintiff to sue. This is not the character of the above plea. The facts stated, if admitted, are not inconsistent with other facts which may be presumed and which bring the plaintiff within the act of Congress. The pleader has not the boldness to allege that the plaintiff is a slave, as that would assume against him the matter in controversy, and embrace the entire merits of the case in a plea to the jurisdiction. But beyond the facts set out in the plea, the court, to sustain it, must assume the plaintiff to be a slave, which is decisive on the merits. This is a short and an effectual mode of deciding the cause, but I am yet to learn that it is sanctioned by any known rule of pleading. The defendant's counsel complain that, if the court take jurisdiction on the ground that the plaintiff is free, the assumption is against the right of the master. This argument is easily answered. In the first place, the plea does not show him to be a slave; it does not follow that a man is not free whose ancestors were slaves. The reports of the Supreme Court of Missouri show that this assumption has many exceptions, and there is no averment in the plea that the plaintiff is not within them. By all the rules of pleading, this is a fatal defect in the plea. If there be doubt, what rule of construction has been established in the slave States? In Jacob v. Sharp, Meigs's Rep., Tennessee 114, the court held, when there was doubt as to the construction of a will which emancipated a slave, "it must be construed to be subordinate to the higher and more important right of freedom." No injustice can result to the master from an exercise of jurisdiction in this cause. Such a decision does not in any degree affect the merits of the case; it only enables the plaintiff to assert his claims to freedom before this tribunal. If the jurisdiction be ruled against him on the ground that he is a slave, it is decisive of his fate. It has been argued that, if a colored person be made a citizen of a State, he cannot sue in the Federal court. The Constitution declares that Federal jurisdiction "may be exercised between citizens of different States," and the same is provided Page 60 U. S. 533 in the act of 1789. The above argument is properly met by saying that the Constitution was intended to be a practical instrument, and where its language is too plain to be misunderstood, the argument ends. In Chirae v. Chirae , 2 Wheat. 261, 4 Curtis 99, this court says: "That the power of naturalization is exclusively in Congress does not seem to be, and certainly ought not to be, controverted." No person can legally be made a citizen of a State, and consequently a citizen of the United States, of foreign birth, unless he be naturalized under the acts of Congress. Congress has power "to establish a uniform rule of naturalization." It is a power which belongs exclusively to Congress, as intimately connected with our Federal relations. A State may authorize foreigners to hold real estate within its jurisdiction, but it has no power to naturalize foreigners, and give them the rights of citizens. Such a right is opposed to the acts of Congress on the subject of naturalization, and subversive of the Federal powers. I regret that any countenance should be given from this bench to a practice like this in some of the States, which has no warrant in the Constitution. In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law. Several of the States have admitted persons of color to the right of suffrage, and, in this view, have recognised them as citizens, and this has been done in the slave as well as the free States. On the question of citizenship, it must be admitted that we have not been very fastidious. Under the late treaty with Mexico, we have made citizens of all grades, combinations, and colors. The same was done in the admission of Louisiana and Florida. No one ever doubted, and no court ever held that the people of these Territories did not become citizens under the treaty. They have exercised all the rights of citizens, without being naturalized under the acts of Congress. There are several important principles involved in this case which have been argued, and which may be considered under the following heads: 1. The locality of slavery, as settled by this court and the courts of the States. 2. The relation which the Federal Government bears to slavery in the States. 3. The power of Congress to establish Territorial Governments and to prohibit the introduction of slavery therein. 4. The effect of taking slaves into a new State or Territory, and so holding them, where slavery is prohibited. 5. Whether the return of a slave under the control of his Page 60 U. S. 534 master, after being entitled to his freedom, reduces him to his former condition. 6. Are the decisions of the Supreme Court of Missouri on the questions before us binding on this court within the rule adopted. In the course of my judicial duties, I have had occasion to consider and decide several of the above points. 1. As to the locality of slavery. The civil law throughout the Continent of Europe, it is believed, without an exception, is that slavery can exist only within the territory where it is established, and that, if a slave escapes or is carried beyond such territory, his master cannot reclaim him, unless by virtue of some express stipulation. Grotius, lib. 2, chap. 15, 5, 1, lib. 10, chap. 10, 2, 1, Wicqueposts Ambassador, lib. 1, p. 418, 4 Martin 385, Case of the Creole in the House of Lords, 1842, 1 Phillimore on International Law 316, 335. There is no nation in Europe which considers itself bound to return to his master a fugitive slave under the civil law or the law of nations. On the contrary, the slave is held to be free where there is no treaty obligation, or compact in some other form, to return him to his master. The Roman law did now allow freedom to be sold. An ambassador or any other public functionary could not take a slave to France, Spain, or any other country of Europe without emancipating him. A number of slaves escaped from a Florida plantation, and were received on board of ship by Admiral Cochrane; by the King's Bench, they were held to be free. 2 Barn. and Cres. 440. In the great and leading case of Prigg v. The State of Pennsylvania , 16 Pet. 539, 14 Curtis 421, this court said that, by the general law of nations, no nation is bound to recognise the state of slavery, as found within its territorial dominions, where it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is organized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognised in Somersett's Case, Lafft's Rep. 1, 20 Howell's State Trials, 79, which was decided before the American Revolution. There was some contrariety of opinion among the judges on certain points ruled in Prigg's Case, but there was none in regard to the great principle that slavery is limited to the range of the laws under which it is sanctioned. No case in England appears to have been more thoroughly examined than that of Somersett. The judgment pronounced Page 60 U. S. 535 by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advisement from term to term, and a due sense of its importance was felt and expressed by the Bench. In giving the opinion of the court, Lord Mansfield said: "The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created is erased from the memory; it is of a nature that nothing can be suffered to support it but positive law." He referred to the contrary opinion of Lord Hardwicke, in October, 1749, as Chancellor: "That he and Lord Talbot, when Attorney and Solicitor General, were of opinion that no such claim as here presented, for freedom, was valid." The weight of this decision is sought to be impaired from the terms in which it was described by the exuberant imagination of Curran. The words of Lord Mansfield, in giving the opinion of the court, were such as were fit to be used by a great judge in a most important case. It is a sufficient answer to all objections to that judgment that it was pronounced before the Revolution, and that it was considered by this court as the highest authority. For near a century, the decision in Somersett's Case has remained the law of England. The Case of the Slave Grace, decided by Lord Stowell in 1827, does not, as has been supposed, overrule the judgment of Lord Mansfield. Lord Stowell held that, during the residence of the slave in England, "No dominion, authority, or coercion, can be exercised over him." Under another head, I shall have occasion to examine the opinion in the Case of Grace. To the position that slavery can only exist except under the authority of law, it is objected that in few if in any instances has it been established by statutory enactment. This is no answer to the doctrine laid down by the court. Almost all the principles of the common law had their foundation in usage. Slavery was introduced into the colonies of this country by Great Britain at an early period of their history, and it was protected and cherished until it became incorporated into the colonial policy. It is immaterial whether a system of slavery was introduced by express law or otherwise, if it have the authority of law. There is no slave State where the institution is not recognised and protected by statutory enactments and judicial decisions. Slaves are made property by the laws of the slave States, and as such are liable to the claims of creditors; Page 60 U. S. 536 they descend to heirs, are taxed, and, in the South, they are a subject of commerce. In the case of Rankin v. Lydia, 2 A. K. Marshall's Rep., Judge Mills, speaking for the Court of Appeals of Kentucky, says: "In deciding the question [of slavery], we disclaim the influence of the general principles of liberty which we all admire, and conceive it ought to be decided by the law as it is, and not as it ought to be. Slavery is sanctioned by the laws of this State, and the right to hold slaves under our municipal regulations is unquestionable. But we view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten and common law." I will now consider the relation which the Federal Government bears to slavery in the States: Slavery is emphatically a State institution. In the ninth section of the first article of the Constitution, it is provided "that the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation not exceeding ten dollars for each person." In the Convention, it was proposed by a committee of eleven to limit the importation of slaves to the year 1800, when Mr. Pinckney moved to extend the time to the year 1808. This motion was carried -- New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, and Georgia, voting in the affirmative, and New Jersey, Pennsylvania, and Virginia, in the negative. In opposition to the motion, Mr. Madison said: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves, so long a term will be more dishonorable to the American character than to say nothing about it in the Constitution." Madison Papers. The provision in regard to the slave trade shows clearly that Congress considered slavery a State institution, to be continued and regulated by its individual sovereignty; and to conciliate that interest, the slave trade was continued twenty years not as a general measure, but for the "benefit of such States as shall think proper to encourage it." In the case of Groves v. Slaughter , 15 Peters 499, 14 Curtis 137, Messrs. Clay and Webster contended that, under the commercial power, Congress had a right to regulate the slave trade among the several States, but the court held that Congress had no power to interfere with slavery as it exists in the States, or to regulate what is called the slave trade among Page 60 U. S. 537 them. If this trade were subject to the commercial power, it would follow that Congress could abolish or establish slavery in every State of the Union. The only connection which the Federal Government holds with slaves in a State arises from that provision of the Constitution which declares that "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This being a fundamental law of the Federal Government, it rests mainly for its execution, as has been held, on the judicial power of the Union, and so far as the rendition of fugitives from labor has become a subject of judicial action, the Federal obligation has been faithfully discharged. In the formation of the Federal Constitution, care was taken to confer no power on the Federal Government to interfere with this institution in the States. In the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution. We need not refer to the mercenary spirit which introduced the infamous traffic in slaves to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man. I prefer the lights of Madison, Hamilton, and Jay as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom, and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised, the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition. Many of the States, on the adoption of the Constitution, or Page 60 U. S. 538 shortly afterward, took measures to abolish slavery within their respective jurisdictions, and it is a well known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests. But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right. The power of Congress to establish Territorial Governments, and to prohibit the introduction of slavery therein, is the next point to be considered. After the cession of western territory by Virginia and other States to the United States, the public attention was directed to the best mode of disposing of it for the general benefit. While in attendance on the Federal Convention, Mr. Madison, in a letter to Edmund Randolph dated the 22d April, 1787, says: "Congress are deliberating on the plan most eligible for disposing of the western territory not yet surveyed. Some alteration will probably be made in the ordinance on that subject." And in the same letter he says: "The inhabitants of the Illinois complain of the land jobbers, &c., who are purchasing titles among them. Those of St. Vincent's complain of the defective criminal and civil justice among them, as well as of military protection." And on the next day, he writes to Mr. Jefferson: "The government of the settlements on the Illinois and Wabash is a subject very perplexing in itself, and rendered more so by our ignorance of the many circumstances on which a right judgment depends. The inhabitants at those places claim protection against the savages, and some provision for both civil and criminal justice." In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention certain propositions as the basis of a Federal Government, among which was the following: " Resolved, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole." Afterward, Mr. Madison submitted to the Convention, in order to be referred to the committee of detail, the following powers, as proper to be added to those of general legislation: Page 60 U. S. 539 "To dispose of the unappropriated lands of the United States. To institute temporary Governments for new States arising therein. To regulate affairs with the Indians, as well within as without the limits of the United States." Other propositions were made in reference to the same subjects, which it would be tedious to enumerate. Mr. Gouverneur Morris proposed the following: "The Legislature shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, and nothing in this Constitution contained shall be so construed as to prejudice any claims either of the United States or of any particular State." This was adopted as a part of the Constitution, with two verbal alterations -- Congress was substituted for Legislature, and the word either was stricken out. In the organization of the new Government, but little revenue for a series of years was expected from commerce. The public lands were considered as the principal resource of the country for the payment of the Revolutionary debt. Direct taxation was the means relied on to pay the current expenses of the Government. The short period that occurred between the cession of western lands to the Federal Government by Virginia and other States, and the adoption of the Constitution, was sufficient to show the necessity of a proper land system and a temporary Government. This was clearly seen by propositions and remarks in the Federal Convention, some of which are above cited, by the passage of the Ordinance of 1787, and the adoption of that instrument by Congress, under the Constitution, which gave to it validity. It will be recollected that the deed of cession of western territory was made to the United States by Virginia in 1784, and that it required the territory ceded to be laid out into States that the land should be disposed of for the common benefit of the States, and that all right, title, and claim, as well of soil as of jurisdiction, were ceded, and this was the form of cession from other States. On the 13th of July, the Ordinance of 1787 was passed, "for the government of the United States territory northwest of the river Ohio," with but one dissenting vote. This instrument provided there should be organized in the territory not less than three nor more than five States, designating their boundaries. It passed while the Federal Convention was in session, about two months before the Constitution was adopted by the Convention. The members of the Convention must therefore have been well acquainted with the provisions of the Page 60 U. S. 540 Ordinance. It provided for a temporary Government, as initiatory to the formation of State Governments. Slavery was prohibited in the territory. Can anyone suppose that the eminent men of the Federal Convention could have overlooked or neglected a matter so vitally important to the country in the organization of temporary Governments for the vast territory northwest of the river Ohio? In the 3d section of the 4th article of the Constitution, they did make provision for the admission of new States, the sale of the public lands, and the temporary Government of the territory. Without a temporary Government, new States could not have been formed, nor could the public lands have been sold. If the third section were before us now for consideration for the first time, under the facts stated, I could not hesitate to say there was adequate legislative power given in it. The power to make all needful rules and regulations is a power to legislate. This no one will controvert, as Congress cannot make "rules and regulations," except by legislation. But it is argued that the word "territory" is used as synonymous with the word "land," and that the rules and regulations of Congress are limited to the disposition of lands and other property belonging to the United States. That this is not the true construction of the section appears from the fact that, in the first line of the section, "the power to dispose of the public lands" is given expressly, and, in addition, to make all needful rules and regulations. The power to dispose of is complete in itself, and requires nothing more. It authorizes Congress to use the proper means within its discretion, and any further provision for this purpose would be a useless verbiage. As a composition, the Constitution is remarkably free from such a charge. In the discussion of the power of Congress to govern a Territory, in the case of the Atlantic Insurance Company v. Canter , 1 Peters 511, 7 Curtis 685, Chief Justice Marshall, speaking for the court, said, in regard to the people of Florida, "they do not, however, participate in political power, they do not share in the Government till Florida shall become a State; in the meantime, Florida continues to be a Territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress 'to make all needful rules and regulations respecting the territory or other property belonging to the United States.'" And he adds, "perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result Page 60 U. S. 541 necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory, whichever may be the source whence the power is derived, the possession of it is unquestioned." And, in the close of the opinion, the court says, "in legislating for them [the Territories], Congress exercises the combined powers of the General and State Governments." Some consider the opinion to be loose and inconclusive, others that it is obiter dicta, and the last sentence is objected to as recognising absolute power in Congress over Territories. The learned and eloquent Wirt, who, in the argument of a cause before the court, had occasion to cite a few sentences from an opinion of the Chief Justice, observed, "no one can mistake the style, the words so completely match the thought." I can see no want of precision in the language of the Chief Justice; his meaning cannot be mistaken. He states, first, the third section as giving power to Congress to govern the Territories, and two other grounds from which the power may also be implied. The objection seems to be that the Chief Justice did not say which of the grounds stated he considered the source of the power. He did not specifically state this, but he did say, "whichever may be the source whence the power is derived, the possession of it is unquestioned." No opinion of the court could have been expressed with a stronger emphasis; the power in Congress is unquestioned. But those who have undertaken to criticise the opinion consider it without authority because the Chief Justice did not designate specially the power. This is a singular objection. If the power be unquestioned, it can be a matter of no importance on which ground it is exercised. The opinion clearly was not obiter dicta. The turning point in the case was whether Congress had power to authorize the Territorial Legislature of Florida to pass the law under which the Territorial court was established, whose decree was brought before this court for revision. The power of Congress, therefore, was the point in issue. The word "territory," according to Worcester, "means land, country, a district of country under a temporary Government." The words "territory or other property," as used, do imply, from the use of the pronoun "other" that territory was used as descriptive of land, but does it follow that it was not used also as descriptive of a district of country? In both of these senses, it belonged to the United States -- as land for the purpose of sale, as territory for the purpose of government. Page 60 U. S. 542 But if it be admitted that the word territory, as used, means land, and nothing but land, the power of Congress to organize a temporary Government is clear. It has power to make all needful regulations respecting the public lands, and the extent of those "needful regulations" depends upon the direction of Congress, where the means are appropriate to the end, and do not conflict with any of the prohibitions of the Constitution. If a temporary Government be deemed needful, necessary, requisite, or is wanted, Congress has power to establish it. This court says, in McCulloch v. The State of Maryland , 4 Wheat. 316, "If a certain means to carry into effect any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance." The power to establish post offices and post roads gives power to Congress to make contracts for the transportation of the mail, and to punish all who commit depredations upon it in its transit or at its places of distribution. Congress has power to regulate commerce, and, in the exercise of its discretion, to lay an embargo, which suspends commerce; so, under the same power, harbors, lighthouses, breakwaters, &c., are constructed. Did Chief Justice Marshall, in saying that Congress governed a Territory by exercising the combined powers of the Federal and State Governments, refer to unlimited discretion? A Government which can make white men slaves? Surely such a remark in the argument must have been inadvertently uttered. On the contrary, there is no power in the Constitution by which Congress can make either white or black men slaves. In organizing the Government of a Territory, Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution or which are contrary to its spirit, so that, whether the object may be the protection of the persons and property of purchasers of the public lands, or of communities who have been annexed to the Union by conquest or purchase, they are initiatory to the establishment of State Governments, and no more power can be claimed or exercised than is necessary to the attainment of the end. This is the limitation of all the Federal powers. But Congress has no power to regulate the internal concerns of a State, as of a Territory; consequently, in providing for the Government of a Territory, to some extent the combined powers of the Federal and State Governments are necessarily exercised. Page 60 U. S. 543 If Congress should deem slaves or free colored persons injurious to the population of a free Territory, as conducing to lessen the value of the public lands, or on any other ground connected with the public interest, they have the power to prohibit them from becoming settlers in it. This can be sustained on the ground of a sound national policy, which is so clearly shown in our history by practical results that it would seem no considerate individual can question it. And, as regards any unfairness of such a policy to our Southern brethren, as urged in the argument, it is only necessary to say that, with one-fourth of the Federal population of the Union, they have in the slave States a larger extent of fertile territory than is included in the free States, and it is submitted, if masters of slaves be restricted from bringing them into free territory, that the restriction on the free citizens of non-slaveholding States, by bringing slaves into free territory, is four times greater than that complained of by the South. But not only so; some three or four hundred thousand holders of slaves, by bringing them into free territory, impose a restriction on twenty millions of the free States. The repugnancy to slavery would probably prevent fifty or a hundred freemen from settling in a slave Territory, where one slaveholder would be prevented from settling in a free Territory. This remark is made in answer to the argument urged that a prohibition of slavery in the free Territories is inconsistent with the continuance of the Union. Where a Territorial Government is established in a slave Territory, it has uniformly remained in that condition until the people form a State Constitution; the same course where the Territory is free, both parties acting in good faith, would be attended with satisfactory results. The sovereignty of the Federal Government extends to the entire limits of our territory. Should any foreign power invade our jurisdiction, it would be repelled. There is a law of Congress to punish our citizens for crimes committed in districts of country where there is no organized Government. Criminals are brought to certain Territories or States, designated in the law, for punishment. Death has been inflicted in Arkansas and in Missouri on individuals, for murders committed beyond the limit of any organized Territory or State, and no one doubts that such a jurisdiction was rightfully exercised. If there be a right to acquire territory, there necessarily must be an implied power to govern it. When the military force of the Union shall conquer a country, may not Congress provide for the government of such country? This would be an implied power essential to the acquisition of new territory. Page 60 U. S. 544 This power has been exercised, without doubt of its constitutionality, over territory acquired by conquest and purchase. And when there is a large district of country within the United States, and not within any State Government, if it be necessary to establish a temporary Government to carry out a power expressly vested in Congress -- as the disposition of the public lands -- may not such Government be instituted by Congress? How do we read the Constitution? Is it not a practical instrument? In such cases, no implication of a power can arise which is inhibited by the Constitution, or which may be against the theory of its construction. As my opinion rests on the third section, these remarks are made as an intimation that the power to establish a temporary Government may arise, also, on the other two grounds stated in the opinion of the court in the insurance case, without weakening the third section. I would here simply remark that the Constitution was formed for our whole country. An expansion or contraction of our territory required no change in the fundamental law. When we consider the men who laid the foundation of our Government and carried it into operation, the men who occupied the bench, who filled the halls of legislation and the Chief Magistracy, it would seem, if any question could be settled clear of all doubt, it was the power of Congress to establish Territorial Governments. Slavery was prohibited in the entire Northwestern Territory, with the approbation of leading men, South and North, but this prohibition was not retained when this ordinance was adopted for the government of Southern Territories, where slavery existed. In a late republication of a letter of Mr. Madison, dated November 27, 1819, speaking of this power of Congress to prohibit slavery in a Territory, he infers there is no such power from the fact that it has not been exercised. This is not a very satisfactory argument against any power, as there are but few, if any, subjects on which the constitutional powers of Congress are exhausted. It is true, as Mr. Madison states that Congress, in the act to establish a Government in the Mississippi Territory, prohibited the importation of slaves into it from foreign parts, but it is equally true that, in the act erecting Louisiana into two Territories, Congress declared, "it shall not be lawful for any person to bring into Orleans Territory, from any port or place within the limits of the United States, any slave which shall have been imported since 1798, or which may hereafter be imported, except by a citizen of the United States who settles in the Territory, under the penalty of the freedom of such slave." The inference of Mr. Madison, therefore, against the power of Page 60 U. S. 545 Congress, is of no force, as it was founded on a fact supposed, which did not exist. It is refreshing to turn to the early incidents of our history and learn wisdom from the acts of the great men who have gone to their account. I refer to a report in the House of Representatives, by John Randolph, of Roanoke, as chairman of a committee, in March, 1803 -- fifty-four years ago. From the Convention held at Vincennes, in Indiana, by their President, and from the people of the Territory, a petition was presented to Congress praying the suspension of the provision which prohibited slavery in that Territory. The report stated "that the rapid population of the State of Ohio sufficiently evinces, in the opinion of your committee, that the labor of slaves is not necessary to promote the growth and settlement of colonies in that region. That this labor, demonstrably the dearest of any, can only be employed to advantage in the cultivation of products more valuable than any known to that quarter of the United States; that the committee deem it highly dangerous and inexpedient to impair a provision wisely calculated to promote the happiness and prosperity of the Northwestern country, and to give strength and security to that extensive frontier. In the salutary operation of this sagacious and benevolent restraint, it is believed that the inhabitants will, at no very distant day, find ample remuneration for a temporary privation of labor and of emigration." 1 vol. State Papers, Public Lands 160. The judicial mind of this country, State and Federal, has agreed on no subject within its legitimate action with equal unanimity as on the power of Congress to establish Territorial Governments. No court, State or Federal, no judge or statesman, is known to have had any doubts on this question for nearly sixty years after the power was exercised. Such Governments have been established from the sources of the Ohio to the Gulf of Mexico, extending to the Lakes on the north and the Pacific Ocean on the west, and from the lines of Georgia to Texas. Great interests have grown up under the Territorial laws over a country more than five times greater in extent than the original thirteen States, and these interests, corporate or otherwise, have been cherished and consolidated by a benign policy without anyone supposing the law-making power had united with the Judiciary, under the universal sanction of the whole country, to usurp a jurisdiction which did not belong to them. Such a discovery at this late date is more extraordinary than anything which has occurred in the judicial history of this or any other country. Texas, under a previous organization, Page 60 U. S. 546 was admitted as a State, but no State can be admitted into the Union which has not been organized under some form of government. Without temporary Governments, our public lands could not have been sold, nor our wildernesses reduced to cultivation and the population protected, nor could our flourishing States, West and South, have been formed. What do the lessons of wisdom and experience teach under such circumstances if the new light, which has so suddenly and unexpectedly burst upon us, be true? Acquiescence; acquiescence under a settled construction of the Constitution for sixty years, though it may be erroneous, which has secured to the country an advancement and prosperity beyond the power of computation. An act of James Madison, when President, forcibly illustrates this policy. He had made up his opinion that Congress had no power under the Constitution to establish a National Bank. In 1815, Congress passed a bill to establish a bank. He vetoed the bill on objections other than constitutional. In his message, he speaks as a wise statesman and Chief Magistrate, as follows: "Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded, in my judgment, by the repeated recognitions under varied circumstances of the validity of such an institution in acts of the Legislative, Executive, and Judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation." Has this impressive lesson of practical wisdom become lost to the present generation? If the great and fundamental principles of our Government are never to be settled, there can be no lasting prosperity. The Constitution will become a floating waif on the billows of popular excitement. The prohibition of slavery north of thirty-six degrees thirty minutes, and of the State of Missouri, contained in the act admitting that State into the Union, was passed by a vote of 134 in the House of Representatives to 42. Before Mr. Monroe signed the act, it was submitted by him to his Cabinet, and they held the restriction of slavery in a Territory to be within the constitutional powers of Congress. It would be singular if, in 1804, Congress had power to prohibit the introduction of slaves in Orleans Territory from any other part of the Union, under the penalty of freedom to the slave, if the same power, embodied in the Missouri Compromise, could not be exercised in 1820. But this law of Congress, which prohibits slavery north of Page 60 U. S. 547 Missouri and of thirty-six degrees thirty minutes, is declared to have been null and void by my brethren. And this opinion is founded mainly, as I understand, on the distinction drawn between the Ordinance of 1787 and the Missouri Compromise line. In what does the distinction consist? The ordinance, it is said, was a compact entered into by the confederated States before the adoption of the Constitution, and that, in the cession of territory, authority was given to establish a Territorial Government. It is clear that the ordinance did not go into operation by virtue of the authority of the Confederation, but by reason of its modification and adoption by Congress under the Constitution. It seems to be supposed in the opinion of the Court that the articles of cession placed it on a different footing from territories subsequently acquired. I am unable to perceive the force of this distinction. That the ordinance was intended for the government of the Northwestern Territory, and was limited to such Territory, is admitted. It was extended to Southern Territories, with modifications, by acts of Congress, and to some Northern Territories. But the ordinance was made valid by the act of Congress, and, without such act, could have been of no force. It rested for its validity on the act of Congress, the same, in my opinion, as the Missouri Compromise line. If Congress may establish a Territorial Government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. This being the case, I do not see on what ground the act is held to be void. It did not purport to forfeit property, or take it for public purposes. It only prohibited slavery, in doing which it followed the Ordinance of 1787. I will now consider the fourth head, which is: "The effect of taking slaves into a State or Territory, and so holding them where slavery is prohibited." If the principle laid down in the case of Prigg v. The State of Pennsylvania is to be maintained, and it is certainly to be maintained until overruled, as the law of this Court, there can be no difficulty on this point. In that case, the court says: "The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws." If this be so, slavery can exist nowhere except under the authority of law, founded on usage having the force of law, or by statutory recognition. And the court further says: "It is manifest from this consideration that, if the Constitution had not contained the clause requiring the rendition of fugitives from labor, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves Page 60 U. S. 548 coming within its limits, and to have given them entire immunity and protection against the claims of their masters." Now if a slave abscond, he may be reclaimed, but if he accompany his master into a State or Territory where slavery is prohibited, such slave cannot be said to have left the service of his master where his services were legalized. And if slavery be limited to the range of the territorial laws, how can the slave be coerced to serve in a State or Territory not only without the authority of law, but against its express provisions? What gives the master the right to control the will of his slave? The local law, which exists in some form. But where there is no such law, can the master control the will of the slave by force? Where no slavery exists, the presumption, without regard to color, is in favor of freedom. Under such a jurisdiction, may the colored man be levied on as the property of his master by a creditor? On the decease of the master, does the slave descend to his heirs as property? Can the master sell him? Any one or all of these acts may be done to the slave where he is legally held to service. But where the law does not confer this power, it cannot be exercised. Lord Mansfield held that a slave brought into England was free. Lord Stowell agreed with Lord Mansfield in this respect, and that the slave could not be coerced in England, but on her voluntary return to Antigua, the place of her slave domicil, her former status attached. The law of England did not prohibit slavery, but did not authorize it. The jurisdiction which prohibits slavery is much stronger in behalf of the slave within it than where it only does not authorize it. By virtue of what law is it that a master may take his slave into free territory and exact from him the duties of a slave? The law of the Territory does not sanction it. No authority can be claimed under the Constitution of the United States, or any law of Congress. Will it be said that the slave is taken as property, the same as other property which the master may own? To this I answer that colored persons are made property by the law of the State, and no such power has been given to Congress. Does the master carry with him the law of the State from which he removes into the Territory?, and does that enable him to coerce his slave in the Territory? Let us test this theory. If this may be done by a master from one slave State, it may be done by a master from every other slave State. This right is supposed to be connected with the person of the master, by virtue of the local law. Is it transferable? May it be negotiated, as a promissory note or bill of exchange? If it be assigned to a man from a free State, may he coerce the slave by virtue of it? What shall this thing be Page 60 U. S. 549 denominated? Is it personal or real property? Or is it an indefinable fragment of sovereignty which every person carries with him from his late domicil? One thing is certain -- that its origin has been very recent, and it is unknown to the laws of any civilized country. A slave is brought to England from one of its islands, where slavery was introduced and maintained by the mother country. Although there is no law prohibiting slavery in England, yet there is no law authorizing it, and for near a century, its courts have declared that the slave there is free from the coercion of the master. Lords Mansfield and Stowell agree upon this point, and there is no dissenting authority. There is no other description of property which was not protected in England, brought from one of its slave islands. Does not this show that property in a human being does not arise from nature or from the common law, but, in the language of this court, "it is a mere municipal regulation, founded upon and limited to the range of the territorial laws?" This decision is not a mere argument, but it is the end of the law, in regard to the extent of slavery. Until it shall be overturned, it is not a point for argument, it is obligatory on myself and my brethren, and on all judicial tribunals over which this court exercises an appellate power. It is said the Territories are common property of the States, and that every man has a right to go there with his property. This is not controverted. But the court says a slave is not property beyond the operation of the local law which makes him such. Never was a truth more authoritatively and justly uttered by man. Suppose a master of a slave in a British island owned a million of property in England, would that authorize him to take his slaves with him to England? The Constitution, in express terms, recognises the status of slavery as founded on the municipal law: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall," &c. Now unless the fugitive escape from a place where, by the municipal law, he is held to labor, this provision affords no remedy to the master. What can be more conclusive than this? Suppose a slave escape from a Territory where slavery is not authorized by law, can he be reclaimed? In this case, a majority of the court have said that a slave may be taken by his master into a Territory of the United States the same as a horse, or any other kind of property. It is true this was said by the court, as also many other things which are of no authority. Nothing that has been said by them, which has not a direct bearing on the jurisdiction of the court, against which they decided, can be considered as Page 60 U. S. 550 authority. I shall certainly not regard it as such. The question of jurisdiction, being before the court, was decided by them authoritatively, but nothing beyond that question. A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man, and he is destined to an endless existence. Under this head I shall chiefly rely on the decisions of the Supreme Courts of the Southern States, and especially of the State of Missouri. In the first and second sections of the sixth article of the Constitution of Illinois, it is declared that neither slavery nor involuntary servitude shall hereafter be introduced into this State otherwise than for the punishment of crimes whereof the party shall have been duly convicted, and in the second section it is declared that any violation of this article shall effect the emancipation of such person from his obligation to service. In Illinois, a right of transit through the State is given the master with his slaves. This is a matter which, as I suppose, belongs exclusively to the State. The Supreme Court of Illinois, in the case of Jarrot v. Jarrot, 2 Gilmer 7, said: "After the conquest of this Territory by Virginia, she ceded it to the United States and stipulated that the titles and possessions, rights and liberties of the French settlers should be guarantied to them. This, it has been contended, secured them in the possession of those negroes as slaves which they held before that time, and that neither Congress nor the Convention had power to deprive them of it, or, in other words, that the ordinance and Constitution should not be so interpreted and understood as applying to such slaves when it is therein declared that there shall be neither slavery nor involuntary servitude in the Northwest Territory, nor in the State of Illinois, otherwise than in the punishment of crimes. But it was held that those rights could not be thus protected, but must yield to the ordinance and Constitution." The first slave case decided by the Supreme Court of Missouri contained in the reports was Winny v. Whitesides, 1 Missouri Rep. 473, at October term, 1824. It appeared that, more than twenty-five years before, the defendant, with her husband, had removed from Carolina to Illinois, and brought with them the plaintiff; that they continued to reside in Illinois three or four years, retaining the plaintiff as a slave, after which, they removed to Missouri, taking her with them. The court held that if a slave be detained in Illinois until he be entitled to freedom, the right of the owner does not revive when he finds the negro in a slave State. Page 60 U. S. 551 That when a slave is taken to Illinois by his owner, who takes up his residence there, the slave is entitled to freedom. In the case of Lagrange v. Chouteau, 2 Missouri Rep. 20, at May Term, 1828, it was decided that the Ordinance of 1787 was intended as a fundamental law for those who may choose to live under it, rather than as a penal statute. That any sort of residence contrived or permitted by the legal owner of the slave, upon the faith of secret trusts or contracts, in order to defeat or evade the ordinance, and thereby introduce slavery de facto, would entitle such slave to freedom. In Julia v. McKinney, 3 Missouri Rep. 279, it was held, where a slave was settled in the State of Illinois, but with an intention on the part of the owner to be removed at some future day, that hiring said slave to a person to labor for one or two days, and receiving the pay for the hire, the slave is entitled to her freedom, under the second section of the sixth article of the Constitution of Illinois. Rachel v. Walker, 4 Missouri Rep. 350, June Term, 1836, is a case involving, in every particular, the principles of the case before us. Rachel sued for her freedom, and it appeared that she had been bought as a slave in Missouri by Stockton, an officer of the army, taken to Fort Snelling, where he was stationed, and she was retained there as a slave a year, and then Stockton removed to Prairie du Chien, taking Rachel with him as a slave, where he continued to hold her three years, and then he took her to the State of Missouri, and sold her as a slave. "Fort Snelling was admitted to be on the west side of the Mississippi river, and north of the State of Missouri, in the territory of the United States. That Prairie du Chien was in the Michigan Territory, on the east side of the Mississippi river. Walker, the defendant, held Rachel under Stockton." The court said, in this case: "The officer lived in Missouri Territory, at the time he bought the slave; he sent to a slaveholding country and procured her; this was his voluntary act, done without any other reason than that of his convenience, and he and those claiming under him must be holden to abide the consequences of introducing slavery both in Missouri Territory and Michigan, contrary to law; and on that ground Rachel was declared to be entitled to freedom." In answer to the argument that, as an officer of the army, the master had a right to take his slave into free territory, the court said no authority of law or the Government compelled him to keep the plaintiff there as a slave. "Shall it be said that, because an officer of the army owns Page 60 U. S. 552 slaves in Virginia, that when, as officer and soldier, he is required to take the command of a fort in the non-slaveholding States or Territories, he thereby has a right to take with him as many slaves as will suit his interests or convenience? It surely cannot be law. If this be true, the court say, then it is also true that the convenience or supposed convenience of the officer repeals, as to him and others who have the same character, the ordinance and the act of 1821 admitting Missouri into the Union, and also the prohibition of the several laws and Constitutions of the non-slaveholding States." In Wilson v. Melvin, 4 Missouri R. 592, it appeared the defendant left Tennessee with an intention of residing in Illinois, taking his negroes with him. After a month's stay in Illinois, he took his negroes to St. Louis, and hired them, then returned to Illinois. On these facts, the inferior court instructed the jury that the defendant was a sojourner in Illinois. This the Supreme Court held was error, and the judgment was reversed. The case of Dred Scott v. Emerson, 15 Missouri R. 682, March Term, 1852, will now be stated. This case involved the identical question before us, Emerson having, since the hearing, sold the plaintiff to Sandford, the defendant. Two of the judges ruled the case, the Chief Justice dissenting. It cannot be improper to state the grounds of the opinion of the court and of the dissent. The court say: "Cases of this kind are not strangers in our court. Persons have been frequently here adjudged to be entitled to their freedom on the ground that their masters held them in slavery in Territories or States in which that institution is prohibited. From the first case decided in our court, it might be inferred that this result was brought about by a presumed assent of the master, from the fact of having voluntarily taken his slave to a place where the relation of master and slave did not exist. But subsequent cases base the right to 'exact the forfeiture of emancipation,' as they term it, on the ground, it would seem, that it was the duty of the courts of this State to carry into effect the Constitution and laws of other States and Territories, regardless of the rights, the policy, or the institutions, of the people of this State." And the court say that the States of the Union, in their municipal concerns, are regarded as foreign to each other; that the courts of one State do not take notice of the laws of other States, unless proved as facts; and that every State has the right to determine how far its comity to other States shall extend; and it is laid down that when there is no act of manumission decreed to the free State, the courts of the slave States Page 60 U. S. 553 cannot be called to give effect to the law of the free State. Comity, it alleges, between States depends upon the discretion of both, which may be varied by circumstances. And it is declared by the court "that times are not as they were when the former decisions on this subject were made." Since then, not only individuals but States have been possession with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures whose inevitable consequence must be the overthrow and destruction of our Government. Under such circumstances, it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit. She is willing to assume her full responsibility for the existence of slavery within her limits, nor does she seek to share or divide it with others. Chief Justice Gamble dissented from the other two judges. He says: "In every slaveholding State in the Union, the subject of emancipation is regulated by statute, and the forms are prescribed in which it shall be effected. Whenever the forms required by the laws of the State in which the master and slave are resident are complied with, the emancipation is complete, and the slave is free. If the right of the person thus emancipated is subsequently drawn in question in another State, it will be ascertained and determined by the law of the State in which the slave and his former master resided, and when it appears that such law has been complied with, the right to freedom will be fully sustained in the courts of all the slaveholding States, although the act of emancipation may not be in the form required by law in which the court sits." "In all such cases, courts continually administer the law of the country where the right was acquired, and when that law becomes known to the court, it is just as much a matter of course to decide the rights of the parties according to its requirements as it is to settle the title of real estate situated in our State by its own laws." This appears to me a most satisfactory answer to the argument of the court. Chief Justice continues: "The perfect equality of the different States lies at the foundation of the Union. As the institution of slavery in the States is one over which the Constitution of the United States gives no power to the General Government, it is left to be adopted or rejected by the several States, as they think best, nor can any one State, or number of States, claim the right to interfere with any other State upon the question of admitting or excluding this institution." "A citizen of Missouri who removes with his slave to Illinois Page 60 U. S. 554 has no right to complain that the fundamental law of that State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave. It is as much his own voluntary act as if he had executed a deed of emancipation. No one can pretend ignorance of this constitutional provision, and," he says, "the decisions which have heretofore been made in this State and in many other slaveholding States give effect to this and other similar provisions on the ground that the master, by making the free State the residence of his slave, has submitted his right to the operation of the law of such State, and this," he says, "is the same in law as a regular deed of emancipation." He adds: "I regard the question as conclusively settled by repeated adjudications of this court, and if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them than I would any other series of decisions by which the law of any other question was settled. There is with me," he says, "nothing in the law relating to slavery which distinguishes it from the law on any other subject or allows any more accommodation to the temporary public excitements which are gathered around it." "In this State," he says, "it has been recognised from the beginning of the Government as a correct position in law that a master who takes his slave to reside in a State or Territory where slavery is prohibited thereby emancipates his slave." These decisions, which come down to the year 1837, seemed to have so fully settled the question that, since that time, there has been no case bringing it before the court for any reconsideration until the present. In the case of Winny v. Whitesides, the question was made in the argument "whether one nation would execute the penal laws of another," and the court replied in this language, Huberus, quoted in 4 Dallas, which says, "personal rights or disabilities obtained or communicated by the laws of any particular place are of a nature which accompany the person wherever he goes," and the Chief Justice observed, in the case of Rachel v. Walker, the act of Congress called the Missouri Compromise was held as operative as the Ordinance of 1787. When Dred Scott, his wife and children, were removed from Fort Snelling to Missouri in 1838, they were free, as the law was then settled, and continued for fourteen years afterwards, up to 1852, when the above decision was made. Prior to this, for nearly thirty years, as Chief Justice Gamble declares, the residence of a master with his slave in the State of Illinois, or in the Territory north of Missouri, where slavery was prohibited Page 60 U. S. 555 by the act called the Missouri Compromise, would manumit the slave as effectually as if he had executed a deed of emancipation, and that an officer of the army who takes his slave into that State or Territory and holds him there as a slave liberates him the same as any other citizen -- and, down to the above time, it was settled by numerous and uniform decisions; and that, on the return of the slave to Missouri, his former condition of slavery did not attach. Such was the settled law of Missouri until the decision of Scott and Emerson. In the case of Sylvia v. Kirby, 17 Misso.Rep. 434, the court followed the above decision, observing it was similar in all respects to the case of Scott and Emerson. This court follows the established construction of the statutes of a State by its Supreme Court. Such a construction is considered as a part of the statute, and we follow it to avoid two rules of property in the same State. But we do not follow the decisions of the Supreme Court of a State beyond a statutory construction as a rule of decision for this court. State decisions are always viewed with respect and treated as authority, but we follow the settled construction of the statutes not because it is of binding authority, but in pursuance of a rule of judicial policy. But there is no pretence that the case of Dred Scott v. Emerson turned upon the construction of a Missouri statute, nor was there any established rule of property which could have rightfully influenced the decision. On the contrary, the decision overruled the settled law for near thirty years. This is said by my brethren to be a Missouri question, but there is nothing which gives it this character except that it involves the right to persons claimed as slaves who reside in Missouri, and the decision was made by the Supreme Court of that State. It involves a right claimed under an act of Congress and the Constitution of Illinois, and which cannot be decided without the consideration and construction of those laws. But the Supreme Court of Missouri held, in this case that it will not regard either of those laws, without which there was no case before it, and Dred Scott, having been a slave, remains a slave. In this respect, it is admitted this is a Missouri question -- a case which has but one side if the act of Congress and the Constitution of Illinois are not recognised. And does such a case constitute a rule of decision for this court -- a case to be followed by this court? The course of decision so long and so uniformly maintained established a comity or law between Missouri and the free States and Territories where slavery was prohibited, which must be somewhat regarded in this case. Rights sanctioned for twenty-eight years Page 60 U. S. 556 ought not and cannot be repudiated, with any semblance of justice, by one or two decisions, influenced, as declared, by a determination to counteract the excitement against slavery in the free States. The courts of Louisiana having held for a series of years that, where a master took his slave to France, or any free State, he was entitled to freedom, and that, on bringing him back, the status of slavery did not attach, the Legislature of Louisiana declared by an act that the slave should not be made free under such circumstances. This regulated the rights of the master from the time the act took effect. But the decision of the Missouri court, reversing a former decision, affects all previous decisions, technically, made on the same principles, unless such decisions are protected by the lapse of time or the statute of limitations. Dred Scott and his family, beyond all controversy, were free under the decisions made for twenty-eight years, before the case of Scott v. Emerson. This was the undoubted law of Missouri for fourteen years after Scott and his family were brought back to that State. And the grave question arises whether this law may be so disregarded as to enslave free persons. I am strongly inclined to think that a rule of decision so well settled as not to be questioned cannot be annulled by a single decision of the court. Such rights may be inoperative under the decision in future, but I cannot well perceive how it can have the same effect in prior cases. It is admitted that, when a former decision is reversed, the technical effect of the judgment is to make all previous adjudications on the same question erroneous. But the case before us was not that the law had been erroneously construed, but that, under the circumstances which then existed, that law would not be recognised, and the reason for this is declared to be the excitement against the institution of slavery in the free States. While I lament this excitement as much as anyone, I cannot assent that it shall be made a basis of judicial action. In 1816, the common law, by statute, was made a part of the law of Missouri, and that includes the great principles of international law. These principles cannot be abrogated by judicial decisions. It will require the same exercise of power to abolish the common law as to introduce it. International law is founded in the opinions generally received and acted on by civilized nations, and enforced by moral sanctions. It becomes a more authoritative system when it results from special compacts, founded on modified rules, adapted to the exigencies of human society; it is, in fact, an international morality, adapted to the best interests of nations. And in regard to the States Page 60 U. S. 557 of this Union, on the subject of slavery, it is eminently fitted for a rule of action subject to the Federal Constitution. "The laws of nations are but the natural rights of man applied to nations." Vattel. If the common law have the force of a statutory enactment in Missouri, it is clear, as it seems to me, that a slave who, by a residence in Illinois in the service of his master, becomes entitled to his freedom, cannot again be reduced to slavery by returning to his former domicil in a slave State. It is unnecessary to say what legislative power might do by a general act in such a case, but it would be singular if a freeman could be made a slave by the exercise of a judicial discretion. And it would be still more extraordinary if this could be done not only in the absence of special legislation, but in a State where the common law is in force. It is supposed by some that the third article in the treaty of cession of Louisiana to this country by France in 1803 may have some bearing on this question. The article referred to provides "that the inhabitants of the ceded territory shall be incorporated into the Union, and enjoy all the advantages of citizens of the United States, and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." As slavery existed in Louisiana at the time of the cession, it is supposed this is a guaranty that there should be no change in its condition. The answer to this is, in the first place, that such a subject does not belong to the treaty-making power, and any such arrangement would have been nugatory. And, in the second place, by no admissible construction can the guaranty be carried further than the protection of property in slaves at that time in the ceded territory. And this has been complied with. The organization of the slave States of Louisiana, Missouri, and Arkansas embraced every slave in Louisiana at the time of the cession. This removes every ground of objection under the treaty. There is therefore no pretence growing out of the treaty that any part of the territory of Louisiana, as ceded, beyond the organized States, is slave territory. Under the fifth head, we were to consider whether the status of slavery attached to the plaintiff and wife on their return to Missouri. This doctrine is not asserted in the late opinion of the Supreme Court of Missouri, and, up to 1852, the contrary doctrine was uniformly maintained by that court. In its late decision, the court say that it will not give effect in Missouri to the laws of Illinois, or the law of Congress Page 60 U. S. 558 called the Missouri Compromise. This was the effect of the decision, though its terms were that the court would not take notice, judicially, of those laws. In 1851, the Court of Appeals of South Carolina recognised the principle that a slave, being taken to a free State, became free. Commonwealth v. Pleasants, 10 Leigh Rep. 697. In Betty v. Horton, the Court of Appeals held that the freedom of the slave was acquired by the action of the laws of Massachusetts by the said slave's being taken there. 5 Leigh Rep. 615. The slave States have generally adopted the rule that, where the master, by a residence with his slave in a State or Territory where slavery is prohibited, the slave was entitled to his freedom everywhere. This was the settled doctrine of the Supreme Court of Missouri. It has been so held in Mississippi, in Virginia, in Louisiana, formerly in Kentucky, Maryland, and in other States. The law where a contract is made and is to be executed governs it. This does not depend upon comity, but upon the law of the contract. And if, in the language of the Supreme Court of Missouri, the master, by taking his slave to Illinois and employing him there as a slave, emancipates him as effectually as by a deed of emancipation, is it possible that such an act is not matter for adjudication in any slave State where the master may take him? Does not the master assent to the law when he places himself under it in a free State? The States of Missouri and Illinois are bounded by a common line. The one prohibits slavery; the other admits it. This has been done by the exercise of that sovereign power which appertains to each. We are bound to respect the institutions of each, as emanating from the voluntary action of the people. Have the people of either any right to disturb the relations of the other? Each State rests upon the basis of its own sovereignty, protected by the Constitution. Our Union has been the foundation of our prosperity and national glory. Shall we not cherish and maintain it? This can only be done by respecting the legal rights of each State. If a citizen of a free State shall entice or enable a slave to escape from the service of his master, the law holds him responsible not only for the loss of the slave, but he is liable to be indicted and fined for the misdemeanor. And I am bound here to say that I have never found a jury in the four States which constitute my circuit which have not sustained this law where the evidence required them to sustain it. And it is proper that I should also say that more cases have arisen in my circuit, by reason of its extent and locality, than in all Page 60 U. S. 559 other parts of the Union. This has been done to vindicate the sovereign rights of the Southern States and protect the legal interests of our brethren of the South. Let these facts be contrasted with the case now before the court. Illinois has declared in the most solemn and impressive form that there shall be neither slavery nor involuntary servitude in that State, and that any slave brought into it with a view of becoming a resident shall be emancipated. And effect has been given to this provision of the Constitution by the decision of the Supreme Court of that State. With a full knowledge of these facts, a slave is brought from Missouri to Rock Island, in the State of Illinois, and is retained there as a slave for two years, and then taken to Fort Snelling, where slavery is prohibited by the Missouri Compromise Act, and there he is detained two years longer in a state of slavery. Harriet, his wife, was also kept at the same place four years as a slave, having been purchased in Missouri. They were then removed to the State of Missouri, and sold as slaves, and, in the action before us, they are not only claimed as slaves, but a majority of my brethren have held that, on their being returned to Missouri, the status of slavery attached to them. I am not able to reconcile this result with the respect due to the State of Illinois. Having the same rights of sovereignty as the State of Missouri in adopting a Constitution, I can perceive no reason why the institutions of Illinois should not receive the same consideration as those of Missouri. Allowing to my brethren the same right of judgment that I exercise myself, I must be permitted to say that it seems to me the principle laid down will enable the people of a slave State to introduce slavery into a free State, for a longer or shorter time, as may suit their convenience, and by returning the slave to the State whence he was brought, by force or otherwise, the status of slavery attaches, and protects the rights of the master, and defies the sovereignty of the free State. There is no evidence before us that Dred Scott and his family returned to Missouri voluntarily. The contrary is inferable from the agreed case: "In the year 1838, Dr. Emerson removed the plaintiff and said Harriet, and their daughter Eliza, from Fort Snelling to the State of Missouri, where they have ever since resided." This is the agreed case, and can it be inferred from this that Scott and family returned to Missouri voluntarily? He was "removed," which shows that he was passive, as a slave, having exercised no volition on the subject. He did not resist the master by absconding or force. But that was not sufficient to bring him within Lord Stowell's decision; he must have acted voluntarily. It would be a Page 60 U. S. 560 mockery of law and an outrage on his rights to coerce his return and then claim that it was voluntary, and, on that ground, that his former status of slavery attached. If the decision be placed on this ground, it is a fact for a jury to decide whether the return was voluntary, or else the fact should be distinctly admitted. A presumption against the plaintiff in this respect, I say with confidence, is not authorized from the facts admitted. In coming to the conclusion that a voluntary return by Grace to her former domicil, slavery attached, Lord Stowell took great pains to show that England forced slavery upon her colonies, and that it was maintained by numerous acts of Parliament and public policy, and, in short, that the system of slavery was not only established by Great Britain in her West Indian colonies, but that it was popular and profitable to many of the wealthy and influential people of England who were engaged in trade, or owned and cultivated plantations in the colonies. No one can read his elaborate views and not be struck with the great difference between England and her colonies and the free and slave States of this Union. While slavery in the colonies of England is subject to the power of the mother country, our States, especially in regard to slavery, are independent, resting upon their own sovereignties and subject only to international laws, which apply to independent States. In the case of Williams, who was a slave in Granada, having run away, came to England, Lord Stowell said: "The four judges all concur in this -- that he was a slave in Granada, though a free man in England, and he would have continued a free man in all other parts of the world except Granada." Strader v. Graham , 10 Howard 82 and 18 Curtis 305, has been cited as having a direct bearing in the case before us. In that case, the court say: "It was exclusively in the power of Kentucky to determine for itself whether the employment of slaves in another State should or should not make them free on their return." No question was before the court in that case except that of jurisdiction. And any opinion given on any other point is obiter dictum, and of no authority. In the conclusion of his opinion, the Chief Justice said: "In every view of the subject, therefore, this court has no jurisdiction of the case, and the writ of error must on that ground be dismissed." In the case of Spencer v. Negro Dennis, 8 Gill's Rep. 321, the court say: "Once free, and always free, is the maxim of Maryland law upon the subject. Freedom having once vested, by no compact between the master and the the liberated slave, Page 60 U. S. 561 nor by any condition subsequent attached by the master to the gift of freedom can a state of slavery be reproduced." In Hunter v. Bulcher, 1 Leigh 172: "By a statute of Maryland of 1796, all slaves brought into that State to reside are declared free; a Virginian-born slave is carried by his master to Maryland; the master settled there, and keeps the slave there in bondage for twelve years; the statute in force all the time; then he brings him as a slave to Virginia, and sells him there. Adjudged, in an action brought by the man against the purchaser, that he is free." Judge Kerr, in the case, says: "Agreeing, as I do, with the general view taken in this case by my brother Green, I would not add a word but to mark the exact extent to which I mean to go. The law of Maryland having enacted that slaves carried into that State for sale or to reside shall be free, and the owner of the slave here having carried him to Maryland, and voluntarily submitting himself and the slave to that law, it governs the case." In every decision of a slave case prior to that of Dred Scott v. Emerson, the Supreme Court of Missouri considered it as turning upon the Constitution of Illinois, the Ordinance of 1787, or the Missouri Compromise Act of 1820. The court treated these acts as in force, and held itself bound to execute them by declaring the slave to be free who had acquired a domicil under them with the consent of his master. The late decision reversed this whole line of adjudication, and held that neither the Constitution and laws of the States nor acts of Congress in relation to Territories could be judicially noticed by the Supreme Court of Missouri. This is believed to be in conflict with the decisions of all the courts in the Southern States, with some exceptions of recent cases. In Marie Louise v. Morat et al., 9 Louisiana Rep. 475, it was held, where a slave having been taken to the kingdom of France or other country by the owner, where slavery is not tolerated, operates on the condition of the slave, and produces immediate emancipation, and that, where a slave thus becomes free, the master cannot reduce him again to slavery. Josephine v. Poultney, Louisiana Annual Rep. 329, "where the owner removes with a slave into a State in which slavery is prohibited, with the intention of residing there, the slave will be thereby emancipated, and their subsequent return to the State of Louisiana cannot restore the relation of master and slave." To the same import are the cases of Smith v. Smith, 13 Louisiana Rep. 441, Thomas v. Generis, Louisiana Rep. 483, Harry et al. v. Decker and Hopkins, Walker's Mississippi Rep. 36. It was held that "slaves within the jurisdiction Page 60 U. S. 562 of the Northwestern Territory became freemen by virtue of the Ordinance of 1787, and can assert their claim to freedom in the courts of Mississippi." Griffith v. Fanny, 1 Virginia Rep. 143. It was decided that a negro held in servitude in Ohio, under a deed executed in Virginia, is entitled to freedom by the Constitution of Ohio. The case of Rhodes v. Bell , 2 How. 397, 15 Curtis 152, involved the main principle in the case before us. A person residing in Washington city purchased a slave in Alexandria, and brought him to Washington. Washington continued under the law of Maryland, Alexandria under the law of Virginia. The act of Maryland of November, 1796, 2 Maxcy's Laws 351, declared anyone who shall bring any negro, mulatto, or other slave, into Maryland, such slave should be free. The above slave, by reason of his being brought into Washington city, was declared by this court to be free. This, it appears to me, is a much stronger case against the slave than the facts in the case of Scott. In Bush v. White, 3 Monroe 104, the court say: "That the ordinance was paramount to the Territorial laws, and restrained the legislative power there as effectually as a Constitution in an organized State. It was a public act of the Legislature of the Union, and a part of the supreme law of the land, and, as such, this court is as much bound to take notice of it as it can be of any other law." In the case of Rankin v. Lydia, before cited, Judge Mills, speaking for the Court of Appeals of Kentucky, says: "If, by the positive provision in our code, we can and must hold our slaves in the one case, and statutory provisions equally positive decide against that right in the other, and liberate the slave, he must, by an authority equally imperious, be declared free. Every argument which supports the right of the master on one side, based upon the force of written law, must be equally conclusive in favor of the slave, when he can point out in the statute the clause which secures his freedom." And he further said: "Free people of color in all the States are, it is believed, quasi citizens, or, at least, denizens. Although none of the States may allow them the privilege of office and suffrage, yet all other civil and conventional rights are secured to them, at least such rights were evidently secured to them by the ordinance in question for the government of Indiana. If these rights are vested in that or any other portion of the United States, can it be compatible with the spirit of our confederated Government to deny their existence in any other part? Is there less comity existing between State and State, or State Page 60 U. S. 563 and Territory, than exists between the despotic Governments of Europe?" These are the words of a learned and great judge, born and educated in a slave State. I now come to inquire, under the sixth and last head, "whether the decisions of the Supreme Court of Missouri on the question before us are binding on this court." While we respect the learning and high intelligence of the State courts, and consider their decisions, with others, as authority, we follow them only where they give a construction to the State statutes. On this head, I consider myself fortunate in being able to turn to the decision of this court, given by Mr. Justice Grier, in Pease v. Peck , a case from the State of Michigan, 18 Howard, 589, decided in December Term, 1855. Speaking for the court, Judge Grier said: "We entertain the highest respect for that learned court (the Supreme Court of Michigan), and, in any question affecting the construction of their own laws where we entertain any doubt, would be glad to be relieved from doubt and responsibility by reposing on their decision. There are, it is true, many dicta to be found in our decisions averring that the courts of the United States are bound to follow the decisions of the State courts on the construction of their own laws. But although this may be correct, yet a rather strong expression of a general rule, it cannot be received as the annunciation of a maxim of universal application. Accordingly, our reports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of the a State by its highest judicature established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. When the decisions of the State court are not consistent, we do not feel bound to follow the last if it is contrary to our own convictions, and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines subversive of former safe precedent." These words, it appears to me, have a stronger application to the case before us than they had to the cause in which they were spoken as the opinion of this court, and I regret that they do not seem to be as fresh in the recollection of some of my brethren as in my own. For twenty-eight years, the decisions of the Supreme Court of Missouri were consistent on all the points made in this case. But this consistent course was suddenly terminated, whether by some new light suddenly springing up, or an excited public opinion, or both, it is not Page 60 U. S. 564 necessary to say. In the case of Scott v. Emerson, in 1852, they were overturned and repudiated. This, then, is the very case in which seven of my brethren declared they would not follow the last decision. On this authority I may well repose. I can desire no other or better basis. But there is another ground which I deem conclusive, and which I will restate. The Supreme Court of Missouri refused to notice the act of Congress or the Constitution of Illinois under which Dred Scott, his wife, and children claimed that they are entitled to freedom. This being rejected by the Missouri court, there was no case before it, or least it was a case with only one side. And this is the case which, in the opinion of this court, we are bound to follow. The Missouri court disregards the express provisions of an act of Congress and the Constitution of a sovereign State, both of which laws for twenty-eight years it had not only regarded, but carried into effect. If a State court may do this, on a question involving the liberty of a human being, what protection do the laws afford? So far from this being a Missouri question, it is a question, as it would seem, within the twenty-fifth section of the Judiciary Act, where a right to freedom being set up under the act of Congress, and the decision being against such right, it may be brought for revision before this court, from the Supreme Court of Missouri. I think the judgment of the court below should be reversed. Mr. Justice CURTIS dissenting. I dissent from the opinion pronounced by the Chief Justice, and from the judgment which the majority of the court think it proper to render in this case. The plaintiff alleged in his declaration that he was a citizen of the State of Missouri, and that the defendant was a citizen of the State of New York. It is not doubted that it was necessary to make each of these allegations to sustain the jurisdiction of the Circuit Court. The defendant denied, by a plea to the jurisdiction either sufficient or insufficient, that the plaintiff was a citizen of the State of Missouri. The plaintiff demurred to that plea. The Circuit Court adjudged the plea insufficient, and the first question for our consideration is whether the sufficiency of that plea is before this court for judgment upon this writ of error. The part of the judicial power of the United States, conferred by Congress on the Circuit Courts, being limited to certain described cases and controversies, the question whether a particular Page 60 U. S. 565 case is within the cognizance of a Circuit Court may be raised by a plea to the jurisdiction of such court. When that question has been raised, the Circuit Court must, in the first instance, pass upon and determine it. Whether its determination be final or subject to review by this appellate court must depend upon the will of Congress, upon which body the Constitution has conferred the power, with certain restrictions, to establish inferior courts, to determine their jurisdiction, and to regulate the appellate power of this court. The twenty-second section of the Judiciary Act of 1789, which allows a writ of error from final judgments of Circuit Courts, provides that there shall be no reversal in this court, on such writ of error, for error in ruling any plea in abatement other than a plea to the jurisdiction of the court. Accordingly it has been held from the origin of the court to the present day that Circuit Courts have not been made by Congress the final judges of their own jurisdiction in civil cases. And that when a record comes here upon a writ of error or appeal, and on its inspection, it appears to this court that the Circuit Court had not jurisdiction, its judgment must be reversed and the cause remanded to be dismissed for want of jurisdiction. It is alleged by the defendant in error in this case that the plea to the jurisdiction was a sufficient plea; that it shows, on inspection of its allegations, confessed by the demurrer, that the plaintiff was not a citizen of the State of Missouri; that, upon this record, it must appear to this court that the case was not within the judicial power of the United States as defined and granted by the Constitution, because it was not a suit by a citizen of one State against a citizen of another State. To this it is answered first that the defendant, by pleading over after the plea to the jurisdiction was adjudged insufficient, finally waived all benefit of that plea. When that plea was adjudged insufficient, the defendant was obliged to answer over. He held no alternative. He could not stop the further progress of the case in the Circuit Court by a writ of error, on which the sufficiency of his plea to the jurisdiction could be tried in this court, because the judgment on that plea was not final, and no writ of error would lie. He was forced to plead to the merits. It cannot be true, then, that he waived the benefit of his plea to the jurisdiction by answering over. Waiver includes consent. Here, there was no consent. And if the benefit of the plea was finally lost, it must be not by any waiver, but because the laws of the United States have not provided any mode of reviewing the decision of the Circuit Court on such a plea when that decision is against the defendant. This is not the Page 60 U. S. 566 law. Whether the decision of the Circuit Court on a plea to the jurisdiction be against the plaintiff or against the defendant, the losing party may have any alleged error in law, in ruling such a plea, examined in this court on a writ of error when the matter in controversy exceeds the sum or value of two thousand dollars. If the decision be against the plaintiff, and his suit dismissed for want of jurisdiction, the judgment is technically final, and he may at once sue out his writ of error. Mollan v. Torrance , 9 Wheat. 537. If the decision be against the defendant, though he must answer over and wait for a final judgment in the cause, he may then have his writ of error, and upon it obtain the judgment of this court on any question of law apparent on the record touching the jurisdiction. The fact that he pleaded over to the merits, under compulsion, can have no effect on his right to object to the jurisdiction. If this were not so, the condition of the two parties would be grossly unequal. For if a plea to the jurisdiction were ruled against the plaintiff, he could at once take his writ of error and have the ruling reviewed here, while, if the same plea were ruled against the defendant, he must not only wait for a final judgment, but could in no event have the ruling of the Circuit Court upon the plea reviewed by this court. I know of no ground for saying that the laws of the United States have thus discriminated between the parties to a suit in its courts. It is further objected that, as the judgment of the Circuit Court was in favor of the defendant and the writ of error in this cause was sued out by the plaintiff, the defendant is not in a condition to assign any error in the record, and therefore this court is precluded from considering the question whether the Circuit Court had jurisdiction. The practice of this court does not require a technical assignment of errors. See the rule. Upon a writ of error, the whole record is open for inspection, and if any error be found in it, the judgment is reversed. Bank of United States v. Smith , 11 Wheat. 171. It is true, as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment which was for his advantage. In this, we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts that it made an exception out of that general rule, and allowed a party to assign for error that which was for his advantage if it were a departure by the court itself from its settled course of procedure. The cases on this subject are collected in Bac.Ab., Error H. 4. And this court followed this practice in Capron v. Van Noorden , Page 60 U. S. 567 2 Cranch 126, where the plaintiff below procured the reversal of a judgment for the defendant on the ground that the plaintiff's allegations of citizenship had not shown jurisdiction. But it is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit Court on the merits when it appears on the record by a plea to the jurisdiction that it is a case to which the judicial power of the United States does not extend. The course of the court is where no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction that jurisdiction does not exist, but even where it does not appear, affirmatively that it does exist. Pequignot v. The Pennsylvania R.R. Co. , 16 How. 104. It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. Cutler v. Rae , 7 How. 729. I consider, therefore, that, when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ of error, the first duty of this court is sua sponte, if not moved to it by either party, to examine the sufficiency of that plea, and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a case to which the Constitution and laws of the United States have not extended that power. I proceed, therefore, to examine the plea to the jurisdiction. I do not perceive any sound reason why it is not to be judged by the rules of the common law applicable to such pleas. It is true, where the jurisdiction of the Circuit Court depends on the citizenship of the parties, it is incumbent on the plaintiff to allege on the record the necessary citizenship, but when he has done so, the defendant must interpose a plea in abatement the allegations whereof show that the court has not jurisdiction, and it is incumbent on him to prove the truth of his plea. In Sheppard v. Graves , 14 How. 27, the rules on this subject are thus stated in the opinion of the court: "That although, in the courts of the United States, it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, it must be taken, prima facie, as existing, and it is incumbent Page 60 U. S. 568 on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes that the necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party taking the exception." These positions are sustained by the authorities there cited, as well as by Wickliffe v. Owings , 17 How. 47. When, therefore, as in this case, the necessary averments as to citizenship are made on the record, and jurisdiction is assumed to exist, and the defendant comes by a plea to the jurisdiction to displace that presumption, he occupies, in my judgment, precisely the position described in Bacon Ab., Abatement: "Abatement, in the general acceptation of the word, signifies a plea, put in by the defendant, in which he shows cause to the court why he should not be impleaded, or, if at all, not in the manner and form he now is." This being, then, a plea in abatement to the jurisdiction of the court, I must judge of its sufficiency by those rules of the common law applicable to such pleas. The plea was as follows: "And the said John F. A. Sandford, in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action, and each and every of them (if any such have accrued to the said Dred Scott), accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to-wit, the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, because he is a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify. Wherefore, he prays judgment whether this court can or will take further cognizance of the action aforesaid." The plaintiff demurred, and the judgment of the Circuit Court was that the plea was insufficient. I cannot treat this plea as a general traverse of the citizenship alleged by the plaintiff. Indeed, if it were so treated, the plea was clearly bad, for it concludes with a verification, and not to the country, as a general traverse should. And though this defect in a plea in bar must be pointed out by a special demurrer, it is never necessary to demur specially to a plea in abatement; all matters, though of form only, may be taken advantage of upon a general demurrer to such a plea. Chitty on Pl. 465. The truth is that, though not drawn with the utmost technical accuracy, it is a special traverse of the plaintiff's allegation Page 60 U. S. 569 of citizenship, and was a suitable and proper mode of traverse under the circumstances. By reference to Mr. Stephen's description of the uses of such a traverse contained in his excellent analysis of pleadings, Steph. on Pl. 176, it will be seen how precisely this plea meets one of his descriptions. No doubt the defendant might have traversed, by a common or general traverse, the plaintiff's allegation that he was a citizen of the State of Missouri, concluding to the country. The issue thus presented being joined, would have involved matter of law on which the jury must have passed under the direction of the court. But, by traversing the plaintiff's citizenship specially -- that is, averring those facts on which the defendant relied to show that, in point of law, the plaintiff was not a citizen, and basing the traverse on those facts as a deduction therefrom -- opportunity was given to do what was done -- that is, to present directly to the court, by a demurrer, the sufficiency of those facts to negative, in point of law, the plaintiff's allegation of citizenship. This, then, being a special, and not a general or common, traverse, the rule is settled that the facts thus set out in the plea as the reason or ground of the traverse must of themselves constitute, in point of law, a negative of the allegation thus traversed. Stephen on Pl. 183, Ch. on Pl. 620. And upon a demurrer to this plea, the question which arises is whether the facts that the plaintiff is a negro of African descent, whose ancestors were of pure African blood and were brought into this country and sold as negro slaves, may all be true, and yet the plaintiff be a citizen of the State of Missouri within the meaning of the Constitution and laws of the United States which confer on citizens of one State the right to sue citizens of another State in the Circuit Courts. Undoubtedly, if these facts, taken together, amount to an allegation that, at the time of action brought, the plaintiff was himself a slave, the plea is sufficient. It has been suggested that the plea, in legal effect, does so aver, because, if his ancestors were sold as slaves, the presumption is they continued slaves, and, if so, the presumption is the plaintiff was born a slave, and, if so, the presumption is he continued to be a slave to the time of action brought. I cannot think such presumptions can be resorted to to help out defective averments in pleading, especially in pleading in abatement, where the utmost certainty and precision are required. Chitty on Pl. 457. That the plaintiff himself was a slave at the time of action brought is a substantive fact having no necessary connection with the fact that his parents were sold as slaves. For they might have been sold after he was born, or the plaintiff himself, if once a slave, might have Page 60 U. S. 570 became a freeman before action brought. To aver that his ancestors were sold as slaves is not equivalent, in point of law, to an averment that he was a slave. If it were, he could not even confess and avoid the averment of the slavery of his ancestors, which would be monstrous, and if it be not equivalent in point of law, it cannot be treated as amounting thereto when demurred to, for a demurrer confesses only those substantive facts which are well pleaded, and not other distinct substantive facts which might be inferred therefrom by a jury. To treat an averment that the plaintiff's ancestors were Africans, brought to this country and sold as slaves, as amounting to an averment on the record that he was a slave because it may lay some foundation for presuming so is to hold that the facts actually alleged may be treated as intended as evidence of another distinct facts not alleged. But it is a cardinal rule of pleading, laid down in Dowman's Case, 9 Rep. 9b, and in even earlier authorities therein referred to, "that evidence shall never be pleaded, for it only tends to prove matter of fact, and therefore the matter of fact shall be pleaded." Or, as the rule is sometimes stated, pleadings must not be argumentative. Stephen on Pleading 384, and authorities cited by him. In Com.Dig., Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this rule are collected. In trover, for an indenture whereby A granted a manor, it is no plea that A did not grant the manor, for it does not answer the declaration except by argument. Yelv. 223. So, in trespass for taking and carrying away the plaintiff's goods, the defendant pleaded that the plaintiff never had any goods. The court said, "this is an infallible argument that the defendant is not guilty, but it is no plea." Dyer a 43. In ejectment, the defendant pleaded a surrender of a copyhold by the hand of Fosset, the steward. The plaintiff replied that Fosset was not steward. The court held this no issue, for it traversed the surrender only agrumentatively. Cro.Elis. 260. In these cases and many others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when demurred to, amount to such inferable facts. In the case at bar, the inference that the defendant was a slave at the time of action brought, even if it can be made at all from the fact that his parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby v. Alexander, 8 Bing. 116. In that case, the defendant pleaded many facts strongly tending to show that he was once Earl of Stirling, but as there was no positive allegation Page 60 U. S. 571 that he was so at the time of action brought, and, as every fact averred might be true and yet the defendant not have been Earl of Stirling at the time of action brought, the plea was held to be insufficient. A lawful seizin of land is presumed to continue. But if, in an action of trespass quare clausum, the defendant were to plead that he was lawfully seized of the locus in quo one month before the time of the alleged trespass, I should have no doubt it would be a bad plea. See Mollan v. Torrance , 9 Wheat. 537. So if a plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff's ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact as existing at the time of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at the time of action brought, and the inquiry recurs whether the facts that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the State of Missouri within the meaning of the Constitution and laws of the United States. In Gassies v. Ballon , 6 Pet. 761, the defendant was described on the record as a naturalized citizen of the United States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana, because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri in the courts of the United States. So that, under the allegations contained in this plea and admitted by the demurrer, the question is whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so, for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors. The first section of the second article of the Constitution Page 60 U. S. 572 uses the language, "a citizen of the United States at the time of the adoption of the Constitution." One mode of approaching this question is to inquire who were citizens of the United States at the time of the adoption of the Constitution. Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was "The United States of America." This Government was in existence when the Constitution was framed and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Constitution. When, therefore, the Constitution speaks of citizenship of the United States existing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption. Without going into any question concerning the powers of the Confederation to govern the territory of the United States out of the limits of the States, and consequently to sustain the relation of Government and citizen in respect to the inhabitants of such territory, it may safely be said that the citizens of the several States were citizens of the United States under the Confederation. That Government was simply a confederacy of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the Government of the Confederation to act on any question of citizenship or to make any rules in respect thereto. The whole matter was left to stand upon the action of the several States, and to the natural consequence of such action that the citizens of each State should be citizens of that Confederacy into which that State had entered, the style whereof was, "The United States of America." To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation at the time of the adoption of the Constitution. Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New Page 60 U. S. 573 York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens. The Supreme Court of North Carolina, in the case of the State v. Manuel, 4 Dev. and Bat. 20, has declared the law of that State on this subject in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina. "According to the laws of this State," says Judge Gaston, in delivering the opinion of the court, "all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects -- those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not, in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax, and it is a matter of universal notoriety that, under it, free persons, without regard to color, claimed and exercised the franchise until it was taken from free men of color a few years since by our amended Constitution." In the State v. Newcomb, 5 Iredell's R. 253, decided in 1844, the same court referred to this case of the State v. Manuel, and said: "That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be one of great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling Page 60 U. S. 574 influence and authority on all questions of a similar character." An argument from speculative premises, however well chosen, that the then state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born on that soil, and that they were not, by the Constitution of 1780 of that State, admitted to the condition of citizens, would be received with surprise by the people of that State who know their own political history. It is true, beyond all controversy that persons of color, descended from African slaves, were by that Constitution made citizens of the State, and such of them as have had the necessary qualifications have held and exercised the elective franchise, as citizens, from that time to the present. See Com. v. Aves, 18 Pick. R. 210. The Constitution of New Hampshire conferred the elective franchise upon "every inhabitant of the State having the necessary qualifications," of which color or descent was not one. The Constitution of New York gave the right to vote to "every male inhabitant, who shall have resided," &c., making no discrimination between free colored persons and others. See Con. of N.Y., Art. 2, Rev.Stats. of N.Y., vol. 1, p. 126. That of New Jersey, to "all inhabitants of this colony, of full age, who are worth � 50 proclamation money, clear estate." New York, by its Constitution of 1820, required colored persons to have some qualifications as prerequisites for voting, which white persons need not possess. And New Jersey, by its present Constitution, restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry except to show that, before they were made, no such restrictions existed, and colored, in common with white, persons, were not only citizens of those States, but entitled to the elective franchise on the same qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who asserted, in the Declaration of Independence, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is that a calm comparison of these assertions of universal abstract truths and of their own individual opinions and acts would not leave Page 60 U. S. 575 these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them nor true in itself to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts. But this is not the place of vindicate their memory. As I conceive, we should deal here not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States and by the notorious practice under them. And they show, in a manner which no argument can obscure, that, in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States. The fourth of the fundamental articles of the Confederation was as follows: "The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States." The fact that free persons of color were citizens of some of the several States, and the consequence that this fourth article of the Confederation would have the effect to confer on such persons the privileges and immunities of general citizenship, were not only known to those who framed and adopted those articles, but the evidence is decisive that the fourth article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected. On the 25th of June, 1778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth article by inserting after the word "free," and before the word "inhabitants," the word "white," so that the privileges and immunities of general citizenship would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by its terms of inclusion, "free inhabitants," and the strong implication from its terms of exclusion, "paupers, vagabonds, and fugitives from justice," who alone were excepted, it is clear that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, were, entitled to the Page 60 U. S. 576 privileges and immunities of general citizenship of the United States. Did the Constitution of the United States deprive them or their descendants of citizenship? That Constitution was ordained and established by the people of the United States, through the action, in each State, or those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of "the people of the United States" by whom the Constitution was ordained and established, but, in at least five of the States, they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption. It would be strange if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established. I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States. I will proceed to state the grounds of that opinion. The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, Page 60 U. S. 577 and thus to continue British subjects. McIlvain v. Coxe's Lessee , 4 Cranch 209; Inglis v. Sailors' Snug Harbor , 3 Pet. 99; Shanks v. Dupont , 3 Pet. 242. The Constitution having recognised the rule that persons born within the several States are citizens of the United States, one of four things must be true: First. That the Constitution itself has described what native-born persons shall or shall not be citizens of the United States, or Second. That it has empowered Congress to do so, or Third. That all free persons born within the several States are citizens of the United States, or Fourth. That it is left to each State to determine what free persons born within its limits shall be citizens of such State, and thereby be citizens of the United States. If there be such a thing as citizenship of the United States acquired by birth within the States, which the Constitution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to select that one which is true. That the Constitution itself has defined citizenship of the United States by declaring what persons born within the several States shall or shall not be citizens of the United States will not be pretended. It contains no such declaration. We may dismiss the first alternative as without doubt unfounded. Has it empowered Congress to enact what free persons, born within the several States, shall or shall not be citizens of the United States? Before examining the various provisions of the Constitution which may relate to this question, it is important to consider for a moment the substantial nature of this inquiry. It is, in effect, whether the Constitution has empowered Congress to create privileged classes within the States who alone can be entitled to the franchises and powers of citizenship of the United States. If it be admitted that the Constitution has enabled Congress to declare what free persons born within the several States shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power. If this subject is within the control of Congress, it must depend wholly on its discretion. For certainly no limits of that discretion can be found in the Constitution, which is wholly silent concerning it, and the necessary consequence is that the Federal Government may select classes of persons within the several States who alone can be entitled to the political privileges of citizenship of the United States. If this power exists, what persons born within the States may be President or Vice President Page 60 U. S. 578 of the United States, or members of either House of Congress, or hold any office or enjoy any privilege whereof citizenship of the United States is a necessary qualification must depend solely on the will of Congress. By virtue of it, though Congress can grant no title of nobility, they may create an oligarchy in whose hands would be concentrated the entire power of the Federal Government. It is a substantive power, distinct in its nature from all others, capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the United States. Certainly we ought to find this power granted by the Constitution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Constitution which may have some bearing on this subject. Among the powers expressly granted to Congress is "the power to establish a uniform rule of naturalization." It is not doubted that this is a power to prescribe a rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this would do violence to the meaning of the term naturalization, fixed in the common law, Co.Lit. 8a, 129a; 2 Ves. sen. 286; 2 Bl.Com. 293, and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen that it was employed in the Declaration of Independence. It was in this sense it was expounded in the Federalist No. 42; has been understood by Congress, by the Judiciary, 15 U. S. 2 Wheat. 259, 15 U. S. 269 , 3 Wash.R. 313, 322, 25 U. S. 12 Wheat. 277, and by commentators on the Constitution. 3 Story's Com. on Con., 1-3; 1 Rawle on Con. 84-88; 1 Tucker's Bl.Com. App. 255-259. It appears, then that the only power expressly granted to Congress to legislate concerning citizenship is confined to the removal of the disabilities of foreign birth. Whether there be anything in the Constitution from which a broader power may be implied will best be seen when we come to examine the two other alternatives, which are whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the United States. The last of these alternatives, in my judgment, contains the truth. Undoubtedly, as has already been said, it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship. But it must be remembered that, though Page 60 U. S. 579 the Constitution was to form a Government, and under it the United States of America were to be one united sovereign nation to which loyalty and obedience, on the one side, and from which protection and privileges, on the other, would be due, yet the several sovereign States whose people were then citizens were not only to continue in existence, but with powers unimpaired except so far as they were granted by the people to the National Government. Among the powers unquestionably possessed by the several States was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may well enough, for the purpose now in view, be divided into three parts. First: the power to remove the disabilities of alienage, either by special acts in reference to each individual case or by establishing a rule of naturalization to be administered and applied by the courts. Second: determining what persons should enjoy the privileges of citizenship in respect to the internal affairs of the several States. Third: what native-born persons should be citizens of the United States. The first-named power -- that of establishing a uniform rule of naturalization -- was granted, and here the grant, according to its terms, stopped. Construing a Constitution containing only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization must be admitted to be exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But when this particular subject of citizenship was under consideration, and in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from the residue and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left to the States and to the people. And this presumption is, in my opinion, converted into a certainty by an examination of all such other clauses of the Constitution as touch this subject. I will examine each which can have any possible bearing on this question. The first clause of the second section of the third article of the Constitution is "The judicial power shall extend to controversies between a State and citizens of another State, between citizens of different States, between citizens of the same State, claiming lands under grants of different States, and between States, or the citizens thereof, and foreign States, Page 60 U. S. 580 citizens, or subjects." I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was to extend the judicial power to those controversies into which local feelings or interests might to enter as to disturb the course of justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation. At the same time, I would remark in passing that it has never been held -- I do not know that it has ever been supposed -- that any citizen of a State could bring himself under this clause and the eleventh and twelfth sections of the Judiciary Act of 1789, passed in pursuance of it, who was not a citizen of the United States. But I have referred to the clause only because it is one of the places where citizenship is mentioned by the Constitution. Whether it is entitled to any weight in this inquiry or not, it refers only to citizenship of the several States; it recognises that, but it does not recognise citizenship of the United States as something distinct therefrom. As has been said, the purpose of this clause did not necessarily connect it with citizenship of the United States, even if that were something distinct from citizenship of the several States in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to. "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Nowhere else in the Constitution is there anything concerning a general citizenship, but here, privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship, how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the United States. They are to be citizens of the several States, and as such, the privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by them. It would seem that, if it had been intended to constitute a class of native-born persons within the States who should derive their citizenship of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States. Page 60 U. S. 581 And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons? Simply as citizens of each State. But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions, and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions made by a Constitution on this subject must therefore be looked to as bearing directly on the question what persons are citizens under that Constitution, and as being decisive, to this extent -- that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Government of the United States, must be deemed citizens of the United States. Here, again, the consideration presses itself upon us that, if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the Constitution and laws of the United States, they should at least have been referred to as those by whom the President and House of Representatives were to be elected, and to whom they should be responsible. Instead of that, we again find this subject referred to the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State may direct, and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature. Laying aside, then, the case of aliens, concerning which the Constitution of the United States has provided, and confining our view to free persons born within the several States, we find that the Constitution has recognised the general principle of public law that allegiance and citizenship depend on the place of birth; that it has not attempted practically to apply this principle by designating the particular classes of persons who should or should not come under it; that, when we turn to the Constitution for an answer to the question what free persons born within the several States are citizens of the United States, the only answer we can receive from any of its express provisions is the citizens of the several States are to enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends on their citizenship in the several States. Add to this that the Constitution was ordained by the citizens of the several States that they were "the people of the United States," for whom Page 60 U. S. 582 and whose posterity the Government was declared in the preamble of the Constitution to be made; that each of them was "a citizen of the United States at the time of the adoption of the Constitution" within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the Union to discriminate between them, or to disfranchise any of them -- the necessary conclusion is that those persons born within the several States who, by force of their respective Constitutions and laws, are citizens of the State are thereby citizens of the United States. It may be proper here to notice some supposed objections to this view of the subject. It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that, in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration that it was ordained and established by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established. Again, it has been objected that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens. The answer is obvious. The Constitution has left to the States the determination what persons, born within their respective limits, shall acquire by birth citizenship of the United States; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress. It has been further objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States, and, if so, then colored persons could vote, and be Page 60 U. S. 583 eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office. But this position rests upon an assumption which I deem untenable. Its basis is that no one can be deemed a citizen of the United States who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. See 1 Lit.Kentucky R. 326. That this is not true under the Constitution of the United States seems to me clear. A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet as soon as naturalized, he is certainly a citizen of the United States. Nor is any inhabitant of the District of Columbia, or of either of the Territories, eligible to the office of Senator or Representative in Congress, though they may be citizens of the United States. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way. One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State by reason of the operation of causes other than mere citizenship are not conferred. Thus, if the laws of a State require, in addition to Page 60 U. S. 584 citizenship of the State, some qualification for office or the exercise of the elective franchise, citizens of all other States coming thither to reside and not possessing those qualifications cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity -- if it confer it on all of them by reason of mere naked citizenship -- then it may be claimed by every citizen of each State by force of the Constitution, and it must be borne in mind that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they became, as such, entitled to the benefits of this article if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States. There is one view of this article entitled to consideration in this connection. It is manifestly copied from the fourth of the Articles of Confederation, with only slight changes of phraseology which render its meaning more precise, and dropping the clause which excluded paupers, vagabonds, and fugitives from justice, probably because these cases could be dealt with under the police powers of the States, and a special provision therefor was not necessary. It has been suggested that, in adopting it into the Constitution, the words "free inhabitants" were changed for the word "citizens." An examination of the forms of expression commonly used in the State papers of that day, and an attention to the substance of this article of the Confederation, will show that the words "free inhabitants," as then used, were synonymous with citizens. When the Articles of Confederation were adopted, we were in the midst of the war of the Revolution, and there were very few persons then embraced in the words "free inhabitants" who were not born on our soil. It was not a time when many save the Page 60 U. S. 585 children of the soil were willing to embark their fortunes in our cause, and though there might be an inaccuracy in the uses of words to call free inhabitants citizens, it was then a technical, rather than a substantial, difference. If we look into the Constitutions and State papers of that period, we find the inhabitants or people of these colonies, or the inhabitants of this State or Commonwealth, employed to designate those whom we should now denominate citizens. The substance and purpose of the article prove it was in this sense it used these words; it secures to the free inhabitants of each State the privileges and immunities of free citizens in every State. It is not conceivable that the States should have agreed to extend the privileges of citizenship to persons not entitled to enjoy the privileges of citizens in the States where they dwelt that, under this article, there was a class of persons in some of the States, not citizens, to whom were secured all the privileges and immunities of citizens when they went into other States; and the just conclusion is that, though the Constitution cured an inaccuracy of language, it left the substance of this article in the National Constitution the same as it was in the Articles of Confederation. The history of this fourth article, respecting the attempt to exclude free persons of color from its operation, has been already stated. It is reasonable to conclude that this history was known to those who framed and adopted the Constitution. That, under this fourth article of the Confederation, free persons of color might be entitled to the privileges of general citizenship, if otherwise entitled thereto, is clear. When this article was, in substance, placed in and made part of the Constitution of the United States, with no change in its language calculated to exclude free colored persons from the benefit of its provisions, the presumption is, to say the least, strong that the practical effect which it was designed to have, and did have, under the former Government, it was designed to have, and should have, under the new Government. It may be further objected that, if free colored persons may be citizens of the United States, it depends only on the will of a master whether he will emancipate his slave and thereby make him a citizen. Not so. The master is subject to the will of the State. Whether he shall be allowed to emancipate his slave at all; if so, on what conditions; and what is to be the political status of the freed man depend, not on the will of the master, but on the will of the State, upon which the political status of all its native-born inhabitants depends. Under the Constitution of the United States, each State has retained this power of determining the political status of its native-born Page 60 U. S. 586 inhabitants, and no exception thereto can be found in the Constitution. And if a master in a slaveholding State should carry his slave into a free State, and there emancipate him, he would not thereby make him a native-born citizen of that State, and consequently no privileges could be claimed by such emancipated salve as a citizen of the United States. For whatever powers the States may exercise to confer privileges of citizenship on persons not born on their soil, the Constitution of the United States does not recognise such citizens. As has already been said, it recognises the great principle of public law that allegiance and citizenship spring from the place of birth. It leaves to the States the application of that principle to individual cases. It secured to the citizens of each State the privileges and immunities of citizens in every other State. But it does not allow to the States the power to make aliens citizens, or permit one State to take persons born on the soil of another State, and contrary to the laws and policy of the State where they were born, make them its citizens, and so citizens of the United States. No such deviation from the great rule of public law was contemplated by the Constitution, and when any such attempt shall be actually made, it is to be met by applying to it those rules of law and those principles of good faith which will be sufficient to decide it, and not, in my judgment, by denying that all the free native-born inhabitants of a State who are its citizens under its Constitution and laws are also citizens of the United States. It has sometimes been urged that colored persons are shown not to be citizens of the United States by the fact that the naturalization laws apply only to white persons. But whether a person born in the United States be or be not a citizen cannot depend on laws which refer only to aliens, and do not affect the status of persons born in the United States. The utmost effect which can be attributed to them is to show that Congress has not deemed it expedient generally to apply the rule to colored aliens. That they might do so, if though fit, is clear. The Constitution has not excluded them. And since that has conferred the power on Congress to naturalize colored aliens, it certainly shows color is not a necessary qualification for citizenship under the Constitution of the United States. It may be added that the power to make colored persons citizens of the United States under the Constitution has been actually exercised in repeated and important instances. See the Treaties with the Choctaws, of September 27, 1830, art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of Guadalupe Hidalgo, February 2, 1848, art. 8. I do not deem it necessary to review at length the legislation Page 60 U. S. 587 of Congress having more or less bearing on the citizenship of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government that no such persons are citizens of the United States. Undoubtedly they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit they may be citizens. Thus, the act of May 17, 1792, for the organization of the militia directs the enrollment of "every free, able-bodied, white male citizen." An assumption that none but white persons are citizens would be as inconsistent with the just import of this language as that all citizens are able-bodied, or males. So the Act of February 28, 1803, 2 Stat. at Large 205, to prevent the importation of certain persons into States when by the laws thereof their admission is prohibited, in its first section, forbids all masters of vessels to import or bring "any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States," &c. The Acts of March 3, 1813, section 1, 2 Stat. at Large 809, and March 1, 1817, section 3, 3 Stat. at Large 351, concerning seamen, certainly imply there may be persons of color, natives of the United States who are not citizens of the United States. This implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizenship of persons of color in others of the States, nor with their being citizens of the United States. Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to this subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification of citizenship. It would be strange if laws were found on our statute book to that effect when, by solemn treaties, large bodies of Mexican and North American Indians as well as free colored inhabitants of Louisiana have been admitted to citizenship of the United States. In the legislative debates which preceded the admission of the State of Missouri into the Union, this question was agitated. Its result is found in the resolution of Congress of March 5, 1821, for the admission of that State into the Union. The Constitution of Missouri, under which that State applied for admission into the Union, provided that it should be the duty Page 60 U. S. 588 of the Legislature "to pass laws to prevent free negroes and mulattoes from coming to and settling in the State under any pretext whatever." One ground of objection to the admission of the State under this Constitution was that it would require the Legislature to exclude free persons of color, who would be entitled, under the second section of the fourth article of the Constitution, not only to come within the State, but to enjoy there the privileges and immunities of citizens. The resolution of Congress admitting the State was upon the fundamental condition "that the Constitution of Missouri shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United States." It is true that neither this legislative declaration nor anything in the Constitution or laws of Missouri could confer or take away any privilege or immunity granted by the Constitution. But it is also true that it expresses the then conviction of the legislative power of the United States that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States. The conclusions at which I have arrived on this part of the case are: First. That the free native-born citizens of each State are citizens of the United States. Second. That, as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States. Third. That every such citizen, residing in any State, has the right to sue and is liable to be sued in the Federal courts, as a citizen of that State in which he resides. Fourth. That, as the plea to the jurisdiction in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves, and as these facts are not inconsistent with his citizenship of the United States and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgment of the Circuit Court overruling it was correct. I dissent, therefore, from that part of the opinion of the majority of the court in which it is held that a person of African descent cannot be a citizen of the United States, and I regret I must go further and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri Compromise Page 60 U. S. 589 Act and the grounds and conclusions announced in their opinion. Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the court as described by its repeated decisions, and as I understand, acknowledged in this opinion of the majority of the court. In the course of that opinion, it became necessary to comment on the case of Legrand v. Darnall , reported in 2 Peters 664. In that case, a bill was filed, by one alleged to be a citizen of Maryland against one alleged to be a citizen of Pennsylvania. The bill stated that the defendant was the son of a white man by one of his slaves, and that the defendant's father devised to him certain lands, the title to which was put in controversy by the bill. These facts were admitted in the answer, and upon these and other facts, the court made its decree, founded on the principle that a devise of land by a master to a slave was, by implication, also a bequest of his freedom. The facts that the defendant was of African descent and was born a slave were not only before the court, but entered into the entire substance of its inquiries. The opinion of the majority of my brethren in this case disposes of the case of Legrand v. Darnall by saying, among other things, that as the fact that the defendant was born a slave only came before this court on the bill and answer; it was then too late to raise the question of the personal disability of the party, and therefore that decision is altogether inapplicable in this case. In this I concur. Since the decision of this court in Livingston v. Story , 11 Pet. 351, the law has been settled that, when the declaration or bill contains the necessary averments of citizenship, this court cannot look at the record to see whether those averments are true except so far as they are put in issue by a plea to the jurisdiction. In that case, the defendant denied by his answer that Mr. Livingston was a citizen of New York, as he had alleged in the bill. Both parties went into proofs. The court refused to examine those proofs with reference to the personal disability of the plaintiff. This is the Page 60 U. S. 590 settled law of the court, affirmed so lately as Shepherd v. Graves , 14 How. 27, and Wickliff v. Owings , 17 How. 51. See also De Wolf v. Rabaud , 1 Pet. 476. But I do not understand this to be a rule which the court may depart from at its pleasure. If it be a rule, it is as binding on the court as on the suitors. If it removes from the latter the power to take any objection to the personal disability of a party alleged by the record to be competent, which is not shown by a plea to the jurisdiction, it is because the court are forbidden by law to consider and decide on objections so taken. I do not consider it to be within the scope of the judicial power of the majority of the court to pass upon any question respecting the plaintiff's citizenship in Missouri save that raised by the plea to the jurisdiction, and I do not hold any opinion of this Court, or any court, binding, when expressed on a question not legitimately before it. Carroll v. Carroll , 16 How. 275. The judgment of this Court is that the case is to be dismissed for want of jurisdiction because the plaintiff was not a citizen of Missouri, as he alleged in his declaration. Into that judgment, according to the settled course of this Court, nothing appearing after a plea to the merits can enter. A great question of constitutional law, deeply affecting the peace and welfare of the country, is not, in my opinion, a fit subject to be thus reached. But as, in my opinion, the Circuit Court had jurisdiction, I am obliged to consider the question whether its judgment on the merits of the case should stand or be reversed. The residence of the plaintiff in the State of Illinois, and the residence of himself and his wife in the territory acquired from France lying north of latitude thirty-six degrees thirty minutes and north of the State of Missouri, are each relied on by the plaintiff in error. As the residence in the territory affects the plaintiff's wife and children as well as himself, I must inquire what was its effect. The general question may be stated to be whether the plaintiff's status as a slave was so changed by his residence within that territory that he was not a slave in the State of Missouri at the time this action was brought. In such cases, two inquiries arise which may be confounded, but should be kept distinct. The first is what was the law of the Territory into which the master and slave went respecting the relation between them? The second is whether the State of Missouri recognises and allows the effect of that law of the Territory on the status of the slave on his return within its jurisdiction. As to the first of these questions, the will of States and nations, Page 60 U. S. 591 by whose municipal law slavery is not recognised, has been manifested in three different ways. One is absolutely to dissolve the relation, and terminate the rights of the master existing under the law of the country whence the parties came. This is said by Lord Stowell, in the Case of the Slave Grace, 2 Hag.Ad.R. 94, and by the Supreme Court of Louisiana in the Case of Maria Louise v. Marot, 9 Louis.R. 473, to be the law of France, and it has been the law of several States of this Union, in respect to slaves introduced under certain conditions. Wilson v. Isabel, 5 Call's R. 430; Hunter v. Hulcher, 1 Leigh 172; Stewart v. Oaks, 5 Har. and John. 107. The second is where the municipal law of a country not recognising slavery, it is the will of the State to refuse the master all aid to exercise any control over his slave, and if he attempt to do so, in a manner justifiable only by that relation, to prevent the exercise of that control. But no law exists designed to operate directly on the relation of master and slave, and put an end to that relation. This is said by Lord Stowell, in the case above mentioned, to be the law of England, and by Mr. Chief Justice Shaw, in the case of the Commonwealth v. Aves, 18 Pick. 193, to be the law of Massachusetts. The third is to make a distinction between the case of a master and his slave only temporarily in the country, animo non manendi, and those who are there to reside for permanent or indefinite purposes. This is said by Mr. Wheaton to be the law of Prussia, and was formerly the statute law of several States of our Union. It is necessary in this case to keep in view this distinction between those countries whose laws are designed to act directly on the status of a slave, and make him a freeman, and those where his master can obtain no aid from the laws to enforce his rights. It is to the last case only that the authorities, out of Missouri, relied on by defendant, apply when the residence in the nonslaveholding Territory was permanent. In the Commonwealth v. Aves, 18 Pick. 218, Mr. Chief Justice Shaw said: "From the principle above stated, on which a slave brought here becomes free, to-wit, that he becomes entitled to the protection of our laws, it would seem to follow as a necessary conclusion that, if the slave waives the protection of those laws and returns to the State where he is held as a slave, his condition is not changed." It was upon this ground, as is apparent from his whole reasoning, that Sir William Scott rests his opinion in the Case of the Slave Grace. To use one of his expressions, the effect of the law of England was to put the liberty of the slave into a parenthesis. If there had been an Page 60 U. S. 592 act of Parliament declaring that a slave coming to England with his master should thereby be deemed no longer to be a slave, it is easy to see that the learned judge could not have arrived at the same conclusion. This distinction is very clearly stated and shown by President Tucker in his opinion in the case of Betty v. Horton, 5 Leigh's Virginia R. 615. See also Hunter v. Fletcher, 1 Leigh's Va.R. 172; Maria Louise v. Marot, 9 Louisiana R.; Smith v. Smith, 13 ib. 441; Thomas v. Genevieve, 16 ib. 483; Rankin v. Lydia, 2 A. K. Marshall 467; Davies v. Tingle, 8 B.Munroe 539; Griffeth v. Fanny, Gilm.Va.R. 143; Lumford v. Coquillon, 14 Martin's La.R. 405; Josephine v. Poultney, 1 Louis.Ann.R. 329. But if the acts of Congress on this subject are valid, the law of the Territory of Wisconsin, within whose limits the residence of the plaintiff and his wife and their marriage and the birth of one or both of their children took place, falls under the first category, and is a law operating directly on the status of the slave. By the eighth section of the Act of March 6, 1820, 3 Stat. at Large 548, it was enacted that, within this Territory, "slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided always that any person escaping into the same, from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service, as aforesaid." By the Act of April 20, 1836, 4 Stat. at Large 10, passed in the same month and year of the removal of the plaintiff to Fort Snelling, this part of the territory ceded by France, where Fort Snelling is, together with so much of the territory of the United States east of the Mississippi as now constitutes the State of Wisconsin, was brought under a Territorial Government under the name of the Territory of Wisconsin. By the eighteenth section of this act, it was enacted "That the inhabitants of this Territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages, granted and secured to the people of the Territory of the United States northwest of the river Ohio, by the articles of compact contained in the ordinance for the government of said Territory, passed on the 13th day of July, 1787, and shall be subject to all the restrictions and prohibitions in said articles of compact imposed upon the people of the said Territory." The sixth article of that compact is "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in Page 60 U. S. 593 the punishment of crimes, whereof the party shall have been duly convicted. Provided always that any person escaping into the same, from whom labor or service is lawfully claimed in anyone of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service, as aforesaid." By other provisions of this act establishing the Territory of Wisconsin, the laws of the United States, and the then existing laws of the State of Michigan, are extended over the Territory, the latter being subject to alteration and repeal by the legislative power of the Territory created by the act. Fort Snelling was within the Territory of Wisconsin, and these laws were extended over it. The Indian title to that site for a military post had been acquired from the Sioux nation as early as September 23, 1805, Am.State Papers, Indian Affairs, vol. 1, p. 744, and until the erection of the Territorial Government, the persons at that post were governed by the rules and articles of war, and such laws of the United States, including the eighth section of the Act of March 6, 1820, prohibiting slavery, as were applicable to their condition; but after the erection of the Territory, and the extension of the laws of the United States and the laws of Michigan over the whole of the Territory, including this military post, the persons residing there were under the dominion of those laws in all particulars to which the rules and articles of war did not apply. It thus appears that, by these acts of Congress, not only was a general system of municipal law borrowed from the State of Michigan, which did not tolerate slavery, but it was positively enacted that slavery and involuntary servitude, with only one exception, specifically described, should not exist there. It is not simply that slavery is not recognised and cannot be aided by the municipal law. It is recognised for the purpose of being absolutely prohibited and declared incapable of existing within the Territory, save in the instance of a fugitive slave. It would not be easy for the Legislature to employ more explicit language to signify its will that the status of slavery should not exist within the Territory than the words found in the Act of 1820, and in the Ordinance of 1787, and if any doubt could exist concerning their application to cases of masters coming into the Territory with their slaves to reside that doubt must yield to the inference required by the words of exception. That exception is of cases of fugitive slaves. An exception from a prohibition marks the extent of the prohibition, for it would be absurd, as well as useless, to except from a prohibition Page 60 U. S. 594 a case not contained within it. 22 U. S. 9 Wheat. 200. I must conclude, therefore that it was the will of Congress that the state of involuntary servitude of a slave coming into the Territory with his master should cease to exist. The Supreme Court of Missouri so held in Rachel v. Walker, 4 Misso.R., 350, which was the case of a military officer going into the Territory with two slaves. But it is a distinct question whether the law of Missouri recognised and allowed effect to the change wrought in the status of the plaintiff by force of the laws of the Territory of Wisconsin. I say the law of Missouri because a judicial tribunal in one State or nation can recognise personal rights acquired by force of the law of any other State or nation only so far as it is the law of the former State that those rights should be recognised. But, in the absence of positive law to the contrary, the will of every civilized State must be presumed to be to allow such effect to foreign laws as is in accordance with the settled rules of international law. And legal tribunals are bound to act on this presumption. It may be assumed that the motive of the State in allowing such operation to foreign laws is what has been termed comity. But, as has justly been said per Chief Justice Taney, 13 Pet. 38 U. S. 589 , it is the comity of the State, not of the court. The judges have nothing to do with the motive of the State. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will to depart from a rule of international law has not been manifested by the State, they are bound to assume that its will is to give effect to it. Undoubtedly, every sovereign State may refuse to recognise a change, wrought by the law of a foreign State, on the status of a person while within such foreign State, even in cases where the rules of international law require that recognition. Its will to refuse such recognition may be manifested by what we term statute law, or by the customary law of the State. It is within the province of its judicial tribunals to inquire and adjudge whether it appears, from the statute or customary law of the State, to be the will of the State to refuse to recognise such changes of status by force of foreign law, as the rules of the law of nations require to be recognised. But, in my opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view it may take of the exterior political relations between the State and one or more foreign States, or any impressions it may have that a change of foreign opinion and action on the subject of slavery may afford a reason why the State should change its own action. To understand and give Page 60 U. S. 595 just effect to such considerations, and to change the action of the State in consequence of them, are functions of diplomatists and legislators, not of judges. The inquiry to be made on this part of the case is therefore whether the State of Missouri has, by its statute, or its customary law, manifested its will to displace any rule of international law, applicable to a change of the status of a slave, by foreign law. I have not heard it suggested that there was any statute of the State of Missouri bearing on this question. The customary law of Missouri is the common law, introduced by statute in 1816. 1 Ter.Laws, 436. And the common law, as Blackstone says, 4 Com. 67, adopts, in its full extent, the law of nations, and holds it to be a part of the law of the land. I know of no sufficient warrant for declaring that any rule of international law concerning the recognition, in that State, of a change of status wrought by an extraterritorial law has been displaced or varied by the will of the State of Missouri. I proceed then to inquire what the rules of international law prescribe concerning the change of status of the plaintiff wrought by the law of the Territory of Wisconsin. It is generally agreed by writers upon international law, and the rule has been judicially applied in a great number of cases, that wherever any question may arise concerning the status of a person, it must be determined according to that law which has next previously rightfully operated on and fixed that status. And further, that the laws of a country do not rightfully operate upon and fix the status of persons who are within its limits in itinere, or who are abiding there for definite temporary purposes, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, operate only on the inhabitants of the country. Not that it is or can be denied that each independent nation may, if it thinks fit, apply them to all persons within their limits. But when this is done not in conformity with the principles of international law, other States are not understood to be willing to recognise or allow effect to such applications of personal statutes. It becomes necessary, therefore, to inquire whether the operation of the laws of the Territory of Wisconsin upon the status of the plaintiff was or was not such an operation as these principles of international law require other States to recognise and allow effect to. And this renders it needful to attend to the particular facts and circumstances of this case. Page 60 U. S. 596 It appears that this case came on for trial before the Circuit Court and a jury upon an issue, in substance, whether the plaintiff, together with his wife and children, were the slaves of the defendant. The court instructed the jury that, "upon the facts in this case, the law is with the defendant." This withdrew from the jury the consideration and decision of every matter of fact. The evidence in the case consisted of written admissions, signed by the counsel of the parties. If the case had been submitted to the judgment of the court upon an agreed statement of facts, entered of record, in place of a special verdict, it would have been necessary for the court below, and for this court, to pronounce its judgment solely on those facts, thus agreed, without inferring any other facts therefrom. By the rules of the common law applicable to such a case, and by force of the seventh article of the amendments of the Constitution, this court is precluded from finding any fact not agreed to by the parties on the record. No submission to the court on a statement of facts was made. It was a trial by jury, in which certain admissions, made by the parties, were the evidence. The jury were not only competent, but were bound to draw from that evidence every inference which, in their judgment, exercised according to the rules of law, it would warrant. The Circuit Court took from the jury the power to draw any inferences from the admissions made by the parties, and decided the case for the defendant. This course can be justified here, if at all, only by its appearing that, upon the facts agreed and all such inferences of fact favorable to the plaintiff's case as the jury might have been warranted in drawing from those admissions, the law was with the defendant. Otherwise, the plaintiff would be deprived of the benefit of his trial by jury, by whom, for aught we can know, those inferences favorable to his case would have been drawn. The material facts agreed bearing on this part of the case are that Dr. Emerson, the plaintiff's master, resided about two years at the military post of Fort Snelling, being a surgeon in the army of the United States, his domicil of origin being unknown, and what, if anything, he had done to preserve or change his domicil prior to his residence at Rock Island being also unknown. Now it is true that, under some circumstances the residence of a military officer at a particular place in the discharge of his official duties does not amount to the acquisition of a technical domicil. But it cannot be affirmed with correctness that it never does. There being actual residence, and this being presumptive evidence of domicil, all the circumstances Page 60 U. S. 597 of the case must be considered before a legal conclusion can be reached that his place of residence is not his domicil. If a military officer stationed at a particular post should entertain an expectation that his residence there would be indefinitely protracted, and in consequence should remove his family to the place where his duties were to be discharged, form a permanent domestic establishment there, exercise there the civil rights and discharge the civil duties of an inhabitant, while he did not act and manifested no intent to have a domicil elsewhere, I think no one would say that the mere fact that he was himself liable to be called away by the orders of the Government would prevent his acquisition of a technical domicil at the place of the residence of himself and his family. In other words, I do not think a military officer incapable of acquiring a domicil. Bruce v. Bruce, 2 Bos. and Pul. 230; Munroe v. Douglass, 5 Mad.Ch.R. 232. This being so, this case stands thus: there was evidence before the jury that Emerson resided about two years at Fort Snelling, in the Territory of Wisconsin. This may or may not have been with such intent as to make it his technical domicil. The presumption is that it was. It is so laid down by this court, in Ennis v. Smith, 14 How. and the authorities in support of the position are there referred to. His intent was a question of fact for the jury. Fitchburg v. Winchendon, 4 Cush. 190. The case was taken from the jury. If they had power to find that the presumption of the necessary intent had not been rebutted, we cannot say, on this record that Emerson had not his technical domicil at Fort Snelling. But, for reasons which I shall now proceed to give, I do not deem it necessary in this case to determine the question of the technical domicil of Dr. Emerson. It must be admitted that the inquiry whether the law of a particular country has rightfully fixed the status of a person, so that in accordance with the principles of international law that status should be recognised in other jurisdictions, ordinarily depends on the question whether the person was domiciled in the country whose laws are asserted to have fixed his status. But, in the United States, questions of this kind may arise where an attempt to decide solely with reference to technical domicil, tested by the rules which are applicable to changes of places of abode from one country to another, would not be consistent with sound principles. And, in my judgment, this is one of those cases. The residence of the plaintiff, who was taken by his master, Dr. Emerson, as a slave, from Missouri to the State of Illinois, and thence to the Territory of Wisconsin, must be deemed to Page 60 U. S. 598 have been for the time being, and until he asserted his own separate intention, the same as the residence of his master, and the inquiry whether the personal statutes of the Territory were rightfully extended over the plaintiff, and ought, in accordance with the rules of international law, to be allowed to fix his status, must depend upon the circumstances under which Dr. Emerson went into that Territory and remained there, and upon the further question whether anything was there rightfully done by the plaintiff to cause those personal statutes to operate on him. Dr. Emerson was an officer in the army of the United States. He went into the Territory to discharge his duty to the United States. The place was out of the jurisdiction of any particular State, and within the exclusive jurisdiction of the United States. It does not appear where the domicil of origin of Dr. Emerson was, nor whether or not he had lost it, and gained another domicil, nor of what particular State, if any, he was a citizen. On what ground can it be denied that all valid laws of the United States, constitutionally enacted by Congress for the government of the Territory, rightfully extended over an officer of the United States and his servant who went into the Territory to remain there for an indefinite length of time, to take part in its civil or military affairs? They were not foreigners, coming from abroad. Dr. Emerson was a citizen of the country which had exclusive jurisdiction over the Territory, and not only a citizen, but he went there in a public capacity, in the service of the same sovereignty which made the laws. Whatever those laws might be, whether of the kind denominated personal statutes or not, so far as they were intended by the legislative will, constitutionally expressed, to operate on him and his servant, and on the relations between them, they had a rightful operation, and no other State or country can refuse to allow that those laws might rightfully operate on the plaintiff and his servant, because such a refusal would be a denial that the United States could, by laws constitutionally enacted, govern their own servants, residing on their own Territory, over which the United States had the exclusive control, and in respect to which they are an independent sovereign power. Whether the laws now in question were constitutionally enacted, I repeat once more, is a separate question. But, assuming that they were, and that they operated directly on the status of the plaintiff, I consider that no other State or country could question the rightful power of the United States so to legislate, or, consistently with the settled rules of international law, could refuse to recognise the effects Page 60 U. S. 599 of such legislation upon the status of their officers and servants, as valid everywhere. This alone would, in my apprehension, be sufficient to decide this question. But there are other facts stated on the record which should not be passed over. It is agreed that, in the year 1836, the plaintiff, while residing in the Territory, was married, with the consent of Dr. Emerson, to Harriet, named in the declaration as his wife, and that Eliza and Lizzie were the children of that marriage, the first named having been born on the Mississippi river, north of the line of Missouri, and the other having been born after their return to Missouri. And the inquiry is whether, after the marriage of the plaintiff in the Territory, with the consent of Dr. Emerson, any other State or country can, consistently with the settled rules of international law, refuse to recognise and treat him as a free man when suing for the liberty of himself, his wife, and the children of the marriage. It is in reference to his status as viewed in other States and countries that the contract of marriage and the birth of children becomes strictly material. At the same time, it is proper to observe that the female to whom he was married having been taken to the same military post of Fort Snelling as a slave, and Dr. Emerson claiming also to be her master at the time of her marriage, her status, and that of the children of the marriage, are also affected by the same considerations. If the laws of Congress governing the Territory of Wisconsin were constitutional and valid laws, there can be no doubt these parties were capable of contracting a lawful marriage, attended with all the usual civil rights and obligations of that condition. In that Territory, they were absolutely free persons, having full capacity to enter into the civil contract of marriage. It is a principle of international law, settled beyond controversy in England and America, that a marriage, valid by the law of the place where it was contracted, and not in fraud of the law of any other place, is valid everywhere, and that no technical domicil at the place of the contract is necessary to make it so. See Bishop on Mar. and Div. 125-129, where the cases are collected. If, in Missouri, the plaintiff were held to be a slave, the validity and operation of his contract of marriage must be denied. He can have no legal rights, of course, not those of a husband and father. And the same is true of his wife and children. The denial of his rights is the denial of theirs. So that, though lawfully married in the Territory, when they came out of it, into the State of Missouri, they were no longer Page 60 U. S. 600 husband and wife, and a child of that lawful marriage, though born under the same dominion where its parents contracted a lawful marriage, is not the fruit of that marriage, nor the child of its father, but subject to the maxim partus sequitur ventrem. It must be borne in mind that, in this case, there is no ground for the inquiry whether it be the will of the State of Missouri not to recognise the validity of the marriage of a fugitive slave, who escapes into a State or country where slavery is not allowed and there contracts a marriage, or the validity of such a marriage where the master, being a citizen of the State of Missouri, voluntarily goes with his slave, in itinere, into a State or country which does not permit slavery to exist, and the slave there contracts marriage without the consent of his master, for in this case, it is agreed, Dr. Emerson did consent, and no further question can arise concerning his rights so far as their assertion is inconsistent with the validity of the marriage. Nor do I know of any ground for the assertion that this marriage was in fraud of any law of Missouri. It has been held by this court that a bequest of property by a master to his slave by necessary implication entitles the slave to his freedom, because only as a freeman could he take and hold the bequest. Legrand v. Darnall , 2 Pet.R. 664. It has also been held that, when a master goes with his slave to reside for an indefinite period in a State where slavery is not tolerated, this operates as an act of manumission, because it is sufficiently expressive of the consent of the master that the slave should be free. 2 Marshall's Ken.R. 470, 14 Martin's Louis.R. 401. What, then, shall we say of the consent of the master that the slave may contract a lawful marriage, attended with all the civil rights and duties which belong to that relation; that he may enter into a relation which none but a free man can assume -- a relation which involves not only the rights and duties of the slave, but those of the other party to the contract, and of their descendants to the remotest generation? In my judgment, there can be no more effectual abandonment of the legal rights of a master over his slave than by the consent of the master that the slave should enter into a contract of marriage in a free State, attended by all the civil rights and obligations which belong to that condition. And any claim by Dr. Emerson, or anyone claiming under him the effect of which is to deny the validity of this marriage and the lawful paternity of the children born from it, wherever asserted, is, in my judgment, a claim inconsistent with good faith and sound reason, as well as with the rules of international law. And I go further: in my opinion, a law of the State Page 60 U. S. 601 of Missouri which should thus annul a marriage, lawfully contracted by these parties while resident in Wisconsin, not in fraud of any law of Missouri, or of any right of Dr. Emerson, who consented thereto, would be a law impairing the obligation of a contract, and within the prohibition of the Constitution of the United States. See 17 U. S. 4 Wheat. 629, 17 U. S. 695 , 17 U. S. 696 . To avoid misapprehension on this important and difficult subject, I will state distinctly the conclusions at which I have arrived. They are: First. The rules of international law respecting the emancipation of slaves, by the rightful operation of the laws of another State or country upon the status of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State. Second. The laws of the United States, constitutionally enacted, which operated directly on and changed the status of a slave coming into the Territory of Wisconsin with his master, who went thither to reside for an indefinite length of time, in the performance of his duties as an officer of the United States, had a rightful operation on the status of the slave, and it is in conformity with the rules of international law that this change of status should be recognised everywhere. Third. The laws of the United States, in operation in the Territory of Wisconsin at the time of the plaintiff's residence there, did act directly on the status of the plaintiff, and change his status to that of a free man. Fourth. The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract a marriage in that Territory, valid under its laws, and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State or of some right derived from them, which cannot be shown in this case, because the master consented to it. Fifth. That the consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which being to that condition, is an effectual act of emancipation. And the law does not enable Dr. Emerson, or anyone claiming under him, to assert a title to the married persons as slaves, and thus destroy the obligation of the contract of marriage and bastardize their issue and reduce them to slavery. But it is insisted that the Supreme Court of Missouri has settled this case by its decision in Scott v. Emerson, 15 Missouri Reports 576, and that this decision is in conformity Page 60 U. S. 602 with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr. Emerson never became domiciled in the Territory, and so its laws could not rightfully operate on him and his slave, and the facts that he went there to reside indefinitely as an officer of the United States, and that the plaintiff was lawfully married there with Dr. Emerson's consent, were left out of view, the decision would find support in other cases, and I might not be prepared to deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not questioned in that decision, and it is placed on a broad denial of the operation, in Missouri, of the law of any foreign State or country upon the status of a slave, going with his master from Missouri into such foreign State or country, even though they went thither to become, and actually became, permanent inhabitants of such foreign State or country, the laws whereof acted directly on the status of the slave, and changed his status to that of a freeman. To the correctness of such a decision I cannot assent. In my judgment, the opinion of the majority of the court in that case is in conflict with its previous decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental principles of private international law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said: "I regard the question as conclusively settled by repeated adjudications of this court, and if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them than I would any other series of decisions by which the law upon any other question had been settled. There is with me nothing in the law of slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary excitements which have gathered around it. . . . But, in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend." "In this State, it has been recognized from the beginning of the Government as a correct position in law that the master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emancipates his slave." Winney v. Whitesides, 1 Mo. 473; Le Grange v. Chouteau, 2 Mo. 20; Milley v. Smith, ib. 36; Ralph v. Duncan, 3 Mo. 194; Julia v. McKinney, ib. 270; Nat v. Ruddle, ib. 400; Rachel v. Walker, 4 Mo. 350; Wilson v. Melvin, 592. Page 60 U. S. 603 Chief Justice Gamble has also examined the decisions of the courts of other States in which slavery is established, and finds them in accordance with these preceding decisions of the Supreme Court of Missouri, to which he refers. It would be a useless parade of learning for me to go over the ground which he has so fully and ably occupied. But it is further insisted we are bound to follow this decision. I do not think so. In this case, it is to be determined what laws of the United States were in operation in the Territory of Wisconsin, and what was their effect on the status of the plaintiff. Could the plaintiff contract a lawful marriage there? Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, bastardize the issue of the marriage, and reduce them to a state of slavery? These questions, which arise exclusively under the Constitution and laws of the United States, this Court, under the Constitution and laws of the United States, has the rightful authority finally to decide. And if we look beyond these questions, we come to the consideration whether the rules of international law, which are part of the laws of Missouri until displaced by some statute not alleged to exist, do or do not require the status of the plaintiff, as fixed by the laws of the Territory of Wisconsin, to be recognised in Missouri. Upon such a question, not depending on any statute or local usage, but on principles of universal jurisprudence, this court has repeatedly asserted it could not hold itself bound by the decisions of State courts, however great respect might be felt for their learning, ability, and impartiality. See Swift v. Tyson , 16 Peters's R. 1; Carpenter v. The Providence Ins. Co., ib. 495; Foxcroft v. Mallet , 4 How. 353; Rowan v. Runnels , 5 How. 134. Some reliance has been placed on the fact that the decision in the Supreme Court of Missouri was between these parties, and the suit there was abandoned to obtain another trial in the courts of the United States. In Homer v. Brown , 16 How. 354, this court made a decision upon the construction of a devise of lands, in direct opposition to the unanimous opinion of the Supreme Court of Massachusetts, between the same parties, respecting the same subject matter -- the claimant having become nonsuit in the State court in order to bring his action in the Circuit Court of the United States. I did not sit in that case, having been of counsel for one of the parties while at the bar, but, on examining the report of the argument of the counsel for the plaintiff in error, I find they made the point that this court ought to give effect to the construction put upon the will by the State Page 60 U. S. 604 court, to the end that rights respecting lands may be governed by one law, and that the law of the place where the lands are situated that they referred to the State decision of the case, reported in 3 Cushing 390, and to many decisions of this court. But this court does not seem to have considered the point of sufficient importance to notice it in their opinions. In Millar v. Austin , 13 How. 218, an action was brought by the endorsee of a written promise. The question was whether it was negotiable under a statute of Ohio. The Supreme Court of that State having decided it was not negotiable, the plaintiff became nonsuit, and brought his action in the Circuit Court of the United States. The decision of the Supreme Court of the State, reported in 4 Ves.L.J. 527, was relied on. This court unanimously held the paper to be negotiable. When the decisions of the highest court of a State are directly in conflict with each other, it has been repeatedly held here that the last decision is not necessarily to be taken as the rule. State Bank v. Knoop , 16 How. 369; Pease v. Peck , 18 How. 599. To these considerations I desire to add that it was not made known to the Supreme Court of Missouri, so far as appears, that the plaintiff was married in Wisconsin with the consent of Dr. Emerson, and it is not made known to us that Dr. Emerson was a citizen of Missouri, a fact to which that court seem to have attached much importance. Sitting here to administer the law between these parties, I do not feel at liberty to surrender my own convictions of what the law requires, to the authority of the decision in 15 Missouri Reports. I have thus far assumed, merely for the purpose of the argument that the laws of the United States respecting slavery in this Territory were constitutionally enacted by Congress. It remains to inquire whether they are constitutional and binding laws. In the argument of this part of the case at bar, it was justly considered by all the counsel to be necessary to ascertain the source of the power of Congress over the territory belonging to the United States. Until this is ascertained, it is not possible to determine the extent of that power. On the one side, it was maintained that the Constitution contains no express grant of power to organize and govern what is now known to the laws of the United States as a Territory. That whatever power of this kind exists is derived by implication from the capacity of the United States to hold and acquire territory out of the limits of any State, and the necessity for its having some government. Page 60 U. S. 605 On the other side, it was insisted that the Constitution has not failed to make an express provision for this end, and that it is found in the third section of the fourth article of the Constitution. To determine which of these is the correct view, it is needful to advert to some facts respecting this subject which existed when the Constitution was framed and adopted. It will be found that these facts not only shed much light on the question whether the framers of the Constitution omitted to make a provision concerning the power of Congress to organize and govern Territories, but they will also aid in the construction of any provision which may have been made respecting this subject. Under the Confederation, the unsettled territory within the limits of the United States had been a subject of deep interest. Some of the States insisted that these lands were within their chartered boundaries, and that they had succeeded to the title of the Crown to the soil. On the other hand, it was argued that the vacant lands had been acquired by the United States by the war carried on by them under a common Government and for the common interest. This dispute was further complicated by unsettled questions of boundary among several States. It not only delayed the accession of Maryland to the Confederation, but at one time seriously threatened its existence. 5 Jour. of Cong. 208, 442. Under the pressure of these circumstances, Congress earnestly recommended to the several States a cession of their claims and rights to the United States. 5 Jour. of Cong. 442. And before the Constitution was framed, it had been begun. That by New York had been made on the 1st day of March, 1781; that of Virginia on the 1st day of March, 1784; that of Massachusetts on the 19th day of April, 1785; that of Connecticut on the 14th day of September, 1786; that of South Carolina on the 8th day of August, 1787, while the Convention for framing the Constitution was in session. It is very material to observe in this connection that each of these acts cedes, in terms, to the United States as well the jurisdiction as the soil. It is also equally important to note that, when the Constitution was framed and adopted, this plan of vesting in the United States, for the common good, the great tracts of ungranted lands claimed by the several States, in which so deep an interest was felt, was yet incomplete. It remained for North Carolina and Georgia to cede their extensive and valuable claims. These were made by North Carolina on the 25th day of February, 1790, and by Georgia on the 24th day of April, Page 60 U. S. 606 1802. The terms of these last-mentioned cessions will hereafter be noticed in another connection, but I observe here that each of them distinctly shows upon its face that they were not only in execution of the general plan proposed by the Congress of the Confederation, but of a formed purpose of each of these States existing when the assent of their respective people was given to the Constitution of the United States. It appears, then, that when the Federal Constitution was framed and presented to the people of the several States for their consideration, the unsettled territory was viewed as justly applicable to the common benefit so far as it then had or might attain thereafter a pecuniary value, and so far as it might become the seat of new States, to be admitted into the Union upon an equal footing with the original States. And also that the relations of the United States to that unsettled territory were of different kinds. The titles of the States of New York, Virginia, Massachusetts, Connecticut, and South Carolina, as well of soil as of jurisdiction, had been transferred to the United States. North Carolina and Georgia had not actually made transfers, but a confident expectation, founded on their appreciation of the justice of the general claim and fully justified by the results, was entertained that these cessions would be made. The Ordinance of 1787 had made provision for the temporary government of so much of the territory actually ceded as lay northwest of the river Ohio. But it must have been apparent both to the framers of the Constitution and the people of the several States who were to act upon it that the Government thus provided for could not continue unless the Constitution should confer on the United States the necessary powers to continue it. That temporary Government, under the ordinance, was to consist of certain officers, to be appointed by and responsible to the Congress of the Confederation, their powers had been conferred and defined by the ordinance. So far as it provided for the temporary government of the Territory, it was an ordinary act of legislation, deriving its force from the legislative power of Congress and depending for its vitality upon the continuance of that legislative power. But the officers to be appointed for the Northwestern Territory, after the adoption of the Constitution, must necessarily be officers of the United States, and not of the Congress of the Confederation, appointed and commissioned by the President and exercising powers derived from the United States under the Constitution. Such was the relation between the United States and the Northwestern Territory which all reflecting men must have foreseen would exist when the Government created by the Page 60 U. S. 607 Constitution should supersede that of the Confederation. That if the new Government should be without power to govern this Territory, it could not appoint and commission officers, and send them into the Territory to exercise there legislative, judicial, and executive power, and that this Territory, which was even then foreseen to be so important, both politically and financially, to all the existing States, must be left not only without the control of the General Government in respect to its future political relations to the rest of the States, but absolutely without any Government, save what its inhabitants, acting in their primary capacity, might from time to time create for themselves. But this Northwestern Territory was not the only territory the soil and jurisdiction whereof were then understood to have been ceded to the United States. The cession by South Carolina, made in August, 1787, was of "all the territory included within the river Mississippi, and a line beginning at that part of the said river which is intersected by the southern boundary of North Carolina, and continuing along the said boundary line until it intersects the ridge or chain of mountains which divides the Eastern from the Western waters, then to be continued along the top of the said ridge of mountains until it intersects a line to be drawn due west from the head of the southern branch of the Tugaloo river, to the said mountains, and thence to run a due west course to the river Mississippi." It is true that, by subsequent explorations, it was ascertained that the source of the Tugaloo river, upon which the title of South Carolina depended, was so far to the northward that the transfer conveyed only a narrow slip of land, about twelve miles wide, lying on the top of the ridge of mountains, and extending from the northern boundary of Georgia to the southern boundary of North Carolina. But this was a discovery made long after the cession, and there can be no doubt that the State of South Carolina, in making the cession, and the Congress, in accepting it, viewed it as a transfer to the United States of the soil and jurisdiction of an extensive and important part of the unsettled territory ceded by the Crown of Great Britain by the treaty of peace, though its quantity or extent then remained to be ascertained. [ Footnote 3/1 ] It must be remembered also, as has been already stated that not only was there a confident expectation entertained by the Page 60 U. S. 608 other States that North Carolina and Georgia would complete the plan already so far executed by New York, Virginia, Massachusetts, Connecticut, and South Carolina, but that the opinion was in no small degree prevalent that the just title to this "back country," as it was termed, had vested in the United States by the treaty of peace, and could not rightfully be claimed by any individual State. There is another consideration applicable to this part of the subject, and entitled, in my judgment, to great weight. The Congress of the Confederation had assumed the power not only to dispose of the lands ceded, but to institute Governments and make laws for their inhabitants. In other words, they had proceeded to act under the cession, which, as we have seen, was as well of the jurisdiction as of the soil. This ordinance was passed on the 13th of July, 1787. The Convention for framing the Constitution was then in session at Philadelphia. The proof is direct and decisive that it was known to the Convention. [ Footnote 3/2 ] It is equally clear that it was admitted and understood not to be within the legitimate powers of the Confederation to pass this ordinance. Jefferson's Works, vol. 9, pp. 251, 276; Federalist, Nos. 38, 43. The importance of conferring on the new Government regular powers commensurate with the objects to be attained, and thus avoiding the alternative of a failure to execute the trust assumed by the acceptance of the cessions made and expected, or its execution by usurpation, could scarcely fail to be perceived. That it was in fact perceived is clearly shown by the Federalist, No. 38, where this very argument is made use of in commendation of the Constitution. Keeping these facts in view, it may confidently be asserted that there is very strong reason to believe, before we examine the Constitution itself, that the necessity for a competent grant of power to hold, dispose of, and govern territory ceded and expected to be ceded could not have escaped the attention of those who framed or adopted the Constitution, and that, if it did not escape their attention, it could not fail to be adequately provided for. Any other conclusion would involve the assumption that a subject of the gravest national concern, respecting which the small States felt so much jealousy that it had been almost an insurmountable obstacle to the formation of the Confederation, and as to which all the States had deep pecuniary and political interests, and which had been so recently and constantly agitated, Page 60 U. S. 609 was nevertheless overlooked, or that such a subject was not overlooked, but designedly left unprovided for, though it was manifestly a subject of common concern which belonged to the care of the General Government, and adequate provision for which could not fail to be deemed necessary and proper. The admission of new States, to be framed out of the ceded territory, early attracted the attention of the Convention. Among the resolutions introduced by Mr. Randolph, on the 29th of May, was one on this subject, Res.No. 10, 5 Elliot 128, which, having been affirmed in Committee of the Whole, on the 5th of June, 5 Elliot 156, and reported to the Convention on the 13th of June, 5 Elliot 190, was referred to the Committee of Detail, to prepare the Constitution, on the 26th of July, 5 Elliot 376. This committee reported an article for the admission of new States "lawfully constituted or established." Nothing was said concerning the power of Congress to prepare or form such States. This omission struck Mr. Madison, who, on the 18th of August, 5 Elliot 439, moved for the insertion of power to dispose of the unappropriated lands of the United States, and to institute temporary Governments for new States arising therein. On the 29th of August, 5 Elliot 492, the report of the committee was taken up, and after debate, which exhibited great diversity of views concerning the proper mode of providing for the subject, arising out of the supposed diversity of interests of the large and small States, and between those which had and those which had not unsettled territory, but no difference of opinion respecting the propriety and necessity of some adequate provision for the subject, Gouverneur Morris moved the clause as it stands in the Constitution. This met with general approbation, and was at once adopted. The whole section is as follows: "New States may be admitted by the Congress into this Union, but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress." "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State." That Congress has some power to institute temporary Governments over the territory, I believe all agree, and if it be admitted that the necessity of some power to govern the territory Page 60 U. S. 610 of the United States could not and did not escape the attention of the Convention and the people, and that the necessity is so great that, in the absence of any express grant, it is strong enough to raise an implication of the existence of that power, it would seem to follow that it is also strong enough to afford material aid in construing an express grant of power respecting that territory, and that they who maintain the existence of the power, without finding any words at all in which it is conveyed, should be willing to receive a reasonable interpretation of language of the Constitution, manifestly intended to relate to the territory, and to convey to Congress some authority concerning it. It would seem, also that when we find the subject matter of the growth and formation and admission of new States, and the disposal of the territory for these ends, were under consideration, and that some provision therefor was expressly made, it is improbable that it would be, in its terms, a grossly inadequate provision, and that an indispensably necessary power to institute temporary Governments, and to legislate for the inhabitants of the territory, was passed silently by, and left to be deduced from the necessity of the case. In the argument at the bar, great attention has been paid to the meaning of the word "territory." Ordinarily, when the territory of a sovereign power is spoken of, it refers to that tract of country which is under the political jurisdiction of that sovereign power. Thus, Chief Justice Marshall, in United States v. Bevans , 3 Wheat. 386, says: "What, then, is the extent of jurisdiction which a State possesses? We answer without hesitation the jurisdiction of a State is coextensive with its territory." Examples might easily be multiplied of this use of the word, but they are unnecessary, because it is familiar. But the word "territory" is not used in this broad and general sense in this clause of the Constitution. At the time of the adoption of the Constitution, the United States held a great tract of country northwest of the Ohio, another tract, then of unknown extent, ceded by South Carolina, and a confident expectation was then entertained, and afterwards realized, that they then were or would become the owners of other great tracts claimed by North Carolina and Georgia. These ceded tracts lay within the limits of the United States and out of the limits of any particular State, and the cessions embraced the civil and political jurisdiction and so much of the soil as had not previously been granted to individuals. These words, "territory belonging to the United States" Page 60 U. S. 611 were not used in the Constitution to describe an abstraction, but to identify and apply to these actual subjects matter then existing and belonging to the United States and other similar subjects which might afterwards be acquired, and, this being so, all the essential qualities and incidents attending such actual subjects are embraced within the words "territory belonging to the United States" as fully as if each of those essential qualities and incidents had been specifically described. I say, the essential qualities and incidents. But in determining what were the essential qualities and incidents of the subject with which they were dealing, we must take into consideration not only all the particular facts which were immediately before them, but the great consideration, ever present to the minds of those who framed and adopted the Constitution, that they were making a frame of government for the people of the United States and their posterity under which they hoped the United States might be what they have now become -- a great and powerful nation, possessing the power to make war and to conclude treaties, and thus to acquire territory. See Cerre v. Pitot, 6 Cr. 336; Am. Ins. Co. v. Canter , 1 Pet. 542. With these in view, I turn to examine the clause of the article now in question. It is said this provision has no application to any territory save that then belonging to the United States. I have already shown that, when the Constitution was framed, a confident expectation was entertained, which was speedily realized, that North Carolina and Georgia would cede their claims to that great territory which lay west of those States. No doubt has been suggested that the first clause of this same article which enabled Congress to admit new States refers to and includes new States to be formed out of this territory expected to be thereafter ceded by North Carolina and Georgia, as well as new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. It must have been seen, therefore, that the same necessity would exist for an authority to dispose of and make all needful regulations respecting this territory, when ceded, as existed for a like authority respecting territory which had been ceded. No reason has been suggested why any reluctance should have been felt by the framers of the Constitution to apply this provision to all the territory which might belong to the United States, or why any distinction should have been made, founded on the accidental circumstance of the dates of the cessions -- a circumstance in no way material as respects the necessity for rules and regulations or the propriety of conferring Page 60 U. S. 612 on the Congress power to make them. And if we look at the course of the debates in the Convention on this article, we shall find that the then unceded lands, so far from having been left out of view in adopting this article, constituted, in the minds of members, a subject of even paramount importance. Again, in what an extraordinary position would the limitation of this clause to territory then belonging to the United States, place the territory which lay within the chartered limits of North Carolina and Georgia. The title to that territory was then claimed by those States, and by the United States; their respective claims are purposely left unsettled by the express words of this clause, and when cessions were made by those States, they were merely of their claims to this territory, the United States neither admitting nor denying the validity of those claims, so that it was impossible then, and has ever since remained impossible, to know whether this territory did or did not then belong to the United States, and consequently to know whether it was within or without the authority conferred by this clause to dispose of and make rules and regulations respecting the territory of the United States. This attributes to the eminent men who acted on this subject a want of ability and forecast, or a want of attention to the known facts upon which they were acting, in which I cannot concur. There is not, in my judgment, anything in the language, the history, or the subject matter of this article which restricts its operation to territory owned by the United States when the Constitution was adopted. But it is also insisted that provisions of the Constitution respecting territory belonging to the United States do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Constitution did not authorize the Federal Government to acquire foreign territory, and consequently has made no provision for its government when acquired, or that, though the acquisition of foreign territory was contemplated by the Constitution, its provisions concerning the admission of new States, and the making of all needful rules and regulations respecting territory belonging to the United States, were not designed to be applicable to territory acquired from foreign nations. It is undoubtedly true that, at the date of the treaty of 1803 between the United States and France for the cession of Louisiana, it was made a question whether the Constitution had conferred on the executive department of the Government of the United States power to acquire foreign territory by a treaty. Page 60 U. S. 613 There is evidence that very grave doubts were then entertained concerning the existence of this power. But that there was then a settled opinion in the executive and legislative branches of the Government that this power did not exist cannot be admitted without at the same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and whatever doubts may them have existed, the question must now be taken to have been settled. Four distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. Six States formed on such territory are now in the Union. Every branch of this Government, during a period of more than fifty years, has participated in these transactions. To question their validity now is vain. As was said by Mr. Chief Justice Marshall in the American Insurance Company v. Canter , 1 Peters 542, "the Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory either by conquest or treaty." See Cerre v. Pitot, 6 Cr. 336. And, I add, it also possesses the power of governing it when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regulations respecting the territory of the United States. There was to be established by the Constitution a frame of government under which the people of the United States and their posterity were to continue indefinitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government and embrace all territory belonging to the United States throughout all time, and the purposes and objects of which apply to all territory of the United States, and narrow it down to territory belonging to the United States when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument as it is with its language, and I can have no hesitation in rejecting it. I construe this clause, therefore, as if it had read "Congress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the United States have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the Page 60 U. S. 614 soil, so far as the soil may be the property of the party making the cession, at the time of making it." It has been urged that the words "rules and regulations" are not appropriate terms in which to convey authority to make laws for the government of the territory. But it must be remembered that this is a grant of power to the Congress -- that it is therefore necessarily a grant of power to legislate -- and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to make all needful rules and regulations respecting the territory is a power to pass all needful laws respecting it. The word "regulate," or "regulation," is several times used in the Constitution. It is used in the fourth Section of the First Article to describe those laws of the States which prescribe the times, places, and manner, of choosing Senators and Representatives; in the Second Section of the Fourth Article to designate the legislative action of a State on the subject of fugitives from service, having a very close relation to the matter of our present inquiry; in the Second Section of the Third Article, to empower Congress to fix the extent of the appellate jurisdiction of this court; and finally in the Eighth Section of the First Article are the words, "Congress shall have power to regulate commerce." It is unnecessary to describe the body of legislation which has been enacted under this grant of power; its variety and extent are well known. But it may be mentioned in passing that, under this power to regulate commerce, Congress has enacted a great system of municipal laws, and extended it over the vessels and crews of the United States on the high seas and in foreign ports, and even over citizens of the United States resident in China, and has established judicatures with power to inflict even capital punishment within that country. If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power? To this I answer that, in common with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power, Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution. Besides this, the rules and regulations must be needful. But undoubtedly the question whether a particular rule or regulation be needful must be finally determined by Congress itself. Whether a law be needful is a legislative or political, Page 60 U. S. 615 not a judicial, question. Whatever Congress deems needful is so, under the grant of power. Nor am I aware that it has ever been questioned that laws providing for the temporary government of the settlers on the public lands are needful not only to prepare them for admission to the Union as States, but even to enable the United States to dispose of the lands. Without government and social order, there can be no property, for without law, its ownership, its use, and the power of disposing of it, cease to exist in the sense in which those words are used and understood in all civilized States. Since, then, this power was manifestly conferred to enable the United States to dispose of its public lands to settlers, and to admit them into the Union as States when, in the judgment of Congress, they should be fitted therefor, since these were the needs provided for, since it is confessed that Government is indispensable to provide for those needs, and the power is to make all needful rules and regulations respecting the territory, I cannot doubt that this is a power to govern the inhabitants of the territory, by such laws as Congress deems needful, until they obtain admission as States. Whether they should be thus governed solely by laws enacted by Congress, or partly by laws enacted by legislative power conferred by Congress, is one of those questions which depend on the judgment of Congress -- a question which of these is needful. But it is insisted that, whatever other powers Congress may have respecting the territory of the United States, the subject of negro slavery forms an exception. The Constitution declares that Congress shall have power to make " all needful rules and regulations" respecting the territory belonging to the United States. The assertion is, though the Constitution says "all," it does not mean all -- though it says "all" without qualification, it means all except such as allow or prohibit slavery. It cannot be doubted that it is incumbent on those who would thus introduce an exception not found in the language of the instrument to exhibit some solid and satisfactory reason, drawn from the subject matter or the purposes and objects of the clause, the context, or from other provisions of the Constitution, showing that the words employed in this clause are not to be understood according to their clear, plain, and natural signification. The subject matter is the territory of the United States out of the limits of every State, and consequently under the exclusive power of the people of the United States. Their Page 60 U. S. 616 will respecting it, manifested in the Constitution, can be subject to no restriction. The purposes and objects of the clause were the enactment of laws concerning the disposal of the public lands, and the temporary government of the settlers thereon until new States should be formed. It will not be questioned that, when the Constitution of the United States was framed and adopted, the allowance and the prohibition of negro slavery were recognised subjects of municipal legislation; every State had in some measure acted thereon, and the only legislative act concerning the territory -- the Ordinance of 1787, which had then so recently been passed -- contained a prohibition of slavery. The purpose and object of the clause being to enable Congress to provide a body of municipal law for the government of the settlers, the allowance or the prohibition of slavery comes within the known and recognised scope of that purpose and object. There is nothing in the context which qualifies the grant of power. The regulations must be "respecting the territory." An enactment that slavery may or may not exist there is a regulation respecting the territory. Regulations must be needful, but it is necessarily left to the legislative discretion to determine whether a law be needful. No other clause of the Constitution has been referred to at the bar, or has been seen by me, which imposes any restriction or makes any exception concerning the power of Congress to allow or prohibit slavery in the territory belonging to the United States. A practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind on a question of the interpretation of the Constitution. Stuart v. Laird , 1 Cranch 299; Martin v. Hunter , 1 Wheat. 304; Cohens v. Virginia , 6 Wheat. 264; Prigg v. Pennsylvania , 16 Pet. 621; Cooley v. Port Wardens , 12 How. 315. In this view, I proceed briefly to examine the practical construction placed on the clause now in question so far as it respects the inclusion therein of power to permit or prohibit slavery in the Territories. It has already been stated that, after the Government of the United States was organized under the Constitution, the temporary Government of the Territory northwest of the River Ohio could no longer exist save under the powers conferred on Congress by the Constitution. Whatever legislative, judicial, or executive authority should be exercised therein could be derived only from the people of the United States under the Constitution. And, accordingly, an act was passed on the Page 60 U. S. 617 7th day of August, 1789, 1 Stat. at Large 50, which recites: "Whereas, in order that the ordinance of the United States in Congress assembled, for the government of the territory northwest of the River Ohio, may continue to have full effect, it is required that certain provisions should be made, so as to adapt the same to the present Constitution of the United States." It then provides for the appointment by the President of all officers, who, by force of the ordinance, were to have been appointed by the Congress of the Confederation, and their commission in the manner required by the Constitution, and empowers the Secretary of the Territory to exercise the powers of the Governor in case of the death or necessary absence of the latter. Here is an explicit declaration of the will of the first Congress, of which fourteen members, including Mr. Madison, had been members of the Convention which framed the Constitution, that the ordinance, one article of which prohibited slavery, "should continue to have full effect." Gen. Washington, who signed this bill as President, was the President of that Convention. It does not appear to me to be important in this connection that that clause in the ordinance which prohibited slavery was one of a series of articles of what is therein termed a compact. The Congress of the Confederation had no power to make such a compact, nor to act at all on the subject, and after what had been so recently said by Mr. Madison on this subject, in the thirty-eighth number of the Federalist, I cannot suppose that he, or any others who voted for this bill, attributed any intrinsic effect to what was denominated in the ordinance a compact between "the original States and the people and States in the new territory," there being no new States then in existence in the territory with whom a compact could be made, and the few scattered inhabitants, unorganized into a political body, not being capable of becoming a party to a treaty even if the Congress of the Confederation had had power to make one touching the government of that territory. I consider the passage of this law to have been an assertion by the first Congress of the power of the United States to prohibit slavery within this part of the territory of the United States, for it clearly shows that slavery was thereafter to be prohibited there, and it could be prohibited only by an exertion of the power of the United States under the Constitution, no other power being capable of operating within that territory after the Constitution took effect. On the 2d of April, 1790, 1 Stat. at Large 106, the first Congress passed an act accepting a deed of cession by North Page 60 U. S. 618 Carolina of that territory afterwards erected into the State of Tennessee. The fourth express condition contained in this deed of cession, after providing that the inhabitants of the Territory shall be temporarily governed in the same manner as those beyond the Ohio, is followed by these words: " Provided always that no regulations made or to be made by Congress shall tend to emancipate slaves." This provision shows that it was then understood Congress might make a regulation prohibiting slavery, and that Congress might also allow it to continue to exist in the Territory, and, accordingly, when, a few days later, Congress passed the Act of May 20th, 1790, 1 Stat. at Large 123, for the government of the Territory south of the River Ohio, it provided, "and the Government of the Territory south of the Ohio shall be similar to that now exercised in the Territory northwest of the Ohio except so far as is otherwise provided in the conditions expressed in an act of Congress of the present session, entitled, 'An act to accept a cession of the claims of the State of North Carolina to a certain district of western territory.'" Under the Government thus established, slavery existed until the Territory became the State of Tennessee. On the 7th of April, 1798, 1 Stat. at Large 649, an act was passed to establish a Government in the Mississippi Territory in all respects like that exercised in the Territory northwest of the Ohio, "excepting and excluding the last article of the ordinance made for the government thereof by the late Congress, on the 13th day of July, 1787." When the limits of this Territory had been amicably settled with Georgia, and the latter ceded all its claim thereto, it was one stipulation in the compact of cession that the Ordinance of July 13th, 1787, "shall in all its parts extend to the Territory contained in the present act of cession, that article only excepted which forbids slavery." The Government of this Territory was subsequently established and organized under the act of May 10th, 1800, but so much of the ordinance as prohibited slavery was not put in operation there. Without going minutely into the details of each case, I will now give reference to two classes of acts, in one of which Congress has extended the Ordinance of 1787, including the article prohibiting slavery, over different Territories, and thus exerted its power to prohibit it; in the other, Congress has erected Governments over Territories acquired from France and Spain, in which slavery already existed, but refused to apply to them that part of the Government under the ordinance which excluded slavery. Of the first class are the Act of May 7th, 1800, 2 Stat. at Page 60 U. S. 619 Large 58, for the government of the Indiana Territory; the Act of January 11th, 1805, 2 Stat. at Large 309, for the government of Michigan Territory; the Act of May 3d, 1809, 2 Stat. at Large 514, for the government of the Illinois Territory; the Act of April 20th, 1836, 5 Stat. at Large 10, for the government of the Territory of Wisconsin; the Act of June 12th, 1838, for the government of the Territory of Iowa; the Act of August 14th, 1848, for the government of the Territory of Oregon. To these instances should be added the Act of March 6th, 1820, 3 Stat. at Large 548, prohibiting slavery in the territory acquired from France, being northwest of Missouri and north of thirty-six degrees thirty minutes north latitude. Of the second class, in which Congress refused to interfere with slavery already existing under the municipal law of France or Spain, and established Governments by which slavery was recognised and allowed, are: the Act of March 26th, 1804, 2 Stat. at Large 283, for the government of Louisiana; the Act of March 2d, 1805, 2 Stat. at Large 322, for the government of the Territory of Orleans; the Act of June 4th, 1812, 2 Stat. at Large 743, for the government of the Missouri Territory; the Act of March 30th, 1822, 3 Stat. at Large 654, for the government of the Territory of Florida. Here are eight distinct instances, beginning with the first Congress, and coming down to the year 1848, in which Congress has excluded slavery from the territory of the United States, and six distinct instances in which Congress organized Governments of Territories by which slavery was recognised and continued, beginning also with the first Congress, and coming down to the year 1822. These acts were severally signed by seven Presidents of the United States, beginning with General Washington, and coming regularly down as far as Mr. John Quincy Adams, thus including all who were in public life when the Constitution was adopted. If the practical construction of the Constitution contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to. It appears, however, from what has taken place at the bar that, notwithstanding the language of the Constitution and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories. Page 60 U. S. 620 One is that, though Congress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congress, can establish or prohibit slavery; while the third is that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory and there hold them as property. No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right. The second is drawn from considerations equally general concerning the right of self-government and the nature of the political institutions which have been established by the people of the United States. While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens, and inasmuch as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States in respect to their use and enjoyment of the territory of the United States. With the weight of either of these considerations, when presented to Congress to influence its action, this court has no concern. One or the other may be justly entitled to guide or control the legislative judgment upon what is a needful regulation. The question here is whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery not found therein nor in any other part of that instrument. To engraft on any instrument a substantive exception not found in it must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible -- because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical Page 60 U. S. 621 interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress, or, what in my opinion would not be preferable, an exponent of the individual political opinions of the members of this court. If it can be shown by anything in the Constitution itself that, when it confers on Congress the power to make all needful rules and regulations respecting the territory belonging to the United States, the exclusion or the allowance of slavery was excepted, or if anything in the history of this provision tends to show that such an exception was intended by those who framed and adopted the Constitution to be introduced into it, I hold it to be my duty carefully to consider, and to allow just weight to such considerations in interpreting the positive text of the Constitution. But where the Constitution has said all needful rules and regulations, I must find something more than theoretical reasoning to induce me to say it did not mean all. There have been eminent instances in this court closely analogous to this one in which such an attempt to introduce an exception not found in the Constitution itself has failed of success. By the eighth section of the first article, Congress has the power of exclusive legislation in all cases whatsoever within this District. In the case of Loughborough v. Blake , 5 Whea. 324, the question arose whether Congress has power to impose direct taxes on persons and property in this District. It was insisted that, though the grant of power was in its terms broad enough to include direct taxation, it must be limited by the principle that taxation and representation are inseparable. It would not be easy to fix on any political truth better established or more fully admitted in our country than that taxation and representation must exist together. We went into the war of the Revolution to assert it, and it is incorporated as fundamental into all American Governments. But however true and important Page 60 U. S. 622 this maxim may be, it is not necessarily of universal application. It was for the people of the United States, who ordained the Constitution, to decide whether it should or should not be permitted to operate within this District. Their decision was embodied in the words of the Constitution, and as that contained no such exception as would permit the maxim to operate in this District, this court, interpreting that language, held that the exception did not exist. Again, the Constitution confers on Congress power to regulate commerce with foreign nations. Under this, Congress passed an act on the 22d of December, 1807, unlimited in duration, laying an embargo on all ships and vessels in the ports or within the limits and jurisdiction of the United States. No law of the United States ever pressed so severely upon particular States. Though the constitutionality of the law was contested with an earnestness and zeal proportioned to the ruinous effects which were felt from it, and though, as Mr. Chief Justice Marshall has said, 9 Wheat. 22 U. S. 192 , "a want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed in opposition to this," I am not aware that the fact that it prohibited the use of a particular species of property, belonging almost exclusively to citizens of a few States, and this indefinitely, was ever supposed to show that it was unconstitutional. Something much more stringent as a ground of legal judgment was relied on -- that the power to regulate commerce did not include the power to annihilate commerce. But the decision was that, under the power to regulate commerce, the power of Congress over the subject was restricted only by those exceptions and limitations contained in the Constitution, and as neither the clause in question, which was a general grant of power to regulate commerce, nor any other clause of the Constitution imposed any restrictions as to the duration of an embargo, an unlimited prohibition of the use of the shipping of the country was within the power of Congress. On this subject, Mr. Justice Daniel, speaking for the court in the case of United States v. Marigold , 9 How. 560, says: "Congress are, by the Constitution, vested with the power to regulate commerce with foreign nations, and however, at periods of high excitement, an application of the terms 'to regulate commerce' such as would embrace absolute prohibition may have been questioned, yet, since the passage of the embargo and nonintercourse laws and the repeated judicial sanctions these statutes have received, it can scarcely at this day be open to doubt that every subject falling legitimately Page 60 U. S. 623 within the sphere of commercial regulation may be partially or wholly excluded when either measure shall be demanded by the safety or the important interests of the entire nation. The power once conceded, it may operate on any and every subject of commerce to which the legislative discretion may apply it." If power to regulate commerce extends to an indefinite prohibition of the use of all vessels belonging to citizens of the several States, and may operate, without exception, upon every subject of commerce to which the legislative discretion may apply it, upon what grounds can I say that power to make all needful rules and regulations respecting the territory of the United States is subject to an exception of the allowance or prohibition of slavery therein? While the regulation is one "respecting the territory;" while it is, in the judgment of Congress, "a needful regulation," and is thus completely within the words of the grant; while no other clause of the Constitution can be shown which requires the insertion of an exception respecting slavery; and while the practical construction for a period of upwards of fifty years forbids such an exception, it would, in my opinion, violate every sound rule of interpretation to force that exception into the Constitution upon the strength of abstract political reasoning, which we are bound to believe the people of the United States thought insufficient to induce them to limit the power of Congress, because what they have said contains no such limitation. Before I proceed further to notice some other grounds of supposed objection to this power of Congress, I desire to say that if it were not for my anxiety to insist upon what I deem a correct exposition of the Constitution, if I looked only to the purposes of the argument, the source of the power of Congress asserted in the opinion of the majority of the court would answer those purposes equally well. For they admit that Congress has power to organize and govern the Territories until they arrive at a suitable condition for admission to the Union; they admit also that the kind of Government which shall thus exist should be regulated by the condition and wants of each Territory, and that it is necessarily committed to the discretion of Congress to enact such laws for that purpose as that discretion may dictate, and no limit to that discretion has been shown, or even suggested, save those positive prohibitions to legislate which are found in the Constitution. I confess myself unable to perceive any difference whatever between my own opinion of the general extent of the power of Congress and the opinion of the majority of the court, save Page 60 U. S. 624 that I consider it derivable from the express language of the Constitution, while they hold it to be silently implied from the power to acquire territory. Looking at the power of Congress over the Territories as of the extent just described, what positive prohibition exists in the Constitution, which restrained Congress from enacting a law in 1820 to prohibit slavery north of thirty-six degrees thirty minutes north latitude? The only one suggested is that clause in the fifth article of the amendments of the Constitution which declares that no person shall be deprived of his life, liberty, or property, without due process of law. I will now proceed to examine the question whether this clause is entitled to the effect thus attributed to it. It is necessary, first, to have a clear view of the nature and incidents of that particular species of property which is now in question. Slavery, being contrary to natural right, is created only by municipal law. This is not only plain in itself, and agreed by all writers on the subject, but is inferable from the Constitution and has been explicitly declared by this court. The Constitution refers to slaves as "persons held to service in one State, under the laws thereof." Nothing can more clearly describe a status created by municipal law. In Prigg v. Pennsylvania , 10 Pet. 611, this court said: "The state of slavery is deemed to be a mere municipal regulation, founded on and limited to the range of territorial laws." In Rankin v. Lydia, 2 Marsh. 12, 470, the Supreme Court of Appeals of Kentucky said: "Slavery is sanctioned by the laws of this State, and the right to hold them under our municipal regulations is unquestionable. But we view this as a right existing by positive law of a municipal character, without foundation in the law of nature or the unwritten common law." I am not acquainted with any case or writer questioning the correctness of this doctrine. See also 1 Burge, Col. and For.Laws 738-741, where the authorities are collected. The status of slavery is not necessarily always attended with the same powers on the part of the master. The master is subject to the supreme power of the State, whose will controls his action towards his slave, and this control must be defined and regulated by the municipal law. In one State, as at one period of the Roman law, it may put the life of the slave into the hand of the master; others, as those of the United States, which tolerate slavery, may treat the slave as a person when the master takes his life; while in others, the law may recognise a right of the slave to be protected from cruel treatment. In other words, the status of slavery embraces every condition from that in which the slave is known to the law simply as a Page 60 U. S. 625 chattel, with no civil rights, to that in which he is recognised as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor. Which of these conditions shall attend the status of slavery must depend on the municipal law which creates and upholds it. And not only must the status of slavery be created and measured by municipal law, but the rights, powers, and obligations which grow out of that status must be defined, protected, and enforced by such laws. The liability of the master for the torts and crimes of his slave, and of third persons for assaulting or injuring or harboring or kidnapping him, the forms and modes of emancipation and sale, their subjection to the debts of the master, succession by death of the master, suits for freedom, the capacity of the slave to be party to a suit, or to be a witness, with such police regulations as have existed in all civilized States where slavery has been tolerated, are among the subjects upon which municipal legislation becomes necessary when slavery is introduced. Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which are essential to the existence of slavery? Is it not more rational to conclude that they who framed and adopted the constitution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws that they must cease to be available as property, when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of slavery exist, and that, being aware of these principles, and having said nothing to interfere with or displace them, or to compel Congress to legislate in any particular manner on the subject, and having empowered Congress to make all needful rules and regulations respecting the territory of the United States, it was their intention to leave to the discretion of Congress what regulations, if any, should be made concerning slavery therein? Moreover, if the right exists, what are its limits, and what are its conditions? If citizens of the United States have the right to take their slaves to a Territory, and hold them there as slaves, without regard to the laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate slavery can hardly be denied the power of doing the same thing. And what law of slavery does either take with him to the Territory? If it be said to be those laws respecting Page 60 U. S. 626 slavery which existed in the particular State from which each slave last came, what an anomaly is this? Where else can we find, under the law of any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in slavery? I say not merely to introduce, but permanently to continue, these anomalies. For the offspring of the female must be governed by the foreign municipal laws to which the mother was subject, and when any slave is sold or passes by succession on the death of the owner, there must pass with him, by a species of subrogation, and as a kind of unknown jus in re, the foreign municipal laws which constituted, regulated, and preserved, the status of the slave before his exportation. Whatever theoretical importance may be now supposed to belong to the maintenance of such a right, I feel a perfect conviction that it would, if ever tried, prove to be as impracticable in fact as it is, in my judgment, monstrous in theory. I consider the assumption which lies at the basis of this theory to be unsound not in its just sense, and when properly understood, but in the sense which has been attached to it. That assumption is that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States. I agree to the position. But it was acquired for their benefit in their collective, not their individual, capacities. It was acquired for their benefit, as an organized political society, subsisting as "the people of the United States," under the Constitution of the United States, to be administered justly and impartially, and as nearly as possible for the equal benefit of every individual citizen, according to the best judgment and discretion of the Congress, to whose power, as the Legislature of the nation which acquired it, the people of the United States have committed its administration. Whatever individual claims may be founded on local circumstances or sectional differences of condition cannot, in my opinion, be recognised in this court without arrogating to the judicial branch of the Government powers not committed to it, and which, with all the unaffected respect I feel for it when acting in its proper sphere, I do not think it fitted to wield. Nor, in my judgment, will the position that a prohibition to bring slaves into a Territory deprives anyone of his property without due process of law bear examination. It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta, was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of Page 60 U. S. 627 the great charter. It existed in every political community in America in 1787, when the ordinance prohibiting slavery north and west of the Ohio was passed. And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna Charta, the Ordinance of 1787 also violated it, and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, of the Legislature of any or all the States of the Confederacy, to consent to such a violation? The people of the States had conferred no such power. I think I may at least say, if the Congress did then violate Magna Charta by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that, if brought, they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slaveholding States which have enacted the same prohibition? As early as October, 1778, a law was passed in Virginia that thereafter no slave should be imported into that Commonwealth by sea or by land, and that every slave who should be imported should become free. A citizen of Virginia purchased in Maryland a slave who belonged to another citizen of Virginia, and removed with the slave to Virginia. The slave sued for her freedom, and recovered it, as may be seen in Wilson v. Isabel, 5 Call's R. 425. See also Hunter v. Hulsher, 1 Leigh 172, and a similar law has been recognised as valid in Maryland in Stewart v. Oaks, 5 Har. and John. 107. I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of Magna Charta incorporated into the State Constitutions. It was certainly understood by the Convention which framed the Constitution, and has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the importation of slaves, and the exercise of the power was restrained till 1808. A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law? If so, what becomes of the laws prohibiting the slave trade? If not, how can similar regulation respecting a Territory violate the fifth amendment of the Constitution? Some reliance was placed by the defendant's counsel upon the fact that the prohibition of slavery in this territory was in the words, "that slavery, &c., shall be and is hereby forever prohibited." But the insertion of the word " forever " can have no legal effect. Every enactment not expressly limited in its Page 60 U. S. 628 duration continues in force until repealed or abrogated by some competent power, and the use of the word "forever" can give to the law no more durable operation. The argument is that Congress cannot so legislate as to bind the future States formed out of the territory, and that, in this instance, it has attempted to do so. Of the political reasons which may have induced the Congress to use these words, and which caused them to expect that subsequent Legislatures would conform their action to the then general opinion of the country that it ought to be permanent, this court can take no cognizance. However fit such considerations are to control the action of Congress, and however reluctant a statesman may be to disturb what has been settled, every law made by Congress may be repealed, and, saving private rights and public rights gained by States, its repeal is subject to the absolute will of the same power which enacted it. If Congress had enacted that the crime of murder, committed in this Indian Territory, north of thirty-six degrees thirty minutes, by or on any white man, should forever be punishable with death, it would seem to me an insufficient objection to an indictment, found while it was a Territory, that, at some future day, States might exist there, and so the law was invalid because, by its terms, it was to continue in force forever. Such an objection rests upon a misapprehension of the province and power of courts respecting the constitutionality of laws enacted by the Legislature. If the Constitution prescribe one rule, and the law another and different rule, it is the duty of courts to declare that the Constitution, and not the law, governs the case before them for judgment. If the law include no case save those for which the Constitution has furnished a different rule, or no case which the Legislature has the power to govern, then the law can have no operation. If it includes cases which the Legislature has power to govern, and concerning which the Constitution does not prescribe a different rule, the law governs those cases, though it may, in its terms, attempt to include others on which it cannot operate. In other words, this court cannot declare void an act of Congress which constitutionally embraces some cases, though other cases within its terms are beyond the control of Congress or beyond the reach of that particular law. If, therefore, Congress had power to make a law excluding slavery from this territory while under the exclusive power of the United States, the use of the word "forever" does not invalidate the law so long as Congress has the exclusive legislative power in the territory. Page 60 U. S. 629 But it is further insisted that the treaty of 1803 between the United States and France, by which this territory was acquired, has so restrained the constitutional powers of Congress that it cannot, by law, prohibit the introduction of slavery into that part of this territory north and west of Missouri and north of thirty-six degrees thirty minutes north latitude. By a treaty with a foreign nation, the United States may rightfully stipulate that the Congress will or will not exercise its legislative power in some particular manner, on some particular subject. Such promises, when made, should be voluntarily kept with the most scrupulous good faith. But that a treaty with a foreign nation can deprive the Congress of any part of the legislative power conferred by the people, so that it no longer can legislate as it was empowered by the Constitution to do, I more than doubt. The powers of the Government do and must remain unimpaired. The responsibility of the Government to a foreign nation for the exercise of those powers is quite another matter. That responsibility is to be met, and justified to the foreign nation according to the requirements of the rules of public law, but never upon the assumption that the United States had parted with or restricted any power of acting according to its own free will, governed solely by its own appreciation of its duty. The second section of the fourth article is "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land." This has made treaties part of our municipal law, but it has not assigned to them any particular degree of authority, nor declared that laws so enacted shall be irrepealable. No supremacy is assigned to treaties over acts of Congress. That they are not perpetual, and must be in some way repealable, all will agree. If the President and the Senate alone possess the power to repeal or modify a law found in a treaty, inasmuch as they can change or abrogate one treaty only by making another inconsistent with the first, the Government of the United States could not act at all, to that effect, without the consent of some foreign Government. I do not consider, I am not aware it has ever been considered that the Constitution has placed our country in this helpless condition. The action of Congress in repealing the treaties with France by the Act of July 7th, 1798, 1 Stat. at Large 578, was in conformity with these views. In the case of Taylor et al. v. Morton, 2 Curtis' Cir.Ct.R. Page 60 U. S. 630 454, I had occasion to consider this subject, and I adhere to the views there expressed. If, therefore, it were admitted that the treaty between the United States and France did contain an express stipulation that the United States would not exclude slavery from so much of the ceded territory as is now in question, this court could not declare that an act of Congress excluding it was void by force of the treaty. Whether or no a case existed sufficient to justify a refusal to execute such a stipulation would not be a judicial, but a political and legislative, question, wholly beyond the authority of this Court to try and determine. It would belong to diplomacy and legislation, and not to the administration of existing laws. Such a stipulation in a treaty, to legislate or not to legislate in a particular way has been repeatedly held in this court to address itself to the political or the legislative power, by whose action thereon this court is bound. Foster v. Nicolson , 2 Peters 314; Garcia v. Lee , 12 Peters 519. But, in my judgment, this treaty contains no stipulation in any manner affecting the action of the United States respecting the territory in question. Before examining the language of the treaty, it is material to bear in mind that the part of the ceded territory lying north of thirty-six degrees thirty minutes, and west and north of the present State of Missouri was then a wilderness, uninhabited save by savages whose possessory title had not then been extinguished. It is impossible for me to conceive on what ground France could have advanced a claim, or could have desired to advance a claim, to restrain the United States from making any rules and regulations respecting this territory which the United States might think fit to make, and still less can I conceive of any reason which would have induced the United States to yield to such a claim. It was to be expected that France would desire to make the change of sovereignty and jurisdiction as little burdensome as possible to the then inhabitants of Louisiana, and might well exhibit even an anxious solicitude to protect their property and persons, and secure to them and their posterity their religious and political rights, and the United States, as a just Government, might readily accede to all proper stipulations respecting those who were about to have their allegiance transferred. But what interest France could have in uninhabited territory which, in the language of the treaty, was to be transferred "forever, and in full sovereignty," to the United States, or how the United States could consent to allow a foreign nation to interfere in its purely internal affairs, in which that foreign nation had no concern Page 60 U. S. 631 whatever, is difficult for me to conjecture. In my judgment, this treaty contains nothing of the kind. The third article is supposed to have a bearing on the question. It is as follows: "The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and in the meantime they shall be maintained and protected in the enjoyment of their liberty, property, and the religion they profess." There are two views of this article, each of which, I think, decisively shows that it was not intended to restrain the Congress from excluding slavery from that part of the ceded territory then uninhabited. The first is that, manifestly, its sole object was to protect individual rights of the then inhabitants of the territory. They are to be "maintained and protected in the free enjoyment of their liberty, property, and the religion they profess." But this article does not secure to them the right to go upon the public domain ceded by the treaty, either with or without their slaves. The right or power of doing this did not exist before or at the time the treaty was made. The French and Spanish Governments, while they held the country, as well as the United States, when they acquired it, always exercised the undoubted right of excluding inhabitants from the Indian country, and of determining when and on what conditions it should be opened to settlers. And a stipulation that the then inhabitants of Louisiana should be protected in their property can have no reference to their use of that property where they had no right, under the treaty, to go with it save at the will of the United States. If one who was an inhabitant of Louisiana at the time of the treaty had afterwards taken property then owned by him, consisting of firearms, ammunition, and spirits, and had gone into the Indian country north of thirty-six degrees thirty minutes to sell them to the Indians, all must agree the third article of the treaty would not have protected him from indictment under the Act of Congress of March 30, 1802, 2 Stat. at Large 139, adopted and extended to this territory by the Act of March 26, 1804, (2 Stat. at Large 283.) Besides, whatever rights were secured were individual rights. If Congress should pass any law which violated such rights of any individual, and those rights were of such a character as not to be within the lawful control of Congress under the Constitution, that individual could complain, and the act of Congress, as to such rights of his, would be inoperative, but it Page 60 U. S. 632 would be valid and operative as to all other persons, whose individual rights did not come under the protection of the treaty. And inasmuch as it does not appear that any inhabitant of Louisiana whose rights were secured by treaty had been injured, it would be wholly inadmissible for this court to assume, first, that one or more such cases may have existed, and second, that if any did exist, the entire law was void -- not only as to those cases, if any, in which it could not rightfully operate, but as to all others, wholly unconnected with the treaty, in which such law could rightfully operate. But it is quite unnecessary, in my opinion, to pursue this inquiry further, because it clearly appears from the language of the article, and it has been decided by this court, that the stipulation was temporary, and ceased to have any effect when the then inhabitants of the Territory of Louisiana, in whose behalf the stipulation was made, were incorporated into the Union. In the cases of New Orleans v. De Armas et al. , 9 Peters, 223, the question was whether a title to property which existed at the date of the treaty continued to be protected by the treaty after the State of Louisiana was admitted to the Union. The third article of the treaty was relied on. Mr. Chief Justice Marshall said: "This article obviously contemplates two objects. One, that Louisiana shall be admitted into the Union as soon as possible on an equal footing with the other States, and the other that, till such admission, the inhabitants of the ceded territory shall be protected in the free enjoyment of their liberty, property, and religion. Had anyone of these rights been violated while these stipulations continued in force, the individual supposing himself to be injured might have brought his case into this Court, under the twenty-fifth section of the judicial act. But this stipulation ceased to operate when Louisiana became a member of the Union, and its inhabitants were 'admitted to the enjoyment of all the rights, advantages, and immunities, of citizens of the United States.'" The cases of Chouteau v. Marguerita , 12 Peters 507, and Permoli v. New Orleans , 3 How. 589, are in conformity with this view of the treaty. To convert this temporary stipulation of the treaty in behalf of French subjects who then inhabited a small portion of Louisiana into a permanent restriction upon the power of Congress to regulate territory then uninhabited, and to assert that it not only restrains Congress from affecting the rights of property of the then inhabitants, but enabled them and all other citizens of the United States to go into any part of the Page 60 U. S. 633 ceded territory with their slaves, and hold them there, is a construction of this treaty so opposed to its natural meaning, and so far beyond its subject matter and the evident design of the parties that I cannot assent to it. In my opinion, this treaty has no bearing on the present question. For these reasons, I am of opinion that so much of the several acts of Congress as prohibited slavery and involuntary servitude within that part of the Territory of Wisconsin lying north of thirty-six degrees thirty minutes north latitude and west of the river Mississippi, were constitutional and valid laws. I have expressed my opinion, and the reasons therefor, at far greater length than I could have wished, upon the different questions on which I have found it necessary to pass to arrive at a judgment on the case at bar. These questions are numerous, and the grave importance of some of them required me to exhibit fully the grounds of my opinion. I have touched no question which, in the view I have taken, it was not absolutely necessary for me to pass upon to ascertain whether the judgment of the Circuit Court should stand or be reversed. I have avoided no question on which the validity of that judgment depends. To have done either more or less, would have been inconsistent with my views of my duty. In my opinion, the judgment of the Circuit Court should be reversed, and the cause remanded for a new trial. [ Footnote 3/1 ] This statement that some territory did actually pass by this cession is taken from the opinion of the court, delivered by Mr. Justice Wayne, in the case of Howard v. Ingersoll , reported in 13 How. 405. It is an obscure matter, and, on some examination of it, I have been led to doubt whether any territory actually passed by this cession. But as the fact is not important to the argument, I have not thought it necessary further to investigate it. [ Footnote 3/2 ] It was published in a newspaper at Philadelphia, in May, and a copy of it was sent by R. H. Lee to Gen. Washington on the 15th of July. See p. 261, Cor. of Am.Rev., vol. 4, and Writings of Washington, vol. 9, p. 174.

Here is a summary of the key points from the case: - The case centers around a writ of error brought to a Circuit Court of the United States, presenting a full record of proceedings for inspection and revision. - The Court's decision considers the jurisdiction of Circuit Courts and the definition of citizenship within the United States. - The Court ruled that a free negro of African descent, with ancestors brought to the country and sold as slaves, is not considered a "citizen" as per the Constitution. - At the time of the Constitution's adoption, individuals of African descent were not regarded as members of the community or "people or citizens," and thus do not hold the same rights and immunities as citizens. - The Court interprets the Constitution's clauses pertaining to this race as treating them as property, subject to be held as slaves. - States cannot grant citizenship or the associated rights and privileges outlined in the Constitution. - The Court's opinion also discusses the impact of changing public opinion and feeling towards the African race since the adoption of the Constitution. - The judgment of the Circuit Court is to be reversed, and the cause remanded for a new trial.

Due Process

Meyer v. Nebraska

https://supreme.justia.com/cases/federal/us/262/390/

U.S. Supreme Court Meyer v. Nebraska, 262 U.S. 390 (1923) Meyer v. State of Nebraska No. 325 Argued February 23, 1923 Decided June 4, 1923 262 U.S. 390 ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA Syllabus A state law forbidding, under penalty, the teaching in any private, denominational, parochial or public school, of any modern language, other than English, to any child who has not attained and successfully Page 262 U. S. 391 passed the eighth grade, invades the liberty guaranteed by the Fourteenth Amendment and exceeds the power of the State. P. 262 U. S. 399 . So held where the statute was applied in punishment of an instructor who taught reading in German, to a child of ten years, in a parochial school. 107 Neb. 657, reversed. ERROR to a judgment of the Supreme Court of Nebraska affirming a conviction for infraction of a statute against teaching of foreign languages to young children in schools. Page 262 U. S. 396 MR. JUSTICE McREYNOLDS delivered the opinion of the Court. Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained Page 262 U. S. 397 and successfully passed the eighth grade. The information is based upon "An act relating to the teaching of foreign languages in the State of Nebraska," approved April 9, 1919, which follows [Laws 1919, c. 249.]: "Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language." "Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides." "Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense." "Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval." The Supreme Court of the State affirmed the judgment of conviction. 107 Neb. 657. It declared the offense charged and established was "the direct and intentional teaching of the German language as a distinct subject to a child who had not passed the eighth grade," in the parochial school maintained by Zion Evangelical Lutheran Congregation, a collection of Biblical stories being used therefor. And it held that the statute forbidding this did not conflict with the Fourteenth Amendment, but was a valid exercise of the police power. The following excerpts from the opinion sufficiently indicate the reasons advanced to support the conclusion. "The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permitting foreigners, Page 262 U. S. 398 who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state. The enactment of such a statute comes reasonably within the police power of the state. Pohl v. State, 132 N.E. (Ohio) 20; State v. Bartels, 181 N.W. (Ia.) 508." "It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the state and arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and prevents them, without reason, from having their children taught foreign languages in school. That argument is not well taken, for it assumes that every citizen finds himself restrained by the statute. The hours which a child is able to devote to study in the confinement of school are limited. It must have ample time for exercise or play. Its daily capacity for learning is comparatively small. A selection of subjects for its education, therefore, from among the many that might be taught, is obviously necessary. The legislature no doubt had in mind the practical operation of the law. The law affects few citizens, except those of foreign lineage. Page 262 U. S. 399 Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of importance to teach their children foreign languages before such children have reached the eighth grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction upon the citizens generally, which, it appears, was a restriction of no real consequence." The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. "No State shall . . . deprive any person of life, liberty, or property, without due process of law." While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases , 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746 ; Yick Wo v. Hopkins, 118 U. S. 356 ; Minnesota v. Barber, 136 U. S. 313 ; Allgeyer v. Louisiana, 165 U. S. 578 ; Lochner v. New York, 198 U. S. 45 ; Twining v. New Jersey, 211 U. S. 78 ; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549 ; Truax v. Raich, 239 U. S. 33 ; Adams v. Tanner, 244 U. S. 590 ; New York Life Ins. Co. v. Dodge, 246 U. S. 357 ; Truax v. Corrigan, 257 U. S. 312 ; Adkins v. Children's Hospital, 261 U. S. 525 ; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered Page 262 U. S. 400 with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts. Lawton v. Steele, 152 U. S. 133 , 152 U. S. 137 . The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted. The Ordinance of 1787 declares, "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life, and nearly all the States, including Nebraska, enforce this obligation by compulsory laws. Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment. The challenged statute forbids the teaching in school of any subject except in English; also the teaching of any other language until the pupil has attained and successfully passed the eighth grade, which is not usually accomplished before the age of twelve. The Supreme Court of the State has held that "the so-called ancient or dead languages" are not "within the spirit or the purpose of Page 262 U. S. 401 the act." Nebraska District of Evangelical Lutheran Synod v. McKelvie, 187 N.W. 927. Latin, Greek, Hebrew are not proscribed; but German, French, Spanish, Italian and every other alien speech are within the ban. Evidently the legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own. It is said the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals, and "that the English language should be and become the mother tongue of all children reared in this State." It is also affirmed that the foreign born population is very large, that certain communities commonly use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the most useful type, and the public safety is imperiled. That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution -- a desirable end cannot be promoted by prohibited means. For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: "That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, Page 262 U. S. 402 nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be." In order to submerge the individual. and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest, and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution. The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every characteristic of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the State and conflict with rights assured to plaintiff in error. The interference is plain enough, and no adequate reason therefor in time of peace and domestic tranquility has been shown. The power of the State to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the State's power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court. Adams v. Page 262 U. S. 403 Tanner, supra, p. 244 U. S. 594 , pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State. As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child's health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child. The judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. [See the separate opinion of MR. JUSTICE HOLMES, concurred in by MR. JUSTICE SUTHERLAND, in the next case, at p. 262 U. S. 412 , infra. ]

The Supreme Court ruled that a state law prohibiting the teaching of any language other than English in schools, including private and parochial institutions, violated the Fourteenth Amendment and exceeded the state's power. The Court recognized the state's interest in fostering a homogeneous population and preparing citizens to understand civic discussions, but found that the means employed by the state were arbitrary and exceeded its authority. The Court emphasized the importance of language instruction at a young age and noted that it was not harmful to a child's health, morals, or understanding. The judgment was reversed, protecting the liberty of instructors to teach languages other than English.

Due Process

Board of Regents of State Colleges v. Roth

https://supreme.justia.com/cases/federal/us/408/564/

U.S. Supreme Court Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) Board of Regents of State Colleges v. Roth No. 71-162 Argued January 18, 1972 Decided June 29, 1972 408 U.S. 564 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus Respondent, hired for a fixed term of one academic year to teach at a state university, was informed without explanation that he would not be rehired for the ensuing year. A statute provided that all state university teachers would be employed initially on probation, and that only after four years' continuous service would teachers achieve permanent employment "during efficiency and good behavior," with procedural protection against separation. University rules gave a nontenured teacher "dismissed" before the end of the year some opportunity for review of the "dismissal," but provided that no reason need be given for nonretention of a nontenured teacher, and no standards were specified for reemployment. Respondent brought this action claiming deprivation of his Fourteenth Amendment rights, alleging infringement of (1) his free speech right because the true reason for his nonretention was his criticism of the university administration, and (2) his procedural due process right because of the university's failure to advise him of the reason for its decision. The District Court granted summary judgment for the respondent on the procedural issue. The Court of Appeals affirmed. Held: The Fourteenth Amendment does not require opportunity for a hearing prior to the nonrenewal of a nontenured state teacher's contract unless he can show that the nonrenewal deprived him of an interest in "liberty" or that he had a "property" interest in continued employment, despite the lack of tenure or a formal contract. Here, the nonretention of respondent, absent any charges against him or stigma or disability foreclosing other employment, is not tantamount to a deprivation of "liberty," and the terms of respondent's employment accorded him no "property" interest protected by procedural due process. The courts below therefore erred in granting summary judgment for the respondent on the procedural due process issue. Pp. 408 U. S. 569 -579. 446 F.2d 806, reversed and remanded. Page 408 U. S. 565 STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BURGER C.J., filed a concurring opinion, post, p. 408 U. S. 603 . DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 579 . BRENNAN, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 408 U. S. 604 . MARSHALL, J., filed a dissenting opinion, post, p. 408 U. S. 587 . POWELL, J., took no part in the decision of the case Page 408 U. S. 566 MR. JUSTICE STEWART delivered the opinion of the Court. In 1968, the respondent, David Roth, was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. [ Footnote 1 ] The respondent completed that term. But he was informed that he would not be rehired for the next academic year. The respondent had no tenure rights to continued employment. Under Wisconsin statutory law, a state university teacher can acquire tenure as a "permanent" employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment "during efficiency and good behavior." A relatively new teacher without tenure, however, is, under Wisconsin law, entitled to nothing beyond his one-year appointment. [ Footnote 2 ] There are no statutory Page 408 U. S. 567 or administrative standards defining eligibility for reemployment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials. The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be "discharged except for cause upon written charges" and pursuant to certain procedures. [ Footnote 3 ] A nontenured teacher, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a nontenured teacher "dismissed" before the end of the year may have some opportunity for review of the "dismissal." But the Rules provide no real protection for a nontenured teacher who simply is not reemployed for the next year. He must be informed by February 1 "concerning retention or nonretention for the ensuing year." But "no reason for non-retention need be given. No review or appeal is provided in such case." [ Footnote 4 ] Page 408 U. S. 568 In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969-1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing. The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech. [ Footnote 5 ] Page 408 U. S. 569 Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right, to procedural due process of law. The District Court granted summary judgment for the respondent on the procedural issue, ordering the University officials to provide him with reasons and a hearing. 310 F. Supp. 972 . The Court of Appeals, with one judge dissenting, affirmed this partial summary judgment. 446 F.2d 806. We granted certiorari. 404 U.S. 909. The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University's decision not to rehire him for another year. [ Footnote 6 ] We hold that he did not. I The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right Page 408 U. S. 570 to some kind of prior hearing is paramount. [ Footnote 7 ] But the range of interests protected by procedural due process is not infinite. The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent's interest in reemployment at Wisconsin State University-Oshkosh outweighed the University's interest in denying him reemployment summarily. 310 F. Supp. at 977-979. Undeniably, the respondent's reemployment prospects were of major concern to him -- concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. [ Footnote 8 ] But, to determine whether Page 408 U. S. 571 due process requirements apply in the first place, we must look not to the "weight," but to the nature, of the interest at stake. See Morrissey v. Brewer, ante at 408 U. S. 481 . We must look to see if the interest is within the Fourteenth Amendment's protection of liberty and property. "Liberty" and "property" are broad and majestic terms. They are among the "[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Ins. Co. v. Tidewater Co., 337 U. S. 582 , 337 U. S. 646 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between "rights" and "privileges" that once seemed to govern the applicability of procedural due process rights. [ Footnote 9 ] The Court has also made clear that the property interests protected by Page 408 U. S. 572 procedural due process extend well beyond actual ownership of real estate, chattels, or money. [ Footnote 10 ] By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process. [ Footnote 11 ] Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words "liberty" and "property" in the Due Process Clause of the Fourteenth Amendment must be given some meaning. II "While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 . In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U. S. 497 , 347 U. S. 499 -500; Stanley v. Illinois, 405 U. S. 645 . Page 408 U. S. 573 There might be cases in which a State refused to reemploy a person under such circumstances that interests in liberty would be implicated. But this is not such a case. The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U. S. 433 , 400 U. S. 437 . Wieman v. Updegraff, 344 U. S. 183 , 344 U. S. 191 ; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 ; United States v. Lovett, 328 U. S. 303 , 328 U. S. 316 -317; Peters v. Hobby, 349 U. S. 331 , 349 U. S. 352 (DOUGLAS, J., concurring). See Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 898 . In such a case, due process would accord an opportunity to refute the charge before University officials. [ Footnote 12 ] In the present case, however, there is no suggestion whatever that the respondent's "good name, reputation, honor, or integrity" is at stake. Similarly, there is no suggestion that the State, in declining to reemploy the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would Page 408 U. S. 574 be a different case. For "[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury. . . ." Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 341 U. S. 185 (Jackson, J., concurring). See Truax v. Raich, 239 U. S. 33 , 239 U. S. 41 . The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities "in a manner . . . that contravene[s] . . . Due Process," Schware v. Board of Bar Examiners, 353 U. S. 232 , 353 U. S. 238 , and, specifically, in a manner that denies the right to a full prior hearing. Willner v. Committee on Character, 373 U. S. 96 , 373 U. S. 103 . See Cafeteria Workers v. McElroy, supra, at 367 U. S. 898 . In the present case, however, this principle does not come into play. [ Footnote 13 ] To be sure, the respondent has alleged that the nonrenewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that Page 408 U. S. 575 the decision not to rehire him was, in fact, based on his free speech activities. [ Footnote 14 ] Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of "liberty" when he simply is not rehired in one job, but remains as free as before to seek another. Cafeteria Workers v. McElroy, supra, at 367 U. S. 895 -896. Page 408 U. S. 576 III The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests -- property interests -- may take many forms. Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U. S. 254 . [ Footnote 15 ] See Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 611 . Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, Slochower v. Board of Education, 350 U. S. 551 , and college professors and Page 408 U. S. 577 staff members dismissed during the terms of their contracts, Wieman v. Updegraff, 344 U. S. 183 , have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle "proscribing summary dismissal from public employment without hearing or inquiry required by due process" also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. Connell v. Higginbotham, 403 U. S. 207 , 403 U. S. 208 . Certain attributes of "property" interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so. Page 408 U. S. 578 Just as the welfare recipients' "property" interest in welfare payments was created and defined by statutory terms, so the respondent's "property" interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent "sufficient cause." Indeed, they made no provision for renewal whatsoever. Thus, the terms of the respondent's appointment secured absolutely no interest in reemployment for the next year. They supported absolutely no possible claim of entitlement to reemployment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in reemployment or that created any legitimate claim to it. [ Footnote 16 ] In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment. IV Our analysis of the respondent's constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public Page 408 U. S. 579 colleges and universities. [ Footnote 17 ] For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution. We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE POWELL took no part in the decision of this case. [For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 408 U. S. 603 .] [For dissenting opinion of MR. JUSTICE BRENNAN, see post, p. 408 U. S. 604 .] [ Footnote 1 ] The respondent had no contract of employment. Rather, his formal notice of appointment was the equivalent of an employment contract. The notice of his appointment provided that: " David F. Roth is hereby appointed to the faculty of the Wisconsin State University Position number 0262. (Location:) Oshkosh as (Rank:) Assistant Professor of (Department:) Political Science this (Date:) first day of (Month:) September (Year:) 1968. " The notice went on to specify that the respondent's "appointment basis" was for the "academic year." And it provided that "[r]egulations governing tenure are in accord with Chapter 37.31, Wisconsin Statutes. The employment of any staff member for an academic year shall not be for a term beyond June 30th of the fiscal year in which the appointment is made." See n 2, infra. [ Footnote 2 ] Wis.Stat. § 37.31(1) (1967), in force at the time, provided in pertinent part that: "All teachers in any state university shall initially be employed on probation. The employment shall be permanent, during efficiency and good behavior after 4 years of continuous service in the state university system as a teacher." [ Footnote 3 ] Wis.Stat. § 37.31(1) further provided that: "No teacher who has become permanently employed as herein provided shall be discharged except for cause upon written charges. Within 30 days of receiving the written charges, such teacher may appeal the discharge by a written notice to the president of the board of regents of state colleges. The board shall cause the charges to be investigated, hear the case and provide such teacher with a written Statement as to their decision." [ Footnote 4 ] The Rules, promulgated by the Board of Regents in 1967, provide: "RULE I -- February first is established throughout the State University system as the deadline for written notification of non-tenured faculty concerning retention or non-retention for the ensuing year. The President of each University shall give such notice each year on or before this date." "RULE II -- During the time a faculty member is on probation, no reason for non-retention need be given. No review or appeal is provided in such case." "RULE III -- 'Dismissal' as opposed to 'Non-Retention' means termination of responsibilities during an academic year. When a nontenure faculty member is dismissed he has no right under Wisconsin Statutes to a review of his case or to appeal. The President may, however, in his discretion, grant a request for a review within the institution, either by a faculty committee or by the President, or both. Any such review would be informal in nature and would be advisory only." "RULE IV -- When a non-tenure faculty member is dismissed he may request a review by or hearing before the Board of Regents. Each such request will be considered separately and the Board will, in its discretion, grant or deny same in each individual case." [ Footnote 5 ] While the respondent alleged that he was not rehired because of his exercise of free speech, the petitioners insisted that the nonretention decision was based on other, constitutionally valid grounds. The District Court came to no conclusion whatever regarding the true reason for the University President's decision. "In the present case," it stated, "it appears that a determination as to the actual bases of [the] decision must await amplification of the facts at trial. . . . Summary judgment is inappropriate." 310 F. Supp. 972 , 982. [ Footnote 6 ] The courts that have had to decide whether a nontenured public employee has a right to a statement of reasons or a hearing upon nonrenewal of his contract have come to varying conclusions. Some have held that neither procedural safeguard is required. E.g., Orr v. Trinter, 444 F.2d 128 (CA6); Jones v. Hopper, 410 F.2d 1323 (CA10); Freeman v. Gould Special School District, 405 F.2d 1153 (CA8). At least one court has held that there is a right to a statement of reasons, but not a hearing. Drown v. Portsmouth School District, 435 F.2d 1182 (CA1). And another has held that both requirements depend on whether the employee has an "expectancy" of continued employment. Ferguson v. Thomas, 430 F.2d 852, 856 (CA5). [ Footnote 7 ] Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, "except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 379 . "While '[m]any controversies have raged about . . . the Due Process Clause,' . . . it is fundamental that, except in emergency situations (and this is not one), due process requires that, when a State seeks to terminate [a protected] interest . . . , it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective." Bell v. Burson, 402 U. S. 535 , 402 U. S. 542 . For the rare and extraordinary situations in which we have held that deprivation of a protected interest need not be preceded by opportunity for some kind of hearing, see, e.g., Central Union Trust Co. v. Garvan, 254 U. S. 554 , 254 U. S. 566 ; Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 597 ; Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 . [ Footnote 8 ] "The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, supra, at 401 U. S. 378 . See, e.g., Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 263 ; Hannah v. Larche, 363 U. S. 420 . The constitutional requirement of opportunity for some form of hearing before deprivation of a protected interest, of course, does not depend upon such a narrow balancing process. See n 7, supra. [ Footnote 9 ] In a leading case decided many years ago, the Court of Appeals for the District of Columbia Circuit held that public employment in general was a "privilege," not a "right," and that procedural due process guarantees therefore were inapplicable. Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, aff'd by an equally divided Court, 341 U.S. 918. The basis of this holding has been thoroughly undermined in the ensuing years. For, as MR. JUSTICE BLACKMUN wrote for the Court only last year, "this Court now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a 'right' or as a 'privilege.'" Graham v. Richardson, 403 U. S. 365 , 403 U. S. 374 . See, e.g., Morrissey v. Brewer, ante at 408 U. S. 482 ; Bell v. Burson, supra, at 402 U. S. 539 ; Goldberg v. Kelly, supra, at 397 U. S. 262 ; Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 627 n. 6; Pickering v. Board of Education, 391 U. S. 563 , 391 U. S. 568 ; Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 404 . [ Footnote 10 ] See, e.g., Connell v. Higginbotham, 403 U. S. 207 , 403 U. S. 208 ; Bell v. Burson, supra; Goldberg v. Kelly, supra. [ Footnote 11 ] "Although the Court has not assumed to define 'liberty' [in the Fifth Amendment's Due Process Clause] with any great precision, that term is not confined to mere freedom from bodily restraint." Bolling v. Sharpe, 347 U. S. 497 , 347 U. S. 499 . See, e.g., Stanley v. Illinois, 405 U. S. 645 . [ Footnote 12 ] The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons. [ Footnote 13 ] The District Court made an assumption "that non-retention by one university or college creates concrete and practical difficulties for a professor in his subsequent academic career." 310 F. Supp. at 979. And the Court of Appeals based its affirmance of the summary judgment largely on the premise that "the substantial adverse effect non-retention is likely to have upon the career interests of an individual professor" amounts to a limitation on future employment opportunities sufficient to invoke procedural due process guarantees. 446 F.2d at 809. But even assuming, arguendo, that such a "substantial adverse effect" under these circumstances would constitute a state-imposed restriction on liberty, the record contains no support for these assumptions. There is no suggestion of how nonretention might affect the respondent's future employment prospects. Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of "liberty." Cf. Schware v. Board of Bar Examiners, 353 U. S. 232 . [ Footnote 14 ] See n 5, supra. The Court of Appeals, nonetheless, argued that opportunity for a hearing and a statement of reasons were required here "as a prophylactic against non-retention decisions improperly motivated by exercise of protected rights." 446 F.2d at 810 (emphasis supplied). While the Court of Appeals recognized the lack of a finding that the respondent's nonretention was based on exercise of the right of free speech, it felt that the respondent's interest in liberty was sufficiently implicated here because the decision not to rehire him was made "with a background of controversy and unwelcome expressions of opinion." Ibid. When a State would directly impinge upon interests in free speech or free press, this Court has on occasion held that opportunity for a fair adversary hearing must precede the action, whether or not the speech or press interest is clearly protected under substantive First Amendment standards. Thus, we have required fair notice and opportunity for an adversary hearing before an injunction is issued against the holding of rallies and public meetings. Carroll v. Princess Anne, 393 U. S. 175 . Similarly, we have indicated the necessity of procedural safeguards before a State makes a large-scale seizure of a person's allegedly obscene books, magazines, and so forth. A Quantity of Books v. Kansas, 378 U. S. 205 ; Marcus v. Search Warrant, 367 U. S. 717 . See Freedman v. Maryland, 380 U. S. 51 ; Bantam Books v. Sullivan, 372 U. S. 58 . See generally Monaghan, First Amendment "Due Process," 83 Harv.L.Rev. 518. In the respondent's case, however, the State has not directly impinged upon interests in free speech or free press in any way comparable to a seizure of books or an injunction against meetings. Whatever may be a teacher's rights of free speech, the interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest. [ Footnote 15 ] Goldsmith v. Board of Tax Appeals, 270 U. S. 117 , is a related case. There, the petitioner was a lawyer who had been refused admission to practice before the Board of Tax Appeals. The Board had "published rules for admission of persons entitled to practice before it, by which attorneys at law admitted to courts of the United States and the States, and the District of Columbia, as well as certified public accountants duly qualified under the law of any State or the District, are made eligible. . . . The rules further provide that the Board may, in its discretion, deny admission to any applicant, or suspend or disbar any person after admission." Id. at 270 U. S. 119 . The Board denied admission to the petitioner under its discretionary power, without a prior hearing and a statement of the reasons for the denial. Although this Court disposed of the case on other grounds, it stated, in an opinion by Mr. Chief Justice Taft, that the existence of the Board's eligibility rules gave the petitioner an interest and claim to practice before the Board to which procedural due process requirements applied. It said that the Board's discretionary power "must be construed to mean the exercise of a discretion to be exercised after fair investigation, with such a notice, hearing and opportunity to answer for the applicant as would constitute due process." Id. at 270 U. S. 123 . [ Footnote 16 ] To to sure, the respondent does suggest that most teachers hired on a year-to-year basis by Wisconsin State University-Oshkosh are, in fact, rehired. But the District Court has not found that there is anything approaching a "common law" of remployment, see Perry v. Sindermann, post at 408 U. S. 602 , so strong as to require University officials to give the respondent a statement of reasons and a hearing on their decision not to rehire him. [ Footnote 17 ] See, e.g., Report of Committee A on Academic Freedom and Tenure, Procedural Standards in the Renewal or Nonrenewal of Faculty Appointments, 56 AAUP Bulletin No. 1, p. 21 (Spring 1970). MR. JUSTICE DOUGLAS, dissenting. Respondent Roth, like Sindermann in the companion case, had no tenure under Wisconsin law and, unlike Sindermann, he had had only one year of teaching at Wisconsin State University-Oshkosh -- where during 1968-1969 he had been Assistant Professor of Political Science and International Studies. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire group of 94 black students without determining individual guilt. He also criticized the university's regime as being authoritarian and autocratic. He used his classroom to discuss what was being done about the Page 408 U. S. 580 black episode; and one day, instead of meeting his class, he went to the meeting of the Board of Regents. In this case, as in Sindermann, an action was started in Federal District Court under 42 U.S.C. § 1983 [ Footnote 2/1 ] claiming in part that the decision of the school authorities not to rehire was in retaliation for his expression of opinion. The District Court, in partially granting Roth's motion for summary judgment, held that the Fourteenth Amendment required the university to give a hearing to teachers whose contracts were not to be renewed and to give reasons for its action. 310 F. Supp. 972 , 983. The Court of Appeals affirmed. 446 F.2d 806. Professor Will Herberg, of Drew University, in writing of "academic freedom" recently said: "[I]t is sometimes conceived as a basic constitutional right guaranteed and protected under the First Amendment." "But, of course, this is not the case. Whereas a man's right to speak out on this or that may be guaranteed and protected, he can have no imaginable human or constitutional right to remain a member of a university faculty. Clearly, the right to academic freedom is an acquired one, yet an acquired right of such value to society that, in the minds of many, it has verged upon the constitutional." Washington Sunday Star, Jan. 23, 1972, B-3, col. 1. Page 408 U. S. 581 There may not be a constitutional right to continued employment if private schools and colleges are involved. But Prof. Herberg's view is not correct when public schools move against faculty members. For the First Amendment, applicable to the States by reason of the Fourteenth Amendment, protects the individual against state action when it comes to freedom of speech and of press and the related freedoms guaranteed by the First Amendment; and the Fourteenth protects "liberty" and "property" as stated by the Court in Sindermann. No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if, through the device of financing or other umbilical cords, they become instrumentalities of the State. Mr. Justice Frankfurter stated the constitutional theory in Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 261 -262 (concurring in result): "Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good -- if understanding be an essential need of society -- inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered Page 408 U. S. 582 as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's wellbeing, except for reasons that are exigent and obviously compelling." We repeated that warning in Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 : "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." When a violation of First Amendment rights is alleged, the reasons for dismissal or for nonrenewal of an employment contract must be examined to see if the reasons given are only a cloak for activity or attitudes protected by the Constitution. A statutory analogy is present under the National Labor Relations Act, 29 U.S.C. § 151 et seq. While discharges of employees for "cause" are permissible ( Fibreboard Corp. v. NLRB, 379 U. S. 203 , 379 U. S. 217 ), discharges because of an employee's union activities are banned by § 8(a)(3), 29 U.S.C. § 158(a)(3). So the search is to ascertain whether the stated ground was the real one or only a pretext. See J. P. Stevens Co. v. NLRB, 380 F.2d 292, 300. In the case of teachers whose contracts are not renewed, tenure is not the critical issue. In the Sweezy case, the teacher, whose First Amendment rights we honored, had no tenure, but was only a guest lecturer. In the Keyishian case, one of the petitioners (Keyishian himself) had only a "one-year-term contract" that was not renewed. 385 U.S. at 385 U. S. 592 . In Shelton v. Tucker, 364 U. S. 479 , one of the petitioners was Page 408 U. S. 583 a teacher whose "contract for the ensuing school year was not renewed" ( id. at 364 U. S. 483 ) and two others who refused to comply were advised that it made "impossible their reemployment as teachers for the following school year." Id. at 364 U. S. 484 . The oath required in Keyishian and the affidavit listing memberships required in Shelton were both, in our view, in violation of First Amendment rights. Those cases mean that conditioning renewal of a teacher's contract upon surrender of First Amendment rights is beyond the power of a State. There is sometimes a conflict between a claim for First Amendment protection and the need for orderly administration of the school system, as we noted in Pickering v. Board of Education, 391 U. S. 563 , 391 U. S. 569 . That is one reason why summary judgments in this class of cases are seldom appropriate. Another reason is that careful factfinding is often necessary to know whether the given reason for nonrenewal of a teacher's contract is the real reason or a feigned one. It is said that, since teaching in a public school is a privilege, the State can grant it or withhold it on conditions. We have, however, rejected that thesis in numerous cases, e.g., Graham v. Richardson, 403 U. S. 365 , 403 U. S. 374 . See Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439 (1968). In Hannegan v. Esquire, Inc., 327 U. S. 146 , 327 U. S. 156 , we said that Congress may not, by withdrawal of mailing privileges, place limitations on freedom of speech which it could not do constitutionally if done directly. We said in American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 402 , that freedom of speech was abridged when the only restraint on its exercise was withdrawal of the privilege to invoke the facilities of the National Labor Relations Board. In Wieman v. Updegraff, 344 U. S. 183 , we held that an applicant could not be denied the opportunity Page 408 U. S. 584 for public employment because he had exercised his First Amendment rights. And in Speiser v. Randall, 357 U. S. 513 , we held that a denial af a tax exemption unless one gave up his First Amendment rights was an abridgment of Fourteenth Amendment rights. As we held in Speiser v. Randall, supra, when a State proposes to deny a privilege to one who it alleges has engaged in unprotected speech, Due Process requires that the State bear the burden of proving that the speech was not protected. "[T]he protection of the individual against arbitrary action' . . . [is] the very essence of due process," Slochower v. Board of Education, 350 U. S. 551 , 350 U. S. 559 , but where the State is allowed to act secretly behind closed doors and without any notice to those who are affected by its actions, there is no check against the possibility of such "arbitrary action." Moreover, where "important interests" of the citizen are implicated ( Bell v. Burson, 402 U. S. 535 , 402 U. S. 539 ) they are not to be denied or taken away without due process. Ibid. Bell v. Burson involved a driver's license. But also included are disqualification for unemployment compensation ( Sherbert v. Verner, 374 U. S. 398 ), discharge from public employment ( Slochower v. Board of Education, supra ), denial of tax exemption ( Speiser v. Randall, supra ), and withdrawal of welfare benefits ( Goldberg v. Kelly, 397 U. S. 254 ). And see Wisconsin v. Constantineau, 400 U. S. 433 . We should now add that nonrenewal of a teacher's contract, whether or not he has tenure, is an entitlement of the same importance and dignity. Cafeteria Workers v. McElroy, 367 U. S. 886 , is not opposed. It held that a cook employed in a cafeteria in a military installation was not entitled to a hearing prior Page 408 U. S. 585 to the withdrawal of her access to the facility. Her employer was prepared to employ her at another of its restaurants, the withdrawal was not likely to injure her reputation, and her employment opportunities elsewhere were not impaired. The Court held that the very limited individual interest in this one Job did not outweigh the Government's authority over an important federal military establishment. Nonrenewal of a teacher's contract is tantamount in effect to a dismissal, and the consequences may be enormous. Nonrenewal can be a blemish that turns into a permanent scar and effectively limits any chance the teacher has of being rehired as a teacher, at least in his State. If this nonrenewal implicated the First Amendment, then Roth was deprived of constitutional rights because his employment was conditioned on a surrender of First Amendment rights; and, apart from the First Amendment, he was denied due process when he received no notice and hearing of the adverse action contemplated against him. Without a statement of the reasons for the discharge and an opportunity to rebut those reasons -- both of which were refused by petitioners -- there is no means short of a lawsuit to safeguard the right not to be discharged for the exercise of First Amendment guarantees. The District Court held, 310 F.Supp. at 979-980: "Substantive constitutional protection for a university professor against nonretention in violation of his First Amendment rights or arbitrary nonretention is useless without procedural safeguards. I hold that minimal procedural due process includes a statement of the reasons why the university intends not to retain the professor, notice of a hearing at which he may respond to the stated reasons, and a hearing if the professor appears at the appointed Page 408 U. S. 586 time and place. At such a hearing, the professor must have a reasonable opportunity to submit evidence relevant to the stated reasons. The burden of going forward and the burden of proof rests with the professor. Only if he makes a reasonable showing that the stated reasons are wholly inappropriate as a basis for decision or that they are wholly without basis in fact would the university administration become obliged to show that the stated reasons are not inappropriate or that they have a basis in fact." It was that procedure that the Court of Appeals approved. 446 F.2d at 809-810. The Court of Appeals also concluded that, though the § 1983 action was pending in court, the court should stay its hand until the academic procedures had been completed. [ Footnote 2/2 ] As stated by the Court of Appeals in Sindermann v. Perry, 430 F.2d 939 (CA5): "School-constituted review bodies are the most appropriate forums for initially determining issues of this type, both for the convenience of the parties and in order to bring academic expertise to bear in resolving the nice issues of administrative discipline, teacher competence and school policy, which so frequently must be balanced in reaching a proper determination." Id. at 944-945. That is a permissible course for district courts to take, though it does not relieve them of the final determination Page 408 U. S. 587 whether nonrenewal of the teacher's contract was in retaliation for the exercise of First Amendment rights or a denial of due process. Accordingly, I would affirm the judgment of the Court of Appeals. [ Footnote 2/1 ] Section 1983 reads as follows: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, hall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." [ Footnote 2/2 ] Such a procedure would not be contrary to the well settled rule that § 1983 actions do not require exhaustion of other remedies. See, e.g., Wilwording v. Swenson, 404 U. S. 249 (1971); Damico v. California, 389 U. S. 416 (1967); McNeese v. Board of Education, 373 U. S. 668 (1963); Monroe v. Pape, 365 U. S. 167 (1961). One of the allegations in the complaint was that respondent was denied any effective state remedy, and the District Court's staying its hand thus furthered, rather than thwarted, the purposes of § 1983. MR. JUSTICE MARSHALL, dissenting. Respondent was hired as an assistant professor of political science at Wisconsin State University-Oshkosh for the 1968-1969 academic year. During the course of that year, he was told that he would not be rehired for the next academic term, but he was never told why. In this case, he asserts that the Due Process Clause of the Fourteenth Amendment to the United States Constitution entitled him to a statement of reasons and a hearing on the University's decision not to rehire him for another year. [ Footnote 3/1 ] This claim was sustained by the District Court, which granted respondent summary judgment, 310 F. Supp. 972 , and by the Court of Appeals which affirmed the judgment of the District Court. 446 F.2d 806. This Court today reverses the judgment of the Court of Appeals and rejects respondent's claim. I dissent. While I agree with Part I of the Court's opinion, setting forth the proper framework for consideration of the issue presented, and also with those portions of Parts II and III of the Court's opinion that assert that a public employee is entitled to procedural due process whenever a State stigmatizes him by denying employment, or injures his future employment prospects severely, or whenever the State deprives him of a property Page 408 U. S. 588 interest, I would go further than the Court does in defining the terms "liberty" and "property." The prior decisions of this Court, discused at length in the opinion of the Court, establish a principle that is as obvious as it is compelling -- i.e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect to employment opportunities that they either offer or control. Hence, it is now firmly established that whether or not a private employer is free to act capriciously or unreasonably with respect to employment practices, at least absent statutory [ Footnote 3/2 ] or contractual [ Footnote 3/3 ] controls, a government employer is different. The government may only act fairly and reasonably. This Court has long maintained that "the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure." Truax v. Raich, 239 U. S. 33 , 239 U. S. 1 (1915) (Hughes, J.). See also Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923). It has also established that the fact that an employee has no contract guaranteeing work for a specific future period does not mean that as the result of action by the government he may be "discharged at any time for any reason or for no reason." Truax v. Raich, supra, at 239 U. S. 38 . In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the "property" right that I believe is protected by the Fourteenth Amendment and that cannot be denied "without due process of law." And it is also liberty -- Page 408 U. S. 589 liberty to work -- which is the "very essence of the personal freedom and opportunity" secured by the Fourteenth Amendment. This Court has often had occasion to note that the denial of public employment is a serious blow to any citizen. See, e.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 185 (1951) (Jackson, J., concurring); United States v. Lovett, 328 U. S. 303 , 328 U. S. 316 -317 (1946). Thus, when an application for public employment is denied or the contract of a government employee is not renewed, the government must say why, for it is only when the reasons underlying government action are known that citizens feel secure and protected against arbitrary government action. Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life. When something as valuable as the opportunity to work is at stake, the government may not reward some citizens and not others without demonstrating that its actions are fair and equitable. And it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action. MR. JUSTICE DOUGLAS has written that: "It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law." Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 341 U. S. 179 (concurring opinion). And Mr. Justice Frankfurter has said that "[t]he history of American freedom is, in no small measure, the Page 408 U. S. 590 history of procedure." Malinski v. New York, 324 U. S. 401 , 324 U. S. 414 (1945) (separate opinion). With respect to occupations controlled by the government, one lower court has said that "[t]he public has the right to expect its officers . . . to make adjudications on the basis of merit. The first step toward insuring that these expectations are realized is to require adherence to the standards of due process; absolute and uncontrolled discretion invites abuse." Hornsby v. Allen, 326 F.2d 605, 610 (CA5 1964). We have often noted that procedural due process means many different things in the numerous contexts in which it applies. See, e.g., Goldberg v. Kelly, 397 U. S. 254 (1970); Bell v. Burson, 402 U. S. 535 (1971). Prior decision have held that an applicant for admission to practice as an attorney before the United States Board of Tax Appeals may not be rejected without a statement of reasons and a chance for a hearing on disputed issues of fact; [ Footnote 3/4 ] that a tenured teacher could not be summarily dismissed without notice of the reasons and a hearing; [ Footnote 3/5 ] that an applicant for admission to a state bar could not be denied the opportunity to practice law without notice of the reasons for the rejection of his application and a hearing; [ Footnote 3/6 ] and even that a substitute teacher who had been employed only two months could not be dismissed merely because she refused to take a loyalty oath without an inquiry into the specific facts of her case and a hearing on those in dispute. [ Footnote 3/7 ] I would follow these cases and hold that respondent was denied due process when his contract was not renewed and he was not informed of the reasons and given an opportunity to respond. Page 408 U. S. 591 It may be argued that to provide procedural due process to all public employees or prospective employees would place an intolerable burden on the machinery of government. Cf. Goldberg v. Kelly, supra. The short answer to that argument is that it is not burdensome to give reasons when reasons exist. Whenever an application for employment is denied, an employee is discharged, or a decision not to rehire an employee is made, there should be some reason for the decision. It can scarcely be argued that government would be crippled by a requirement that the reason be communicated to the person most directly affected by the government's action. Where there are numerous applicants for jobs, it is likely that few will choose to demand reasons for not being hired. But, if the demand for reasons is exceptionally great, summary procedures can be devised that would provide fair and adequate information to all persons. As long as the government has a good reason for its actions it need not fear disclosure. It is only where the government acts improperly that procedural due process is truly burdensome. And that is precisely when it is most necessary. It might also be argued that to require a hearing and a statement of reasons is to require a useless act, because a government bent on denying employment to one or more persons will do so regardless of the procedural hurdles that are placed in its path. Perhaps this is so, but a requirement of procedural regularity at least renders arbitrary action more difficult. Moreover, proper procedures will surely eliminate some of the arbitrariness that results, not from malice, but from innocent error. "Experience teaches . . . that the affording of procedural safeguards, which by their nature serve to illuminate the underlying facts, in itself, often operates to prevent erroneous decisions on the merits Page 408 U. S. 592 from occurring." Silver v. New York Stock Exchange, 373 U. S. 341 , 373 U. S. 366 (1963). When the government knows it may have to justify its decisions with sound,reasons, its conduct is likely to be more cautious, careful, and correct. Professor Gellhorn put the argument well: "In my judgment, there is no basic division of interest between the citizenry on the one hand and officialdom on the other. Both should be interested equally in the quest for procedural safeguards. I echo the late Justice Jackson in saying:" "Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice" "-- blunders which are likely to occur when reasons need not be given and when the reasonableness and indeed legality of judgments need not be subjected to any appraisal other than one's own. . . ." Summary of Colloquy on Administrative Law, 6 J.Soc.Pub. Teachers of Law 70, 73 (1961). Accordingly, I dissent. [ Footnote 3/1 ] Respondent has also alleged that the true reason for the decision not to rehire him was to punish him for certain statements critical of the University. As the Court points out, this issue is not before us at the present time. [ Footnote 3/2 ] See, e.g., Griggs v. Duke Power Co., 401 U. S. 424 (1971); 42 U.S.C. § 2000e. [ Footnote 3/3 ] Cf. Note, Procedural "Due Process" in Union Disciplinary Proceedings, 57 Yale L.J. 1302 (1948). [ Footnote 3/4 ] Goldsmith v. Board of Tax Appeals, 270 U. S. 117 (1926). [ Footnote 3/5 ] Slochower v. Board of Education, 350 U. S. 551 (1956). [ Footnote 3/6 ] Willner v. Committee on Character, 373 U. S. 96 (1963). [ Footnote 3/7 ] Connell v. Higginbotham, 403 U. S. 207 (1971).

In Board of Regents of State Colleges v. Roth, the Supreme Court ruled that a nontenured state teacher does not have a procedural due process right to a hearing before their contract is not renewed, unless they can show a deprivation of "liberty" or a "property" interest in continued employment. The Court found that the respondent, David Roth, who was not rehired after his fixed-term contract expired, had neither a "liberty" nor "property" interest protected by the Fourteenth Amendment. The Court emphasized that procedural due process protections only apply when there is a legitimate claim of entitlement to a benefit, which was not the case for Roth due to his lack of tenure or a formal contract.

Due Process

Goss v. Lopez

https://supreme.justia.com/cases/federal/us/419/565/

U.S. Supreme Court Goss v. Lopez, 419 U.S. 565 (1975) Goss v. Lopez No. 73-898 Argued October 16, 1974 Decided January 22, 1975 419 U.S. 565 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO Syllabus Appellee Ohio public high school students, who had been suspended from school for misconduct for up to 10 days without a hearing, brought a class action against appellant school officials seeking a declaration that the Ohio statute permitting such suspensions was unconstitutional and an order enjoining the officials to remove the references to the suspensions from the students' records. A three-judge District Court declared that appellees were denied due process of law in violation of the Fourteenth Amendment because they were "suspended without hearing prior to suspension or within a reasonable time thereafter," and that the statute and implementing regulations were unconstitutional, and granted the requested injunction. Held: 1. Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment. Pp. 419 U. S. 572 -576. (a) Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred, and must recognize a student's legitimate entitlement to a public education as a property interest that is protected by the Due Process Clause, and that may not be taken away for misconduct without observing minimum procedures required by that Clause. Pp. 419 U. S. 573 -574. (b) Since misconduct charges, if sustained and recorded, could seriously damage the students' reputation, as well as interfere with later educational and employment opportunities, the State's claimed right to determine unilaterally and without process whether that misconduct has occurred immediately collides with the Due Process Clause's prohibition against arbitrary deprivation of liberty. Pp. 419 U. S. 574 -575. (c) A 10-day suspension from school is not de minimis and may not be imposed in complete disregard of the Due Process Page 419 U. S. 566 Clause. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. Pp. 419 U. S. 575 -576. 2. Due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his version. Generally, notice and hearing should precede the student's removal from school, since the hearing may almost immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the student's presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable. Pp. 419 U. S. 577 -584. 372 F. Supp. 1279 , affirmed. WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 419 U. S. 584 . Page 419 U. S. 567 MR. JUSTICE WHITE delivered the opinion of the Court. This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS) challenges the judgment of a three-judge federal court, declaring that appellees -- various high school students in the CPSS -- were denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students' records. I Ohio law, Rev.Code Ann. § 3313.64 (1972), provides for free education to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must notify the student's parents within 24 hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the Board of Education, and, in connection therewith, shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case, the CPSS itself had not issued any written procedure applicable to suspensions. [ Footnote 1 ] Nor, so far as the record reflects, had any of Page 419 U. S. 568 the individual high schools involved in this case. [ Footnote 2 ] Each, however, had formally or informally described the conduct for which suspension could be imposed. The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an action under 42 U.S.C. § 1993 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a Page 419 U. S. 569 declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66, and to require them to remove references to the past suspensions from the records of the students in question. [ Footnote 3 ] The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March, 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High School and were each suspended for 10 days [ Footnote 4 ] on account of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. One of these, Tyrone Washington, was among a group of students demonstrating in the school auditorium while a class was being conducted there. He was ordered by the school principal to leave, refused Page 419 U. S. 570 to do so, and was suspended. Rudolph Sutton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other four Marion-Franklin students were suspended for similar conduct. None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student's future. Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High School and McGuffey Junior High School, respectively. The former was suspended in connection with a disturbance in the lunchroom which involved some physical damage to school property. [ Footnote 5 ] Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive conduct, but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a hearing. Betty Crome was present at a demonstration at a high school other than the one she was attending. There she was arrested together with others, taken to the police station, and released without being formally charged. Before she went to school on the following day, she was Page 419 U. S. 571 notified that she had been suspended for a 10-day period. Because no one from the school testified with respect to this incident, the record does not disclose how the McGuffey Junior High School principal went about making the decision to suspend Crome, nor does it disclose on what information the decision was based. It is clear from the record that no hearing was ever held. There was no testimony with respect to the suspension of the ninth named plaintiff, Carl Smith. The school files were also silent as to his suspension, although as to some, but not all, of the other named plaintiffs the files contained either direct references to their suspensions or copies of letters sent to their parents advising them of the suspension. On the basis of this evidence, the three-judge court declared that plaintiffs were denied due process of law because they were "suspended without hearing prior to suspension or within a reasonable time thereafter," and that Ohio Rev.Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. [ Footnote 6 ] It was ordered that all references to plaintiffs' suspensions be removed from school files. Although not imposing upon the Ohio school administrators any particular disciplinary procedures and leaving them "free to adopt regulations providing for fair suspension procedures which are consonant with the educational goals of their schools and reflective of the characteristics of their school and locality," the District Court declared Page 419 U. S. 572 that there were "minimum requirements of notice and a hearing prior to suspension, except in emergency situations." In explication, the court stated that relevant case authority would: (1) permit "[i]mmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property"; (2) require notice of suspension proceedings to be sent to the student's parents within 24 hours of the decision to conduct them; and (3) require a hearing to be held, with the student present, within 72 hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permitted to make statements in defense or mitigation, and that the school need not permit attendance by counsel. The defendant school administrators have appealed the three-judge court's decision. Because the order below granted plaintiffs' request for an injunction -- ordering defendants to expunge their records -- this Court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1253. We affirm. II At the outset, appellants contend that, because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. This position misconceives the nature of the issue, and is refuted by prior decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally "not created by the Constitution. Rather, they are created and their dimensions are defined" by an independent source such as state statutes or rules Page 419 U. S. 573 entitling the citizen to certain benefits. Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 577 (1972). Accordingly, a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for discharge may demand the procedural protections of due process. Connell v. Higginbotham, 403 U. S. 207 (1971); Wieman v. Updegraff, 344 U. S. 183 , 344 U. S. 191 -192 (1952); Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 164 (POWELL, J., concurring), 416 U. S. 171 (WHITE, J., concurring and dissenting) (1974). So may welfare recipients who have statutory rights to welfare as long as they maintain the specified qualifications. Goldberg v. Kelly, 397 U. S. 254 (1970). Morrissey v. Brewer, 408 U. S. 471 (1972), applied the limitations of the Due Process Clause to governmental decisions to revoke parole, although a parolee has no constitutional right to that status. In like vein was Wolff v. McDonnell, 418 U. S. 539 (1974), where the procedural protections of the Due Process Clause were triggered by official cancellation of a prisoner's good time credits accumulated under state law, although those benefits were not mandated by the Constitution. Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education. Ohio Rev.Code Ann. §§ 3313.48 and 3313.64 (1972 and Supp. 1973) direct local authorities to provide a free education to all residents between five and 21 years of age, and a compulsory attendance law requires attendance for a school year of not less than 32 weeks. Ohio Rev.Code Ann § 3321.04 (1972). It is true that § 3313.66 of the Code permits school principals to suspend students for up to 10 days; but suspensions may not be imposed without any grounds whatsoever. All of the schools had their own rules specifying the Page 419 U. S. 574 grounds for expulsion or suspension. Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred. Arnett v. Kennedy, supra at 416 U. S. 164 (POWELL, J., concurring), 416 U. S. 171 (WHITE, J., concurring and dissenting), 416 U. S. 206 (MARSHALL, J., dissenting). Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so, and has required its children to attend. Those young people do not "shed their constitutional rights" at the schoolhouse door. Tinker v. Des Moines School Dist., 393 U. S. 503 , 393 U. S. 506 (1969). "The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted." West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 637 (1943). The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause. The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U. S. 433 , 400 U. S. 437 (1971); Board of Regents v. Roth, supra, at 408 U. S. 573 . School authorities here suspended appellees from school for periods of up to 10 days Page 419 U. S. 575 based on charges.of misconduct. If sustained and recorded, those charges could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. [ Footnote 7 ] It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution. Appellants proceed to argue that, even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a "severe detriment or grievous loss." The loss of 10 days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. Appellants' argument is again refuted by our prior decisions; for in determining "whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest Page 419 U. S. 576 at stake." Board of Regents v. Roth, supra, at 408 U. S. 570 -571. Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, "is not decisive of the basic right" to a hearing of some kind. Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 86 (1972). The Court's view has been that, as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U. S. 337 , 395 U. S. 342 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 378 -379 (1971); Board of Regents v. Roth, supra, at 408 U. S. 570 n. 8. A 10-day suspension from school is not de minimis, in our view, and may not be imposed in complete disregard of the Due Process Clause. A short suspension is, of course, a far milder deprivation than expulsion. But, "education is perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954), and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. [ Footnote 8 ] Page 419 U. S. 577 III "Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U.S. at 408 U. S. 481 . We turn to that question, fully Page 419 U. S. 578 realizing, as our cases regularly do, that the interpretation and application of the Due Process Clause are intensely practical matters, and that "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961). We are also mindful of our own admonition: "Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities." Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968). There are certain benchmarks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U. S. 306 Page 419 U. S. 579 (1950), a case -- often invoked by later opinions, said that "[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that, at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Id. at 339 U. S. 313 . "The fundamental requisite of due process of law is the opportunity to be heard," Grannis v. Ordean, 234 U. S. 385 , 234 U. S. 394 (1914), a right that "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to . . . contest." Mullane v. Central Hanover Trust Co., supra, at 339 U. S. 314 . See also Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 550 (1965); Anti-Fascist Committee v. McGrath, 341 U. S. 123 , 341 U. S. 168 -169 (1951) (Frankfurter, J., concurring). At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Baldwin v. Hale , 1 Wall. 223, 68 U. S. 233 (1864). It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. Cafeteria Workers v. McElroy, supra, at 367 U. S. 895 ; Morrissey v. Brewer, supra, at 408 U. S. 481 . The student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is, in fact, unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never Page 419 U. S. 580 unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process. The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences, and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order, but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. "[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . ." "Secrecy is not congenial to truth-seeking, and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it." Anti-Fascist Committee v. McGrath, supra, at 341 U. S. 170 , 341 U. S. 171 -172 (Frankfurter, J., concurring). [ Footnote 9 ] Page 419 U. S. 581 We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. [ Footnote 10 ] Page 419 U. S. 582 There need be no delay between the time "notice" is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. Lower courts which have addressed the question of the nature of the procedures required in short suspension cases have reached the same conclusion. Tate v. Board of Education, 453 F.2d 975, 979 (CA8 1972); Vail v. Board of Education, 354 F. Supp. 592 , 603 (NH 1973). Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow Page 419 U. S. 583 as soon as practicable, as the District Court indicated. In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of Marion-Franklin High School, that school had an informal procedure, remarkably similar to that which we now require, applicable to suspensions generally but which was not followed in this case. Similarly, according to the most recent memorandum applicable to the entire CPSS, see n 1, supra, school principals in the CPSS are now required by local rule to provide at least as much as the constitutional minimum which we have described. We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool, but also destroy its effectiveness as part of the teaching process. On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments Page 419 U. S. 584 about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced. Requiring that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension, will add little to the factfinding function where the disciplinarian himself has witnessed the conduct forming the basis for the charge. But things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context. We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that, in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required. IV The District Court found each of the suspensions involved here to have occurred without a hearing, either before or after the suspension, and that each suspension was therefore invalid and the statute unconstitutional insofar as it permits such suspensions without notice or hearing. Accordingly, the judgment is Affirmed. [ Footnote 1 ] At the time of the events involved in this case, the only administrative regulation on this subject was § 1010.04 of the Administrative Guide of the Columbus Public Schools which provided: "Pupils may be suspended or expelled from school in accordance with the provisions of Section 3313.66 of the Revised Code." Subsequent to the events involved in this lawsuit, the Department of Pupil Personnel of the CPSS issued three memoranda relating to suspension procedures, dated August 16, 1971, February 21, 1973, and July 10, 1973, respectively. The first two are substantially similar to each other, and require no factfinding hearing at any time in connection with a suspension. The third, which was apparently in effect when this case was argued, places upon the principal the obligation to "investigate" "before commencing suspension procedures"; and provides as part of the procedures that the principal shall discuss the case with the pupil, so that the pupil may "be heard with respect to the alleged offense," unless the pupil is "unavailable" for such a discussion or "unwilling" to participate in it. The suspensions involved in this case occurred, and records thereof were made, prior to the effective date of these memoranda. The District Court's judgment, including its expunction order, turns on the propriety of the procedures existing at the time the suspensions were ordered and by which they were imposed. [ Footnote 2 ] According to the testimony of Phillip Fulton, the principal of one of the high schools involved in this case, there was an informal procedure applicable at the Marion-Franklin High School. It provided that, in the routine case of misconduct, occurring in the presence of a teacher, the teacher would describe the misconduct on a form provided for that purpose and would send the student, with the form, to the principal's office. There, the principal would obtain the student's version of the story, and, if it conflicted with the teacher's written version, would send for the teacher to obtain the teacher's oral version -- apparently in the presence of the student. Mr. Fulton testified that, if a discrepancy still existed, the teacher's version would be believed and the principal would arrive at a disciplinary decision based on it. [ Footnote 3 ] The plaintiffs sought to bring the action on behalf of all students of the Columbus Public Schools suspended on or after February, 1971, and a class action was declared accordingly. Since the complaint sought to restrain the "enforcement" and "operation" of a state statute "by restraining the action of any officer of such state in the enforcement or execution of such statute," a three-judge court was requested pursuant to 28 U.S.C. § 2281 and convened. The students also alleged that the conduct for which they could be suspended was not adequately defined by Ohio law. This vagueness and overbreadth argument was rejected by the court below, and the students have not appealed from this part of the court's decision. [ Footnote 4 ] Fox was given two separate 10-day suspensions for misconduct occurring on two separate occasions -- the second following immediately upon her return to school. In addition to his suspension, Sutton was transferred to another school. [ Footnote 5 ] Lopez was actually absent from school, following his suspension, for over 20 days. This seems to have occurred because of a misunderstanding as to the length of the suspension. A letter sent to Lopez after he had been out for over 10 days purports to assume that, being over compulsory school age, he was voluntarily staying away. Upon asserting that this was not the case, Lopez was transferred to anther school. [ Footnote 6 ] In its judgment, the court stated that the statute is unconstitutional in that it provides "for suspension . . . without first affording the student due process of law." (Emphasis supplied.) However, the language of the judgment must be read in light of the language in the opinion, which expressly contemplates that, under some circumstances, students may properly be removed from school before a hearing is held, so long as the hearing follows promptly. [ Footnote 7 ] Appellees assert in their brief that four of 12 randomly selected Ohio colleges specifically inquire of the high school of every applicant for admission whether the applicant has ever been suspended. Brief for Appellees 34-35 and n. 40. Appellees also contend that many employers request similar information. Ibid. Congress has recently enacted legislation limiting access to information contained in the files of a school receiving federal funds. Section 513 of the Education Amendments of 1974, Pub.L. 93-380, 88 Stat. 571, 20 U.S.C. § 1232g (1970 ed., Supp. IV), adding § 438 to the General Education Provisions Act. That section would preclude release of "verified reports of serious or recurrent behavior patterns" to employers without written consent of the student's parents. While subsection (b)(1)(b) permits release of such information to "other schools . . . in which the student intends to enroll," it does so only upon condition that the parent be advised of the release of the information and be given an opportunity at a hearing to challenge the content of the information to insure against inclusion of inaccurate or misleading information. The statute does not expressly state whether the parent can contest the underlying basis for a suspension, the fact of which is contained in the student's school record. [ Footnote 8 ] Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930 (1961), the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion. Hagopian v. Knowlton, 470 F.2d 201, 211 (CA2 1972); Wasson v. Trowbridge, 382 F.2d 807, 812 (CA2 1967); Esteban v. Central Missouri State College, 415 F.2d 1077, 1089 (CA8 1969) , cert. denied, 398 U.S. 965 (1970); Vought v. Van Buren Public Schools, 306 F. Supp. 1388 (ED Mich.1969); Whitfield v. Simpson, 312 F. Supp. 889 (ED Ill.1970); Fielder v. Board of Education of School District of Winnebago, Neb., 346 F. Supp. 722 , 729 (Feb. 1972); DeJesus v. Penberthy, 344 F. Supp. 70 , 74 (Conn.1972); Soglin v. Kauffman, 295 F. Supp. 978 , 994 (WD Wis.1968), aff'd, 418 F.2d 163 (CA7 1969); Stricklin v. Regents of University of Wisconsin, 297 F. Supp. 416 , 420 (WD Wis.1969), appeal dismissed, 420 F.2d 1257 (CA7 1970); Buck v. Carter, 308 F. Supp. 1246 (WD Wis.1970); General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, 45 F.R.D. 133, 147-148 (WD Mo.1968) (en banc). The lower courts have been less uniform, however, on the question whether removal from school for some shorter period may ever be so trivial a deprivation as to require no process, and, if so, how short the removal must be to qualify. Courts of Appeals have held or assumed the Due Process Clause applicable to long suspensions, Pervis v. LaMarque Ind. School Dist., 466 F.2d 1054 (CA5 1972); to indefinite suspensions, Sullivan v. Houston Ind. School Dist., 475 F.2d 1071 (CA5), cert. denied, 414 U.S. 1032 (1973); to the addition of a 30-day suspension to a 10-day suspension, Williams v. Dade County School Board, 441 F.2d 299 (CA5 1971); to a 10-day suspension, Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 470 F.2d 957 (CA5 1972); to "mild" suspensions, Farrell v. Joel, 437 F.2d 160 (CA2 1971), and Tate v. Board of Education, 453 F.2d 975 (CA8 1972); and to a three-day suspension, Shanley v. Northeast Ind. School Dist., Bear County, Texas, 462 F.2d 960, 967 n. 4 (CA5 1972); but inapplicable to a seven-day suspension, Linwood v. Board of Ed. of City of Peoria, 463 F.2d 763 (CA7), cert. denied, 409 U.S. 1027 (1972); to a three-day suspension, Dunn v. Tyler Ind. School Dist., 460 F.2d 137 (CA5 1972); to a suspension for not "more than a few days," Murray v. West Baton Rouge Parish School Board, 472 F.2d 438 (CA5 1973); and to all suspensions, no matter how short, Black Coalition v. Portland School District No. 1, 484 F.2d 1040 (CA9 1973). The Federal District Courts have held the Due Process Clause applicable to an interim suspension pending expulsion proceedings in Stricklin v. Regents of University of Wisconsin, supra, and Buck v. Carter, supra; to a 10-day suspension, Banks v. Board of Public Instruction of Dade County, 314 F. Supp. 285 (SD Fla.1970), vacated, 401 U.S. 988 (1971) (for entry of a fresh decree so that a timely appeal might be taken to the Court of Appeals), aff'd, 450 F.2d 1103 (CA5 1971); to suspensions of under five days, Vail v. Board of Education of Portsmouth School Dist., 354 F. Supp. 592 (NH 1973); and to all suspensions, Mills v. Board of Education of the Dist. of Columbia, 348 F. Supp. 866 (DC 1972), and Givens v. Poe, 346 F. Supp. 202 (WDNC 1972); but inapplicable to suspensions of 25 days, Hernandez v. School District Number One, Denver, Colorado, 315 F. Supp. 289 (Colo.1970); to suspensions of 10 days, Baker v. Downey City Board of Education, 307 F. Supp. 517 (CD Cal.1969); and to suspensions of eight days, Hatter v. Los Angeles City High School District, 310 F. Supp. 1309 (CD Cal.1970), rev'd on other grounds, 452 F.2d 673 (CA9 1971). In the cases holding no process necessary in connection with short suspensions, it is not always clear whether the court viewed the Due Process Clause as inapplicable, or simply felt that the process received was "due" even in the absence of some kind of hearing procedure. [ Footnote 9 ] The facts involved in this case illustrate the point. Betty Crome was suspended for conduct which did not occur on school grounds, and for which mass arrests were made -- hardly guaranteeing careful individualized factfinding by the police or by the school principal. She claims to have been involved in no misconduct. However, she was suspended for 10 days without ever being told what she was accused of doing or being given an opportunity to explain her presence among those arrested. Similarly, Dwight Lopez was suspended, along with many others, in connection with a disturbance in the lunchroom. Lopez says he was not one of those in the lunchroom who was involved. However, he was never told the basis for the principal's belief that he was involved, nor was he ever given an opportunity to explain his presence in the lunchroom. The school principals who suspended Crome and Lopez may have been correct on the merits, but it is inconsistent with the Due Process Clause to have made the decision that misconduct had occurred without at some meaningful time giving Crome or Lopez an opportunity to persuade the principals otherwise. We recognize that both suspensions were imposed during a time of great difficulty for the school administrations involved. At least in Lopez' case, there may have been an immediate need to send home everyone in the lunchroom in order to preserve school order and property; and the administrative burden of providing 75 "hearings" of any kind is considerable. However, neither factor justifies a disciplinary suspension without at any time gathering facts relating to Lopez specifically, confronting him with them, and giving him an opportunity to explain. [ Footnote 10 ] Appellants point to the fact that some process is provided under Ohio law by way of judicial review. Ohio Rev.Code Ann. § 2506.01 (Supp. 1973). Appellants do not cite any case in which this general administrative review statute has been used to appeal from a disciplinary decision by a school official. If it be assumed that it could be so used, it is for two reasons insufficient to save inadequate procedures at the school level. First, although new proof may be offered in a § 2501.06 proceeding, Shaker Coventry Corp. v. Shaker Heights Planning Comm'n, 18 Ohio Op.2d 272, 176 N.E.2d 332 (1961), the proceeding is not de novo. In re Locke, 33 Ohio App.2d 177, 294 N.E.2d 230 (1972). Thus, the decision by the school -- even if made upon inadequate procedures -- is entitled to weight in the court proceeding. Second, without a demonstration to the contrary, we must assume that delay will attend any § 2501.06 proceeding, that the suspension will not be stayed pending hearing, and that the student meanwhile will irreparably lose his educational benefits. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting. The Court today invalidates an Ohio statute that permits student suspensions from school without a hearing Page 419 U. S. 585 "for not more than ten days." [ Footnote 2/1 ] The decision unnecessarily opens avenues for judicial intervention in the operation of our public schools that may affect adversely the quality of education. The Court holds for the first time that the federal courts, rather than educational officials and state legislatures, have the authority to determine the rules applicable to routine classroom discipline of children and teenagers in the public schools. It justifies this unprecedented intrusion into the process of elementary and secondary education by identifying a new constitutional right: the right of a student not to be suspended for as much as a single day without notice and a due process hearing either before or promptly following the suspension. [ Footnote 2/2 ] The Court's decision rests on the premise that, under Ohio law, education is a property interest protected by the Fourteenth Amendment's Due Process Clause, and therefore that any suspension requires notice and a hearing. [ Footnote 2/3 ] In my view, a student's interest in education is Page 419 U. S. 586 not infringed by a suspension within the limited period prescribed by Ohio law. Moreover, to the extent that there may be some arguable infringement, it is too speculative, transitory, and insubstantial to justify imposition of a constitutional rule. I Although we held in San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 35 (1973), that education is not a right protected by the Constitution, Ohio has elected by statute to provide free education for all youths age six to 21, Ohio Rev.Code Ann. §§ 3313.48, 3313.64 (1972 and Supp. 1973), with children under 18 years of age being compelled to attend school. § 3321.01 et seq. State law, therefore, extends the right of free public school education to Ohio students in accordance with the education laws of that State. The right or entitlement to education so created is protected in a proper case by the Due Process Clause. See, e.g., Board of Regents v. Roth, 408 U. S. 564 (1972); Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 164 (1974) (POWELL, J., concurring). In my view, this is not such a case. In identifying property interests subject to due process protections, the Court's past opinions make clear that these interests "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, supra, at 408 U. S. 577 (emphasis supplied). The Ohio statute that creates the right to a "free" education also explicitly authorizes a principal to suspend a student for as much as 10 days. Ohio Rev.Code Ann. §§ 3313.48, 3313.64, 3313.66 (1972 and Supp. 1973). Thus, the very legislation which "defines" the "dimension" of the student's entitlement, while providing a right to education generally, does not establish this right free of discipline imposed in accord with Ohio law. Rather, the right is Page 419 U. S. 587 encompassed in the entire package of statutory provisions governing education in Ohio -- of which the power to suspend is one. The Court thus disregards the basic structure of Ohio law in posturing this case as if Ohio had conferred an unqualified right to education, thereby compelling the school authorities to conform to due process procedures in imposing the most routine discipline. [ Footnote 2/4 ] But however one may define the entitlement to education provided by Ohio law, I would conclude that a deprivation of not more than 10 days' suspension from school, imposed as a routine disciplinary measure, does not assume constitutional dimensions. Contrary to the Court's assertion, our cases support, rather than "refute" appellants' Page 419 U. S. 588 argument that "the Due Process Clause . . . comes into play only when the State subjects a student to a severe detriment or grievous loss.'" Ante at 419 U. S. 575 . Recently, the Court reiterated precisely this standard for analyzing due process claims: "Whether any procedural protections are due depends on the extent to which an individual will be 'condemned to suffer grievous loss.' Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 168 (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 263 (1970)." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 481 (1972) (emphasis supplied). In Morrissey, we applied that standard to require due process procedures for parole revocation on the ground that revocation "inflicts a grievous loss' on the parolee, and often on others." Id. at 408 U. S. 482 . See also Board of Regents v. Roth, 408 U.S. at 408 U. S. 573 ("seriously damage" reputation and standing); Bell v. Burson, 402 U. S. 535 , 402 U. S. 539 (1971) ("important interests of the licensees"); Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 379 (1971) ("significant property interest"). [ Footnote 2/5 ] The Ohio suspension statute allows no serious or significant Page 419 U. S. 589 infringement of education. It authorizes only a maximum suspension of eight school days, less than 5% of the normal 180-day school year. Absences of such limited duration will rarely affect a pupil's opportunity to learn or his scholastic performance. Indeed, the record in this case reflects no educational injury to appellees. Each completed the semester in which the suspension occurred and performed at least as well as he or she had in previous years. [ Footnote 2/6 ] Despite the Court's unsupported speculation that a suspended student could be "seriously damage[d]" ( ante at 419 U. S. 575 ), there is no factual showing of any such damage to appellees. The Court also relies on a perceived deprivation of "liberty" resulting from any suspension, arguing -- again without factual support in the record pertaining to these appellees -- that a suspension harms a student's reputation. In view of the Court's decision in Board of Regents v. Roth, supra, I would have thought that this argument was plainly untenable. Underscoring the need for "serious damage" to reputation, the Roth Court held that a nontenured teacher who is not rehired by a public university could not claim to suffer sufficient reputational injury to require constitutional protections. [ Footnote 2/7 ] Surely a brief suspension is of less serious consequence to the reputation of a teenage student. II In prior decisions, this Court has explicitly recognized that school authorities must have broad discretionary authority Page 419 U. S. 590 in the daily operation of public schools. This includes wide latitude with respect to maintaining discipline and good order. Addressing this point specifically, the Court stated in Tinker v. Des Moines School Dist., 393 U. S. 503 , 393 U. S. 507 (1969): "[T]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. [ Footnote 2/8 ]" Such an approach properly recognizes the unique nature of public education and the correspondingly limited role of the judiciary in its supervision. In Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968), the Court stated: "By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." The Court today turns its back on these precedents. It can hardly seriously be claimed that a school principal's decision to suspend a pupil for a single day would "directly and sharply implicate basic constitutional values." Ibid. Moreover, the Court ignores the experience of mankind, as well as the long history of our law, recognizing Page 419 U. S. 591 that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in tort, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office. Until today, and except in the special context of the First Amendment issue in Tinker, the educational rights of children and teenagers in the elementary and secondary schools have not been analogized to the rights of adults or to those accorded college students. Even with respect to the First Amendment, the rights of children have not been regarded as "coextensive with those of adults." Tinker, supra, at 393 U. S. 515 (STEWART, J., concurring). A I turn now to some of the considerations which support the Court's former view regarding the comprehensive authority of the States and school officials "to prescribe and control conduct in the schools." Id. at 393 U. S. 507 . Unlike the divergent and even sharp conflict of interests usually present where due process rights are asserted, the interests here implicated -- of the State through its schools and of the pupils -- are essentially congruent. The State's interest, broadly put, is in the proper functioning of its public school system for the benefit of all pupils and the public generally. Few rulings would interfere more extensively in the daily functioning of schools than subjecting routine discipline to the formalities and judicial oversight of due process. Suspensions are one of the traditional means -- ranging from keeping a student after class to permanent expulsion -- used to maintain discipline in the schools. It is common knowledge that maintaining order and reasonable decorum Page 419 U. S. 592 in school buildings and classrooms is a major educational problem, and one which has increased significantly in magnitude in recent years. [ Footnote 2/9 ] Often the teacher, in protecting the rights of other children to an education (if not his or their safety), is compelled to rely on the power to suspend. The facts set forth in the margin [ Footnote 2/10 ] leave little room for doubt as to the magnitude of the disciplinary problem in the public schools, or as to the extent of reliance upon the right to suspend. They also demonstrate that, if hearings were required for a substantial percentage of short-term suspensions, school authorities would have time to do little else. B The State's generalized interest in maintaining an orderly school system is not incompatible with the individual Page 419 U. S. 593 interest of the student. Education in any meaningful sense includes the inculcation of an understanding in each pupil of the necessity of rules and obedience thereto. This understanding is no less important than learning to read and write. One who does not comprehend the meaning and necessity of discipline is handicapped not merely in his education but throughout his subsequent life. In an age when the home and church play a diminishing role in shaping the character and value judgments of the young, a heavier responsibility falls upon the schools. When an immature student merits censure for his conduct, he is rendered a disservice if appropriate sanctions are not applied or if procedures for their application are so formalized as to invite a challenge to the teacher's authority [ Footnote 2/11 ] -- an invitation which rebellious or even merely spirited teenagers are likely to accept. The lesson of discipline is not merely a matter of the student's self-interest in the shaping of his own character and personality; it provides an early understanding of the relevance to the social compact of respect for the rights of others. The classroom is the laboratory in which this lesson of life is best learned. Mr. Justice Black summed it up: "School discipline, like parental discipline, is an integral and important part of training our children to be good citizens -- to be better citizens." Tinker, 393 U.S. at 393 U. S. 524 (dissenting opinion). In assessing in constitutional terms the need to protect pupils from unfair minor discipline by school authorities, the Court ignores the commonality of interest of the State and pupils in the public school system. Rather, it thinks in traditional judicial terms of an adversary Page 419 U. S. 594 situation. To be sure, there will be the occasional pupil innocent of any rule infringement who is mistakenly suspended or whose infraction is too minor to justify suspension. But, while there is no evidence indicating the frequency of unjust suspensions, common sense suggests that they will not be numerous in relation to the total number, and that mistakes or injustices will usually be righted by informal means. C One of the more disturbing aspects of today's decision is its indiscriminate reliance upon the judiciary, and the adversary process, as the means of resolving many of the most routine problems arising in the classroom. In mandating due process procedures the Court misapprehends the reality of the normal teacher-pupil relationship. There is an ongoing relationship, one in which the teacher must occupy many roles -- educator, adviser, friend, and, at times, parent-substitute. [ Footnote 2/12 ] It is rarely adversary in nature except with respect to the chronically disruptive or insubordinate pupil whom the teacher must be free to discipline without frustrating formalities. [ Footnote 2/13 ] Page 419 U. S. 595 The Ohio statute, providing as it does for due notice both to parents and the Board, is compatible with the teacher-pupil relationship and the informal resolution of mistaken disciplinary action. We have relied for generations upon the experience, good faith and dedication of those who staff our public schools, [ Footnote 2/14 ] and the nonadversary means of airing grievances that always have been available to pupils and their parents. One would have thought before today's opinion that this informal method of resolving differences was more compatible with the interests of all concerned than resort to any constitutionalized procedure, however blandly it may be defined by the Court. D In my view, the constitutionalizing of routine classroom decisions not only represents a significant and unwise extension of the Due Process Clause, but it also was quite unnecessary in view of the safeguards prescribed by the Ohio statute. This is demonstrable from a comparison Page 419 U. S. 596 of what the Court mandates as required by due process with the protective procedures it finds constitutionally insufficient The Ohio statute, limiting suspensions to not more than eight school days, requires written notice including the "reasons therefor" to the student's parents and to the Board of Education within 24 hours of any suspension. The Court only requires oral or written notice to the pupil, with no notice being required to the parents or the Board of Education. The mere fact of the statutory requirement is a deterrent against arbitrary action by the principal. The Board, usually elected by the people and sensitive to constituent relations, may be expected to identify a principal whose record of suspensions merits inquiry. In any event, parents placed on written notice may exercise their rights as constituents by going directly to the Board or a member thereof if dissatisfied with the principal's decision. Nor does the Court's due process "hearing" appear to provide significantly more protection than that already available. The Court holds only that the principal must listen to the student's "version of the events," either before suspension or thereafter -- depending upon the circumstances. Ante at 419 U. S. 583 . Such a truncated "hearing" is likely to be considerably less meaningful than the opportunities for correcting mistakes already available to students and parents. Indeed, in this case all of the students and parents were offered an opportunity to attend a conference with school officials. In its rush to mandate a constitutional rule, the Court appears to give no weight to the practical manner in which suspension problems normally would be worked out under Ohio law. [ Footnote 2/15 ] One must doubt, then, whether Page 419 U. S. 597 the constitutionalization of the student-teacher relationship, with all of its attendant doctrinal and practical difficulties, will assure in any meaningful sense greater protection than that already afforded under Ohio law. III No one can foresee the ultimate frontiers of the new "thicket" the Court now enters. Today's ruling appears to sweep within the protected interest in education a multitude of discretionary decisions in the educational process. Teachers and other school authorities are required to make many decisions that may have serious consequences for the pupil. They must decide, for example, how to grade the student's work, whether a student passes or fails a course, [ Footnote 2/16 ] whether he is to be promoted, whether he is required to take certain subjects, whether he may be excluded from interscholastic athletics [ Footnote 2/17 ] or other extracurricular activities, whether he may be removed from one school and sent to another, whether he may be bused long distances when available schools are nearby, and whether he should be placed in a "general," "vocational," or "college-preparatory" track. In these and many similar situations, claims of impairment of one's educational entitlement identical in principle to those before the Court today can be asserted with equal or greater justification. Likewise, in many of these situations, the pupil can advance the same types of speculative and subjective injury given critical weight in this case. The District Court, relying upon generalized opinion evidence, concluded that a suspended student may suffer psychological injury in one or more of Page 419 U. S. 598 the ways set forth in the margin below. [ Footnote 2/18 ] The Court appears to adopt this rationale. See ante at 419 U. S. 575 . It hardly need be said that, if a student, as a result of a day's suspension, suffers "a blow" to his "self esteem," "feels powerless," views "teachers with resentment," or feels "stigmatized by his teachers," identical psychological harms will flow from many other routine and necessary school decisions. The student who is given a failing grade, who is not promoted, who is excluded from certain extracurricular activities, who is assigned to a school reserved for children of less than average ability, or who is placed in the "vocational", rather than the "college preparatory," track, is unlikely to suffer any less psychological injury than if he were suspended for a day for a relatively minor infraction. [ Footnote 2/19 ] Page 419 U. S. 599 If, as seems apparent, the Court will now require due process procedures whenever such routine school decisions are challenged, the impact upon public education will be serious indeed. The discretion and Judgment of federal courts across the land often will be substituted for that of the 50 state legislatures, the 14,000 school boards, [ Footnote 2/20 ] and the 2,000,000 [ Footnote 2/21 ] teachers who heretofore have been responsible for the administration of the American public school system. If the Court perceives a rational and analytically sound distinction between the discretionary decision by school authorities to suspend a pupil for a brief period, and the types of discretionary school decisions described above, it would be prudent to articulate it in today's opinion. Otherwise, the federal courts should prepare themselves for a vast new role in society. IV Not so long ago, state deprivations of the most significant forms of state largesse were not thought to require due process protection on the ground that the deprivation resulted only in the loss of a state-provided "benefit." E.g., Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46 (1950), aff'd by an equally divided Court, 341 U.S. 918 (1951). In recent years the Court, wisely in my view, has rejected the "wooden distinction between rights' and `privileges,'" Board of Regents v. Roth, 408 U.S. at 408 U. S. 571 , and looked instead to the significance of the state-created or state-enforced right and to Page 419 U. S. 600 the substantiality of the alleged deprivation. Today's opinion appears to abandon this reasonable approach by holding, in effect, that government infringement of any interest to which a person is entitled, no matter what the interest or how inconsequential the infringement, requires constitutional protection. As it is difficult to think of any less consequential infringement than suspension of a junior high school student for a single day, it is equally difficult to perceive any principled limit to the new reach of procedural due process. [ Footnote 2/22 ] [ Footnote 2/1 ] The Ohio statute, Ohio Rev.Code Ann. § 3313.66 (1972), actually is a limitation on the time-honored practice of school authorities themselves determining the appropriate duration of suspensions. The statute allows the superintendent or principal of a public school to suspend a pupil "for not more than ten days . . ." (italics supplied); and requires notification to the parent or guardian in writing within 24 hours of any suspension. [ Footnote 2/2 ] Section 3313.66 also provides authority for the expulsion of pupils, but requires a hearing thereon by the school board upon request of a parent or guardian. The rights of pupils expelled are not involved in this case, which concerns only the limited discretion of school authorities to suspend for not more than 10 days. Expulsion, usually resulting at least in loss of a school year or semester is an incomparably more serious matter than the brief suspension, traditionally used as the principal sanction for enforcing routine discipline. The Ohio statute recognizes this distinction. [ Footnote 2/3 ] The Court speaks of "exclusion from the educational process for more than a trivial period . . . ," ante at 419 U. S. 576 , but its opinion makes clear that even one day's suspension invokes the constitutional procedure mandated today. [ Footnote 2/4 ] The Court apparently reads into Ohio law by implication a qualification that suspensions may be imposed only for "cause," thereby analogizing this case to the civil service laws considered in Arnett v. Kennedy, 416 U. S. 134 (1974). To be sure, one may assume that pupils are not suspended at the whim or caprice of the school official, and the statute does provide for notice of the suspension with the "reasons therefor." But the same statute draws a sharp distinction between suspension and the far more drastic sanction of expulsion. A hearing is required only for the latter. To follow the Court's analysis, one must conclude that the legislature nevertheless intended -- without saying so -- that suspension also is of such consequence that it may be imposed only for causes which can be justified at a hearing. The unsoundness of reading this sort of requirement into the statute is apparent from a comparison with Arnett. In that case, Congress expressly provided that nonprobationary federal employees should be discharged only for "cause." This requirement reflected congressional recognition of the seriousness of discharging such employees. There simply is no analogy between termination of nonprobationary employment of a civil service employee and the suspension of a public school pupil for not more than 10 days. Even if the Court is correct in implying some concept of justifiable cause in the Ohio procedure, it could hardly be stretched to the constitutional proportions found present in Arnett. [ Footnote 2/5 ] Indeed, the Court itself quotes from a portion of Mr. Justice Frankfurter's concurrence in Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 171 (1951), which explicitly refers to "a person in jeopardy of serious loss. " See ante at 419 U. S. 580 (emphasis supplied). Nor is the " de minimis " standard referred to by the Court relevant in this case. That standard was first stated by Mr. Justice Harlan in a concurring opinion in Sniadach v. Family Finance Corp., 395 U. S. 337 , 395 U. S. 342 (1969), and then quoted in a footnote to the Court's opinion in Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 90 n. 21 (1972). Both Sniadach and Fuentes, however, involved resolution of property disputes between two private parties claiming an interest in the same property. Neither case pertained to an interest conferred by the State. [ Footnote 2/6 ] 2 App. 163-171 (testimony of Norval Goss, Director of Pupil Personnel). See opinion of the three-judge court, 372 F. Supp. 1279 , 1291 (SD Ohio 1973). [ Footnote 2/7 ] See also Wisconsin v. Constantineau, 400 U. S. 433 , 400 U. S. 437 (1971), quoting the "grievous loss" standard first articulated in Anti-Fascist Committee v. McGrath, supra. [ Footnote 2/8 ] In dissent on the First Amendment issue, Mr. Justice Harlan recognized the Court's basic agreement on the limited role of the judiciary in overseeing school disciplinary decisions: "I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions." 393 U.S. at 393 U. S. 526 . [ Footnote 2/9 ] See generally S. Bailey, Disruption in Urban Secondary Schools (1970), which summarizes some of the recent surveys on school disruption. A Syracuse University study; for example, found that 85% of the schools responding reported some type of significant disruption in the years 1967-1970. [ Footnote 2/10 ] An amicus brief filed by the Children's Defense Fund states that, at least 10% of the junior and senior high school students in the States sampled were suspended one or more times in the 1972-1973 school year. The data on which this conclusion rests were obtained from an extensive survey prepared by the Office for Civil Rights of the Department of Health, Education, and Welfare. The Children's Defense Fund reviewed the suspension data for five States -- Arkansas, Maryland, New Jersey, Ohio, and South Carolina. Likewise, an amicus brief submitted by several school associations in Ohio indicates that the number of suspensions is significant: in 1972-1973, 4,054 students out of a school enrollment of 81,007 were suspended in Cincinnati; 7,352 of 57,000 students were suspended in Akron; and 14,598 of 142,053 students were suspended in Cleveland. See also the Office of Civil Rights Survey, supra, finding that approximately 20,000 students in New York City, 12,000 in Cleveland, 9,000 in Houston, and 9,000 in Memphis were suspended at least once during the 1972-1973 school year. Even these figures are probably somewhat conservative since some schools did not reply to the survey. [ Footnote 2/11 ] See generally J. Dobson, Dare to Discipline (1970). [ Footnote 2/12 ] The role of the teacher in our society historically has been an honored and respected one, rooted in the experience of decades that has left for most of us warm memories of our teachers, especially those of the formative years of primary and secondary education. [ Footnote 2/13 ] In this regard, the relationship between a student and teacher is manifestly different from that between a welfare administrator and a recipient ( see Goldberg v. Kelly, 397 U. S. 254 (1970)), a motor vehicle department and a driver ( see Bell v. Burson, 402 U. S. 535 (1971)), a debtor and a creditor ( see Sniadach v. Family Finance Corp., supra; Fuentes v. Shevin, supra; Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974)), a parole officer and a parolee ( see Morrissey v. Brewer, 408 U. S. 471 (1972)), or even an employer and an employee ( see Arnett v. Kennedy, 416 U. S. 134 (1974)). In many of these noneducation settings there is -- for purposes of this analysis -- a "faceless" administrator dealing with an equally "faceless" recipient of some form of government benefit or license; in others, such as the garnishment and repossession cases, there is a conflict of interest relationship. Our public school system, however, is premised on the belief that teachers and pupils should not be "faceless" to each other. Nor does the educational relationship present a typical "conflict of interest." Rather, the relationship traditionally is marked by a coincidence of interests. Yet the Court, relying on cases such as Sniadach and Fuentes, apparently views the classroom of teenagers as comparable to the competitive and adversary environment of the adult, commercial world. [ Footnote 2/14 ] A traditional factor in any due process analysis is "the protection implicit in the office of the functionary whose conduct is challenged. . . ." Anti-Fascist Committee v. McGrath, 341 U.S. at 341 U. S. 163 (Frankfurter, J., concurring). In the public school setting, there is a high degree of such protection, since a teacher has responsibility for, and a commitment to, his pupils that is absent in other due process contexts. [ Footnote 2/15 ] The Court itself recognizes that the requirements it imposes are, "if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions." Ante at 419 U. S. 583 . [ Footnote 2/16 ] See Connelly v. University of Vermont, 244 F. Supp. 156 (Vt.1956). [ Footnote 2/17 ] See Kelley v. Metropolitan County Board of Education of Nashville, 293 F. Supp. 485 (MD Tenn.1968). [ Footnote 2/18 ] The psychological injuries so perceived were as follows: "1. The suspension is a blow to the student's self-esteem." "2. The student feels powerless and helpless." "3. The student views school authorities and teachers with resentment, suspicion and fear." "4. The student learns withdrawal as a mode of problem solving." "5. The student has little perception of the reasons for the suspension. He does not know what offending acts he committed." "6. The student is stigmatized by his teachers and school administrators as a deviant. They expect the student to be a troublemaker in the future." 372 F. Supp. at 1292. [ Footnote 2/19 ] There is, no doubt, a school of modern psychological or psychiatric persuasion that maintains that any discipline of the young is detrimental. Whatever one may think of the wisdom of this unproved theory, it hardly affords dependable support for a constitutional decision. Moreover, even the theory's proponents would concede that the magnitude of injury depends primarily upon the individual child or teenager. A classroom reprimand by the teacher may be more traumatic to the shy, timid introvert than expulsion would be to the aggressive, rebellious extrovert. In my view, we tend to lose our sense of perspective and proportion in a case of this kind. For average, normal children -- the vast majority -- suspension for a few days is simply not a detriment; it is a commonplace occurrence, with some 105 of all students being suspended; it leaves no scars; affects no reputations; indeed, it often may be viewed by the young as a badge of some distinction and a welcome holiday. [ Footnote 2/20 ] This estimate was supplied by the National School Board Association, Washington, D.C. [ Footnote 2/21 ] See U.S. Office of Education, Elementary and Secondary Public School Statistics, 1972-1973. [ Footnote 2/22 ] Some half dozen years ago, the Court extended First Amendment rights under limited circumstances to public school pupils. Mr. Justice Black, dissenting, viewed the decision as ushering in "an entirely new era in which the power to control pupils by the elected 'officials of state supported public schools' . . . is in ultimate effect transferred to the Supreme Court." Tinker v. Des Moines School Dist., 393 U. S. 503 , 393 U. S. 515 (1969). There were some who thought Mr. Justice Black was unduly concerned. But his prophecy is now being fulfilled. In the few years since Tinker, there have been literally hundreds of cases by schoolchildren alleging violation of their constitutional rights. This flood of litigation, between pupils and school authorities, was triggered by a narrowly written First Amendment opinion which I could well have joined on its facts. One can only speculate as to the extent to which public education will be disrupted by giving every schoolchild the power to contest in court any decision made by his teacher which arguably infringes the state-conferred right to education.

In Goss v. Lopez, the U.S. Supreme Court ruled that students facing temporary suspension from a public school have property and liberty interests protected under the Due Process Clause of the Fourteenth Amendment. The Court held that Ohio could not withdraw the right to an education without fair procedures to determine misconduct, and that suspensions may not be imposed arbitrarily. Due process requires notice of charges, an opportunity to respond, and a hearing before suspension, except in emergency situations. This case established students' constitutional rights in school discipline and recognized the potential harm of suspensions on students' reputations and future opportunities.

Due Process

Williamson v. Lee Optical, Inc.

https://supreme.justia.com/cases/federal/us/348/483/

U.S. Supreme Court Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955) Williamson v. Lee Optical of Oklahoma, Inc. No. 184 Argued March 2, 1955 Decided March 28, 1955* 348 U.S. 483 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA Syllabus 1. Provisions of an Oklahoma statute making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist, are not invalid under the Due Process Clause of the Fourteenth Amendment. Roschen v. Ward, 279 U. S. 337 . Pp. 348 U. S. 484 -488. 2. To subject opticians to this regulatory system while exempting all sellers of ready-to-wear glasses does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 348 U. S. 488 -489. 3. A provision making it unlawful to solicit the sale of frames, mountings or any other optical appliances does not violate the Due Process Clause of the Fourteenth Amendment. Pp. 348 U. S. 489 -490. 4. A provision forbidding any retail merchandiser to rent space, sub-lease departments, or otherwise permit any person "purporting to do eye examination or visual care" to occupy space in a retail store does not violate the Due Process Clause of the Fourteenth Amendment. Pp. 348 U. S. 490 -491. 5. A provision making it unlawful to solicit the sale of spectacles, eyeglasses, lenses and prisms by the use of advertising media is constitutional. P. 348 U. S. 491 . 120 F. Supp. 128 , affirmed in part and reversed in part. Page 348 U. S. 484 MR. JUSTICE DOUGLAS delivered the opinion of the Court. This suit was instituted in the District Court to have an Oklahoma law, 59 Okl.Stat.Ann. §§ 941-947, Okl.Laws 1953, c. 13, §§ 1-8, declared unconstitutional and to enjoin state officials from enforcing it, 28 U.S.C. §§ 2201, 2202, 2281, for the reason that it allegedly violated various provisions of the Federal Constitution. The matter was heard by a District Court of three judges, Page 348 U. S. 485 as required by 28 U.S.C. § 2281. That court held certain provisions of the law unconstitutional. 120 F. Supp. 128 . The case is here by appeal, 28 U.S.C. § 1253. The District Court held unconstitutional portions of three sections of the Act. First, it held invalid under the Due Process Clause of the Fourteenth Amendment the portions of § 2 which make it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist. [ Footnote 1 ] Page 348 U. S. 486 An ophthalmologist is a duly licensed physician who specializes in the care of the eyes. An optometrist examines eyes for refractive error, recognizes (but does not treat) diseases of the eye, and fills prescriptions for eyeglasses. The optician is an artisan qualified to grind lenses, fill prescriptions, and fit frames. The effect of § 2 is to forbid the optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. In practical effect, it means that no optician can fit old glasses into new frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, without a prescription. The District Court conceded that it was in the competence of the police power of a State to regulate the examination of the eyes. But it rebelled at the notion that a State could require a prescription from an optometrist or ophthalmologist "to take old lenses and place them in new frames and then fit the completed spectacles to the face of the eyeglass wearer." 120 F.Supp. at page 135. It held that such a requirement was not "reasonably and rationally related to the health and welfare of the people." Id. at 136. The court found that, through mechanical devices and ordinary skills, the optician could take a broken lens or a fragment thereof, measure its power, and reduce it to prescriptive terms. The court held that, "Although, on this precise issue of duplication, the legislature in the instant regulation was dealing with a matter of public interest, the particular means chosen are neither reasonably necessary nor reasonably related to the end sought to be achieved." Id. at 137. It was, accordingly, the opinion of the court that this provision of the law violated the Due Process Clause by arbitrarily interfering with the optician's right to do business. We think the due process question is answered in principle by Roschen v. Ward, 279 U. S. 337 , which upheld a Page 348 U. S. 487 New York statute making it unlawful to sell eyeglasses at retail in any store unless a duly licensed physician or optometrist were in charge and in personal attendance. The Court said, ". . . wherever the requirements of the act stop, there can be no doubt that the presence and superintendence of the specialist tend to diminish an evil." Id., at 279 U. S. 339 . The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It appears that, in many cases, the optician can easily supply the new frames or new lenses without reference to the old written prescription. It also appears that many written prescriptions contain no directive data in regard to fitting spectacles to the face. But in some cases the directions contained in the prescription are essential if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition. The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lenses. But the law need not be in every respect logically consistent with its aims Page 348 U. S. 488 to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought. See Nebbia v. People of State of New York, 291 U. S. 502 ; West Coast Hotel Co. v. Parrish, 300 U. S. 379 ; Olsen v. State of Nebraska ex rel. Western Reference & Bond Ass'n, 313 U. S. 236 ; Lincoln Union v. Northwestern Iron & Metal Co., 335 U. S. 525 ; Daniel v. Family Sec. Life Ins. Co., 336 U. S. 220 ; Day-Brite Lighting, Inc., v. State of Missouri, 342 U. S. 421 . We emphasize again what Chief Justice Waite said in Munn v. State of Illinois, 94 U. S. 113 , "For protection against abuses by legislatures, the people must resort to the polls, not to the courts." Secondly, the District Court held that it violated the Equal Protection Clause of the Fourteenth Amendment to subject opticians to this regulatory system and to exempt, as § 3 of the Act [ Footnote 2 ] does, all sellers of ready-to-wear glasses. Page 348 U. S. 489 The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. State of Texas, 310 U. S. 141 . Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608 . The legislature may select one phase of one field and apply a remedy there, neglecting the others. A.F. of L. v. American Sash Co., 335 U. S. 538 . The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here. For all this record shows, the ready-to-wear branch of this business may not loom large in Oklahoma or may present problems of regulation distinct from the other branch. Third, the District Court held unconstitutional, as violative of the Due Process Clause of the Fourteenth Amendment, that portion of § 3 which makes it unlawful "to solicit the sale of . . . frames, mountings . . . or any other optical appliances." [ Footnote 3 ] The court conceded that state regulation of advertising relating to eye examinations was a matter "rationally related to the public health and welfare," 120 F. Supp. at 140, and therefore subject to regulation within the principles of Semler v. Oregon State Board of Dental Examiners, supra. But regulation of the advertising of eyeglass frames was said to intrude "into a mercantile field only casually related to the visual care of the public" Page 348 U. S. 490 and restrict "an activity which in no way can detrimentally affect the people." 120 F. Supp. at 140-141. [ Footnote 4 ] An eyeglass frame, considered in isolation, is only a piece of merchandise. But an eyeglass frame is not used in isolation, as Judge Murrah said in dissent below; it is used with lenses; and lenses, pertaining as they do to the human eye, enter the field of health. Therefore, the legislature might conclude that to regulate one effectively it would have to regulate the other. Or it might conclude that both the sellers of frames and the sellers of lenses were in a business where advertising should be limited, or even abolished, in the public interest. Semler v. Oregon State Board of Dental Examiners, supra. The advertiser of frames may be using his ads to bring in customers who will buy lenses. If the advertisement of lenses is to be abolished or controlled, the advertising of frames must come under the same restraints -- or so the legislature might think. We see no constitutional reason why a State may not treat all who deal with the human eye as members of a profession was should use no merchandising methods for obtaining customers. Fourth, the District Court held unconstitutional, as violative of the Due Process Clause of the Fourteenth Amendment, the provision of § 4 of the Oklahoma Act which reads as follows: "No person, firm, or corporation engaged in the business of retailing merchandise to the general public Page 348 U. S. 491 shall rent space, sublease departments, or otherwise permit any person purporting to do eye examination or visual care to occupy space in such retail store." It seems to us that this regulation is on the same constitutional footing as the denial to corporations of the right to practice dentistry. Semler v. Oregon State Board of Dental Examiners, supra, at 294 U. S. 611 . It is an attempt to free the profession to as great an extent as possible from all taints of commercialism. It certainly might be easy for an optometrist with space in a retail store to be merely a front for the retail establishment. In any case, the opportunity for that nexus may be too great for safety if the eye doctor is allowed inside the retail store. Moreover, it may be deemed important to effective regulation that the eye doctor be restricted to geographical locations that reduce the temptations of commercialism. Geographical location may be an important consideration in a legislative program which aims to raise the treatment of the human eye to a strictly professional level. We cannot say that the regulation has no rational relation to that objective and therefore is beyond constitutional bounds. What we have said is sufficient to dispose of the appeal in No. 185 from the conclusion of the District Court that that portion of § 3 which makes it unlawful to solicit the sale of spectacles, eyeglasses, lenses, and prisms by the use of advertising media is constitutional. The other contentions urged by appellants in No. 185 are without merit. Affirmed in part and reversed in part. MR. JUSTICE HARLAN took no part in the consideration or decision of this case. [ Footnote 1 ] Section 2 reads as follows: "It shall be unlawful for any person, firm, corporation, company, or partnership not licensed under the provisions of Chapter 11 or Chapter 13 of Title 59, Oklahoma Statutes 1951, to fit, adjust, adapt, or to in any manner apply lenses, frames, prisms, or any other optical appliances to the face of a person, or to duplicate or attempt to duplicate, or to place or replace into the frames, any lenses or other optical appliances which have been prescribed, fitted, or adjusted for visual correction, or which are intended to aid human vision or to give any treatment or training designed to aid human vision, or to represent or hold himself out to the public as being qualified to do any of the acts listed in this Section, except that persons licensed under the provisions of Chapters 11 or 13 of Title 59, Oklahoma Statutes 1951 may in a written prescription, or its duplicate, authorize any optical supplier to interpret such prescription, and who in accordance therewith may measure, adapt, fit, prepare, dispense, or adjust such lenses, spectacles, eye glasses, prisms, tinted lenses, frames or appurtenances thereto, to the human face for the aid or correction of visual or ocular anomalies of the human eye; and may continue to do the said acts on the aforesaid written prescription, or its duplicate, provided however, that the physician or optometrist writing such prescription shall remain responsible for the full effect of the appliances so furnished by such other person. Provided that this Section shall not prevent a qualified person from making repairs to eye glasses." Chapter 11, Title 59, Okl.Stat. 1951, provides for the licensing of ophthalmologists and other doctors. Chapter 13 provides for the certification of optometrists. [ Footnote 2 ] Section 3 reads as follows: "It shall be unlawful for any person, firm, company, corporation or partnership to solicit the sale of spectacles, eye glasses, lenses, frames, mountings, prisms or any other optical appliances or devices, eye examinations or visual services, by radio, window display, television, telephone directory display advertisement, or by any other means of advertisement; or to use any other method or means of baiting, persuading, or enticing the public into buying spectacles, eye glasses, lenses, frames, mountings, prisms, or other optical appliances for visual correction. Provided, however, that the provisions of this Act shall not render any newspaper or other advertising media liable for publishing any advertising furnished them by a vendor of said commodity or material; nor shall anything in this Act prevent ethical education publicity or advertising by legally qualified health groups that does not violate presently existing laws of Oklahoma, nor prevent the proper use of ethical, professional notices. Nothing in this Act shall prohibit the sale of ready-to-wear glasses equipped with convex-spherical lenses, nor sunglasses equipped with plano lenses, nor industrial glasses and goggles with plano lenses used for industrial eye protection when sold as merchandise at any established places of business and where the selection of the glasses is at the discretion of the purchaser." [ Footnote 3 ] See note 2 supra. [ Footnote 4 ] The court also said: "Advertising directed exclusively at this feature of eye wear can have no deleterious effect on the public, inasmuch as it has no influence on the prospective wearer of eyeglasses, and to the present wearer (a person already examined by a licensed professional) is but a mere piece of merchandise." "The dispensing optician, a merchant in this particular, cannot arbitrarily be divested of a substantial portion of his business upon the pretext that such a deprivation is rationally related to the public health." 120 F. Supp. at 142.

The Supreme Court upheld an Oklahoma statute that regulated the practice of optometry and restricted the activities of opticians. The Court found that the statute did not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment. The Court also upheld provisions prohibiting the solicitation of sales of optical appliances and restricting advertising by opticians. The Court concluded that the state had a rational basis for enacting the legislation to protect the public's health and safety.

Due Process

Flemming v. Nestor

https://supreme.justia.com/cases/federal/us/363/603/

U.S. Supreme Court Flemming v. Nestor, 363 U.S. 603 (1960) Flemming v. Nestor No. 54 Argued February 24, 1960 Decided June 20, 1960 363 U.S. 603 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Syllabus Section 202 (n) of the Social Security Act, as amended, provides for the termination of old-age benefits payable to an alien who, after the date of its enactment (September 1, 1954), is deported under § 241 (a) of the Immigration and Nationality Act on any one of certain grounds specified in § 202(n). Appellee, an alien who had become eligible for old-age benefits in 1955, was deported in 1956, pursuant to § 241(a) of the Immigration and Nationality Act, for having been a member of the Communist Party from 1933 to 1939. Since this was one of the grounds specified in § 202(n), his old-age benefits were terminated shortly thereafter. He commenced this action in a single-judge District Court, under § 205(g) of the Social Security Act, to secure judicial review of that administrative decision. The District Court held that § 202(n) deprived appellee of an accrued property right and, therefore, violated the Due Process Clause of the Fifth Amendment. Held: 1. Although this action drew into question the constitutionality of § 202(n), it did not involve an injunction or otherwise interdict the operation of the statutory scheme; 28 U.S.C. § 2282, forbidding the issuance of an injunction restraining the enforcement, operation or execution of an Act of Congress for repugnance to the Constitution, except by a three-judge District Court, was not applicable; and jurisdiction over the action was properly exercised by the single-judge District Court. Pp. 363 U. S. 606 -608. 2. A person covered by the Social Security Act has not such a right in old-age benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment. Pp. 363 U. S. 608 -611. (a) The noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits are based on his contractual premium payments. Pp. 363 U. S. 608 -610. (b) To engraft upon the Social Security System a concept of "accrued property rights" would deprive it of the flexibility and Page 363 U. S. 604 boldness in adjustment to ever-changing conditions which it demands and which Congress probably had in mind when it expressly reserved the right to alter, amend or repeal any provision of the Act. Pp. 363 U. S. 610 -611. 3. Section 202(n) of the Act cannot be condemned as so lacking in rational justification as to offend due process. Pp. 363 U. S. 611 -612. 4. Termination of appellee's benefits under § 202(n) does not amount to punishing him without a trial, in violation of Art. III, §2, Ch 3, of the Constitution or the Sixth Amendment; nor is § 202(n) a bill of attainder or ex post facto law, since its purpose is not punitive. Pp. 363 U. S. 612 -621. 169 F. Supp. 922 , reversed. MR. JUSTICE HARLAN delivered the opinion of the Court. From a decision of the District Court for the District of Columbia holding § 202(n) of the Social Security Act (68 Stat. 1083, as amended, 42 U.S.C. § 402(n)) unconstitutional, the Secretary of Health, Education, and Welfare takes this direct appeal pursuant to 28 U.S.C. § 1252. The challenged section, set forth in full in the margin, [ Footnote 1 ] provides for the termination of old-age, survivor, Page 363 U. S. 605 and disability insurance benefits payable to, or in certain cases in respect of, an alien individual who, after September 1, 1954 (the date of enactment of the section), is deported under § 241(a) of the Immigration and Nationality Act (8 U.S.C. § 1251(a)) on any one of certain grounds specified in § 202(n). Appellee, an alien, immigrated to this country from Bulgaria in 1913, and became eligible for old-age benefits in November, 1955. In July, 1956, he was deported pursuant to § 241(a)(6)(C)(i) of the Immigration and Nationality Act for having been a member of the Communist Party from 1933 to 1939. This being one of the benefit-termination deportation grounds specified in § 202(n), appellee's benefits were terminated soon thereafter, and notice of the termination was given to his wife, Page 363 U. S. 606 who had remained in this country. [ Footnote 2 ] Upon his failure to obtain administrative reversal of the decision, appellee commenced this action in the District Court, pursuant to § 205(g) of the Social Security Act (53 Stat. 1370, as amended 42 U.S.C. § 405(g)), to secure judicial review. [ Footnote 3 ] On cross-motions for summary judgment, the District Court ruled for appellee, holding § 202(n) unconstitutional under the Due Process Clause of the Fifth Amendment in that it deprived appellee of an accrued property right. 169 F. Supp. 922 . The Secretary prosecuted an appeal to this Court, and, subject to a jurisdictional question hereinafter discussed, we set the case down for plenary hearing. 360 U.S. 915. The preliminary jurisdictional question is whether 28 U.S.C. § 2282, is applicable, and therefore required that the case be heard below before three judges, rather than by a single judge, as it was. Section 2282 forbids the issuance, except by a three-judge District Court, of Page 363 U. S. 607 any "interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution. . . ." Neither party requested a three-judge court below, and in this Court both parties argue the inapplicability of § 2282. If the provision applies, we cannot reach the merits, but must vacate the judgment below and remand the case for consideration by a three-judge District Court. See Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977. Under the decisions of this Court, this § 205(g) action could, and did, draw in question the constitutionality of § 202(n). See, e.g., Anniston Mfg. Co. v. Davis, 301 U. S. 337 , 301 U. S. 345 -346. However, the action did no more. It did not seek affirmatively to interdict the operation of a statutory scheme. A judgment for appellee would not put the operation of a federal statute under the restraint of an equity decree; indeed, apart from its effect under the doctrine of stare decisis, it would have no other result than to require the payment of appellee's benefits. In these circumstances, we think that what was said in Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243 , where this Court dealt with an analogous situation, is controlling here: "[The predecessor of § 2282] does not provide for a case where the validity of an act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an act of Congress. . . . Had Congress intended the provision . . . , for three judges and direct appeal, to apply whenever a question of the validity of an act of Congress became involved, Congress would naturally have used the familiar phrase 'drawn in question.' . . ." Id. at page 340 U. S. 250 . Page 363 U. S. 608 We hold that jurisdiction over the action was properly exercised by the District Court, and therefore reach the merits. I We think that the District Court erred in holding that § 202(n) deprived appellee of an "accrued property right." 169 F. Supp. at 934 . Appellee's right to Social Security benefits cannot properly be considered to have been of that order. The general purposes underlying the Social Security Act were expounded by Mr. Justice Cardozo in Helvering v. Davis, 301 U. S. 619 , 301 U. S. 640 - 645. The issue here, however, requires some inquiry into the statutory scheme by which those purposes are sought to be achieved. Payments under the Act are based upon the wage earner's record of earnings in employment or self-employment covered by the Act, and take the form of old-age insurance and disability insurance benefits inuring to the wage earner (known as the "primary beneficiary"), and of benefits, including survivor benefits, payable to named dependents ("secondary beneficiaries") of a wage-earner. Broadly speaking, eligibility for benefits depends on satisfying statutory conditions as to (1) employment in covered employment or self-employment ( see § 210(a), 42 U.S.C. § 410(a)); (2) the requisite number of "quarters of coverage" -- i.e., three-month periods during which not less than a stated sum was earned -- the number depending generally on age ( see §§ 213-215, 42 U.S.C. §§ 413-415); and (3) attainment of the retirement age ( see § 216(a), 42 U.S.C. § 416(a)). § 202(a), 42 U.S.C. § 402(a). [ Footnote 4 ] Entitlement to benefits once gained Page 363 U. S. 609 is partially or totally lost if the beneficiary earns more than a stated annual sum, unless he or she is at least 72 years old. § 203(b, e), 42 U.S.C. § 403(b, e). Of special importance in this case is the fact that eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes, but rather on the earnings record of the primary beneficiary. The program is financed through a payroll tax levied on employees in covered employment, and on their employers. The tax rate, which is a fixed percentage of the first $4,800 of employee annual income, is set at a scale which will increase from year to year, presumably to keep pace with rising benefit costs. I.R.C. of 1954, §§ 3101, 3111, 3121(a). The tax proceeds are paid into the Treasury "as internal revenue collections," I.R.C., § 3501, and each year an amount equal to the proceeds is appropriated to a Trust Fund, from which benefits and the expenses of the program are paid. § 201, 42 U.S.C. § 401. It was evidently contemplated that receipts would greatly exceed disbursements in the early years of operation of the system, and surplus funds are invested in government obligations, and the income returned to the Trust Fund. Thus, provision is made for expected increasing costs of the program. The Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress' power to "spend money in aid of the general welfare,'" Helvering v. Davis, supra, at 301 U. S. 640 , whereby persons gainfully employed, and those who employ them, are taxed to permit the payment of benefits to the retired and disabled, and their dependents. Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. But each worker's benefits, though flowing from the contributions he made to the Page 363 U. S. 610 national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments. It is hardly profitable to engage in conceptualizations regarding "earned rights" and "gratuities." Cf. Lynch v. United States, 292 U. S. 571 , 292 U. S. 576 -577. The "right" to Social Security benefits is in one sense "earned," for the entire scheme rests on the legislative judgment that those who in their productive years were functioning members of the economy may justly call upon that economy, in their later years, for protection from "the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near." Helvering v. Davis, supra, 301 U.S. at 301 U. S. 641 . But the practical effectuation of that judgment has of necessity called forth a highly complex and interrelated statutory structure. Integrated treatment of the manifold specific problems presented by the Social Security program demands more than a generalization. That program was designed to function into the indefinite future, and its specific provisions rest on predications as to expected economic conditions which must inevitably prove less than wholly accurate, and on judgments and preferences as to the proper allocation of the Nation's resources which evolving economic and social conditions will of necessity in some degree modify. To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands. See Wollenberg, Vested Rights in Social Security Benefits, 37 Ore.L.Rev. 299, 359. It was doubtless out of an awareness of the need for such flexibility that Congress included in the original Act, and Page 363 U. S. 611 has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act. § 1104, 49 Stat. 648, 42 U.S.C. § 1304. That provision makes express what is implicit in the institutional needs of the program. See Analysis of the Social Security System, Hearings before a Subcommittee of the Committee on Ways and Means, House of Representatives, 83d Cong., 1st Sess., pp. 920- 921. It was pursuant to that provision that § 202(n) was enacted. We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment. II This is not to say, however, that Congress may exercise its power to modify the statutory scheme free of all constitutional restraint. The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause. In judging the permissibility of the cut-off provisions of § 202(n) from this standpoint, it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether it comports well or ill with the purposes of the Act. "Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom." Helvering v. Davis, supra, at 301 U. S. 644 . Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. Page 363 U. S. 612 Such is not the case here. The fact of a beneficiary's residence abroad -- in the case of a deportee, a presumably permanent residence -- can be of obvious relevance to the question of eligibility. One benefit which may be thought to accrue to the economy from the Social Security system is the increased over-all national purchasing power resulting from taxation of productive elements of the economy to provide payments to the retired and disabled, who might otherwise be destitute or nearly so, and who would generally spend a comparatively large percentage of their benefit payments. This advantage would be lost as to payments made to one residing abroad. For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision, as it is irrelevant that the section does not extend to all to whom the postulated rationale might in logic apply. [ Footnote 5 ] See United States v. Petrillo, 332 U. S. 1 , 332 U. S. 8 -9; Steward Machine Co. v. Davis, 301 U. S. 548 , 301 U. S. 584 -585; cf. Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 510 -513. Nor, apart from this, can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute. We need go no further to find support for our conclusion that this provision of the Act cannot be condemned as so lacking in rational justification as to offend due process. III The remaining, and most insistently pressed, constitutional objections rest upon Art. I, § 9, cl. 3, and Art. III, Page 363 U. S. 613 § 2, cl. 3, of the Constitution, and the Sixth Amendment. [ Footnote 6 ] It is said that the termination of appellee's benefits amounts to punishing him without a judicial trial, see Wong Wing v. United States, 163 U. S. 228 ; that the termination of benefits constitutes the imposition of punishment by legislative act, rendering § 202(n) a bill of attainder, see United States v. Lovett, 328 U. S. 303 ; Cummings v. Missouri , 4 Wall. 277; and that the punishment exacted is imposed for past conduct not unlawful when engaged in, thereby violating the constitutional prohibition on ex post facto laws, See Ex parte Garland , 4 Wall. 333. [ Footnote 7 ] Essential to the success of each of these contentions is the validity of characterizing as "punishment" in the constitutional sense the termination of benefits under § 202(n). In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was Page 363 U. S. 614 focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment, even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. In the earliest case on which appellee relies, a clergyman successfully challenged a state constitutional provision barring from that profession -- and from many other professions and offices -- all who would not swear that they had never manifested and sympathy or support for the cause of the Confederacy. Cummings v. Missouri, supra. The Court thus described the aims of the challenged enactment: "The oath could not . . . have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged. It was required in order to reach the person, not the calling. It was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment. . . ." Id. at 71 U. S. 320 . (Emphasis supplied.) Only the other day the governing inquiry was stated, in an opinion joined by four members of the Court, in these terms: "The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession." De Veau v. Braisted, 363 U. S. 144 , 363 U. S. 160 (plurality opinion). Page 363 U. S. 615 In Ex parte Garland, supra, where the Court struck down an oath -- similar in content to that involved in Cummings -- required of attorneys seeking to practice before any federal court, as also in Cummings, the finding of punitive intent drew heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and "the fierce passions which that struggle aroused." Cummings v. Missouri, supra, at 71 U. S. 322 . [ Footnote 8 ] Similarly, in United States v. Lovett, supra, where the Court invalidated, as a bill of attainder, a statute forbidding -- subject to certain conditions -- the further payment of the salaries of three named government employees, the determination that a punishment had been imposed rested in large measure on the specific Congressional history which the Court was at pains to spell out in detail. See 328 U.S. at 328 U. S. 308 -312. Most recently, in Trop v. Dulles, 356 U. S. 86 , which held unconstitutional a statute providing for the expatriation of one who had been sentenced by a court-martial to dismissal or dishonorable discharge for wartime desertion, the majority of the Court characterized the statute as punitive. However, no single opinion commanded the support of a majority. The plurality opinion rested its determination, at least in part, on its inability to discern any alternative purpose which the statute could be thought to serve. Id. at 356 U. S. 97 . The concurring opinion found in the specific historical evolution of the provision in question compelling evidence of punitive intent. Id. at 356 U. S. 107 -109. Page 363 U. S. 616 It is thus apparent that, though the governing criterion may be readily stated, each case has turned on its own highly particularized context. Where no persuasive showing of a purpose "to reach the person, not the calling," Cummings v. Missouri, supra, at 71 U. S. 320 , has been made, the Court has not hampered legislative regulation of activities within its sphere of concern, despite the often-severe effects such regulation has had on the persons subject to it. [ Footnote 9 ] Thus, deportation has been held to be not punishment, but an exercise of the plenary owner of Congress to fix the conditions under which aliens are to be permitted to enter and remain in this country. Fong Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 730 ; see Galvan v. Press, 347 U. S. 522 , 347 U. S. 530 -531. Similarly, the setting by a State of qualifications for the practice of medicine, and their modification from time to time, is an incident of the State's power to protect the health and safety of its citizens, and its decision to bar from practice persons who commit or have committed a felony is taken as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment of ex-felons. Hawker v. New York, 170 U. S. 189 . See De Veau v. Braisted, supra (regulation of crime on the waterfront through disqualification of ex-felons from holding union office). Cf. Helvering v. Mitchell, 303 U. S. 391 , 303 U. S. 397 -401, holding that, with respect to deficiencies due to fraud, a 50 percent addition to the tax imposed was not punishment so as to prevent, upon principles of double jeopardy, its assessment against one acquitted of tax evasion. Turning, then, to the particular statutory provision before us, appellee cannot successfully contend that the language and structure of § 202(n), or the nature of Page 363 U. S. 617 the deprivation, requires us to recognize a punitive design. Cf. Wong Wing v. United States, supra (imprisonment, at hard labor up to one year, of person found to be unlawfully in the country). Here, the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed, and certainly nothing approaching the "infamous punishment" of imprisonment, as in Wong Wing, on which great reliance is mistakenly placed. Moreover, for reasons already given ( ante, pp. 363 U. S. 611 -612), it cannot be said, as was said of the statute in Cummings v. Missouri, supra, at 71 U. S. 319 ; see Dent v. West Virginia, 129 U. S. 114 , 129 U. S. 126 , that the disqualification of certain deportees from receipt of Social Security benefits while they are not lawfully in this country bears no rational connection to the purposes of the legislation of which it is a part, and must, without more, therefore be taken as evidencing a Congressional desire to punish. Appellee argues, however, that the history and scope of § 202(n) prove that no such postulated purpose can be thought to have motivated the legislature, and that they persuasively show that a punitive purpose in fact lay behind the statute. We do not agree. We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are, at best, a hazardous matter, and when that inquiry seeks to go behind objective manifestations, it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it. "[I]t is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void." Fletcher v. Peck , 6 Cranch 87, 10 U. S. 128 . Page 363 U. S. 618 Section 202(n) was enacted as a small part of an extensive revision of the Social Security program. The provision originated in the House of Representatives. H.R. 9366, 83d Cong., 2d Sess., § 108. The discussion in the House Committee Report, H.R.Rep. No. 1698, 83d Cong., 2d Sess., pp. 5, 25, 77, does not express the purpose of the statute. However, it does say that the termination of benefits would apply to those persons who were "deported from the United States because of illegal entry, conviction of a crime, or subversive activity. . . ." Id. at 25. It was evidently the thought that such was the scope of the statute resulting from its application to deportation under the 14 named paragraphs of § 241(a) of the Immigration and Nationality Act. Id. at 77. [ Footnote 10 ] The Senate Committee rejected the proposal, for the stated reason that it had "not had an opportunity to give sufficient study to all the possible implications of this provision, which involves termination of benefit rights under the contributory program of old-age and survivors insurance. . . ." S.Rep. No. 1987, 83d Cong., 2d Sess., p. 23; see also id. at 76. However, in Conference, the proposal was restored in modified form, [ Footnote 11 ] and, as modified, was enacted as § 202(n). See H.R.Conf.Rep. No. 2679, 83d Cong., 2d Sess., p. 18. Appellee argues that this history demonstrates that Congress was not concerned with the fact of a beneficiary's Page 363 U. S. 619 deportation -- which it is claimed alone would justify this legislation as being pursuant to a policy relevant to regulation of the Social Security system -- but that it sought to reach certain grounds for deportation, thus evidencing a punitive intent. [ Footnote 12 ] It is impossible to find in this meagre history the unmistakable evidence of punitive intent which, under principles already discussed, is required before a Congressional enactment of this kind may be struck down. Even were that history to be taken as evidencing Congress' concern with the grounds, rather than the fact, of deportation, we do not think that this, standing alone, would suffice to establish a punitive purpose. This would still be a far cry from the situations involved in such cases as Cummings, Wong Wing, and Garland ( see ante, p. 363 U. S. 617 ), and from that in Lovett, supra, where the legislation was, on its face, aimed at particular individuals. The legislative record, however, falls short of any persuasive showing that Congress was in fact concerned alone with the grounds of deportation. To be sure, Congress did not apply the termination Page 363 U. S. 620 provision to all deportees. However, it is evident that neither did it rest the operation of the statute on the occurrence of the underlying act. The fact of deportation itself remained an essential condition for loss of benefits, and even if a beneficiary were saved from deportation only through discretionary suspension by the Attorney General under § 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U.S.C. § 1254), § 202(n) would not reach him. Moreover, the grounds for deportation referred to in the Committee Report embrace the great majority of those deported, as is evident from an examination of the four omitted grounds, summarized in the margin. [ Footnote 13 ] Inferences drawn from the omission of those grounds cannot establish, to the degree of certainty required, that Congressional concern was wholly with the acts leading to deportation, and not with the fact of deportation. [ Footnote 14 ] To hold otherwise would be to rest on the "slight implication and vague conjecture" against which Chief Justice Marshall warned. Fletcher v. Peck, supra, at 10 U. S. 128 . The same answer must be made to arguments drawn from the failure or Congress to apply § 202(n) to beneficiaries Page 363 U. S. 621 voluntarily residing abroad. But cf. § 202(t), ante, note 5 Congress may have failed to consider such persons; or it may have thought their number too slight, or the permanence of their voluntary residence abroad too uncertain, to warrant application of the statute to them, with its attendant administrative problems of supervision and enforcement. Again, we cannot with confidence reject all those alternatives which imaginativeness can bring to mind, save that one which might require the invalidation of the statute. Reversed. [ Footnote 1 ] Section 202(n) provides as follows: "(n)(1) If any individual is (after the date of enactment of this subsection) deported under paragraph (1), (2), (4), (5), (6), (7), (10), ( 11), (12), (14), (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, then, notwithstanding any other provisions of this title -- " "(A) no monthly benefit under this section or section 223 [42 U.S.C. § 423, relating to 'disability insurance benefits'] shall be paid to such individual, on the basis of his wages and self-employment income, for any month occurring (i) after the month in which the Secretary is notified by the Attorney General that such individual has been so deported, and (ii) before the month in which such individual is thereafter lawfully admitted to the United States for permanent residence," "(B) if no benefit could be paid to such individual (or if no benefit could be paid to him if he were alive) for any month by reason of subparagraph (A), no monthly benefit under this section shall be paid, on the basis of his wages and self-employment income, for such month to any other person who is not a citizen of the United States and is outside the United States for any part of such month, and" "(C) no lump-sum death payment shall be made on the basis of such individual's wages and self-employment income if he dies (i) in or after the month in which such notice is received, and (ii) before the month in which he is thereafter lawfully admitted to the United States for permanent residence." "Section 203(b) and (c) of this Act shall not apply with respect to any such individual for any month for which no monthly benefit may be paid to him by reason of this paragraph." "(2) As soon as practicable after the deportation of any individual under any of the paragraphs of section 241(a) of the Immigration and Nationality Act enumerated in paragraph (1) in this subsection, the Attorney General shall notify the Secretary of such deportation." The provisions of § 241(a) of the Immigration and Nationality Act are summarized in notes 10 13 post, pp. 618, 620. [ Footnote 2 ] Under paragraph (1)(B) of § 202(n) ( see note 1 ante ), appellee's wife, because of her residence here, has remained eligible for benefits payable to her as the wife of an insured individual. See § 202(b), 53 Stat. 1364, as amended, 42 U.S.C. § 402(b). [ Footnote 3 ] Section 205(g) provides as follows: "(g) Any individual, after any final decision of the Board made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Board may allow. . . . As part of its answer the Board shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for a rehearing. The findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive. . . . The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions." [ Footnote 4 ] In addition, eligibility for disability insurance benefits is of course subject to the further condition of the incurring of a disability as defined in the Act. § 223, 42 U.S.C. § 423. Secondary beneficiaries must meet the tests of family relationship to the wage earner set forth in the Act. § 202(b-h), 42 U.S.C. § 402(b-h). [ Footnote 5 ] The Act does not provide for the termination of benefits of nonresident citizens, or of some aliens who leave the country voluntarily -- although many nonresident aliens do lose their eligibility by virtue of the provisions of § 202(t), 70 Stat. 835, as amended, 42 U.S.C. § 402(t) -- or of aliens deported pursuant to paragraphs 3, 8, 9, or 13 of the 18 paragraphs of § 241(a) of the Immigration and Nationality Act. See note 13 post. [ Footnote 6 ] Art. I, § 9, cl. 3: "No Bill of Attainder or ex post facto Law shall be passed." Art. III, § 2, cl. 3: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed. . . ." Amend. VI: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." [ Footnote 7 ] Appellee also adds, but hardly argues, the contention that he has been deprived of his rights under the First Amendment, since the adverse consequences stemmed from "mere past membership" in the Communist Party. This contention, which is no more than a collateral attack on appellee's deportation, is not open to him. [ Footnote 8 ] See also Pierce v. Carskadon , 16 Wall. 234. A West Virginia statute providing that a nonresident who had suffered a judgment in an action commenced by attachment, but in which he had not been personally served and did not appear, could within one year petition the court for a reopening of the judgment and a trial on the merits, was amended in 1865 so as to condition that right on the taking of an exculpatory oath that the defendant had never supported the Confederacy. On the authority of Cummings and Garland, the amendment was invalidated. [ Footnote 9 ] As prior decisions make clear, compare Ex parte Garland, supra, with Hawker v. New York, supra, the severity of a sanction is not determinative of its character as "punishment." [ Footnote 10 ] Paragraphs (1), (2), and (10) of § 241(a) relate to unlawful entry, or entry not complying with certain conditions; paragraphs (6) and ( 7) apply to "subversive" and related activities; the remainder of the included paragraphs are concerned with convictions of designated crimes, or the commission of acts related to them, such as narcotics addiction or prostitution. [ Footnote 11 ] For example, under the House version termination of benefits of a deportee would also have terminated benefits paid to secondary beneficiaries based on the earning records of the deportee. The Conference proposal limited this effect to secondary beneficiaries who were nonresident aliens. See note 2 ante. [ Footnote 12 ] Appellee also relies on the juxtaposition of the proposed § 108 and certain other provisions, some of which were enacted and some of which were not. This argument is too conjectural to warrant discussion. In addition, reliance is placed on a letter written to the Senate Finance Committee by appellant's predecessor in office, opposing the enactment of what is now § 202(u) of the Act, 70 Stat. 838, 42 U.S.C. § 402(u), on the ground that the section was "in the nature of a penalty and based on considerations foreign to the objectives" of the program. Social Security Amendments of 1955, Hearings before the Senate Committee on Finance, 84th Cong., 2d Sess., p. 1319. The Secretary went on to say that "present law recognizes only three narrowly limited exceptions (of which § 202(n) is one) to the basic principle that benefits are paid without regard to the attitudes, opinions, behavior, or personal characteristics of the individual. . . ." It should be observed, however, that the Secretary did not speak of § 202(n) as a penalty, as he did of the proposed § 202(u). The latter provision is concededly penal, and applies only pursuant to a judgment of a court in a criminal case. [ Footnote 13 ] They are: (1) persons institutionalized at public expense within five years after entry because of "mental disease, defect, or deficiency" not shown to have arisen subsequent to admission (§ 241(a)(3)); (2) persons becoming a public charge within five years after entry from causes not shown to have arisen subsequent to admission (§ 241(a)(8)); (3) persons admitted as nonimmigrants ( see § 101(a)(15), 66 Stat. 167, 8 U.S.C. § 1101(a)(15)) who fail to maintain, or comply with the conditions of, such status (§ 241(a)(9)); (4) persons knowingly and for gain inducing or aiding, prior to or within five years after entry, and other alien to enter or attempt to enter unlawfully (§ 241(a)(13)). [ Footnote 14 ] Were we to engage in speculation, it would not be difficult to conjecture that Congress may have been led to exclude these four grounds of deportation out of compassionate or de minimis considerations. MR. JUSTICE BLACK, dissenting. For the reasons stated here and in the dissents of MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN, I agree with the District Court that the United States is depriving appellee, Ephram Nestor, of his statutory right to old-age benefits in violation of the United States Constitution. Nestor came to this country from Bulgaria in 1913, and lived here continuously for 43 years, until July, 1956. He was then deported from this country for having been a Communist from 1933 to 1939. At that time, membership in the Communist Party as such was not illegal, and was not even a statutory ground for deportation. From December, 1936, to January, 1955, Nestor and his employers made regular payments to the Government under the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3125. These funds went to a special federal old-age and survivors insurance trust fund under 49 Stat. 622, 53 Stat. 1362, as amended, 42 U.S.C. § 401, in return for which Nestor, like millions of others, expected to receive payments when he reached the statutory age. In 1954, 15 years after Nestor had last been a Communist, and 18 years after he began to make payments into the old-age security fund, Congress passed a law providing, among other things, that any person who had been deported from Page 363 U. S. 622 this country because of past Communist membership under 66 Stat. 205, 8 U.S.C. § 1251(a)(6)(C), should be wholly cut off from any benefits of the fund to which he had contributed under the law. 68 Stat. 1083, 42 U.S.C. § 402(n). After the Government deported Nestor in 1956, it notified his wife, who had remained in this country, that he was cut off, and no further payments would be made to him. This action, it seems to me, takes Nestor's insurance without just compensation, and in violation of the Due Process Clause of the Fifth Amendment. Moreover, it imposes an ex post facto law and bill of attainder by stamping him, without a court trial, as unworthy to receive that for which he has paid and which the Government promised to pay him. The fact that the Court is sustaining this action indicates the extent to which people are willing to go these days to overlook violations of the Constitution perpetrated against anyone who has ever even innocently belonged to the Communist Party. I In Lynch v. United States, 292 U. S. 571 , this Court unanimously held that Congress was without power to repudiate and abrogate in whole on in part its promises to pay amounts claimed by soldiers under the War Risk Insurance Act of 1917, §§ 400-405, 40 Stat. 409. This Court held that such a repudiation was inconsistent with the provision of the Fifth Amendment that "No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Court today puts the Lynch case aside on the ground that "It is hardly profitable to engage in conceptualizations regarding "earned rights" and "gratuities." From this sound premise, the Court goes on to say that, while "The "right" to Social Security benefits is in one sense "earned," Page 363 U. S. 623 yet the Government's insurance scheme now before us rests not on the idea of the contributors to the fund earning something, but simply provides that they may "justly call" upon the Government "in their later years, for protection from 'the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.'" These are nice words, but they cannot conceal the fact that they simply tell the contributors to this insurance fund that, despite their own and their employers' payments, the Government, in paying the beneficiaries out of the fund, is merely giving them something for nothing, and can stop doing so when it pleases. This, in my judgment, reveals a complete misunderstanding of the purpose Congress and the country had in passing that law. It was then generally agreed, as it is today, that it is not desirable that aged people think of the Government as giving them something for nothing. An excellent statement of this view, quoted by MR. JUSTICE DOUGLAS in another connection, was made by Senator George, the Chairman of the Finance Committee when the Social Security Act was passed, and one very familiar with the philosophy that brought it about: "It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles -- that what is due as a matter of earned right is far better than a gratuity. . . ." " * * * *" "Social Security is not a handout; it is not charity; it is not relief. It is an earned right based upon the contributions and earnings of the individual. As an earned right, the individual is eligible to receive his benefit in dignity and self-respect." 102 Cong.Rec. 15110. Page 363 U. S. 624 The people covered by this Act are now able to rely with complete assurance on the fact that they will be compelled to contribute regularly to this fund whenever each contribution falls due. I believe they are entitled to rely with the same assurance on getting the benefits they have paid for and have been promised, when their disability or age makes their insurance payable under the terms of the law. The Court did not permit the Government to break its plighted faith with the soldiers in the Lynch case; it said the Constitution forbade such governmental conduct. I would say precisely the same thing here. The Court consoles those whose insurance is taken away today, and others who may suffer the same fate in the future, by saying that a decision requiring the Social Security system to keep faith "would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands." People who pay premiums for insurance usually think they are paying for insurance, not for "flexibility and boldness." I cannot believe that any private insurance company in America would be permitted to repudiate its matured contracts with its policyholders who have regularly paid all their premiums in reliance upon the good faith of the company. It is true, as the Court says, that the original Act contained a clause, still in force, that expressly reserves to Congress "[t]he right to alter, amend, or repeal any provision" of the Act. § 1104, 49 Stat. 648, 42 U.S.C. § 1304. Congress, of course, properly retained that power. It could repeal the Act so as to cease to operate its old-age insurance activities for the future. This means that it could stop covering new people, and even stop increasing its obligations to its old contributors. But that is quite different from disappointing the just expectations of the contributors to the fund which the Government has compelled Page 363 U. S. 625 them and their employers to pay its Treasury. There is nothing "conceptualistic" about saying, as this Court did in Lynch, that such a taking as this the Constitution forbids. II In part II of its opinion, the Court throws out a line of hope by its suggestion that, if Congress in the future cuts off some other group from the benefits they have bought from the Government, this Court might possibly hold that the future hypothetical act violates the Due Process Clause. In doing so, it reads due process as affording only minimal protection, and under this reading it will protect all future groups from destruction of their rights only if Congress "manifests a patently arbitrary classification, utterly lacking in rational justification." The Due Process Clause, so defined, provides little protection indeed compared with the specific safeguards of the Constitution such as its prohibitions against taking private property for a public use without just compensation, passing ex post facto laws, and imposing bills of attainder. I cannot agree, however, that the Due Process Clause is properly interpreted when it is used to subordinate and dilute the specific safeguards of the Bill of Rights, and when "due process" itself becomes so wholly dependent upon this Court's idea of what is "arbitrary" and "rational." See Levine v. United States, 362 U. S. 610 , 362 U. S. 620 (dissenting opinion); Adamson v. California, 332 U. S. 46 , 332 U. S. 89 -92 (dissenting opinion); Rochin v. California, 342 U. S. 165 , 342 U. S. 174 (concurring opinion). One reason for my belief in this respect is that I agree with what is said in the Court's quotation from Helvering v. Davis, 301 U. S. 619 , 301 U. S. 644 : "Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II it is not for Page 363 U. S. 626 us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom." And yet, the Court's assumption of its power to hold Acts unconstitutional because the Court thinks they are arbitrary and irrational can be neither more nor less than a judicial foray into the field of governmental policy. By the use of this due process formula, the Court does not, as its proponents frequently proclaim, abstain from interfering with the congressional policy. It actively enters that field with no standards except its own conclusion as to what is "arbitrary" and what is "rational." And this elastic formula gives the Court a further power -- that of holding legislative Acts constitutional on the ground that they are neither arbitrary nor irrational, even though the Acts violate specific Bill of Rights safeguards. See my dissent in Adamson v. California, supra. Whether this Act had "rational justification" was, in my judgment, for Congress; whether it violates the Federal Constitution is for us to determine, unless we are by circumlocution to abdicate the power that this Court has been held to have ever since Marbury v. Madison , 1 Cranch 137. III The Court, in part III of its opinion, holds that the 1954 Act is not an ex post facto law or bill of attainder even though it creates a class of deportees who cannot collect their insurance benefits because they were once Communists at a time when simply being a Communist was not illegal. The Court also puts great emphasis on its belief that the Act here is not punishment. Although not believing that the particular label "punishment" is of decisive importance, I think the Act does impose punishment even in a classic sense. The basic reason for Page 363 U. S. 627 Nestor's loss of his insurance payments is that he was once a Communist. This man, now 69 years old, has been driven out of the country where he has lived for 43 years to a land where he is practically a stranger, under an Act authorizing his deportation many years after his Communist membership. Cf. Galvan v. Press, 347 U. S. 522 , 347 U. S. 532 , 347 U. S. 533 (dissenting opinions). Now a similar ex post facto law deprives him of his insurance, which, while petty and insignificant in amount to this great Government, may well be this exile's daily bread, for the same reason and in accord with the general fashion of the day -- that is, to punish in every way possible anyone who ever made the mistake of being a Communist in this country or who is supposed ever to have been associated with anyone who made that mistake. See, e.g., Barenblatt v. United States, 360 U. S. 109 , and Uphaus v. Wyman, 360 U. S. 72 . In United States v. Lovett, 328 U. S. 303 , 328 U. S. 315 -316, we said: ". . . legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution." Faithful observance of our holdings in that case, in Ex parte Garland , 4 Wall. 333, and in Cummings v. Missouri , 4 Wall. 277, would, in my judgment, require us to hold that the 1954 Act is a bill of attainder. It is a congressional enactment aimed at an easily ascertainable group; it is certainly punishment in any normal sense of the word to take away from any person the benefits of an insurance system into which he and his employer have paid their moneys for almost two decades; and it does all this without a trial according to due process of law. It is true that the Lovett, Cummings, and Garland Court opinions were Page 363 U. S. 628 not unanimous, but they nonetheless represent positive precedents on highly important questions of individual liberty which should not be explained away with cobwebbery refinements. If the Court is going to overrule these cases in whole or in part, and adopt the views of previous dissenters, I believe it should be done clearly and forthrightly. A basic constitutional infirmity of this Act, in my judgment, is that it is a part of a pattern of laws all of which violate the First Amendment out of fear that this country is in grave danger if it lets a handful of Communist fanatics or some other extremist group make their arguments and discuss their ideas. This fear, I think, is baseless. It reflects a lack of faith in the sturdy patriotism of our people and does not give to the world a true picture of our abiding strength. It is an unworthy fear in a country that has a Bill of Rights containing provisions for fair trials, freedom of speech, press and religion, and other specific safeguards designed to keep men free. I repeat once more that I think this Nation's greatest security lies not in trusting to a momentary majority of this Court's view at any particular time of what is "patently arbitrary," but in wholehearted devotion to and observance of our constitutional freedoms. See Wieman v. Updegraff, 344 U. S. 183 , 344 U. S. 192 (concurring opinion). I would affirm the judgment of the District Court which held that Nestor is constitutionally entitled to collect his insurance. MR. JUSTICE DOUGLAS, dissenting. Appellee came to this country from Bulgaria in 1913, and was employed, so as to be covered by the Social Security Act, from December, 1936, to January, 1955 -- a period of 19 years. He became eligible for retirement Page 363 U. S. 629 and for Social Security benefits in November, 1955, and was awarded $55.60 per month. In July, 1956, he was deported for having been a member of the Communist Party from 1933 to 1939. Pursuant to a law, enacted September 1, 1954, he was thereupon denied payment of further Social Security Benefits. This 1954 law seems to me to be a classic example of a bill of attainder, which Art. I, § 9 of the Constitution prohibits Congress from enacting. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Cummings v. Missouri , 4 Wall. 277, 71 U. S. 323 . In the old days, punishment was meted out to a creditor or rival or enemy by sending him to the gallows. But, as recently stated by Irving Brant, [ Footnote 2/1 ] ". . . By smiting a man day after day with slanderous words, by taking away his opportunity to earn a living, you can drain the blood from his veins without even scratching his skin." "Today's bill of attainder is broader than the classic form, and not so tall and sharp. There is mental in place of physical torture, and confiscation of tomorrow's bread and butter instead of yesterday's land and gold. What is perfectly clear is that hate, fear and prejudice play the same role today in the destruction of human rights in America that they did in England when a frenzied mob of lords, judges, bishops and shoemakers turned the Titus Oates blacklist into a hangman's record. Hate, jealousy and spite continue to fill the legislative attainder lists just as they did in the Irish Parliament of ex-King James. " Page 363 U. S. 630 Bills of attainder, when they imposed punishment less than death, were bills of pains and penalties, and equally beyond the constitutional power of Congress. Cummings v. Missouri, supra, at 71 U. S. 323 . Punishment in the sense of a bill of attainder includes the "deprivation or suspension of political or civil rights." Cummings v. Missouri, supra, at 71 U. S. 322 . In that case, it was barring a priest from practicing his profession. In Ex parte Garland , 4 Wall. 333, it was excluding a man from practicing law in the federal courts. In United States v. Lovett, 328 U. S. 303 , it was cutting off employees' compensation and barring them permanently from government service. Cutting off a person's livelihood by denying him accrued social benefits -- part of his property interests -- is no less a punishment. Here, as in the other cases cited, the penalty exacted has one of the classic purposes of punishment [ Footnote 2/2 ] -- "to reprimand the wrongdoer, to deter others." Trop v. Dulles, 356 U. S. 86 , 356 U. S. 96 Page 363 U. S. 631 . Social Security payments are not gratuities. They are products of a contributory system, the funds being raised by payment from employees and employers alike, or, in case of self-employed persons, by the individual alone. See Social Security Board v. Nierotko, 327 U. S. 358 , 327 U. S. 364 . The funds are placed in the Federal Old-Age and Survivors Insurance Trust Fund, 42 U.S.C. § 401(a); and only those who contribute to the fund are entitled to its benefits, the amount of benefits being related to the amount of contributions made. See Stark, Social Security: Its Importance to Lawyers, 43 A.B.A.J. 319, 321 (1957). As the late Senator George, long Chairman of the Senate Finance Committee and one of the authors of the Social Security system, said: "There has developed through the years a feeling both in and out of Congress that the contributory social insurance principle fits our times -- that it serves a vital need that cannot be as well served otherwise. It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles -- that what is due as a matter of earned right is far better than a gratuity. . . ." " * * * *" "Social security is not a handout; it is not charity; it is not relief. It is an earned right based upon the Page 363 U. S. 632 contributions and earnings of the individual. As an earned right, the individual is eligible to receive his benefit in dignity and self-respect." 102 Cong.Rec. 15110. Social Security benefits have rightly come to be regarded as basic financial protection against the hazards of old age and disability. As stated in a recent House Report: "The old-age and survivors insurance system is the basic program which provides protection for America's families against the loss of earned income upon the retirement or death of the family provider. The program provides benefits related to earned income and such benefits are paid for by the contributions made with respect to persons working in covered occupations." H.R.Rep. No. 1189, 84th Cong., 1st Sess. 2. Congress could provide that only people resident here could get Social Security benefits. Yet both the House and the Senate rejected any residence requirements. See H.R.Rep. No. 1698, 83d Cong., 2d Sess. 24-25; S.Rep. No. 1987, 83d Cong., 2d Sess. 23. Congress concededly might amend the program to meet new conditions. But may it take away Social Security benefits from one person or from a group of persons for vindictive reasons? Could Congress on deporting an alien for having been a Communist confiscate his home, appropriate his savings accounts, and thus send him out of the country penniless? I think not. Any such Act would be a bill of attainder. The difference, as I see it, between that case and this is one merely of degree. Social Security benefits, made up in part of this alien's own earnings, are taken from him because he once was a Communist. The view that § 202(n), with which we now deal, imposes a penalty was taken by Secretary Folsom, appellant's Page 363 U. S. 633 predecessor, when opposing enlargement of the category of people to be denied benefits of Social Security, e.g., those convicted of treason and sedition. He said: "Because the deprivation of benefits as provided in the amendment is in the nature of a penalty and based on considerations foreign to the objectives and provisions of the old-age and survivors insurance program, the amendment may well serve as a precedent for extension of similar provisions to other public programs and to other crimes which, while perhaps different in degree, are difficult to distinguish in principle." "The present law recognizes only three narrowly limited exceptions [ Footnote 2/3 ] to the basic principle that benefits are paid without regard to the attitudes, opinions, behavior, or personal characteristics of the individual. . . ." Hearings Senate Finance Committee on Social Security Amendments of 1955, 84th Cong., 2d Sess., 1319. The Committee Reports, though meagre, support Secretary Folsom in that characterization of § 202(n). The House Report tersely stated that termination of the benefits would apply to those persons who were deported "because of illegal entry, conviction of a crime, or subversive activity." H.R.Rep. No. 1698, 83d Cong., 2d Sess. 25. The aim and purpose are clear -- to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology. That is a modern version Page 363 U. S. 634 of the bill of attainder -- as plain, as direct, as effective as those which religious passions once loosed in England and which later were employed against the Tories here. [ Footnote 2/4 ] I would affirm this judgment. [ Footnote 2/1 ] Address entitled Bills of Attainder in 1787 and Today. Columbia Law Review dinner 1954, published in 1959 by the Emergency Civil Liberties Committee, under the title Congressional Investigations and Bills of Attainder. [ Footnote 2/2 ] The broad sweep of the idea of punishment behind the concept of the bill of attainder was stated as follows by Irving Brant, op. cit. supra, 363 U.S. 603 fn2/1|>note 1, 9-10: "In 1794, the American people were in a state of excitement comparable to that which exists today. Supporters of the French Revolution had organized the Democratic Societies -- blatantly adopting that subversive title. Then the Whisky Rebellion exploded in western Pennsylvania. The Democratic Societies were blamed. A motion censuring the Societies was introduced in the House of Representatives." "There, in 1794, you had the basic division in American thought -- on one side, the doctrine of political liberty for everybody, with collective security resting on the capacity of the people for self-government; on the other side, the doctrine that the people could not be trusted, and political liberty must be restrained." "James Madison challenged this latter doctrine. The investigative power of Congress over persons, he contended, was limited to inquiry into the conduct of individuals in the public service. 'Opinions,' he said, 'are not the subjects of legislation.' Start criticizing people for abuse of their reserved rights, and the censure might extend to freedom of speech and press. What would be the effect on the people thus condemned? Said Madison:" "It is in vain to say that this indiscriminate censure is no punishment. . . . Is not this proposition, if voted, a bill of attainder?" "Madison won his fight not because he called the resolution a bill of attainder, but because it attainted too many men who were going to vote in the next election. The definition, however, was there -- a bill of attainder -- and the definition was given by the foremost American authority on the principles of liberty and order underlying our system of government." [ Footnote 2/3 ] The three exceptions referred to were (1) § 202(n); (2) Act of September 1, 1954, 68 Stat. 1142, 5 U.S.C. §§ 2281-2288; (3) Regulation of the Social Security Administration, 20 CFR § 403.409 -- denying dependent's benefits to a person found guilty of felonious homicide of the insured worker. [ Footnote 2/4 ] Brandt, op. cit., supra, 363 U.S. 603 fn2/1|>note 1, states at p. 9: "What were the framers aiming at when they forbade bills of attainder? They were, of course, guarding against the religious passions that disgraced Christianity in Europe. But American bills of attainder, just before 1787, were typically used by Revolutionary assemblies to rid the states of British Loyalists. By a curious coincidence, it was usually the Tory with a good farm who was sent into exile, and all too often it was somebody who wanted that farm who induced the legislature to attaint him. Patriotism could serve as a cloak for greed as easily as religion did in that Irish Parliament of James the Second." "But consider a case in which nothing could be said against the motive. During the Revolution, Governor Patrick Henry induced the Virginia legislature to pass a bill of attainder condemning Josiah Phillips to death. He was a traitor, a murderer, a pirate and an outlaw. When ratification of the new Constitution came before the Virginia Convention, Henry inveighed against it because it contained no Bill of Rights. Edmund Randolph taunted him with his sponsorship of the Phillips bill of attainder. Henry then made the blunder of defending it. The bill was warranted, he said, because Phillips was no Socrates. That shocking defense of arbitrary condemnation may have produced the small margin by which the Constitution was ratified." MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting. When Nestor quit the Communist Party in 1939, his past membership was not a ground for his deportation. Kessler v. Strecker, 307 U. S. 22 . It was not until a year later that past membership was made a specific ground for deportation. [ Footnote 3/1 ] This past membership has cost Nestor Page 363 U. S. 635 dear. It brought him expulsion from the country after 43 years' residence -- most of his life. Now more is exacted from him, for after he had begun to receive benefits in 1955 -- having worked in covered employment the required time and reached age 65 -- and might anticipate receiving them the rest of his life, the benefits were stopped pursuant to § 202(n) of the Amended Social Security Act. [ Footnote 3/2 ] His predicament is very real -- an aging man deprived of the means with which to live after being separated from his family and exiled to life among strangers in a land he quit 47 years ago. The common sense of it is that he has been punished severely for his past conduct. Even the 1950 statute deporting aliens for past membership raised serious questions in this Court whether the prohibition against ex post facto laws was violated. In Galvan v. Press, 347 U. S. 522 , 347 U. S. 531 , we said, "since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation." However, precedents which treat deportation not as punishment, but as a permissible exercise of congressional power to enact the conditions under which aliens may Page 363 U. S. 636 come to and remain in this country, governed the decision in favor of the constitutionality of the statute. However, the Court cannot rest a decision that § 202(n) does not impose punishment on Congress' power to regulate immigration. It escapes the common sense conclusion that Congress has imposed punishment by finding the requisite rational nexus to a granted power in the supposed furtherance of the Social Security program "enacted pursuant to Congress' power to spend money in aid of the "general welfare."'" I do not understand the Court to deny that, but for that connection, § 202(n) would impose punishment, and not only offend the constitutional prohibition on ex post facto laws, but also violate the constitutional guarantees against imposition of punishment without a judicial trial. The Court's test of the constitutionality of § 202(n) is whether the legislative concern underlying the statute was to regulate "the activity or status from which the individual is barred," or whether the statute "is evidently aimed at the person or class of persons disqualified." It rejects the inference that the statute is "aimed at the person or class of persons disqualified" by relying upon the presumption of constitutionality. This presumption might be a basis for sustaining the statute if, in fact, there were two opposing inferences which could reasonably be drawn from the legislation, one that it imposes punishment and the other that it is purposed to further the administration of the Social Security program. The Court, however, does not limit the presumption to that use. Rather, the presumption becomes a complete substitute for any supportable finding of a rational connection of § 202(n) with the Social Security program. For me, it is not enough to state the test and hold that the presumption alone satisfies it. I find it necessary to examine the Act and its consequences to ascertain whether there Page 363 U. S. 637 is ground for the inference of a congressional concern with the administration of the Social Security program. Only after this inquiry would I consider the application of the presumption. The Court seems to acknowledge that the statute bears harshly upon the individual disqualified, but states that this is permissible when a statute is enacted as a regulation of the activity. But surely the harshness of the consequences is itself a relevant consideration to the inquiry into the congressional purpose. [ Footnote 3/3 ] Cf. Trop v. Dulles, 356 U. S. 86 , 356 U. S. 110 (concurring opinion). It seems to me that the statute itself shows that the sole legislative concern was with "the person or class of persons disqualified." Congress did not disqualify for benefits all beneficiaries residing, abroad or even all dependents residing, abroad who are aliens. If that had been the case, I might agree that Congress' concern would have been with "the activity or status," and not with the "person or class of persons disqualified." The scales would then be tipped toward the conclusion that Congress desired to limit benefit payments to beneficiaries residing in the United States so that the American economy would be aided by expenditure of benefits here. Indeed, a proposal along those lines was submitted to Congress in Page 363 U. S. 638 1954, at the same time § 202(n) was proposed, [ Footnote 3/4 ] and it was rejected. [ Footnote 3/5 ] Perhaps the Court's conclusion that regulation of "the activity or status" was the congressional concern would be a fair appraisal of the statute if Congress had terminated the benefits of all alien beneficiaries who are deported. But that is not what Congress did. Section 202(n) applies only to aliens deported on one or more of 14 of the 18 grounds for which aliens may be deported. [ Footnote 3/6 ] H.R.Rep. No. 1698, 83d Cong., 2d Sess. 25, 77, cited by the Court, describes § 202(n) as including persons who were deported "because of unlawful entry, conviction of a crime, or subversive activity." The section, in addition, covers those deported for such socially condemned acts as narcotic addiction or prostitution. The common element of the 14 grounds is that the alien has been guilty of some blameworthy conduct. In other words, Congress worked its will only on aliens deported for conduct displeasing to the lawmakers. This is plainly demonstrated by the remaining four grounds of deportation, those which do not result in the cancellation of benefits. [ Footnote 3/7 ] Two of those four grounds cover persons who become public charges within five years after entry for reasons which predated the entry. A third ground covers the alien who fails to maintain his nonimmigrant status. The fourth ground reaches the alien who, prior to or within five years after entry, aids other aliens to enter the country illegally. Those who are deported for becoming public charges clearly have not, by modern standards, engaged in conduct worthy of censure. The Government's suggestion Page 363 U. S. 639 that the reason for their exclusion from § 202(n) was an unarticulated feeling of Congress that it would be unfair to the "other country to deport such destitute persons without letting them retain their modicum of social security benefits" appears, at best, fanciful, especially since, by hypothesis, they are deportable because the conditions which lead to their becoming public charges existed prior to entry. The exclusion from the operation of § 202(n) of aliens deported for failure to maintain nonimmigrant status rationally can be explained, in the context of the whole statute, only as evidencing that Congress considered that conduct less blameworthy. Certainly the Government's suggestion that Congress may have thought it unlikely that such persons would work sufficient time in covered employment to become eligible for social Security benefits cannot be the reason for this exclusion. For frequently the very act which eventually results in the deportation of persons on that ground is the securing of private employment. Finally, it is impossible to reconcile the continuation of benefits to aliens who are deported for aiding other aliens to enter the country illegally except upon the ground that Congress felt that their conduct was less reprehensible. Again, the Government's suggestion that the reason might be Congress' belief that these aliens would not have worked in covered employment must be rejected. Five years after entry would be ample time within which to secure employment and qualify. Moreover the same five-year limitation applies to several of the 14 grounds of deportation for which aliens are cut off from benefits and the Government's argument would apply equally to them if that in fact was the congressional reason. This appraisal of the distinctions drawn by Congress between various kinds of conduct impels the conclusion, beyond peradventure, that the distinctions can be Page 363 U. S. 640 understood only if the purpose of Congress was to strike at "the person or class of persons disqualified." The Court inveighs against invalidating a statute on "implication and vague conjecture." Rather, I think the Court has strained to sustain the statute on "implication and vague conjecture," in holding that the congressional concern was "the activity or status from which the individual is barred." Today's decision sanctions the use of the spending power not to further the legitimate objectives of the Social Security program, but to inflict hurt upon those who by their conduct have incurred the displeasure of Congress. The Framers ordained that even the worst of men should not be punished for their past acts or for any conduct without adherence to the procedural safeguards written into the Constitution. Today's decision is to me a regretful retreat from Lovett, Cummings, and Garland. Section 202(n) imposes punishment in violation of the prohibition against ex post facto laws and without a judicial trial. [ Footnote 3/8 ] I therefore dissent. [ Footnote 3/1 ] The Alien Registration Act, 1940, 54 Stat. 673, made membership in an organization which advocates the overthrow of the Government of the United States by force or violence a ground for deportation even though the membership was terminated prior to the passage of that statute. See Harisiades v. Shaughnessy, 342 U. S. 580 . Until the passage of the Internal Security Act of 1950, 64 Stat. 1006, 1008, it was necessary for the Government to prove in each case in which it sought to deport an alien because of membership in the Communist Party that that organization in fact advocated the violent overthrow of the Government. The 1950 Act expressly made deportable aliens who at the time of entry, or at any time thereafter were "members of or affiliated with . . . the Communist Party of the United States." See Galvan v. Press, 347 U. S. 522 , 347 U. S. 529 . [ Footnote 3/2 ] A comparable annuity was worth, at the time appellee's benefits were canceled, approximately $6,000. To date, he has lost nearly $2,500 in benefits. [ Footnote 3/3 ] The Court, recognizing that Cummings v. Missouri , 4 Wall. 277, and Ex parte Garland , 4 Wall. 333, strongly favor the conclusion that § 202(n) was enacted with punitive intent, rejects the force of those precedents as drawing "heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and the fierce passions which that struggle aroused.'" This seems to me to say that the provision of § 202(n) which cuts off benefits from aliens deported for past Communist Party membership was not enacted in a similar atmosphere. Our judicial detachment from the realities of the national scene should not carry us so far. Our memory of the emotional climate stirred by the question of communism in the early 1950's cannot be so short. [ Footnote 3/4 ] See H.R.Rep. No. 1698, 83d Cong., 2d Sess. 24-25. [ Footnote 3/5 ] See S.Rep. No. 1987, 83d Cong., 2d Sess. 23; H.R.Conf.Rep. No. 2679, 83d Cong., 2d Sess. 4. [ Footnote 3/6 ] See Court's opinion, ante, note 1 [ Footnote 3/7 ] See the Court's opinion, ante, note 13 [ Footnote 3/8 ] It is unnecessary for me to reach the question whether the statute also constitutes a bill of attainder.

Here is a summary of the case: In Flemming v. Nestor, the Supreme Court upheld the termination of social security benefits for an alien deported for Communist Party membership. The Court rejected the argument that this violated the due process clause of the Fifth Amendment, finding that social security benefits are not contractual or accrued property rights. Instead, they are subject to alteration by Congress, who reserved this right. The Court also found that the termination of benefits was not punitive and did not violate the Constitution's prohibition on bills of attainder or ex post facto laws. This case affirms the flexibility of the Social Security system and the government's spending power, distinguishing between legitimate policy objectives and punitive measures.

Due Process

Nebbia v. New York

https://supreme.justia.com/cases/federal/us/291/502/

U.S. Supreme Court Nebbia v. New York, 291 U.S. 502 (1934) Nebbia v. New York No. 531 Argued December 4, 5, 1933 Decided March 5, 1934 291 U.S. 502 APPEAL FROM THE COUNTY COURT OF MONROE COUNTY, NEW YORK Syllabus 1. As a basis for attacking a discriminatory regulation of prices, under the equal protection clause of the Fourteenth Amendment, the party complaining must show that he himself is adversely affected by it. P. 291 U. S. 520 . 2. A regulation fixing the price at which storekeepers may buy milk from milk dealers at a higher figure than that allowed dealers in buying from producers, and allowing dealers a higher price than it allows storekeepers in sales to consumers, held consistent with the equal protection clause of the Fourteenth Amendment because of the distinctions between the two classes of merchants. P. 291 U. S. 521 . 3. As part of a plan to remedy evils in the milk industry which reduced the income of the producer below cost of production and threatened to deprive the community of an assured supply of milk, a New York statute sought to prevent destructive price-cutting by stores which, under the peculiar circumstances, were able to buy at much lower prices than the larger distributors and to sell without incurring delivery costs, and, to that end, an order of a state board acting under the statute fixed a minimum price of ten cents per quart for sales by distributors to consumers and of nine cents per quart for sales by stores to consumers. Held that, as applied to a storekeeper, the regulation could not be adjudged in conflict with the due process clause of the Fourteenth Amendment, since, in view of the facts set forth in the opinion, it appeared not to be unreasonable or arbitrary or without relation to the purpose of the legislation. Pp. 291 U. S. 530 et seq. 4. The use of private property and the making of private contracts are, as a general rule, free from governmental interference; but they are subject to public regulation when the public need requires. P. 291 U. S. 523 . 5. The due process clause of the Fourteenth Amendment conditions the exertion of regulatory power by requiring that the end shall be accomplished by methods consistent with due process, that the regulation shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. P. 291 U. S. 525 . Page 291 U. S. 503 6. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort, or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. P. 291 U. S. 525 . 7. The power of a State to regulate business in the public interest extends to the control and regulation of prices for which commodities may be sold, where price regulation is a reasonable and appropriate means of rectifying the evil calling for the regulation. Pp. 291 U. S. 531 et seq. 8. There is no principle limiting price regulation to businesses which are public utilities, or which have a monopoly or enjoy a public grant or franchise. Munn v. Illinois, 94 U. S. 113 . P. 291 U. S. 531 . 9. To say that property is "clothed with a public interest," or an industry is "affected with a public interest," means that the property or the industry, for adequate reason, is subject to control for the public good. Pp. 291 U. S. 531 -536. 10. There is no closed class or category of businesses affected with a public interest, and the function of courts in the application of the Fifth and Fourteenth Amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory. P. 291 U. S. 536 . 11. Decisions denying the power to control prices in businesses found not to be "affected with a public interest" or "clothed with a public use" must rest finally upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. P. 291 U. S. 536 . 12. So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a State is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. P. 291 U. S. 503 . 13. The legislature is primarily the judge of the necessity of such an enactment; every possible presumption is in favor of its validity, and though the court may think the enactment unwise, it may not be annulled unless palpably in excess of legislative power. P. 291 U. S. 537 . Page 291 U. S. 504 14. If the lawmaking body, within its sphere of government, concludes that the conditions or practices in an industry make unrestricted competition an inadequate safeguard of the consumer's interests, produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself, appropriate statutes passed in an honest effort to correct the threatened consequences may not be set aside because the regulation adopted fixes prices -- reasonably deemed by the legislature to be fair to those engaged in the industry and to the consuming public. P. 291 U. S. 538 . 15. This is especially clear where the economic maladjustment is one of price, which threatens harm to the producer at one end of the series, and the consumer, at the other. P. 291 U. S. 538 . 16. The Constitution does not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of people. P. 291 U. S. 539 . 17. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. P. 291 U. S. 539 . 262 N.Y. 259; 186 N.E. 694, affirmed. The New York Court of Appeals affirmed the conviction of a storekeeper for selling milk at a price below that allowed by an order promulgated by a state board pursuant to statutory authority. The appeal here is from the judgment of the County Court entered on remittitur. Page 291 U. S. 515 MR. JUSTICE ROBERTS delivered the opinion of the Court. The Legislature of New York established, by Chapter 158 of the Laws of 1933, a Milk Control Board with power, among other things, to "fix minimum and maximum . . . retail prices to be charged by . . . stores to consumers for consumption off the premises where sold." The Board fixed nine cents as the price to be charged by a store for a quart of milk. Nebbia, the proprietor of a grocery store in Rochester, sold two quarts and a five cent loaf of bread for eighteen cents, and was convicted for violating the Board's order. At his trial, he asserted the statute and order contravene the equal protection clause and the due process clause of the Fourteenth Amendment, and renewed the contention in successive appeals to the county court and the Court of Appeals. Both overruled his claim and affirmed the conviction. [ Footnote 1 ] The question for decision is whether the Federal Constitution prohibits a state from so fixing the selling price of milk. We first inquire as to the occasion for the legislation, and its history. During 1932, the prices received by farmers for milk were much below the cost of production. The decline in prices during 1931 and 1932 was much greater than that of prices generally. The situation of the families of dairy producers had become desperate, and called for state aid similar to that afforded the unemployed, if conditions should not improve. Page 291 U. S. 516 On March 10, 1932, the senate and assembly resolved "That a joint Legislative committee is hereby created . . . to investigate the causes of the decline of the price of milk to producers and the resultant effect of the low prices upon the dairy industry and the future supply of milk to the cities of the State; to investigate the cost of distribution of milk and its relation to prices paid to milk producers, to the end that the consumer may be assured of an adequate supply of milk at a reasonable price, both to producer and consumer." The committee organized May 6, 1932, and its activities lasted nearly a year. It held 13 public hearings at which 254 witnesses testified and 2,350 typewritten pages of testimony were taken. Numerous exhibits were submitted. Under its direction, an extensive research program was prosecuted by experts and official bodies and employees of the state and municipalities, which resulted in the assembling of much pertinent information. Detailed reports were received from over 100 distributors of milk, and these were collated, and the information obtained analyzed. As a result of the study of this material, a report covering 473 closely printed pages, embracing the conclusions and recommendations of the committee, was presented to the legislature April 10, 1933. This document included detailed findings, with copious references to the supporting evidence; appendices outlining the nature and results of prior investigations of the milk industry of the state, briefs upon the legal questions involved, and forms of bills recommended for passage. The conscientious effort and thoroughness exhibited by the report lend weight to the committee's conclusions. In part, those conclusions are: Milk is an essential item of diet. It cannot long be stored. It is an excellent medium for growth of bacteria. These facts necessitate safeguards in its production and handling for human consumption which greatly increase Page 291 U. S. 517 the cost of the business. Failure of producers to receive a reasonable return for their labor and investment over an extended period threaten a relaxation of vigilance against contamination. The production and distribution of milk is a paramount industry of the state, and largely affects the health and prosperity of its people. Dairying yields fully one-half of the total income from all farm products. Dairy farm investment amounts to approximately $1,000,000,000. Curtailment or destruction of the dairy industry would cause a serious economic loss to the people of the state. In addition to the general price decline, other causes for the low price of milk include: a periodic increase in the number of cows and in milk production; the prevalence of unfair and destructive trade practices in the distribution of milk, leading to a demoralization of prices in the metropolitan area and other markets, and the failure of transportation and distribution charges to be reduced in proportion to the reduction in retail prices for milk and cream. The fluid milk industry is affected by factors of instability peculiar to itself which call for special methods of control. Under the best practicable adjustment of supply to demand, the industry must carry a surplus of about 20 percent, because milk, an essential food, must be available as demanded by consumers every day in the year, and demand and supply vary from day to day and according to the season; but milk is perishable, and cannot be stored. Close adjustment of supply to demand is hindered by several factors difficult to control. Thus, surplus milk presents a serious problem, as the prices which can be realized for it for other uses are much less than those obtainable for milk sold for consumption in fluid form or as cream. A satisfactory stabilization of prices for fluid milk requires that the burden of surplus milk be shared equally by all producers and all distributors in the milkshed. Page 291 U. S. 518 So long as the surplus burden is unequally distributed, the pressure to market surplus milk in fluid form will be a serious disturbing factor. The fact that the larger distributors find it necessary to carry large quantities of surplus milk, while the smaller distributors do not, leads to price-cutting and other forms of destructive competition. Smaller distributors, who take no responsibility for the surplus, by purchasing their milk at the blended prices ( i.e., an average between the price paid the producer for milk for sale as fluid milk, and the lower surplus milk price paid by the larger organizations) can undersell the larger distributors. Indulgence in this price-cutting often compels the larger dealer to cut the price, to his own and the producer's detriment. Various remedies were suggested, amongst them united action by producers, the fixing of minimum prices for milk and cream by state authority, and the imposition of certain graded taxes on milk dealers proportioned so as to equalize the cost of milk and cream to all dealers, and so remove the cause of price-cutting. The legislature adopted Chapter 158 as a method of correcting the evils, which the report of the committee showed could not be expected to right themselves through the ordinary play of the forces of supply and demand, owing to the peculiar and uncontrollable factors affecting the industry. The provisions of the statute are summarized in the margin. [ Footnote 2 ] Page 291 U. S. 519 Section 312(e), on which the prosecution in the present case is founded, provides: "After the board shall have fixed prices to be charged or paid for milk in any form Page 291 U. S. 520 . . . , it shall be unlawful for a milk dealer to sell or buy or offer to sell or buy milk at any price less or more than such price . . . , and no method or device shall be lawful whereby milk is bought or sold . . . at a price less or more than such price . . . , whether by any discount, or rebate, or free service, or advertising allowance, or a combined price for such milk together with another commodity or commodities, or service or services, which is less or more than the aggregate of the prices for the milk and the price or prices for such other commodity or commodities, or service or services, when sold or offered for sale separately or otherwise. . . ." First. The appellant urges that the order of the Milk Control Board denies him the equal protection of the laws. It is shown that the order requires him, if he purchases his supply from a dealer, to pay eight cents per quart and Page 291 U. S. 521 five cents per pint, and to resell at not less than nine and six, whereas the same dealer may buy his supply from a farmer at lower prices and deliver milk to consumers at ten cents the quart and six cents the pint. We think the contention that the discrimination deprives the appellant of equal protection is not well founded. For aught that appears, the appellant purchased his supply of milk from a farmer as do distributors, or could have procured it from a farmer, if he so desired. There is therefore no showing that the order placed him at a disadvantage, or, in fact, affected him adversely, and this alone is fatal to the claim of denial of equal protection. But if it were shown that the appellant is compelled to buy from a distributor, the difference in the retail price he is required to charge his customers, from that prescribed for sales by distributors, is not, on its face, arbitrary or unreasonable, for there are obvious distinctions between the two sorts of merchants which may well justify a difference of treatment, if the legislature possesses the power to control the prices to be charged for fluid milk. Compare American Sugar Refining Co. v. Louisiana, 179 U. S. 89 ; Brown-Forman Co. v. Kentucky, 217 U. S. 563 ; State Board of Tax Commissioners v. Jackson, 283 U. S. 527 . Second. The more serious question is whether, in the light of the conditions disclosed, the enforcement of § 312(e) denied the appellant the due process secured to him by the Fourteenth Amendment. Save the conduct of railroads, no business has been so thoroughly regimented and regulated by the State of New York as the milk industry. Legislation controlling it in the interest of the public health was adopted in 1862, [ Footnote 3 ] and subsequent statutes [ Footnote 4 ] have been carried into the general Page 291 U. S. 522 codification known as the Agriculture and Markets Law. [ Footnote 5 ] A perusal of these statutes discloses that the milk industry has been progressively subjected to a larger measure of control. [ Footnote 6 ] The producer or dairy farmer is in certain circumstances liable to have his herd quarantined against bovine tuberculosis; is limited in the importation of dairy cattle to those free from Bang's disease; is subject to rules governing the care and feeding of his cows and the care of the milk produced, the condition and surroundings of his barns and buildings used for production of milk, the utensils used, and the persons employed in milking (§§ 46, 47, 55, 72-88). Proprietors of milk gathering stations or processing plants are subject to regulation (§ 54), and persons in charge must operate under license and give bond to comply with the law and regulations; must keep records, pay promptly for milk purchased, abstain from false or misleading statements and from combinations to fix prices (§§ 57, 57a, 252). In addition, there is a large volume of legislation intended to promote cleanliness and fair trade practices, affecting all who are engaged in the industry. [ Footnote 7 ] The challenged amendment Page 291 U. S. 523 of 1933 carried regulation much farther than the prior enactments. Appellant insists that it went beyond the limits fixed by the Constitution. Under our form of government, the use of property and the making of contracts are normally matters of private, and not of public, concern. The general rule is that both shall be free of governmental interference. But neither property rights [ Footnote 8 ] nor contract rights [ Footnote 9 ] are absolute, for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. As Chief Justice Marshall said, speaking specifically of inspection laws, such laws form "a portion of that immense mass of legislation which embraces every thing within the territory of a State . . . , all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State . . . are component parts of this mass. [ Footnote 10 ]" Justice Barbour said for this court: ". . . it is not only the right, but the bounden and solemn duty, of a state to advance the safety, happiness and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained, in the manner just stated. Page 291 U. S. 524 That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained, and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive. [ Footnote 11 ]" And Chief Justice Taney said upon the same subject: "But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law, or a law to punish offences, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case, it exercises the same powers -- that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates, and its authority to make regulations of commerce is as absolute as its power to pass health laws, except insofar as it has been restricted by the constitution of the United States. [ Footnote 12 ]" Thus has this court, from the early days, affirmed that the power to promote the general welfare is inherent in government. Touching the matters committed to it by the Constitution, the United States possesses the power, [ Footnote 13 ] as do the states in their sovereign capacity touching all subjects jurisdiction of which is not surrendered to the federal government, as shown by the quotations above given. These correlative rights, that of the citizen to exercise exclusive dominion over property and freely to contract about his affairs and that of the state to regulate the use of property and the conduct of business, are always in collision. No exercise of the private right can be Page 291 U. S. 525 imagined which will not in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate the conduct of the citizen which will not to some extent abridge his liberty or affect his property. But, subject only to constitutional restraint, the private right must yield to the public need. The Fifth Amendment, in the field of federal activity, [ Footnote 14 ] and the Fourteenth, as respects state action, [ Footnote 15 ] do not prohibit governmental regulation for the public welfare. They merely condition the exertion of the admitted power by securing that the end shall be accomplished by methods consistent with due process. And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. It results that a regulation valid for one sort of business, or in given circumstances, may be invalid for another sort or for the same business under other circumstances, because the reasonableness of each regulation depends upon the relevant facts. The reports of our decisions abound with cases in which the citizen, individual or corporate, has vainly invoked the Fourteenth Amendment in resistance to necessary and appropriate exertion of the police power. The court has repeatedly sustained curtailment of enjoyment of private property in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. [ Footnote 16 ] The state may control the Page 291 U. S. 526 use of property in various ways; may prohibit advertising billboards except of a prescribed size and location, [ Footnote 17 ] or their use for certain kinds of advertising; [ Footnote 18 ] may in certain circumstances authorize encroachments by party walls in cities; [ Footnote 19 ] may fix the height of buildings, the character of materials, and methods of construction, the adjoining area which must be left open, and may exclude from residential sections offensive trades, industries and structures likely injuriously to affect the public health or safety; [ Footnote 20 ] or may establish zones within which certain types of buildings or businesses are permitted and others excluded. [ Footnote 21 ] And although the Fourteenth Amendment extends protection to aliens as well as citizens, [ Footnote 22 ] a state may for adequate reasons of policy exclude aliens altogether from the use and occupancy of land. [ Footnote 23 ] Laws passed for the suppression of immorality, in the interest of health, to secure fair trade practices, and to safeguard the interests of depositors in banks, have been found consistent with due process. [ Footnote 24 ] These measures not Page 291 U. S. 527 only affected the use of private property, but also interfered with the right of private contract. Other instances are numerous where valid regulation has restricted the right of contract, while less directly affecting property rights. [ Footnote 25 ] The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one Page 291 U. S. 528 pleases. Certain kinds of business may be prohibited; [ Footnote 26 ] and the right to conduct a business, or to pursue a calling, may be conditioned. [ Footnote 27 ] Regulation of a business to prevent waste of the state's resources may be justified. [ Footnote 28 ] And statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency. [ Footnote 29 ] Page 291 U. S. 529 Legislation concerning sales of goods, and incidentally affecting prices, has repeatedly been held valid. In this class fall laws forbidding unfair competition by the charging of lower prices in one locality than those exacted in another, [ Footnote 30 ] by giving trade inducement to purchasers, [ Footnote 31 ] and by other forms of price discrimination. [ Footnote 32 ] The public policy with respect to free competition has engendered state and federal statutes prohibiting monopolies, [ Footnote 33 ] which have been upheld. On the other hand, where the policy of the state dictate that a monopoly should be granted, statutes having that effect have been held inoffensive to the constitutional guarantees. [ Footnote 34 ] Moreover, the state or a municipality may itself enter into business in competition with private proprietor, and thus effectively Page 291 U. S. 530 although indirectly control the prices charged by them. [ Footnote 35 ] The milk industry in New York has been the subject of longstanding and drastic regulation in the public interest. The legislative investigation of 1932 was persuasive of the fact that, for this and other reasons, unrestricted competition aggravated existing evils, and the normal law of supply and demand was insufficient to correct maladjustments detrimental to the community. The inquiry disclosed destructive and demoralizing competitive conditions and unfair trade practices which resulted in retail price-cutting and reduced the income of the farmer below the cost of production. We do not understand the appellant to deny that, in these circumstances, the legislature might reasonably consider further regulation and control desirable for protection of the industry and the consuming public. That body believed conditions could be improved by preventing destructive price-cutting by stores which, due to the flood of surplus milk, were able to buy at much lower prices than the larger distributors and to sell without incurring the delivery costs of the latter. In the order of which complaint is made, the Milk Control Board fixed a price of ten cents per quart for sales by a distributor to a consumer, and nine cents by a store to a consumer, thus recognizing the lower costs of the store and endeavoring to establish a differential which would be just to both. In the light of the facts, the order appears not to be unreasonable or arbitrary, or without relation to the purpose to prevent ruthless competition from destroying the wholesale price structure on which the farmer depends for his livelihood, and the community for an assured supply of milk. Page 291 U. S. 531 But we are told that, because the law essays to control prices, it denies due process. Notwithstanding the admitted power to correct existing economic ills by appropriate regulation of business, even though an indirect result may be a restriction of the freedom of contract or a modification of charges for services or the price of commodities, the appellant urges that direct fixation of prices is a type of regulation absolutely forbidden. His position is that the Fourteenth Amendment requires us to hold the challenged statute void for this reason alone. The argument runs that the public control of rates or prices is per se unreasonable and unconstitutional, save as applied to businesses affected with a public interest; that a business so affected is one in which property is devoted to an enterprise of a sort which the public itself might appropriately undertake, or one whose owner relies on a public grant or franchise for the right to conduct the business, or in which he is bound to serve all who apply; in short, such as is commonly called a public utility; or a business in its nature a monopoly. The milk industry, it is said, possesses none of these characteristics, and, therefore, not being affected with a public interest, its charges may not be controlled by the state. Upon the soundness of this contention the appellant's case against the statute depends. We may as well say at once that the dairy industry is not, in the accepted sense of the phrase, a public utility. We think the appellant is also right in asserting that there is in this case no suggestion of any monopoly or monopolistic practice. It goes without saying that those engaged in the business are in no way dependent upon public grants or franchises for the privilege of conducting their activities. But if, as must be conceded, the industry is subject to regulation in the public interest, what constitutional principle bars the state from correcting existing Page 291 U. S. 532 maladjustments by legislation touching prices? We think there is no such principle. The due process clause makes no mention of sales or of prices any more than it speaks of business or contracts or buildings or other incidents of property. The thought seems nevertheless to have persisted that there is something peculiarly sacrosanct about the price one may charge for what he makes or sells, and that, however able to regulate other elements of manufacture or trade, with incidental effect upon price, the state is incapable of directly controlling the price itself. This view was negatived many years ago. Munn v. Illinois, 94 U. S. 113 . The appellant's claim is, however, that this court, in there sustaining a statutory prescription of charges for storage by the proprietors of a grain elevator, limited permissible legislation of that type to businesses affected with a public interest, and he says no business is so affected except it have one or more of the characteristics he enumerates. But this is a misconception. Munn and Scott held no franchise from the state. They owned the property upon which their elevator was situated, and conducted their business as private citizens. No doubt they felt at liberty to deal with whom they pleased, and on such terms as they might deem just to themselves. Their enterprise could not fairly be called a monopoly, although it was referred to in the decision as a "virtual monopoly." This meant only that their elevator was strategically situated, and that a large portion of the public found it highly inconvenient to deal with others. This court concluded the circumstances justified the legislation as an exercise of the governmental right to control the business in the public interest; that is, as an exercise of the police power. It is true that the court cited a statement from Lord Hale's De Portibus Maris, to the effect that, when private property is "affected with a public interest, it ceases to be juris privati only"; but the court proceeded at once to define what it understood by Page 291 U. S. 533 the expression, saying: "Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large." (P. 126.) Thus, understood, "affected with a public interest" is the equivalent of "subject to the exercise of the police power", and it is plain that nothing more was intended by the expression. The court had been at pains to define that power (pp. 124, 125) ending its discussion in these words: "From this, it is apparent that, down to the time of the adoption of the Fourteenth Amendment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily deprived an owner of his property without due process of law. Under some circumstances, they may, but not under all. The amendment does not change the law in this particular; it simply prevents the States from doing that which will operate as such a deprivation. [ Footnote 36 ]" In the further discussion of the principle, it is said that, when one devotes his property to a use "in which the public has an interest," he, in effect, "grants to the public an interest in that use," and must submit to be controlled for the common good. The conclusion is that, if Munn and Scott wished to avoid having their business regulated, they should not have embarked their property in an industry which is subject to regulation in the public interest. The true interpretation of the court's language is claimed to be that only property voluntarily devoted to a known public use is subject to regulation as to rates. But obviously Munn and Scott had not voluntarily dedicated their business to a public use. They intended only Page 291 U. S. 534 to conduct it as private citizens, and they insisted that they had done nothing which gave the public an interest in their transactions or conferred any right of regulation. The statement that one has dedicated his property to a public use is, therefore, merely another way of saying that, if one embarks in a business which public interest demands shall be regulated, he must know regulation will ensue. In the same volume, the court sustained regulation of railroad rates. [ Footnote 37 ] After referring to the fact that railroads are carriers for hire, are incorporated as such, and given extraordinary powers in order that they may better serve the public, it was said that they are engaged in employment " affecting the public interest," and therefore, under the doctrine of the Munn case, subject to legislative control as to rates. And in another of the group of railroad cases then heard, [ Footnote 38 ] it was said that the property of railroads is "clothed with a public interest" which permits legislative limitation of the charges for its use. Plainly, the activities of railroads, their charges and practices, so nearly touch the vital economic interests of society that the police power may be invoked to regulate their charges, and no additional formula of affection or clothing with a public interest is needed to justify the regulation. And this is evidently true of all business units supplying transportation, light, heat, power and water to communities, irrespective of how they obtain their powers. The touchstone of public interest in any business, its practices and charges, clearly is not the enjoyment of any franchise from the state, Munn v. Illinois, supra. Nor is it the enjoyment of a monopoly; for in Brass v. Page 291 U. S. 535 North Dakota, 153 U. S. 391 , a similar control of prices of grain elevators was upheld in spite of overwhelming and uncontradicted proof that about six hundred grain elevators existed along the line of the Great Northern Railroad, in North Dakota; that, at the very station where the defendant's elevator was located, two others operated, and that the business was keenly competitive throughout the state. In German Alliance Insurance Co. v. Lewis, 233 U. S. 389 , a statute fixing the amount of premiums for fire insurance was held not to deny due process. Though the business of the insurers depended on no franchise or grant from the state, and there was no threat of monopoly, two factors rendered the regulation reasonable. These were the almost universal need of insurance protection and the fact that, while the insurers competed for the business, they all fixed their premiums for similar risks according to an agreed schedule of rates. The court was at pains to point out that it was impossible to lay down any sweeping and general classification of businesses as to which price-regulation could be adjudged arbitrary or the reverse. Many other decisions show that the private character of a business does not necessarily remove it from the realm of regulation of charges or prices. The usury laws fix the price which may be exacted for the use of money, although no business more essentially private in character can be imagined than that of loaning one's personal funds. Griffith v. Connecticut, 218 U. S. 563 . Insurance agents' compensation may be regulated, though their contracts are private, because the business of insurance is considered one properly subject to public control. O'Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251 . Statutes prescribing in the public interest the amounts to be charged by attorneys for prosecuting certain claims, a matter ordinarily one of personal and private nature, Page 291 U. S. 536 are not a deprivation of due process. Frisbie v. United States, 157 U. S. 160 ; Capital Trust Co. v. Calhoun, 250 U. S. 208 ; Calhoun v. Massie, 253 U. S. 170 ; Newman v. Moyers, 253 U. S. 182 ; Yeiser v. Dysart, 267 U. S. 540 ; Margolin v. United States, 269 U. S. 93 . A stockyards corporation, "while not a common carrier, nor engaged in any distinctively public employment, is doing a work in which the public has an interest," and its charges may be controlled. Cotting v. Kansas City Stockyards Co., 183 U. S. 79 , 183 U. S. 85 . Private contract carriers, who do not operate under a franchise, and have no monopoly of the carriage of goods or passengers, may, since they use the highways to compete with railroads, be compelled to charge rates not lower than those of public carriers for corresponding services, if the state, in pursuance of a public policy to protect the latter, so determines. Stephenson v. Binford, 287 U. S. 251 , 287 U. S. 274 . It is clear that there is no closed class or category of businesses affected with a public interest, and the function of courts in the application of the Fifth and Fourteenth Amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory. Wolff Packing Co. v. Industrial Court, 262 U. S. 522 , 262 U. S. 535 . The phrase "affected with a public interest " can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions "affected with a public interest" and "clothed with a public use" have been brought forward as the criteria of the validity of price control, it has been admitted that they are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices. These decisions must rest, finally, upon the basis that the requirements of due process were Page 291 U. S. 537 not met, because the laws were found arbitrary in their operation and effect. [ Footnote 39 ] But there can be no doubt that, upon proper occasion and by appropriate measures, the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells. So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. "Whether the free operation of the normal laws of competition is a wise and wholesome rule for trade and commerce is an economic question which this court need not consider or determine." Northern Securities Co. v. United States, 193 U. S. 197 , 193 U. S. 337 -338. And it is equally clear that, if the legislative policy be to curb unrestrained and harmful competition by measures which are not arbitrary or discriminatory, it does not lie with the courts to determine that the rule is unwise. With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. The course of decision in this court exhibits a firm adherence to these principles. Times without number, we have said that the legislature is primarily the judge of the necessity of such an enactment, Page 291 U. S. 538 that every possible presumption is in favor of its validity, and that, though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power. [ Footnote 40 ] The lawmaking bodies have in the past endeavored to promote free competition by laws aimed at trusts and monopolies. The consequent interference with private property and freedom of contract has not availed with the courts to set these enactments aside as denying due process. [ Footnote 41 ] Where the public interest was deemed to require the fixing of minimum prices, that expedient has been sustained. [ Footnote 42 ] If the lawmaking body, within its sphere of government, concludes that the conditions or practices in an industry make unrestricted competition an inadequate safeguard of the consumer's interests, [ Footnote 43 ] produce waste harmful to the public, threaten ultimately to cut off the supply of a commodity needed by the public, or portend the destruction of the industry itself, appropriate statutes passed in an honest effort to correct the threatened consequences may not be set aside because the regulation adopted fixes prices reasonably deemed by the legislature to be fair to those engaged in the industry and to the consuming public. And this is especially so where, as here, the economic maladjustment is one of price, which threatens harm to the producer at one end of the series and the consumer at the other. The Constitution does Page 291 U. S. 539 not secure to anyone liberty to conduct his business in such fashion as to inflict injury upon the pubic at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. Tested by these considerations, we find no basis in the due process clause of the Fourteenth Amendment for condemning the provisions of the Agriculture and Markets Law here drawn into question. The judgment is Affirmed. [ Footnote 1 ] People v. Nebbia, 262 N.Y. 259, 186 N.E. 694. [ Footnote 2 ] Chapter 158 of the Laws of 1933 added a new Article (numbered 25) to the Agriculture and Markets Law. The reasons for the enactment are set forth in the first section (§ 300). So far as material they are: that unhealthful, unfair, unjust, destructive, demoralizing and uneconomic trade practices exist in the production, sale and distribution of milk and milk products, whereby the dairy industry in the state and the constant supply of pure milk to inhabitants of the state are imperiled; these conditions are a menace to the public health, welfare and reasonable comfort; the production and distribution of milk is a paramount industry upon which the prosperity of the state in a great measure depends; existing economic conditions have largely destroyed the purchasing power of milk producers for industrial products, have broken down the orderly production and marketing of milk, and have seriously impaired the agricultural assets supporting the credit structure of the state and its local governmental subdivisions. The danger to public health and welfare consequent upon these conditions is declared to be immediate, and to require public supervision and control of the industry to enforce proper standards of production, sanitation and marketing. The law then (§ 301) defines the terms used; declaring, inter alia, that "milk dealer" means any person who purchases or handles milk within the state, for sale in the state, or sells milk within the state except when consumed on the premises where sold, and includes within the definition of "store" a grocery store. By § 302, a state Milk Control Board is established, and, by § 303, general power is conferred upon that body to supervise and regulate the entire milk industry of the state, subject to existing provisions of the public health law, the public service law, the state sanitary code, and local health ordinances and regulations; to act as arbitrator or mediator in controversies arising between producers and dealers, or groups within those classes, and to exercise certain special powers to which reference will be made. The Board is authorized to promulgate orders and rules which are to have the force of law (§ 304); to make investigations (§ 305); to enter and inspect premises in which any branch of the industry is conducted, and examine the books, papers and records of any person concerned in the industry (§ 306); to license all milk dealers and suspend or revoke licenses for specified causes, its action in these respects being subject to review by certiorari (§ 308), and to require licensees to keep records (§ 309) and to make reports (§ 310). A violation of any provision of Article 25 or of any lawful order of the Board is made a misdemeanor (§ 307). By § 312, it is enacted (a): "The board shall ascertain by such investigations and proofs as the emergency permits, what prices for milk in the several localities and markets of the state, and under varying conditions, will best protect the milk industry in the state and insure a sufficient quantity of pure and wholesome milk . . . and be most in the public interest. The board shall take into consideration all conditions affecting the milk industry including the amount necessary to yield a reasonable return to the producer and to the milk dealer." (b) After such investigation, the board shall, by official order, fix minimum and maximum wholesale and retail prices to be charged by milk dealers to consumers, by milk dealers to stores for consumption on the premises or for resale to consumers, and by stores to consumers for consumption off the premises where sold. It is declared (c) that the intent of the law is that the benefit of any advance in price granted to dealers shall be passed on to the producer, and if the board, after due hearing, finds this has not been done, the dealer's license may be revoked, and the dealer may be subjected to the penalties mentioned in the Act. The board may (d) after investigation fix the prices to be paid by dealers to producers for the various grades and classes of milk. Subsection (e), on which the prosecution in the present case is founded, is quoted in the text. Alterations may be made in existing orders after hearing of the interested parties (f) and orders made are subject to review on certiorari. The board (§ 319) is to continue with all the powers and duties specified until March 31, 1934, at which date it is to be deemed abolished. The Act contains further provisions not material to the present controversy. [ Footnote 3 ] Laws of 1862, Chap. 467. [ Footnote 4 ] Laws of 1893, Chap. 338. Laws of 1909, Chap. 9; Consol.Laws, Chap. 1. [ Footnote 5 ] Laws of 1927, Chap. 207; Cahill's Consolidated Laws of New York, 1930, Chap. 1. [ Footnote 6 ] Many of these regulations have been unsuccessfully challenged on constitutional grounds. See People v. Cipperly, 101 N.Y. 634, 4 N.E. 107; People v. Hill, 44 Hun 472; People v. West, 106 N.Y. 293, 12 N.E. 610; People v. Kibler, 106 N.Y. 321, 12 N.E. 795; People v. Hills, 64 App.Div. 584, 72 N.Y.S. 340; People v. Bowen, 182 N.Y. 1; 74 N.E. 489; Lieberman v. Van de Carr, 199 U. S. 552 ; St. John v. New York, 201 U. S. 633 ; People v. Koster, 121 App.Div. 852, 106 N.Y.S. 793; People v. Abramson, 208 N.Y. 138, 101 N.E. 849; People v. Frudenberg, 209 N.Y. 218, 103 N.E. 166; People v. Beakes Dairy Co., 222 N.Y. 416, 119 N.E. 115; People v. Teuscher, 248 N.Y. 454, 162 N.E. 484; People v. Perretta, 253 N.Y. 305; 171 N.E. 72; People v. Ryan, 230 App.Div. 252, 243 N.Y.S. 644; Mintz v. Baldwin, 289 U. S. 346 . [ Footnote 7 ] See Cahill's Consolidated Laws of New York, 1930, and Supplements to and including 1933: Chap. 21, §§ 270-274; Chap. 41, §§ 435, 438, 1740, 1764, 2350-2357; Chap. 46, §§ 6-a, 20, 21. [ Footnote 8 ] Munn v. Illinois, 94 U. S. 113 , 94 U. S. 124 , 94 U. S. 125 ; Orient Ins. Co. v. Daggs, 172 U. S. 557 , 172 U. S. 566 ; Northern Securities Co. v. United States, 193 U. S. 197 , 193 U. S. 351 , and see the cases cited in notes 16-23 infra. [ Footnote 9 ] Allgeyer v. Louisiana, 165 U. S. 578 , 165 U. S. 591 ; Atlantic Coast Line v. Riverside Mills, 219 U. S. 186 , 219 U. S. 202 ; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549 , 219 U. S. 567 ; Stephenson v. Binford, 287 U. S. 251 , 287 U. S. 274 . [ Footnote 10 ] Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 203 . [ Footnote 11 ] New York v. Miln , 11 Pet. 102, 36 U. S. 139 . [ Footnote 12 ] License Cases , 5 How. 504, 46 U. S. 583 [ Footnote 13 ] United States v. Dewitt , 9 Wall. 41; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 , 114 U. S. 215 . [ Footnote 14 ] Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 , 175 U. S. 228 -229. [ Footnote 15 ] Barbier v. Connolly, 113 U. S. 27 , 113 U. S. 31 ; Chicago, B. & Q. R. Co. v. Drainage Comm'rs, 200 U. S. 561 , 200 U. S. 592 . [ Footnote 16 ] Clark v. Nash, 198 U. S. 361 ; Strickley v. Highland Boy Mining Co., 200 U. S. 527 . [ Footnote 17 ] Cusack Co. v. Chicago, 242 U. S. 526 ; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269 . [ Footnote 18 ] Packer Corp. v. Utah, 285 U. S. 105 . [ Footnote 19 ] Jackman v. Rosenbaum Co., 260 U. S. 22 . [ Footnote 20 ] Fischer v. St. Louis, 194 U. S. 361 ; Welch v. Swasey, 214 U. S. 91 ; Hadacheck v. Sebastian, 239 U. S. 394 ; Reinman v. Little Rock, 237 U. S. 171 . [ Footnote 21 ] Euclid v. Ambler Realty Co., 272 U. S. 365 ; Zahn v. Board of Public Works, 274 U. S. 325 ; Gorieb v. Fox, 274 U. S. 603 . [ Footnote 22 ] Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 . [ Footnote 23 ] Terrace v. Thompson, 263 U. S. 197 ; Webb v. O'Brien, 263 U. S. 313 . [ Footnote 24 ] Forbidding transmission of lottery tickets, Lottery Case, 188 U. S. 321 ; transportation of prize fight films, Weber v. Freed, 239 U. S. 325 ; the shipment of adulterated food, Hipolite Egg Co. v. United States, 220 U. S. 45 ; transportation of women for immoral purposes, Hoke v. United States, 227 U. S. 308 ; Caminetti v. United States, 242 U. S. 470 ; transportation of intoxicating liquor, Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311 ; requiring the public weighing of grain, Merchants Exchange v. Missouri, 248 U. S. 365 ; regulating the size and weight of loaves of bread, Schmidinger v. Chicago, 226 U. S. 578 ; Petersen. Baking Co. v. Bryan, 290 U. S. 570 ; regulating the size and character of packages in which goods are sold, Armour & Co. v. North Dakota, 240 U. S. 510 ; regulating sales in bulk of a stock in trade, Lemieux v. Young, 211 U. S. 489 ; Kidd, Dater & Price Co. v. Musselman Grocer Co., 217 U. S. 461 ; sales of stocks and bonds, Hall v. Geiger-Jones Co., 242 U. S. 539 ; Merrick v. Halsey & Co., 242 U. S. 568 ; requiring fluid milk offered for sale to be tuberculin tested, Adams v. Milwaukee, 228 U. S. 572 ; regulating sales of grain by actual weight, and abrogating exchange rules to the contrary, House v. Mayes, 219 U. S. 270 ; subjecting state banks to assessments for a state depositors' guarantee fund, Noble State Bank v. Haskell, 219 U. S. 104 . [ Footnote 25 ] Prescribing hours of labor in particular occupations, Holden v. Hardy, 169 U. S. 366 ; B. & O. R. Co. v. I.C.C., 221 U. S. 612 ; Bunting v. Oregon, 243 U. S. 426 ; prohibiting child labor, Sturges & Burn Co. v. Beauchamp, 231 US. 320; forbidding night work by women, Radice v. New York, 264 U. S. 292 ; reducing hours of labor for women, Muller v. Oregon, 208 U. S. 412 ; Riley v. Massachusetts, 232 U. S. 671 ; Miller v. Wilson, 236 U. S. 373 ; fixing the time for payment of seamen's wages, Patterson v. Bark Eudora, 190 U. S. 169 ; Strathearn S.S. Co. v. Dillon, 252 U. S. 348 ; of wages of railroad employes, St. Louis, I. M. & St.P. Ry. Co. v. Paul, 173 U. S. 404 ; Erie R. Co. v. Williams, 233 U. S. 685 ; regulating the redemption of store orders issued for wages, Knoxville Iron Co. v. Harbison, 183 US. 13; Keokee Consolidated Coke Co. v. Taylor, 234 U. S. 224 ; regulating the assignment of wages, Mutual Loan Co. v. Martell, 222 US. 225; requiring payment for coal mined on a fixed basis other than that usually practiced, McLean v. Arkansas, 211 U. S. 539 ; Rail & River Coal Co. v. Yaple, 236 U. S. 38 ; establishing a system of compulsory workmen's compensation, New York Central R. Co. v. White, 243 U. S. 188 ; Mountain Timber Co. v. Washington, 243 U. S. 219 . [ Footnote 26 ] Sales of stock or grain on margin, Booth v. Illinois, 184 U. S. 425 ; Brodnax v. Missouri, 219 U. S. 285 ; Otis v. Parker, 187 U. S. 606 ; the conduct of pool and billiard rooms by aliens, Clarke v. Deckebach, 274 U. S. 392 ; the conduct of billiard and pool rooms by anyone, Murphy v. California, 225 U. S. 623 ; the sale of liquor, Mugler v. Kansas, 123 U. S. 623 ; the business of soliciting claims by one not an attorney, McCloskey v. Tobin, 252 U. S. 107 ; manufacture or sale of oleomargarine, Powell v. Pennsylvania, 127 U. S. 678 ; hawking and peddling of drugs or medicines, Baccus v. Louisiana, 232 U. S. 334 ; forbidding any other than a corporation to engage in the business of receiving deposits, Dillingham v. McLaughlin, 264 U. S. 370 , or any other than corporations to do a banking business, Shallenberger v. First State Bank, 219 U. S. 114 . [ Footnote 27 ] Physicians, Dent v. West Virginia, 129 U. S. 114 ; Watson v. Maryland, 218 U. S. 173 ; Crane v. Johnson, 242 U. S. 339 ; Hayman v. Galveston, 273 U. S. 414 ; dentists, Douglas v. Noble, 261 U. S. 165 ; Graves v. Minnesota, 272 U. S. 425 ; employment agencies, Brazee v. Michigan, 241 U. S. 340 ; public weighers of grain, Merchants Exchange v. Missouri, 248 U. S. 365 ; real estate brokers, Bratton v. Chandler, 260 U. S. 110 ; insurance agents, La Tourette v. McMaster, 248 U. S. 465 ; insurance companies, German Alliance Ins. Co. v. Lewis, 233 U. S. 389 ; the sale of cigarettes, Gundling v. Chicago, 177 U. S. 183 ; the sale of spectacles, Roschen v. Ward, 279 U. S. 337 ; private detectives, Lehon v. Atlanta, 242 U. S. 53 ; grain brokers, Chicago Board of Trade v. Olsen , 262 U.S. l; business of renting automobiles to be used by the renter upon the public streets, Hodge Co. v. Cincinnati, 284 U. S. 335 . [ Footnote 28 ] Champlin Refining Co. v. Corporation Comm'n, 286 U. S. 210 . Compare Bandini Petroleum Co. v. Superior Court, 284 U. S. 8 , 284 U. S. 21 -22. [ Footnote 29 ] Contracts of carriage, Atlantic Coast Line v. Riverside Mills, 219 U. S. 186 ; agreements substituting relief or insurance payments for actions for negligence, Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549 ; affecting contracts of insurance, Orient Ins. Co. v. Daggs, 172 US. 557; Whitfield v. Aetna Life Ins. Co., 205 U. S. 489 ; National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71 ; Hardware Dealers Mut. F. I. Co. v. Glidden Co., 284 U. S. 151 ; contracts for sale of real estate, Selover, Bates & Co. v. Walsh, 226 U. S. 112 ; contracts for sale of farm machinery, Advance-Rumely Co. v. Jackson, 287 U. S. 283 ; bonds for performance of building contracts, Hartford Accident & Indemnity Co. v. Nelson Mfg. Co., 291 U. S. 352 . [ Footnote 30 ] Central Lumber Co. v. South Dakota, 226 U. S. 157 . [ Footnote 31 ] Rast v. Van Deman & Lewis Co., 240 U. S. 342 . [ Footnote 32 ] Van Camp & Sons Co. v. American Can Co., 278 U. S. 245 . [ Footnote 33 ] State statutes: Smiley v. Kansas, 196 U. S. 447 ; National Cotton Oil Co. v. Texas, 197 U. S. 115 ; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86 ; Hammond Packing Co. v. Arkansas, 212 U. S. 322 ; Grenada Lumber Co. v. Mississippi, 217 U. S. 433 ; International Harvester Co. v. Missouri, 234 U. S. 199 . Federal statutes: United States v. Joint Traffic Assn., 171 U. S. 505 , 171 U. S. 559 , 171 U. S. 571 -573; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 , 175 U. S. 228 -229; Northern Securities Co. v. United States, 193 U. S. 197 , 193 U. S. 332 ; United Shoe Mach. Corp. v. United States, 258 U. S. 451 , 258 U. S. 462 -464. [ Footnote 34 ] Slaughter-House Cases , 16 Wall. 36; Conway v. Taylor's Executor , 1 Black 603; Crowley v. Christensen, 137 U. S. 86 . [ Footnote 35 ] Madera Water Works v. Madera, 228 U. S. 454 ; Jones v. Portland, 245 U. S. 217 ; Green v. Frazier, 253 U. S. 233 ; Standard Oil Co. v. Lincoln, 275 U.S. 504. [ Footnote 36 ] As instances of Acts of Congress regulating private businesses consistently with the due process guarantee of the Fifth Amendment, the court cites those fixing rates to be charged at private wharves, by chimney-sweeps and hackneys, cartmen, wagoners and draymen in the District of Columbia (p. 125). [ Footnote 37 ] Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155 . It will be noted that the emphasis is here reversed, and the carrier is said to be in a business affecting the public, not that the business is somehow affected by an interest of the public [ Footnote 38 ] Peik v. C. & N.W. Ry. Co., 94 U. S. 164 . [ Footnote 39 ] See Wolff Packing Co. v. Industrial Court, supra; Tyson & Bro. v. Banton, 273 U. S. 418 ; Ribnik v. McBride, 277 U. S. 350 ; Williams v. Standard Oil Co., 278 U. S. 235 . [ Footnote 40 ] See McLean v. Arkansas, 211 U. S. 539 , 211 U. S. 547 ; Tanner v. Little, 240 U. S. 369 , 240 U. S. 385 ; Green v. Frazier, 253 U. S. 233 , 253 U. S. 240 ; O'Gorman & Young v. Hartford Fire Ins. Co., 282 U. S. 251 , 282 U. S. 257 -258; Gant v. Oklahoma City, 289 U. S. 98 , 289 U. S. 102 . [ Footnote 41 ] See note 32 supra. [ Footnote 42 ] Public Service Comm'n v. Great Northern Utilities Co., 289 U. S. 130 ; Stephenson v. Binford, supra. See the Transportation Act, 1920, 41 Stat. 456, §§ 418, 422, amending § 15 of the Interstate Commerce Act, and compare Anchor Coal Co. v. United States, 25 F.2d 462 ; New England Divisions Case, 261 U. S. 184 , 261 U. S. 190 , 261 U. S. 196 . [ Footnote 43 ] See Public Service Comm'n v. Great Northern Utilities Co., supra. Separate opinion of MR. JUSTICE McREYNOLDS. By an act effective April 10, 1933 (Laws, 1933, Ch. 158), when production of milk greatly exceeded the demand, the Legislature created a Control Board with power to "regulate the entire milk industry of New York state, including the production, transportation, manufacture, storage, distribution, delivery and sale. . . ." The "board may adopt and enforce all rules and all orders necessary to carry out the provisions of this article. . . . A rule of the board, when duly posted and filed as provided in this section, shall have the force and effect of law. . . ; a violation of any provision of this article or of any rule or order of the board lawfully made, except as otherwise expressly provided by this article, shall be a misdemeanor. . . ." After considering "all conditions affecting the milk industry including the amount necessary to yield a reasonable return to the producer and to the milk dealer . . ." the board "shall fix by official order the minimum wholesale and retail prices, and may fix by official order the maximum wholesale and retail prices to be charged for milk handled within the state. " Page 291 U. S. 540 April 17, this Board prescribed nine cents per quart as the minimum at which "a store" might sell. * April 19, appellant Nebbia, a small storekeeper in Rochester, sold two bottles at a less price. An information charged that, by so doing, he committed a misdemeanor. A motion to dismiss, which challenged the validity of both statute and order, being overruled, the trial proceeded under a plea of not guilty. The Board's order and statements by two witnesses tending to show the alleged sale constituted the entire evidence. Notwithstanding the claim, that, under the XIV Amendment, the State lacked power to Page 291 U. S. 541 prescribe prices at which he might sell pure milk, lawfully held, he was adjudged guilty and ordered to pay a fine. The Court of Appeals affirmed the conviction. Among other things, it said, pp. 264 et seq.: -- The sale by Nebbia was a violation of the statute "inasmuch as the Milk Control Board had fixed a minimum price for milk at nine cents per quart." "The appellant not unfairly summarizes this law by saying that it first declares that milk has been selling too cheaply in the State of New York, and has thus created a temporary emergency; this emergency is remedied by making the sale of milk at a low price a crime; the question of what is a low price is determined by the majority vote of three officials. As an aid in enforcing the rate regulation, the milk industry in the State of New York is made a business affecting the public health and interest until March 31, 1934, and the Board can exclude from the milk business any violator of the statute or the Board's orders." In fixing sale prices. the Board "must take into consideration the amount necessary to yield a 'reasonable return' to the producer and the milk dealer. . . . The fixing of minimum prices is one of the main features of the act. The question is whether the act, so far as it provides for fixing minimum prices for milk, is unconstitutional . . . in that it interferes with the right of the milk dealer to carry on his business in such manner as suits his convenience without state interference as to the price at which he shall sell his milk. The power thus to regulate private business can be invoked only under special circumstances. It may be so invoked when the Legislature is dealing with a paramount industry upon which the prosperity of the entire State in large measure depends. It may not be invoked when we are dealing with an ordinary business, essentially private in its nature. Page 291 U. S. 542 This is the vital distinction pointed out in New State Ice Co. v. Liebmann ( 285 U.S. 262 , 285 U. S. 277 ). . . ." "The question is as to whether the business justifies the particular restriction, or whether the nature of the business is such that any competent person may, conformably to reasonable regulation, engage therein. The production of milk is, on account of its great importance as human food, a chief industry of the State of New York. . . . It is of such paramount importance as to justify the assertion that the general welfare and prosperity of the State, in a very large and real sense, depend upon it. . . . The State seeks to protect the producer by fixing a minimum price for his milk to keep open the stream of milk flowing from the farm to the city and to guard the farmer from substantial loss. . . . Price is regulated to protect the farmer from the exactions of purchasers against which he cannot protect himself. . . ." "Concededly, the Legislature cannot decide the question of emergency and regulation free from judicial review, but this court should consider only the legitimacy of the conclusions drawn from the facts found." "We are accustomed to rate regulation in cases of public utilities and other analogous cases, and to the extension of such regulative power into similar fields. . . . This case, for example, may be distinguished from the Oklahoma ice case ( New State Ice Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 277 ), holding that the business of manufacturing and selling ice cannot be made a public business, to which it bears a general resemblance. The New York law creates no monopoly; does not restrict production; was adopted to meet an emergency; milk is a greater family necessity than ice. . . . Mechanical concepts of jurisprudence make easy a decision on the strength of seeming authority. . . ." "Doubtless the statute before us would be condemned by an earlier generation as a temerarious interference Page 291 U. S. 543 with the rights of property and contract . . . , with the natural law of supply and demand. But we must not fail to consider that the police power is the least limitable of the powers of government, and that it extends to all the great public needs; . . . that statutes . . . aiming to stimulate the production of a vital food product by fixing living standards of prices for the producer, are to be interpreted with that degree of liberality which is essential to the attainment of the end in view; . . ." "With full respect for the Constitution as an efficient frame of government in peace and war, under normal conditions or in emergencies; with cheerful submission to the rule of the Supreme Court that legislative authority to bridge property rights and freedom of contract can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review, we do not feel compelled to hold that the 'due process' clause of the Constitution has left milk producers unprotected from oppression, and to place the stamp of invalidity on the measure before us." "With the wisdom of the legislation, we have naught to do. It may be vain to hope, by laws, to oppose the general course of trade. . . ." "We are unable to say that the Legislature is lacking in power not only to regulate and encourage the production of milk, but also, when conditions require, to regulate the prices to be paid for it, so that a fair return may be obtained by the producer and a vital industry preserved from destruction. . . . The policy of noninterference with individual freedom must at times give way to the policy of compulsion for the general welfare." Our question is whether the Control Act, as applied to appellant through the order of the Board, number five, deprives him of rights guaranteed by the XIV Amendment. He was convicted of a crime for selling his own Page 291 U. S. 544 property -- wholesome milk -- in the ordinary course of business at a price satisfactory to himself and the customer. We are not immediately concerned with any other provision of the act, or later orders. Prices at which the producer may sell were not prescribed -- he may accept any price -- nor was production in any way limited. "To stimulate the production of a vital food product" was not the purpose of the statute. There was an oversupply of an excellent article. The affirmation is "that milk has been selling too cheaply . . . , and has thus created a temporary emergency; this emergency is remedied by making the sale of milk at a low price a crime." The opinion below points out that the statute expires March 31, 1934, "and is avowedly a mere temporary measure to meet an existing emergency," but the basis of the decision is not explicit. There was no definite finding of an emergency by the court upon consideration of established facts, and no pronouncement that conditions were accurately reported by a legislative committee. Was the legislation upheld because only temporary, and for an emergency, or was it sustained upon the view that the milk business bears a peculiar relation to the public, is affected with a public interest, and, therefore, sales prices may be prescribed irrespective of exceptional circumstances? We are left in uncertainty. The two notions are distinct, if not conflicting. Widely different results may follow adherence to one or the other. ----- The theory that legislative action which ordinarily would be ineffective because of conflict with the Constitution may become potent if intended to meet peculiar conditions and properly limited was lucidly discussed, and its weakness disclosed, by the dissenting opinion in Home Page 291 U. S. 545 Building & Loan Assn. v. Blaisdell, 290 U. S. 398 . Sixty years ago, in Milligan's case, this Court declared it inimical to Constitutional government, and did "write the vision and make it plain upon tables that he may run that readeth it." Milligan, charged with offenses against the United States committed during 1863 and 1864, was tried, convicted and sentenced to be hanged by a military commission proceeding under an Act of Congress passed in 1862. The crisis then existing was urged in justification of its action. But this Court held the right of trial by jury did not yield to emergency, and directed his release. "Those great and good men [who drafted the Constitution] foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. . . . The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism." Ex parte Milligan (1866), 4 Wall. 2, 71 U. S. 120 . The XIV Amendment wholly disempowered the several States to "deprive any person of life, liberty, or property, without due process of law." The assurance of each of these things is the same. If now liberty or property may be struck down because of difficult circumstances, we must expect that, hereafter, every right must yield to the voice of an impatient majority when stirred by distressful Page 291 U. S. 546 exigency. Amid the turmoil of civil war, Milligan was sentenced; happily, this Court intervened. Constitutional guaranties are not to be "thrust to and fro and carried about with every wind of doctrine." They were intended to be immutable so long as within our charter. Rights shielded yesterday should remain indefeasible today and tomorrow. Certain fundamentals have been set beyond experimentation; the Constitution has released them from control by the State. Again and again, this Court has so declared. Adams v. Tanner, 244 U. S. 590 , condemned a Washington initiative measure which undertook to destroy the business of private employment agencies because it unduly restricted individual liberty. We there said -- "The fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked." Buchanan v. Warley, 245 U. S. 60 , held ineffective an ordinance which forbade negroes to reside in a city block where most of the houses were occupied by whites. "It is equally well established that the police power, broad as it is, cannot justify the passage of a law or ordinance which runs counter to the limitations of the Federal Constitution; that principle has been so frequently affirmed in this court that we need not stop to cite the cases." Southern Ry. Co. v. Virginia, 290 U. S. 190 , 290 U. S. 196 -- "The claim that the questioned statute was enacted under the police power of the State, and, therefore, is not subject to the standards applicable to legislation under other powers, conflicts with the firmly established rule that every State power is limited by the inhibitions of the XIV Amendment." Akins v. Children's Hospital, 261 U. S. 525 , 261 U. S. 545 . "That the right to contract about one's affairs is a part of the liberty of the individual protected by this clause Page 291 U. S. 547 [Fifth Amendment] is settled by the decisions of this Court, and is no longer open to question." Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 , held invalid a State enactment (1919) which forbade the teaching in schools of any language other than English. "While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration, and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Schlesinger v. Wisconsin, 270 U. S. 230 , 270 U. S. 240 . "The State is forbidden to deny due process of law or the equal protection of the laws for any purpose whatsoever." Near v. Minnesota, 283 U. S. 697 , overthrew a Minnesota statute designed to protect the public against obvious evils incident to the business of regularly publishing malicious, scandalous and defamatory matters, because of conflict with the XIV Amendment. In the following, among many other cases, much consideration has been given to this subject. United States v. Cohen Grocery Co., 255 U. S. 81 , 255 U. S. 88 ; Wolff Co. v. Industrial Court, 262 U. S. 522 , and 267 U. S. 267 U.S. 552; Pierce v. Society of Sisters, 268 U. S. 510 ; Tyson & Bro. v. Banton, 273 U. S. 418 ; Fairmont Creamery Co. v. Minnesota, 274 U. S. 1 ; Ribnik v. McBride, 277 U. S. 350 ; Williams v. Standard Oil Co., 278 U. S. 235 ; Sterling v. Constantin, 287 U. S. 378 . All stand in opposition to the views apparently approved below. Page 291 U. S. 548 If validity of the enactment depends upon emergency, then, to sustain this conviction, we must be able to affirm that an adequate one has been shown by competent evidence of essential facts. The asserted right is federal. Such rights may demand, and often have received, affirmation and protection here. They do not vanish simply because the power of the State is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings. If she relied upon the existence of emergency, the burden was upon the State to establish it by competent evidence. None was presented at the trial. If necessary for appellant to show absence of the asserted conditions, the little grocer was helpless from the beginning -- the practical difficulties were too great for the average man. What circumstances give force to an "emergency" statute? In how much of the State must they obtain? Everywhere, or will a single county suffice? How many farmers must have been impoverished or threatened violence to create a crisis of sufficient gravity? If, three days after this act became effective, another "very grievous murrain" had descended, and half of the cattle had died, would the emergency then have ended, also, the prescribed rates? If prices for agricultural products become high, can consumers claim a crisis exists, and demand that the Legislature fix less ones? Or are producers alone to be considered, consumers neglected? To these questions, we have no answers. When emergency gives potency, its subsidence must disempower; but no test for its presence or absence has been offered. How is an accused to know when some new rule of conduct arrived, when it will disappear? It is argued that the report of the Legislative Committee, dated April 10th, 1933, disclosed the essential facts. May one be convicted of crime upon such findings? Are Page 291 U. S. 549 federal rights subject to extinction by reports of committees? Heretofore, they have not been. Apparently the Legislature acted upon this report. Some excerpts from it follow. We have no basis for determining whether the findings of the committee or legislature are correct, or otherwise. The court below refrained from expressing any opinion in that regard, notwithstanding its declaration "that legislative authority to abridge property rights and freedom of contract can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review." On the other hand it asserted -- "This court should consider only the legitimacy of the conclusions drawn from the facts found." In New York, there are twelve million possible consumers of milk; 130,000 farms produce it. The average daily output approximates 9,500,000 quarts. For ten or fifteen years prior to 1929 or 1930, the per capita consumption steadily increased; so did the supply. "Realizing the marked improvement in milk quality, the public has tended to increase its consumption of this commodity." "In the past two years, the per capita consumption has fallen off, [possibly] 10 percent." "These marked changes in the trend of consumption of fluid milk and cream have occurred in spite of drastic reductions in retail prices. The obvious cause is the reduced buying power of consumers." "These cycles of overproduction and underproduction, which average about 15 years in length, are explained by the human tendency to raise too many heifers when prices of cows are high, and too few when prices of cows are low. A period of favorable prices for milk leads to the raising of more than the usual number of heifers, but it is not until seven or eight years later that the trend is reversed as a result of the falling prices Page 291 U. S. 550 of milk and cows." "Farmers all over the world raise too many heifers whenever cows pay, and raise too few heifers when cows do not pay." "During the years 1925 to 1930, inclusive, the prices which the farmers of the state received for milk were favorable as compared with the wholesale prices of all commodities. They were even more favorable as compared with the prices received for other farm products, for, not only in New York, but throughout the United States, the general level of prices of farm products has been below that of other prices since the World War." "The comparatively favorable situation enjoyed by the milk producers had an abrupt ending in 1932. Even before that, in 1930 and 1931, milk prices dropped very rapidly." "The prices which farmers received for milk during 1932 were much below the costs of production. After other costs were paid, the producers had practically nothing left for their labor. The price received for milk in January, 1933, was little more than half the cost of production." "Since 1927, the number of dairy cows in the state has increased about 10 percent. The effect of this has been to increase the surplus of milk." "Similar increases in the number of cows have occurred generally in the United States, and are due to the periodic changes in number of heifer calves raised on the farms. Previous experience indicates that, unless some form of arbitrary regulation is applied, the production of milk will not be satisfactorily adjusted to the demand for a period of several years." "Close adjustment of the supply of fluid milk to the demand is further hindered by the periodic changes in the number of heifers raised for dairy cows." "The purpose of this emergency measure is to bring partial relief to dairymen from the disastrously low prices for milk which have prevailed in recent months. It is recognized that the dairy industry of the state cannot be Page 291 U. S. 551 placed upon a profitable basis without a decided rise in the general level of commodity prices." Thus, we are told, the number of dairy cows had been increasing, and that favorable prices for milk bring more cows. For two years, notwithstanding low prices, the per capita consumption had been falling. "The obvious cause is the reduced buying power of consumers." Notwithstanding the low prices, farmers continued to produce a large surplus of wholesome milk for which there was no market. They had yielded to "the human tendency to raise too many heifers" when prices were high, and "not until seven or eight years" after 1930 could one reasonably expect a reverse trend. This failure of demand had nothing to do with the quality of the milk -- that was excellent. Consumers lacked funds with which to buy. In consequence, the farmers became impoverished, and their lands depreciated in value. Naturally, they became discontented. The exigency is of the kind which inevitably arises when one set of men continue to produce more than all others can buy. The distressing result to the producer followed his ill-advised, but voluntary, efforts. Similar situations occur in almost every business. If here we have an emergency sufficient to empower the Legislature to fix sales prices, then, whenever there is too much or too little of an essential thing -- whether of milk or grain or pork or coal or shoes or clothes -- constitutional provisions may be declared inoperative, and the "anarchy and despotism" prefigured in Milligan's case are at the door. The futility of such legislation in the circumstances is pointed out below. ----- Block v. Hirsh, 256 U. S. 135 and Marcus Brown Holding Co. v. Feldman, 256 U. S. 170 , are much relied on to support emergency legislation. They were civil proceedings; the first to recover a leased building in the District of Page 291 U. S. 552 Columbia; the second to gain possession of an apartment house in New York. The unusual conditions grew out of the World War. The questioned statutes made careful provision for protection of owners. These cases were analyzed, and their inapplicability to circumstances like the ones before us was pointed out, in Tyson & Bro. v. Banton, 273 U. S. 418 . They involved peculiar facts, and must be strictly limited. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 416 , said of them -- "The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They went to the verge of the law, but fell far short of the present act." ----- Is the milk business so affected with public interest that the Legislature may prescribe prices for sales by stores? This Court has approved the contrary view; has emphatically declared that a State lacks power to fix prices in similar private businesses. United States v. Cohen Grocery Co., 255 U. S. 81 ; Adkins v. Children's Hospital, 261 U. S. 525 ; Wolff Packing Co. v. Industrial Court, 262 U. S. 522 ; Tyson & Bro. v. Banton, 273 U. S. 418 ; Fairmont Creamery Co. v. Minnesota , 274 U.S. l; Ribnik v. McBride, 277 U. S. 350 ; Williams v. Standard Oil Co., 278 U. S. 235 ; New State Ice Co. v. Liebmann, 285 U. S. 262 ; Sterling v. Constantin, 287 U. S. 378 , 287 U. S. 396 . Wolff Packing Co. v. Industrial Court, 262 U. S. 522 , 262 U. S. 537 . -- Here, the State's statute undertook to destroy the freedom to contract by parties engaged in so-called "essential" industries. This Court held that she had no such power. "It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the woodchopper, the Page 291 U. S. 553 mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation. . . . An ordinary producer, manufacturer or shopkeeper may sell or not sell as he likes." On a second appeal, 267 U. S. 267 U.S. 552, 267 U. S. 569 , the same doctrine was restated: "The system of compulsory arbitration which the Act establishes is intended to compel, and, if sustained, will compel, the owner and employees to continue the business on terms which are not of their making. It will constrain them not merely to respect the terms if they continue the business, but will constrain them to continue the business on those terms. True, the terms have some qualifications, but, as shown in the prior decision, the qualifications are rather illusory, and do not subtract much from the duty imposed. Such a system infringes the liberty of contract and rights of property guaranteed by the due process of law clause of the Fourteenth Amendment." "The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." Fairmont Creamery Co. v. Minnesota, 274 U. S. 1 , 274 U. S. 9 . -- A statute commanded buyers of cream to adhere to uniform prices fixed by a single transaction. -- "May the State, in order to prevent some strong buyers of cream from doing things which may tend to monopoly, inhibit plaintiff in error from carrying on its business in the usual way, heretofore regarded as both moral and beneficial to the public and not shown now to be accompanied by evil results as ordinary incidents? Former decisions here require a negative answer. We think the inhibition of the statute has no reasonable relation to the anticipated evil -- high bidding by some with purpose to monopolize or destroy competition. Looking through form to substance, it clearly and unmistakably infringes private rights whose exercise Page 291 U. S. 554 does not ordinarily produce evil consequences, but the reverse." Williams v. Standard Oil Co., 278 U. S. 235 , 278 U. S. 239 . -- The State of Tennessee was declared without power to prescribe prices at which gasoline might be sold. "It is settled by recent decisions of this Court that a state legislature is without constitutional power to fix prices at which commodities may be sold, services rendered, or property used unless the business or property involved is 'affected with a public interest.'" Considered affirmatively, "it means that a business or property, in order to be affected with a public interest, must be such or be so employed as to justify the conclusion that it has been devoted to a public use, and its use thereby, in effect, granted to the public. . . . Negatively, it does not mean that a business is affected with a public interest merely because it is large, or because the public are warranted in having a feeling of concern in respect of its maintenance." New State Ice Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 277 . -- Here, Oklahoma undertook the control of the business of manufacturing and selling ice. We denied the power so to do. "It is a business as essentially private in its nature as the business of the grocer, the dairyman, the butcher, the baker, the shoemaker, or the tailor, . . . And this court has definitely said that the production or sale of food or clothing cannot be subjected to legislative regulation on the basis of a public use." ----- Regulation to prevent recognized evils in business has long been upheld as permissible legislative action. But fixation of the price at which "A" engaged in an ordinary business, may sell in order to enable "B," a producer, to improve his condition has not been regarded as within legislative power. This is not regulation, but management, control, dictation -- it amounts to the deprivation Page 291 U. S. 555 of the fundamental right which one has to conduct his own affairs honestly, and along customary lines. The argument advanced here would support general prescription of prices for farm products, groceries, shoes, clothing, all the necessities of modern civilization, as well as labor, when some legislature finds and declares such action advisable, and for the public good. This Court has declared that a State may not, by legislative fiat, convert a private business into a public utility. Michigan Comm'n v. Duke, 266 U. S. 570 , 266 U. S. 577 . Frost Trucking Co. v. Railroad Comm'n, 271 U. S. 583 , 271 U. S. 592 . Smith v. Cahoon, 283 U. S. 553 , 283 U. S. 563 . And if it be now ruled that one dedicates his property to public use whenever he embarks on an enterprise which the Legislature may think it desirable to bring under control, this is but to declare that rights guaranteed by the Constitution exist only so long as supposed public interest does not require their extinction. To adopt such a view, of course, would put an end to liberty under the Constitution. Munn v. Illinois (1877), 94 U. S. 113 , has been much discussed in the opinions referred to above. And always the conclusion was that nothing there sustains the notion that the ordinary business of dealing in commodities is charged with a public interest and subject to legislative control. The contrary has been distinctly announced. To undertake now to attribute a repudiated implication to that opinion is to affirm that it means what this Court has declared again and again was not intended. The painstaking effort there to point out that certain businesses like ferries, mills, &c. were subject to legislative control at common law, and then to show that warehousing at Chicago occupied like relation to the public, would have been pointless if "affected with a public interest" only means that the public has serious concern about the perpetuity and success of the undertaking. That is true of almost all ordinary business affairs. Nothing in the Page 291 U. S. 556 opinion lends support, directly or otherwise, to the notion that, in times of peace, a legislature may fix the price of ordinary commodities -- grain, meat, milk, cotton, &c. ----- Of the assailed statute, the Court of Appeals says -- "It first declares that milk has been selling too cheaply in the State of New York, and has thus created a temporary emergency; this emergency is remedied by making the sale of milk at a low price a crime; the question of what is a low price is determined by the majority vote of three officials." Also -- "With the wisdom of the legislation we have naught to do. It may be vain to hope by laws to oppose the general course of trade." Maybe, because of this conclusion, it said nothing concerning the possibility of obtaining increase of prices to producers -- the thing definitely aimed at -- through the means adopted. But, plainly, I think, this Court must have regard to the wisdom of the enactment. At least we must inquire concerning its purpose, and decide whether the means proposed have reasonable relation to something within legislative power -- whether the end is legitimate, and the means appropriate. If a statute to prevent conflagrations should require householders to pour oil on their roofs as a means of curbing the spread of fire when discovered in the neighborhood, we could hardly uphold it. Here, we find direct interference with guaranteed rights defended upon the ground that the purpose was to promote the public welfare by increasing milk prices at the farm. Unless we can affirm that the end proposed is proper, and the means adopted have reasonable relation to it, this action is unjustifiable. The court below has not definitely affirmed this necessary relation; it has not attempted to indicate how higher charges at stores to impoverished customers when the output Page 291 U. S. 557 is excessive and sale prices by producers are unrestrained, can possibly increase receipts at the farm. The Legislative Committee pointed out as the obvious cause of decreased consumption, notwithstanding low prices, the consumers' reduced buying power. Higher store prices will not enlarge this power, nor will they decrease production. Low prices will bring less cows only after several years. The prime causes of the difficulties will remain. Nothing indicates early decreased output. Demand at low prices being wholly insufficient, the proposed plan is to raise and fix higher minimum prices at stores, and thereby aid the producer whose output and prices remain unrestrained! It is not true, as stated, that "the State seeks to protect the producer by fixing a minimum price for his milk." She carefully refrained from doing this, but did undertake to fix the price after the milk had passed to other owners. Assuming that the views and facts reported by the Legislative Committee are correct, it appears to me wholly unreasonable to expect this legislation to accomplish the proposed end -- increase of prices at the farm. We deal only with Order No. 5, as did the court below. It is not merely unwise; it is arbitrary and unduly oppressive. Better prices may follow, but it is beyond reason to expect them as the consequent of that order. The Legislative Committee reported -- "It is recognized that the dairy industry of the State cannot be placed upon a profitable basis without a decided rise in the general level of commodity prices." Not only does the statute interfere arbitrarily with the rights of the little grocer to conduct his business according to standards long accepted -- complete destruction may follow; but it takes away the liberty of twelve million consumers to buy a necessity of life in an open market. It imposes direct and arbitrary burdens upon those already seriously impoverished with the alleged immediate design of affording special benefits to others. To him Page 291 U. S. 558 with less than nine cents it says -- You cannot procure a quart of milk from the grocer although he is anxious to accept what you can pay and the demands of your household are urgent! A superabundance, but no child can purchase from a willing storekeeper below the figure appointed by three men at headquarters! And this is true although the storekeeper himself may have bought from a willing producer at half that rate, and must sell quickly or lose his stock through deterioration. The fanciful scheme is to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold! The statement by the court below that -- "Doubtless the statute before us would be condemned by an earlier generation as a temerarious interference with the rights of property and contract . . . ; with the natural law of supply and demand," is obviously correct. But another, that "statutes aiming to stimulate the production of a vital food product by fixing living standards of prices for the producer are to be interpreted with that degree of liberality which is essential to the attainment of the end in view" "conflicts with views of Constitutional rights accepted since the beginning. An end, although apparently desirable, cannot justify inhibited means. Moreover the challenged act was not designed to stimulate production -- there was too much milk for the demand, and no prospect of less for several years; also, 'standards of prices' at which the producer might sell were not prescribed. The Legislature cannot lawfully destroy guaranteed rights of one man with the prime purpose of enriching another, even if, for the moment, this may seem advantageous to the public. And the adoption of any 'concept of jurisprudence' which permits facile disregard of the Constitution, as long interpreted and respected, will inevitably lead to its destruction. Then, all rights will be subject Page 291 U. S. 559 to the caprice of the hour; government by stable laws will pass." The somewhat misty suggestion below, that condemnation of the challenged legislation would amount to holding "that the due process clause has left milk producers unprotected from oppression," I assume, was not intended as a material contribution to the discussion upon the merits of the cause. Grave concern for embarrassed farmers is everywhere, but this should neither obscure the rights of others nor obstruct judicial appraisement of measures proposed for relief. The ultimate welfare of the producer, like that of every other class, requires dominance of the Constitution. And zealously to uphold this in all its parts is the highest duty intrusted to the courts. The judgment of the court below should be reversed. MR. JUSTICE VAN DEVANTER, MR. JUSTICE SUTHERLAND, and MR. JUSTICE BUTLER authorize me to say that they concur in this opinion. * Official Order No. 5, effective April 17, 1933. "Ordered that, until further notice and subject to the exceptions hereinafter made, the following shall be the minimum prices to be charged for all milk and cream in any and all cities and villages of the State of New York of more than One Thousand (1,000) population, exclusive of New York City and the Counties of Westchester, Nassau and Suffolk:" "Milk -- Quarts in bottles: By milk dealers to consumers 10 cents; by milk dealers to stores 8 cents; by stores to consumers 9 cents." "Pints in bottles: By milk dealers to consumers 6 cents; by milk dealers to stores 5 cents; by stores to consumers 6 cents. . . ." The Control Act declares: "'Milk dealer' means any person who purchases or handles milk within the state, for sale in this state, or sells milk within the state except when consumed on the premises where sold. Each corporation which if a natural person would be a milk dealer within the meaning of this article, and any subsidiary of such corporation, shall be deemed a milk dealer within the meaning of this definition. A producer who delivers milk only to a milk dealer shall not be deemed a milk dealer." "'Producer' means a person producing milk within the State of New York." "'Store' means a grocery store, hotel, restaurant, soda fountain, dairy products store and similar mercantile establishment." "'Consumer' means any person, other than a milk dealer, who purchases milk for fluid consumption."

In Nebbia v. New York, the Supreme Court upheld a New York statute that fixed minimum prices for milk sales to protect small stores from larger distributors who could offer lower prices. The Court ruled that price regulation is valid if it's reasonable and addresses a public need, like ensuring an adequate milk supply. This case set a precedent for government intervention in business to protect the public interest, with the Court emphasizing that regulations must be reasonable and not arbitrary.

Due Process

Ingraham v. Wright

https://supreme.justia.com/cases/federal/us/430/651/

U.S. Supreme Court Ingraham v. Wright, 430 U.S. 651 (1977) Ingraham v. Wright No. 75-6527 Argued November 2, 1976 Decided April 19, 1977 430 U.S. 651 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioners, pupils in a Dade County, Fla., junior high school, filed this action in Federal District Court pursuant to 42 U.S.C. §§ 1981-1988 for damages and injunctive and declaratory relief against respondent school officials, alleging that petitioners and other students had been subjected to disciplinary corporal punishment in violation of their constitutional rights. The Florida statute then in effect authorized corporal punishment after the teacher had consulted with the principal or teacher in charge of the school, specifying that the punishment was not to be "degrading or unduly severe." A School Board regulation contained specific directions and limitations, authorizing punishment administered to a recalcitrant student's buttocks with a wooden paddle. The evidence showed that the paddling of petitioners was exceptionally harsh. The District Court granted respondents' motion to dismiss the complaint, finding no basis for constitutional relief. The Court of Appeals affirmed. Held: 1. The Cruel and Unusual Punishments Clause of the Eighth Amendment does not apply to disciplinary corporal punishment in public schools. Pp. 430 U. S. 664 -671. (a) The history of the Eighth Amendment and the decisions of this Court make it clear that the prohibition against cruel and unusual punishment was designed to protect those convicted of crime. Pp. 430 U. S. 664 -668. (b) There is no need to wrench the Eighth Amendment from its historical context and extend it to public school disciplinary practices. The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which that Amendment protects convicted criminals. These safeguards are reinforced by the legal constraints of the common law, whereby any punishment going beyond that which is reasonably necessary for the proper education and discipline of the child may result in both civil and criminal liability. Pp. 430 U. S. 668 -671. 2. The Due Process Clause of the Fourteenth Amendment does not require notice and hearing prior to imposition of corporal punishment as that practice is authorized and limited by the common law. Pp. 430 U. S. 672 -682. Page 430 U. S. 652 (a) Liberty within the meaning of the Fourteenth Amendment is implicated where public school authorities, acting under color of state law, deliberately punish a child for misconduct by restraint and infliction of appreciable physical pain. Freedom from bodily restraint and punishment is within the liberty interest in personal security that has historically been protected from state deprivation without due process of law. Pp. 430 U. S. 672 -674. (b) Under the longstanding accommodation between the child's interest in personal security and the traditional common law privilege, there can be no deprivation of substantive rights as long as the corporal punishment remains within the limits of that privilege. The child nonetheless has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification. Pp. 675-676. (c) The Florida scheme, considered in light of the openness of the school environment, affords significant protection against unjustified corporal punishment of school children. The teacher and principal must exercise prudence and restraint when they decide that corporal punishment is necessary for disciplinary purposes. If the punishment is later found to be excessive, they may be held liable in damages or be subject to criminal penalties. Where the State has thus preserved what "has always been the law of the land," United States v. Barnett, 376 U. S. 681 , 376 U. S. 692 , the case for administrative safeguards is significantly less compelling than it would otherwise be. Pp. 430 U. S. 676 -680. (d) Imposing additional administrative safeguards as a constitutional requirement would significantly intrude into the area of educational responsibility that lies primarily with the public school authorities. Prior procedural safeguards require a diversion of educational resources, and school authorities may abandon corporal punishment as a disciplinary measure rather than incur the burdens of complying with procedural requirements. The incremental benefit of invoking the Constitution to impose prior notice and a hearing cannot justify the costs. Pp. 430 U. S. 680 -682. 525 F.2d 909, affirmed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 430 U. S. 683 . STEVENS, J., filed a dissenting opinion, post, p. 430 U. S. 700 . Page 430 U. S. 653 MR. JUSTICE POWELL delivered the opinion of the Court. This case presents questions concerning the use of corporal punishment in public schools: first, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard. I Petitioners James Ingraham and Roosevelt Andrews filed the complaint in this case on January 7, 1971, in the United States District Court for the Southern District of Florida. [ Footnote 1 ] At the time, both were enrolled in the Charles R. Drew Junior High School in Dade County, Fla., Ingraham in the eighth grade and Andrews in the ninth. The complaint contained three counts, each alleging a separate cause of action for deprivation of constitutional rights under 42 U.S.C. §§ 1981-1988. Counts one and two were individual actions for damages by Ingraham and Andrews based on paddling incidents that allegedly occurred in October, 1970, at Drew Junior High School. Count three was a class action for declaratory and Page 430 U. S. 654 injunctive relief filed on behalf of all students in the Dade County schools. [ Footnote 2 ] Named as defendants in all counts were respondents Willie J. Wright (principal at Drew Junior High School), Lemmie Deliford (an assistant principal), Solomon Barnes (an assistant to the principal), and Edward L. Whigham (superintendent of the Dade County School System). [ Footnote 3 ] Petitioners presented their evidence at a week-long trial before the District Court. At the close of petitioners' case, respondents moved for dismissal of count three "on the ground that, upon the facts and the law, the plaintiff has shown no right to relief," Fed.Rule Civ.Proc. 41(b), and for a ruling that the evidence would be insufficient to go to a jury on counts one and two. [ Footnote 4 ] The District Court granted the motion as to all three counts, and dismissed the complaint without hearing evidence on behalf of the school authorities. App. 142-150. Page 430 U. S. 655 Petitioners' evidence may be summarized briefly. In the 1970-1971 school year, many of the 237 schools in Dade County used corporal punishment as a means of maintaining discipline pursuant to Florida legislation and a local School Board regulation. [ Footnote 5 ] The statute then in effect authorized limited corporal punishment by negative inference, proscribing punishment which was "degrading or unduly severe" or which was inflicted without prior consultation with the principal or the teacher in charge of the school. Fla.Stat.Ann. § 232.27 (1961). [ Footnote 6 ] The regulation, Dade County School Board Policy Page 430 U. S. 656 5144, contained explicit, directions and limitations. [ Footnote 7 ] The authorized punishment consisted of paddling the recalcitrant student on the buttocks with a flat wooden paddle measuring less than two feet long, three to four inches wide, and about one-half inch thick. The normal punishment was limited to one to five "licks" or blows with the paddle, and resulted in Page 430 U. S. 657 no apparent physical injury to the student. School authorities viewed corporal punishment as a less drastic means of discipline than suspension or expulsion. Contrary to the procedural requirements of the statute and regulation, teachers often paddled students on their own authority without first consulting the principal. [ Footnote 8 ] Petitioners focused on Drew Junior High School, the school in which both Ingraham and Andrews were enrolled in the fall of 1970. In an apparent reference to Drew, the District Court found that "[t]he instances of punishment which could be characterized as severe, accepting the students' testimony as credible, took place in one junior high school." App. 147. The evidence, consisting mainly of the testimony of 16 students, suggests that the regime at Drew was exceptionally harsh. The testimony of Ingraham and Andrews, in support of their individual claims for damages, is illustrative. Because he was slow to respond to his teacher's instructions, Ingraham was subjected to more than 20 licks with a paddle while being held over a table in the principal's office. The paddling was so severe that he suffered a hematoma [ Footnote 9 ] requiring medical attention and keeping him out of school for several days. [ Footnote 10 ] Andrews was paddled several times for minor infractions. On two occasions, he was struck on his arms, once depriving him of the full use of his arm for a week. [ Footnote 11 ] Page 430 U. S. 658 The District Court made no findings on the credibility of the students' testimony. Rather, assuming their testimony to be credible, the court found no constitutional basis for relief. With respect to count three, the class action, the court concluded that the punishment authorized and practiced generally in the county schools violated no constitutional right. Id. at 143, 149. With respect to counts one and two, the individual damages actions, the court concluded that, while corporal punishment could in some cases violate the Eighth Amendment, in this case, a jury could not lawfully find "the elements of severity, arbitrary infliction, unacceptability in terms of contemporary standards, or gross disproportion which are necessary to bring 'punishment' to the constitutional level of 'cruel and unusual punishment.'" Id. at 143. A panel of the Court of Appeals voted to reverse. 498 F.2d 248 (CA5 1974). The panel concluded that the punishment was so severe and oppressive as to violate the Eighth and Fourteenth Amendments, and that the procedures outlined in Policy 5144 failed to satisfy the requirements of the Due Process Clause. Upon rehearing, the en banc court rejected these conclusions and affirmed the judgment of the District Court. 525 F.2d 909 (1976). The full court held that the Due Process Clause did not require notice or an opportunity to be heard: "In essence, we refuse to set forth, as constitutionally mandated, procedural standards for an activity which is not substantial enough, on a constitutional level, to justify the time and effort which would have to be expended by the school in adhering to those procedures or to justify further interference by federal courts into the internal affairs of public schools." Id. at 919. The court also rejected the petitioners' substantive contentions. The Eighth Amendment, in the court's view, was simply inapplicable to corporal punishment in public Page 430 U. S. 659 schools. Stressing the likelihood of civil and criminal liability in state law, if petitioners' evidence were believed, the court held that "[t]he administration of corporal punishment in public schools, whether or not excessively administered, does not come within the scope of Eighth Amendment protection." Id. at 915. Nor was there any substantive violation of the Due Process Clause. The court noted that "[p]addling of recalcitrant children has long been an accepted method of promoting good behavior and instilling notions of responsibility and decorum into the mischievous heads of school children." Id. at 917. The court refused to examine instances of punishment individually: "We think it a misuse of our judicial power to determine, for example, whether a teacher has acted arbitrarily in paddling a particular child for certain behavior or whether, in a particular instance of misconduct, five licks would have been a more appropriate punishment than ten licks. . . ." Ibid. We granted certiorari, limited to the questions of cruel and unusual punishment and procedural due process. 425 U.S. 990. [ Footnote 12 ] II In addressing the scope of the Eighth Amendment's prohibition on cruel and unusual punishment, this Court has found it useful to refer to "[t]raditional common law concepts," Powell v. Texas, 392 U. S. 514 , 392 U. S. 535 (1968) (plurality opinion), and to the "attitude[s] which our society has traditionally taken." Id. at 392 U. S. 531 . So, too, in defining the requirements Page 430 U. S. 660 of procedural due process under the Fifth and Fourteenth Amendments, the Court has been attuned to what "has always been the law of the land," United States v. Barnett, 376 U. S. 681 , 376 U. S. 692 (1964), and to "traditional ideas of fair procedure." Greene v. McElroy, 360 U. S. 474 , 360 U. S. 508 (1959). We therefore begin by examining the way in which our traditions and our laws have responded to the use of corporal punishment in public schools. The use of corporal punishment in this country as a means of disciplining schoolchildren dates back to the colonial period. [ Footnote 13 ] It has survived the transformation of primary and secondary education from the colonials' reliance on optional private arrangements to our present system of compulsory education and dependence on public schools. [ Footnote 14 ] Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, [ Footnote 15 ] the practice continues to play a role in the public education of schoolchildren in most parts of the country. [ Footnote 16 ] Professional and public opinion is sharply divided on the practice, [ Footnote 17 ] and has been for more than Page 430 U. S. 661 a century. [ Footnote 18 ] Yet we can discern no trend toward its elimination. At common law, a single principle has governed the use of corporal punishment since before the American Revolution: teachers may impose reasonable but not excessive force to discipline a child. [ Footnote 19 ] Blackstone catalogued among the "absolute rights of individuals" the right "to security from the corporal insults of menaces, assaults, beating, and wounding," 1 W. Blackstone, Commentaries *134, but he did not regard it a "corporal insult" for a teacher to inflict "moderate correction" on a child in his care. To the extent that force was "necessary to answer the purposes for which [the teacher] is employed," Blackstone viewed it as "justifiable or lawful." Id. at *453; 3 id. at *120. The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator "reasonably believes to be necessary for [the child's] proper control, training, or education." Restatement (Second) of Torts § 147(2) (1965); see id. § 153(2). To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability. [ Footnote 20 ] Page 430 U. S. 662 Although the early cases viewed the authority of the teacher as deriving from the parents, [ Footnote 21 ] the concept of parental delegation has been replaced by the view -- more consonant with compulsory education laws -- that the State itself may impose such corporal punishment as is reasonably necessary "for the proper education of the child and for the maintenance of group discipline." 1 F. Harper & F. James, Law of Torts § 3.20, p. 292 (1956). [ Footnote 22 ] All of the circumstances are to be taken into account in determining whether the punishment is reasonable in a particular case. Among the most important considerations are the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but equally effective means of discipline. Id. at 290-291; Restatement (Second) of Torts § 150, Comments c - e , p. 268 (1965). Of the 23 States that have addressed the problem through legislation, 21 have authorized the moderate use of corporal punishment in public schools. [ Footnote 23 ] Of these States, only a few Page 430 U. S. 663 have elaborated an the common law test of reasonableness, typically providing for approval or notification of the child's parents, [ Footnote 24 ] or for infliction of punishment only by the principal [ Footnote 25 ] or in the presence of an adult witness. [ Footnote 26 ] Only two States, Massachusetts and New Jersey, have prohibited all corporal punishment in heir public schools. [ Footnote 27 ] Where the legislatures have at acted, the state courts have uniformly preserved the common law rule permitting teachers to use reasonable force in disciplining children in their charge. [ Footnote 28 ] Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional question before us. Page 430 U. S. 664 III The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Bail, fines, and punishment traditionally have been associated with the criminal process, and, by subjecting the three to parallel limitations, the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation, and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools. A The history of the Eighth Amendment is well known. [ Footnote 29 ] The text was taken, almost verbatim, from a provision of the Virginia Declaration of Rights of 1776, which in turn derived from the English Bill of Rights of 1689. The English version, adopted after the accession of William and Mary, was intended to curb the excesses of English judges under the reign of James II. Historians have viewed the English provision as a reaction either to the "Bloody Assize," the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion of the Duke of Monmouth, [ Footnote 30 ] or to the perjury prosecution of Titus Oates in the same year. [ Footnote 31 ] In Page 430 U. S. 665 either case, the exclusive concern of the English version was the conduct of judges in enforcing the criminal law. The original draft introduced in the House of Commons provided: [ Footnote 32 ] "The requiring excessive bail of persons committed in criminal cases and imposing excessive fines, and illegal punishments, to be prevented." Although the reference to "criminal cases" was eliminated from the final draft, the preservation of a similar reference in the preamble [ Footnote 33 ] indicates that the deletion was without substantive significance. Thus, Blackstone treated each of the provision's three prohibitions as bearing only on criminal proceedings and judgments. [ Footnote 34 ] The Americans who adopted the language of this part of the English Bill of Rights in framing their own State and Federal Constitutions 100 years later feared the imposition of torture and other cruel punishments not only by judges acting beyond their lawful authority, but also by legislatures engaged in making the laws by which judicial authority would be measured. Weems v. United States, 217 U. S. 349 , 217 U. S. 371 -373 (1910). Indeed, the principal concern of the American Framers appears to have been with the legislative definition of crimes and punishments. In re Kemmler, 136 U. S. 436 , 136 U. S. 446 -447 (1890); Page 430 U. S. 666 Furman v. Georgia, 408 U. S. 238 , 408 U. S. 263 (1972) (BRENNAN, J., concurring). But if the American provision was intended to restrain government more broadly than its English model, the subject to which it was intended to apply -- the criminal process -- was the same. At the time of its ratification, the original Constitution was criticized in the Massachusetts and Virginia Conventions for its failure to provide any protection for persons convicted of crimes. [ Footnote 35 ] This criticism provided the impetus for inclusion of the Eighth Amendment in the Bill of Rights. When the Eighth Amendment was debated in the First Congress, it was met by the objection that the Cruel and Unusual Punishments Clause might have the effect of outlawing what were then the common criminal punishments of hanging, whipping, and earcropping. 1 Annals of Cong. 754 (1789). The objection was not heeded, "precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes." Furman v. Georgia, supra at 408 U. S. 263 . B In light of this history, it is not surprising to find that every decision of this Court considering whether a punishment is "cruel and unusual" within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment. Page 430 U. S. 667 See Estelle v. Gamble, 429 U. S. 97 (1976) (incarceration without medical care); Gregg v. Georgia, 428 U. S. 153 (1976) (execution for murder); Furman v. Georgia, supra, (execution for murder); Powell v. Texas, 392 U. S. 514 (1968) (plurality opinion) ($20 fine for public drunkenness); Robinson v. California, 370 U. S. 660 (1962) (incarceration as a criminal for addiction to narcotics); Trop v. Dulles, 356 U. S. 86 (1958) (plurality opinion) (expatriation for desertion); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947) (execution by electrocution after a failed first attempt); Weems v. United States, supra, (15 years' imprisonment and other penalties for falsifying an official document); Howard v. Fleming, 191 U. S. 126 (1903) (10 years' imprisonment for conspiracy to defraud); In re Kemmler, supra, (execution by electrocution); Wilkerson v. Utah, 99 U. S. 130 (1879) (execution by firing squad); Pervear v. Commonwealth , 5 Wall. 475 (1867) (fine and imprisonment at hard labor for bootlegging). These decisions recognize that the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: first, it limits the kinds of punishment that can be imposed on those convicted of crimes, e.g., Estelle v. Gamble, supra; Trop v. Dulles, supra; second, it proscribes punishment grossly disproportionate to the severity of the crime, e.g., Weems v. United States, supra; and third, it imposes substantive limits on what can be made criminal and punished as such, e.g., Robinson v. California, supra. We have recognized the last limitation as one to be applied sparingly. "The primary purpose of [the Cruel and Unusual Punishments Clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes. . . ." Powell v. Texas, supra at 392 U. S. 531 -532 (plurality opinion). In the few cases where the Court has had occasion to confront claims that impositions outside the criminal process constituted cruel and unusual punishment, it has had no difficulty Page 430 U. S. 668 finding the Eighth Amendment inapplicable. Thus, in Fong Yue Ting v. United States, 149 U. S. 698 (1893), the Court held the Eighth Amendment inapplicable to the deportation of aliens on the ground that "deportation is not a punishment for crime." Id. at 149 U. S. 730 ; see Mahler v. Eby, 264 U. S. 32 (1924); Bugajewitz v. Adams, 228 U. S. 685 (1913). And in Uphaus v. Wyman, 360 U. S. 72 (1959), the Court sustained a judgment of civil contempt, resulting in incarceration pending compliance with a subpoena, against a claim that the judgment imposed cruel and unusual punishment. It was emphasized that the case involved " essentially a civil remedy designed for the benefit of other parties . . . exercised for centuries to secure compliance with judicial decrees.'" Id. at 360 U. S. 81 , quoting Green v. United States, 356 U. S. 165 , 356 U. S. 197 (1958) (dissenting opinion). [ Footnote 36 ] C Petitioners acknowledge that the original design of the Cruel and Unusual Punishments Clause was to limit criminal punishments, but urge nonetheless that the prohibition should be extended to ban the paddling of schoolchildren. Observing that the Framers of the Eighth Amendment could not have envisioned our present system of public and compulsory education, with its opportunities for noncriminal punishments, petitioners contend that extension of the prohibition against cruel punishments is necessary lest we afford greater protection Page 430 U. S. 669 to criminals than to school children. It would be anomalous, they say, if school children could be beaten without constitutional redress, while hardened criminals suffering the same beatings at the hands of their jailers might have a valid claim under the Eighth Amendment. See Jackson v. Bishop, 404 F.2d 571 (CA8 1968); cf. Estelle v. Gamble, supra. Whatever force this logic may have in other settings, [ Footnote 37 ] we find it an inadequate basis for wrenching the Eighth Amendment from its historical context and extending it to traditional disciplinary practices in the public schools. The prisoner and the school child stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration. The prisoner's conviction entitles the State to classify him a a "criminal," and his incarceration deprives him of the freedom "to be with family and friends and to form the other enduring attachments of normal life." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 482 (1972); see Meachum v. Fano, 427 U. S. 215 , 427 U. S. 224 -225 (1976). Prison brutality, as the Court of Appeals observed in this case, is "part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny." 525 F.2d at 915. [ Footnote 38 ] Even so, the protection afforded Page 430 U. S. 670 by the Eighth Amendment is limited. After incarceration, only the " unnecessary and wanton infliction of pain,'" Estelle v. Gamble, 429 U.S. at 429 U. S. 103 , quoting Gregg v. Georgia, 428 U.S. at 428 U. S. 173 , constitutes cruel and unusual punishment forbidden by the Eighth Amendment. The school child has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends, and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment. The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner. In virtually every community where corporal punishment is permitted in the schools, these safeguards are reinforced by the legal constraints of the common law. Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability. See 430 U. S. supra. As long as the schools are open to public scrutiny, there is no reason to believe that the common law constraints will not effectively remedy and deter excesses such as those alleged in this case. [ Footnote 39 ] Page 430 U. S. 671 We conclude that, when public school teachers or administrators impose disciplinary corporal punishment, the Eighth Amendment is inapplicable. The pertinent constitutional question is whether the imposition is consonant with the requirements of due process. [ Footnote 40 ] Page 430 U. S. 672 IV The Fourteenth Amendment prohibits any state deprivation of life, liberty, or property without due process of law. Application of this prohibition requires the familiar two-stage analysis: we must first ask whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of "life, liberty or property"; if protected interests are implicated, we then must decide what procedures constitute "due process of law." Morrissey v. Brewer, 408 U.S. at 408 U. S. 481 ; Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 569 -572 (1972). See Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267 (1975). Following that analysis here, we find that corporal punishment in public schools implicates a constitutionally protected liberty interest, but we hold that the traditional common law remedies are fully adequate to afford due process. A "[T]he range of interests protected by procedural due process is not infinite." Board of Regents v. Roth, supra at 408 U. S. 570 . We have repeatedly rejected "the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." Meachum v. Fano, 427 U.S. at 427 U. S. 224 . Due process is required only when a decision of the State implicates an interest within the protection of the Fourteenth Amendment. And "to determine whether due process requirements apply in the first place, we must look not to the 'weight,' but to the nature, of the interest at stake." Roth, supra at 408 U. S. 570 -571. The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth, was intended to give Americans Page 430 U. S. 673 at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923); see Dent v. West Virginia, 129 U. S. 114 , 129 U. S. 123 -124 (1889). Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security. [ Footnote 41 ] While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, [ Footnote 42 ] they always have been thought to encompass Page 430 U. S. 674 freedom from bodily restraint and punishment. See Rochin v. California, 342 U. S. 165 (1952). It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law. This constitutionally protected liberty interest is at stake in this case. There is, of course, a de minimis level of imposition with which the Constitution is not concerned. But at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated. [ Footnote 43 ] B "[T]he question remains what process is due." Morrissey v. Brewer, supra at 408 U. S. 481 . Were it not for the common law privilege permitting teachers to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. [ Footnote 44 ] But here we deal with a punishment -- paddling -- within that tradition, Page 430 U. S. 675 and the question is whether the common law remedies are adequate to afford due process. "'[D]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . Representing a profound attitude of fairness . . . , 'due process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. . . ." Anti-Fascist Comm. v. McGrath, 341 U. S. 123 , 341 U. S. 162 -163 (1951) (Frankfurter, J., concurring). Whether, in this case, the common law remedies for excessive corporal punishment constitute due process of law must turn on an analysis of the competing interests at stake, viewed against the background of "history, reason, [and] the past course of decisions." The analysis requires consideration of three distinct factors: "first, the private interest that will be affected . . . ; second, the risk of an erroneous deprivation of such interest . . . and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 (1976). Cf. Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 167 -168 (1974) (POWELL, J., concurring). 1 Because it is rooted in history, the child's liberty interest in avoiding corporal punishment while in the care of public school authorities is subject to historical limitations. Under the common law, an invasion of personal security gave rise to a right to recover damages in a subsequent judicial proceeding. 3 W. Blackstone, Commentaries *120-121. But the right of recovery was qualified by the concept of justification. Thus, there could be no recovery against a teacher who gave only "moderate correction" to a child. Id. at *120. To the Page 430 U. S. 676 extent that the force used was reasonable in light of its purpose, it was not wrongful, but rather "justifiable or lawful." Ibid. The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States. See 430 U. S. supra. It represents "the balance struck by this country," Poe v. Ullman, 367 U. S. 497 , 367 U. S. 542 (1961) (Harlan, J., dissenting), between the child's interest in personal security and the traditional view that some limited corporal punishment may be necessary in the course of a child's education. Under that longstanding accommodation of interests, there can be no deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common law privilege. This is not to say that the child's interest in procedural safeguards is insubstantial. The school disciplinary process is not "a totally accurate, unerring process, never mistaken and never unfair. . . ." Goss v. Lopez, 419 U. S. 565 , 419 U. S. 579 -580 (1975). In any deliberate infliction of corporal punishment on a child who is restrained for that purpose, there is some risk that the intrusion on the child's liberty will be unjustified, and therefore unlawful. In these circumstances, the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification. We turn now to a consideration of the safeguards that are available under applicable Florida law. 2 Florida has continued to recognize, and indeed has strengthened by statute, the common law right of a child not to be subjected to excessive corporal punishment in school. Under Florida law, the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline Page 430 U. S. 677 a child who.has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive -- not reasonably believed at the time to be necessary for the child's discipline or training -- the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties. [ Footnote 45 ] Although students have testified in this case to specific instances of abuse, there is every reason to believe that such mistreatment is an aberration. The uncontradicted evidence suggests that corporal punishment in the Dade County schools was, "[w]ith the exception of a few cases, . . . unremarkable in physical severity." App. 147. Moreover, because paddlings are usually inflicted in response to conduct directly Page 430 U. S. 678 observed by teachers in their presence, the risk that a child will be paddled without cause is typically insignificant. In the ordinary case, a disciplinary paddling neither threatens seriously to violate any substantive rights nor condemns the child "to suffer grievous loss of any kind." Anti-Fascist Comm. v. McGrath, 341 U.S. at 341 U. S. 168 (Frankfurter, J., concurring). In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse -- considered in light of the openness of the school environment -- afford significant protection against unjustified corporal punishment. See supra at 430 U. S. 670 . Teachers and school authorities are unlikely to inflict corporal punishment unnecessarily or excessively when a possible consequence of doing so is the institution of civil or criminal proceedings against them. [ Footnote 46 ] It still may be argued, of course, that the child's liberty interest would be better protected if the common law remedies were supplemented by the administrative safeguards of prior notice and a hearing. We have found frequently that some kind of prior hearing is necessary to guard against arbitrary impositions on interests protected by the Fourteenth Amendment. Page 430 U. S. 679 See, e.g., Board of Regents v. Roth, 408 U.S. at 408 U. S. 569 -570; Wolff v. McDonnell, 418 U. S. 539 , 418 U. S. 557 -558 (1974); cf. Friendly, 123 U.Pa.L.Rev. at 1275-1277. But where the State has preserved what "has always been the law of the land," United States v. Barnett, 376 U. S. 681 (1964), the case for administrative safeguards is significantly less compelling. [ Footnote 47 ] There is a relevant analogy in the criminal law. Although the Fourth Amendment specifically proscribes "seizure" of a person without probable cause, the risk that police will act unreasonably in arresting a suspect is not thought to require an advance determination of the facts. In United States v. Watson, 423 U. S. 411 (1976), we reaffirmed the traditional common law rule that police officers may make warrantless public arrests on probable cause. Although we observed that an advance determination of probable cause by a magistrate would be desirable, we declined "to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause. . . ." Id. at 423 U. S. 423 ; see id. at 423 U. S. 429 (POWELL, J., concurring). Despite the distinct possibility that a police officer may improperly assess the facts and thus unconstitutionally deprive an individual of Page 430 U. S. 680 liberty, we declined to depart from the traditional rule by which the officer's perception is subjected to judicial scrutiny only after the fact. [ Footnote 48 ] There is no more reason to depart from tradition and require advance procedural safeguards for intrusions on personal security to which the Fourth Amendment does not apply. 3 But even if the need for advance procedural safeguards were clear, the question would remain whether the incremental benefit could justify the cost. Acceptance of petitioners' claims would work a transformation in the law governing corporal punishment in Florida and most other States. Given the impracticability of formulating a rule of procedural due process that varies with the severity of the particular imposition, [ Footnote 49 ] the prior hearing petitioners seek would have to precede any paddling, however moderate or trivial. Such a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure. Hearings -- even informal hearings -- require time, personnel, and a diversion of attention from normal school pursuits. School authorities may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements. Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measures -- which they may view as less effective -- rather than confront the Page 430 U. S. 681 possible disruption that prior notice and a hearing may entail. [ Footnote 50 ] Paradoxically, such an alteration of disciplinary policy is most likely to occur in the ordinary case, where the contemplated punishment is well within the common law privilege. [ Footnote 51 ] Elimination or curtailment of corporal punishment would be welcomed by many as a societal advance. But when such a policy choice may result from this Court's determination of an asserted right to due process, rather than from the normal processes of community debate and legislative action, the societal costs cannot be dismissed as insubstantial. [ Footnote 52 ] We are reviewing here a legislative judgment, rooted in history and reaffirmed in the laws of many States, that corporal punishment serves important educational interests. This judgment must be viewed in light of the disciplinary problems commonplace in the schools. As noted in Goss v. Lopez, 419 U.S. at 419 U. S. 580 : "Events calling for discipline are frequent occurrences, and sometimes require immediate, effective action." [ Footnote 53 ] Assessment Page 430 U. S. 682 of the need for, and the appropriate means of maintaining, school discipline is committed generally to the discretion of school authorities subject to state law. "[T]he Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Tinker v. Des Moines School Dist., 393 U. S. 503 , 393 U. S. 507 (1969). [ Footnote 54 ] "At some point, the benefit of an additional safeguard to the individual affected . . . and to society in terms of increased assurance that the action is just, may be outweighed by the cost." Mathews v. Eldridge, 424 U.S. at 424 U. S. 348 . We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common law safeguards that already exist, the risk of error that may result in violation of a school child's substantive rights can only be regarded a minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility. We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools, as that practice is authorized and limited by the common law. [ Footnote 55 ] Page 430 U. S. 683 V Petitioners cannot prevail on either of the theories before us in this case. The Eighth Amendment's prohibition against cruel and unusual punishment is inapplicable to school paddlings, and the Fourteenth Amendment's requirement of procedural due process is satisfied by Florida's preservation of common law constraints and remedies. We therefore agree with the Court of Appeals that petitioners' evidence affords no basis for injunctive relief, and that petitioners cannot recover damages on the basis of any Eighth Amendment or procedural due process violation. Affirmed. [ Footnote 1 ] As Ingraham and Andrews were minors, the complaint was filed in the names of Eloise Ingraham, James' mother, and Willie Everett, Roosevelt's father. [ Footnote 2 ] The District Court certified the class, under Fed.Rules Civ.Proc. 23(b)(2) and (c)(1), as follows: "'All students of the Dade County School system who are subject to the corporal punishment policies issued by the Defendant, Dade County School Board. . . .'" App. 17. One student was specifically excepted from the class by request. [ Footnote 3 ] The complaint also named the Dade County School Board as a defendant, but the Court of Appeals held that the Board was not amenable to suit under 42 U.S.C. §§ 1981-1988, and dismissed the suit against the Board for want of jurisdiction. 525 F.2d 909, 912 (CA5 1976). This aspect of the Court of Appeals' judgment is not before us. [ Footnote 4 ] Petitioners had waived their right to jury trial on the claims for damages in counts one and two, but respondents had not. The District Court proceeded initially to hear evidence only on count three, the claim for injunctive relief. At the close of petitioners' case, however, the parties agreed that the evidence offered on count three (together with certain stipulated testimony) would be considered, for purposes of a motion for directed verdict, as if it had also been offered on counts one and two. It was understood that respondents could reassert a right to jury trial if the motion were denied. App. 142. [ Footnote 5 ] The evidence does not show how many of the schools actually employed corporal punishment as a means of maintaining discipline. The authorization of the practice by the School Board extended to 231 of the schools in the 1970-1971 school year, but at least 10 of those schools did not administer corporal punishment as a matter of school policy. Id. at 137-139. [ Footnote 6 ] In the 1970-1971 school year, § 232.27 provided: "Each teacher or other member of the staff of any school shall assume such authority for the control of pupils as may be assigned to him by the principal and shall keep good order in the classroom and in other places in which he is assigned to be in charge of pupils, but he shall not inflict corporal punishment before consulting the principal or teacher in charge of the school, and in no case shall such punishment be degrading or unduly severe in its nature. . . ." Effective July 1, 1976, the Florida Legislature amended the law governing corporal punishment. Section 232.27 now reads: "Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of students. If a teacher feels that corporal punishment is necessary, at least the following procedures shall be followed:" "(1) The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not necessary for each specific instance in which it is used." "(2) A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment." "(3) A teacher or principal who has administered punishment shall, upon request, provide the pupil's parent or guardian with a written explanation of the reason for the punishment and the name of the other [adult] who was present." Fla.Stat.Ann. § 232.27 (1977) (codifier's notation omitted). Corporal punishment is now defined as "the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules." § 228.041(28). The local school boards are expressly authorized to adopt rules governing student conduct and discipline, and are directed to make available codes of student conduct. § 230.23(6). Teachers and principals are given immunity from civil and criminal liability for enforcing disciplinary rules, "[e]xcept in the case of excessive force or cruel and unusual punishment. . . ." § 232.275. [ Footnote 7 ] In the 1970-1971 school year, Policy 5144 authorized corporal punishment where the failure of other means of seeking cooperation from the student made its use necessary. The regulation specified that the principal should determine the necessity for corporal punishment, that the student should understand the seriousness of the offense and the reason for the punishment, and that the punishment should be administered in the presence of another adult in circumstances not calculated to hold the student up to shame or ridicule. The regulation cautioned against using corporal punishment against a student under psychological or medical treatment, and warned that the person administering the punishment "must realize his own personal liabilities" in any case of physical injury. App. 15. While this litigation was pending in the District Court, the Dade County School Board amended Policy 5144 to standardize the size of the paddles used in accordance with the description in the text, to proscribe striking a child with a paddle elsewhere than on the buttocks, to limit the permissible number of "licks" (five for elementary and intermediate grades and seven for junior and senior grades), and to require a contemporaneous explanation of the need for the punishment to the student and a subsequent notification to the parents. App. 126-128. [ Footnote 8 ] 498 F.2d 248, 255, and n. 7 (1974) (original panel opinion), vacated on rehearing, 525 F.2d 909 (1976); App. 48, 138, 146; Exhibits 14, 15. [ Footnote 9 ] Stedman's Medical Dictionary (23d ed.1976) defines "hematoma" as "[a] localized mass of extravasated blood that is relatively or completely confined within an organ or tissue . . . ; the blood is usually clotted (or partly clotted), and, depending on how long it has been there, may manifest various degrees of organization and decolorization." [ Footnote 10 ] App. 3-4, 18-20, 68-85, 129-136. [ Footnote 11 ] Id. at 4-5, 104-113. The similar experiences of several other students at Drew, to which they individually testified in the District Court, are summarized in the original panel opinion in the Court of Appeals, 498 F.2d at 257-259. [ Footnote 12 ] We denied review of a third question presented in the petition for certiorari: "Is the infliction of severe corporal punishment upon public school students arbitrary, capricious and unrelated to achieving any legitimate educational purpose, and therefore violative of the Due Process Clause of the Fourteenth Amendment?" Pet. for Cert. 2. [ Footnote 13 ] See I. Falk, Corporal Punishment 11-48 (1941); N. Edwards & H. Richey, The School in the American Social Order 115-116 (1947). [ Footnote 14 ] Public and compulsory education existed in New England before the Revolution, see id. at 50-68, 78-81, 97-113, but the demand for free public schools as we now know them did not gain momentum in the country as a whole until the mid-1800's, and it was not until 1918 that compulsory school attendance laws were in force in all the States. See Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 489 n. 4 (1954), citing Cubberley, Public Education in the United States 408-423, 563-565 (1934 ed.); cf. Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 226 , and n. 15 (1972). [ Footnote 15 ] See Jackson v. Bishop, 404 F.2d 571, 580 (CA8 1968); Falk, supra at 85-88. [ Footnote 16 ] See K. Larson & M. Karpas, Effective Secondary School Discipline 146 (1963); A. Reitman, J. Follman, & E. Ladd, Corporal Punishment in the Public Schools 2-5 (ACLU Report 1972). [ Footnote 17 ] For samplings of scholarly opinion on the use of corporal punishment in the schools, see F. Reardon & R. Reynolds, Corporal Punishment in Pennsylvania 1-2, 34 (1975); National Education Association, Report of the Task Force on Corporal Punishment (1972); K. James, Corporal Punishment in the Public Schools 8-16 (1963). Opinion surveys taken since 1970 have consistently shown a majority of teachers and of the general public favoring moderate use of corporal punishment in the lower grades. See Reardon & Reynolds, supra at 2, 23-26; Delaware Department of Public Instruction, Report on the Corporal Punishment Survey 48 (1974); Reitman, Follman, & Ladd, supra at 34-35; National Education Association, supra at 7. [ Footnote 18 ] See Falk, supra, 66-69; cf. Cooper v. McJunkin, 4 Ind. 290 (1853). [ Footnote 19 ] See 1 F. Harper & F. James, Law of Torts § 3.20, pp. 288-292 (1956); Proehl, Tort Liability of Teachers, 12 Vand.L.Rev. 723, 734-738 (1959); W. Prosser, Law of Torts 136-137 (4th ed.1971). [ Footnote 20 ] See cases cited n 28, infra. The criminal codes of many States include provisions explicitly recognizing the teacher's common law privilege to inflict reasonable corporal punishment. E.g., Ariz.Rev.Stat.Ann. § 13-246(A)(1) (1956); Conn.Gen.Stat. § 53a-18 (1977); Neb.Rev.Stat. § 28-840(2) (1975); N.Y. Penal Law § 35.10 (McKinney 1975 and Supp. 1976); Ore.Rev.Stat. § 161.205(1) (1975). [ Footnote 21 ] See Proehl, supra at 726, and n. 13. [ Footnote 22 ] Today, corporal punishment in school is conditioned on parental approval only in California. Cal.Educ.Code § 49001 (West Supp. 1977). Cf. Morrow v. Wood, 35 Wis. 59 (1874). This Court has held in a summary affirmance that parental approval of corporal punishment is not constitutionally required. Baker v. Owen, 423 U.S. 907 (1975), aff'g 395 F. Supp. 294 (MDNC). [ Footnote 23 ] Cal.Educ.Code §§ 49000-49001 (West Supp. 1977); Del.Code Ann., Tit 14, § 701 (Supp. 1976); Fla.Stat.Ann. § 232.27 (1977); Ga.Code Ann. §§ 32-835, 32-836 (1976); Haw.Rev.Stat. §§ 298-16 (1975 Supp.), 703-309(2) (Spec. Pamphlet 1975); Ill.Ann.Stat., c. 122, §§ 24-24, 34-84a (1977 Supp.); Ind.Code Ann. § 28.1-5-2 (1975); Md.Ann.Code, Art. 77, § 98B (1975) (in specified counties); Mich.Comp.Laws Ann., § 340.756 (1970); Mont.Rev.Codes Ann. § 75-6109 (1971); Nev.Rev.Stat. § 392.465 (1973); N.C.Gen.Stat. § 115-146 (1975); Ohio Rev.Code Ann. § 3319.41 (1972); Okla.Stat.Ann., Tit. 70, § 6-114 (1972); Pa.Stat.Ann., Tit. 24, § 13-1317 (Supp. 1976); S.C.Code § 59-63-260 (1977); S.D. Compiled Laws Ann. § 13-32-2 (1975); Vt.Stat.Ann., Tit. 16, § 1161 (Supp. 1976); Va.Code Ann. § 22-231.1 (1973); W.Va.Code, § 18A-5-1 (1977); Wyo.Stat. § 21.1-64 (Supp. 1975). [ Footnote 24 ] Cal.Educ.Code § 49001 (West Supp. 1977) (requiring prior parental approval in writing); Fla.Stat.Ann. § 232.27(3) (1977) (requiring a written explanation on request); Mont.Rev.Codes Ann. § 75-6109 (1971) (requiring prior parental notification). [ Footnote 25 ] Md.Ann.Code, Art. 77, § 98B (1975). [ Footnote 26 ] Fla.Stat.Ann. § 232.27 (1977); Haw.Rev. Stats. § 298-16 (1975 Supp.); Mont.Rev.Codes Ann. § 75-6109 (1971). [ Footnote 27 ] Mass.Gen.Laws Ann., c. 71, § 37G (Supp. 1976); N.J.Stat.Ann. § 18A:6-1 (1968). [ Footnote 28 ] E.g., Suits v. Glover, 260 Ala. 449, 71 So. 2d 49 (1954); La Frentz v. Gallagher, 105 Ariz. 255, 462 P.2d 804 (1969); Berry v. Arnold School Dist., 199 Ark. 1118, 137 S.W.2d 256 (1940); Andreozzi v. Rubano, 145 Conn.280, 141 A.2d 639 (1958); Tinkham v. Kole, 252 Iowa 1303, 110 N.W.2d 258 (1961); Carr v. Wright, 423 S.W.2d 521 (Ky.1968); Christman v. Hickman, 225 Mo.App. 828, 37 S.W.2d 672 (1931); Simms v. School Dist. No. 1, 13 Ore.App. 119, 508 P.2d 236 (1973); Marlar v. Bill, 181 Tenn. 100, 178 S.W.2d 634 (1944); Prendergast v. Masterson, 196 S.W. 246 (Tex.Civ.App. 1917). See generally sources cited n 19, supra. [ Footnote 29 ] See Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 168 -173 (1976) (joint opinion of STEWART, POWELL, and STEVENS, JJ.) (hereinafter joint opinion); Furman v. Georgia, 408 U. S. 238 , 408 U. S. 316 -328 (1972) (MARSHALL, J., concurring); Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839 (1969). [ Footnote 30 ] See I. Brant, The Bill of Rights 155 (1965). [ Footnote 31 ] See Granucci, supra, at 852-860. [ Footnote 32 ] Id. at 855. [ Footnote 33 ] The preamble reads in part: "WHEREAS the late King James the Second, by the assistance of divers evil counselors, judges, and ministers employed by him, did endeavor to subvert and extirpate . . . the laws and liberties of this kingdom." " * * * *" "10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects." "11. And excessive fines have been imposed; and illegal and cruel punishments inflicted. . . ." R. Perry & J. Cooper, Sources of Our Liberties 245-246 (1959). [ Footnote 34 ] 4 W. Blackstone, Commentaries *297 (bail), *379 (fines and other punishments). [ Footnote 35 ] Abraham Holmes of Massachusetts complained specifically of the absence of a provision restraining Congress in its power to determine "what kind of punishments shall be inflicted on persons convicted of crimes." 2 J. Elliot, Debates on the Federal Constitution 111 (1876). Patrick Henry was of the same mind: "What says our [Virginia] bill of rights? -- 'that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Are you not, therefore, now calling on those gentlemen who are to compose Congress, to prescribe trials and define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more -- you depart from the genius of your country. . . ." 3 id. at 47. [ Footnote 36 ] In urging us to extend the Eighth Amendment to ban school paddlings, petitioners rely on the many decisions in which this Court has held that the prohibition against "cruel and unusual" punishments is not " fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.'" Gregg v. Georgia, 428 U.S. at 428 U. S. 171 (joint opinion); see, e.g., Trop v. Dulles, 356 U. S. 86 , 356 U. S. 100 -101 (1958) (plurality opinion); Weems v. United States, 217 U. S. 349 , 217 U. S. 373 , 217 U. S. 378 (1910). This reliance is misplaced. Our Eighth Amendment decisions have referred to "evolving standards of decency," Trop v. Dulles, supra at 356 U. S. 101 , only in determining whether criminal punishments are "cruel and unusual" under the Amendment. [ Footnote 37 ] Some punishments, though not labeled "criminal" by the State, may be sufficiently analogous to criminal punishments in the circumstances in which they are administered to justify application of the Eighth Amendment. Cf. In re Gault, 387 U. S. 1 (1967). We have no occasion in this case, for example, to consider whether or under what circumstances persons involuntarily confined in mental or juvenile institutions can claim the protection of the Eighth Amendment. [ Footnote 38 ] Judge Friendly similarly has observed that the Cruel and Unusual Punishments Clause "can fairly be deemed to be applicable to the manner in which an otherwise constitutional sentence . . . is carried out by an executioner, see Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 . . . (1947), or to cover conditions of confinement which my make intolerable an otherwise constitutional term of imprisonment." Johnson v. Glick, 481 F.2d 1028, 1032 (CA2), cert. denied, 414 U.S. 1033 (1973) (citation omitted). [ Footnote 39 ] Putting history aside as irrelevant, the dissenting opinion of MR. JUSTICE WHITE argues that a "purposive analysis" should control the reach of the Eighth Amendment. Post at 430 U. S. 686 -688. There is no support whatever for this approach in the decisions of this Court. Although an imposition must be "punishment" for the Cruel and Unusual Punishments Clause to apply, the Court has never held that all punishments are subject to Eighth Amendment scrutiny. See n 40, infra. The applicability of the Eighth Amendment always has turned on its original meaning, as demonstrated by its historical derivation. See Gregg v. Georgia, 428 U.S. at 428 U. S. 169 -173 (joint opinion); Furman v. Georgia, 408 U.S. at 408 U. S. 315 -328 (MARSHALL, J., concurring). The dissenting opinion warns that, as a consequence of our decision today, teachers may "cut off a child's ear for being late to class." Post at 430 U. S. 684 . This rhetoric bears no relation to reality or to the issues presented in this case. The laws of virtually every State forbid the excessive physical punishment of school children. Yet the logic of the dissent would make the judgment of which disciplinary punishments are reasonable and which are excessive a matter of constitutional principle in every case, to be decided ultimately by this Court. The hazards of such a broad reading of the Eighth Amendment are clear. "It is always time to say that this Nation is too large, too complex and composed of too great a diversity of peoples for any one of us to have the wisdom to establish the rules by which local Americans must govern their local affairs. The constitutional rule we are urged to adopt is not merely revolutionary -- it departs from the ancient faith based on the premise that experience in making local laws by local people themselves is by far the safest guide for a nation like ours to follow." Powell v. Texas, 392 U. S. 514 , 392 U. S. 547 -548 (1968) (opinion of Black, J.). [ Footnote 40 ] Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. See United States v. Lovett, 328 U. S. 303 , 328 U. S. 317 -318 (1946). Thus, in Trop v. Dulles, 356 U. S. 86 (1958), the plurality appropriately took the view that denationalization was an impermissible punishment for wartime desertion under the Eighth Amendment, because desertion already had been established at a criminal trial. But in Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), where the Court considered denationalization as a punishment for evading the draft, the Court refused to reach the Eighth Amendment issue, holding instead that the punishment could be imposed only through the criminal process. Id. at 372 U. S. 162 -167, 372 U. S. 186 , and n. 43. As these cases demonstrate, the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment. [ Footnote 41 ] See 1 W. Blackstone, Commentaries *134. Under the 39th Article of the Magna Carta, an individual could not be deprived of this right of personal security "except by the legal judgment of his peers or by the law of the land." Perry & Cooper, supra, n 33, at 17. By subsequent enactments of Parliament during the time of Edward III, the right was protected from deprivation except "by due process of law." See Shattuck, The True Meaning of the Term "Liberty," 4 Harv.L.Rev. 365, 372-373 (1891). [ Footnote 42 ] See, e.g., Skinner v. Oklahoma, 316 U. S. 535 , 316 U. S. 541 (1942) (sterilization); Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Union Pacific R. Co. v. Botsford, 141 U. S. 250 , 141 U. S. 251 -252 (1891) (physical examinations); cf. ICC v. Brimson, 154 U. S. 447 , 154 U. S. 479 (1894). The right of personal security is also protected by the Fourth Amendment, which was made applicable to the States through the Fourteenth because its protection was viewed as "implicit in the concept of ordered liberty' . . . enshrined in the history and the basic constitutional documents of English-speaking peoples." Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 -28 (1949). It has been said of the Fourth Amendment that its "overriding function . . . is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. California, 384 U. S. 757 , 384 U. S. 767 (1966). But the principal concern of that Amendment's prohibition against unreasonable searches and seizures is with intrusions on privacy in the course of criminal investigations. See Whalen v. Roe, 429 U. S. 589 , 429 U. S. 604 n. 32 (1977). Petitioners do not contend that the Fourth Amendment applies, according to its terms, to corporal punishment in public school. [ Footnote 43 ] Unlike Goss v. Lopez, 419 U. S. 565 (1975), this case does not involve the state-created property interest in public education. The purpose of corporal punishment is to correct a child's behavior without interrupting his education. That corporal punishment may, in a rare case, have the unintended effect of temporarily removing a child from school affords no basis for concluding that the practice itself deprives students of property protected by the Fourteenth Amendment. Nor does this case involve any state-created interest in liberty going beyond the Fourteenth Amendment's protection of freedom from bodily restraint and corporal punishment. Cf. Meachum v. Fano, 427 U. S. 215 , 427 U. S. 225 -227 (1976). [ Footnote 44 ] If the common law privilege to inflict reasonable corporal punishment in school were inapplicable, it is doubtful whether any procedure short of a trial in a criminal or juvenile court could satisfy the requirements of procedural due process for the imposition of such punishment. See United States v. Lovett, 328 U.S. at 328 U. S. 317 -318; cf. Breed v. Jones, 421 U. S. 519 , 421 U. S. 528 -529 (1975). [ Footnote 45 ] See supra at 430 U. S. 655 -657, 430 U. S. 661 . The statutory prohibition against "degrading" or unnecessarily "severe" corporal punishment in former § 232.27 has been construed as a statement of the common law principle. See 1937 Op.Fla.Atty.Gen., Biennial Report of the Atty.Gen. 169 (1937-1938); cf. 1957 Op.Fla.Atty.Gen., Biennial Report of the Atty.Gen. 7, 8 (1957-1958). Florida Stat.Ann. § 827.03(3) (1976) makes malicious punishment of a child a felony. Both the District Court, App. 144, and the Court of Appeals, 525 F.2d at 915, expressed the view that the common law tort remedy was available to the petitioners in this case. And petitioners conceded in this Court that a teacher who inflicts excessive punishment on a child may be held both civilly and criminally liable under Florida law. Brief for Petitioners 33 n. 11, 34; Tr. of Oral Arg. 17, 52-53. In view of the statutory adoption of the common law rule, and the unanimity of the parties and the courts below, the doubts expressed in MR. JUSTICE WHITE's dissenting opinion as to the availability of tort remedies in Florida can only be viewed as chimerical. The dissent makes much of the fact that no Florida court has ever "recognized" a damages remedy for unreasonable corporal punishment. Post at 430 U. S. 694 n. 11, 430 U. S. 700 . But the absence of reported Florida decisions hardly suggests that no remedy is available. Rather, it merely confirms the common sense judgment that excessive corporal punishment is exceedingly rare in the public schools. [ Footnote 46 ] The low incidence of abuse, and the availability of established judicial remedies in the event of abuse, distinguish this case from Goss v. Lopez, 419 U. S. 565 (1975). The Ohio law struck down in Goss provided for suspensions from public school of up to 10 days without "any written procedure applicable to suspensions." Id. at 419 U. S. 567 . Although Ohio law provided generally for administrative review, Ohio Rev.Code Ann. § 2506.01 (Supp. 1973), the Court assumed that the short suspensions would not be stayed pending review, with the result that the review proceeding could serve neither a deterrent nor a remedial function. 419 U.S. at 419 U. S. 581 n. 10. In these circumstances, the Court held the law authorizing suspensions unconstitutional for failure to require "that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension. . . ." Id. at 419 U. S. 584 . The subsequent civil and criminal proceedings available in this case may be viewed as affording substantially greater protection to the child than the informal conference mandated by Goss. [ Footnote 47 ] "[P]rior hearings might well be dispensed with in many circumstances in which the state's conduct, if not adequately justified, would constitute a common law tort. This would leave the injured plaintiff in precisely the same posture as a common law plaintiff, and this procedural consequence would be quite harmonious with the substantive view that the fourteenth amendment encompasses the same liberties as those protected by the common law." Monaghan, Of "Liberty" and "Property," 62 Cornell L.Rev. 405, 431 (1977) (footnote omitted). See Bonner v. Coughlin, 517 F.2d 1311, 1319 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. pending, No. 76-6204. We have no occasion in this case, see supra at 430 U. S. 659 , and n. 12, to decide whether or under what circumstances corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause. [ Footnote 48 ] See also Terry v. Ohio, 392 U. S. 1 (1968). The reasonableness of a warrantless public arrest may be subjected to subsequent judicial scrutiny in a civil action against the law enforcement officer or in a suppression hearing to determine whether any evidence seized in the arrest may be used in a criminal trial. [ Footnote 49 ] "[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions. . . ." Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 344 (1976). [ Footnote 50 ] If a prior hearing, with the inevitable attendant publicity within the school, resulted in rejection of the teacher's recommendation, the consequent impairment of the teacher's ability to maintain discipline in the classroom would not be insubstantial. [ Footnote 51 ] The effect of interposing prior procedural safeguards may well be to make the punishment more severe by increasing the anxiety of the child. For this reason, the school authorities in Dade County found it desirable that the punishment be inflicted as soon as possible after the infraction. App. 449. [ Footnote 52 ] "It may be true that procedural regularity in disciplinary proceedings promotes a sense of institutional rapport and open communication, a perception of fair treatment, and provides the offender and his fellow students a showcase of democracy at work. But . . . [r]espect for democratic institutions will equally dissipate if they are thought too ineffectual to provide their students an environment of order in which the educational process may go forward. . . ." Wilkinson, Goss v. Lopez: The Supreme Court as School Superintendent, 1975 Sup.Ct.Rev. 25, 71-72. [ Footnote 53 ] The seriousness of the disciplinary problems in the Nation's public schools has been documented in a recent congressional report, Senate Committee on the Judiciary, Subcommittee to Investigate Juvenile Delinquency, Challenge for the Third Century: Education in a Safe Environment -- Final Report on the Nature and Prevention of School Violence and Vandalism, 95th Cong., 1st Sess. (Comm.Print 1977). [ Footnote 54 ] The need to maintain order in a trial courtroom raises similar problems. In that context, this Court has recognized the power of the trial judge "to punish summarily and without notice or hearing contemptuous conduct committed in his presence and observed by him." Taylor v. Hayes, 418 U. S. 488 , 418 U. S. 497 (1974), citing Ex parte Terry, 128 U. S. 289 (1888). The punishment so imposed may be as severe as six months in prison. See Codispoti v. Pennsylvania, 418 U. S. 506 , 418 U. S. 513 -515 (1974); cf. Muniz v. Hoffman, 422 U. S. 454 , 422 U. S. 475 -476 (1975). [ Footnote 55 ] MR. JUSTICE WHITE's dissenting opinion offers no manageable standards for determining what process is due in any particular case. The dissent apparently would require, as a general rule, only "an informal give-and-take between student and disciplinarian." Post at 430 U. S. 693 . But the dissent would depart from these "minimal procedures" -- requiring even witnesses, counsel, and cross-examination -- in cases where the punishment reaches some undefined level of severity. Post at 430 U. S. 700 n. 18. School authorities are left to guess at the degree of punishment that will require more than an "informal give-and-take" and at the additional process that may be constitutionally required. The impracticality of such an approach is self-evident, and illustrates the hazards of ignoring the traditional solution of the common law. We agree with the dissent that the Goss procedures will often be, "if anything, less than a fair-minded school principal would impose upon himself." Post at 430 U. S. 700 , quoting Goss, 419 U.S. at 419 U. S. 583 . But before this Court invokes the Constitution to impose a procedural requirement, it should be reasonably certain that the effect will be to afford protection appropriate to the constitutional interests at stake. The dissenting opinion's reading of the Constitution suggests no such beneficial result and, indeed, invites a lowering of existing constitutional standards. MR. JUSTICE WHITE, with whom MR JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting. Today the Court holds that corporal punishment in public schools, no matter how severe, can never be the subject of the protections afforded by the Eighth Amendment. It also holds Page 430 U. S. 684 that students in the public school systems are not constitutionally entitled to a hearing of any sort before beatings can be inflicted on them. Because I believe that these holdings are inconsistent with the prior decisions of this Court and are contrary to a reasoned analysis of the constitutional provisions involved, I respectfully dissent. I A The Eighth Amendment places a flat prohibition against the infliction of "cruel and unusual punishments." This reflects a societal judgment that there are some punishments that are so barbaric and inhumane that we will not permit them to be imposed on anyone, no matter how opprobrious the offense. See Robinson v. California, 370 U. S. 660 , 370 U. S. 676 (1962) (Douglas, J., concurring). If there are some punishments that are so barbaric that they may not be imposed for the commission of crimes, designated by our social system as the most thoroughly reprehensible acts an individual can commit, then, a fortiori, similar punishments may not be imposed on persons for less culpable acts, such as breaches of school discipline. Thus, if it is constitutionally impermissible to cut off someone's ear for the commission of murder, it must be unconstitutional to cut off a child's ear for being late to class. [ Footnote 2/1 ] Although there were no ears cut off in this case, the Page 430 U. S. 685 record reveals beatings so severe that, if they were inflicted on a hardened criminal for the commission of a serious crime, they might not pass constitutional muster. Nevertheless, the majority holds that the Eighth Amendment "was designed to protect [only] those convicted of crimes," ante at 430 U. S. 664 , relying on a vague and inconclusive recitation of the history of the Amendment. Yet the constitutional prohibition is against cruel and unusual punishments; nowhere is that prohibition limited or modified by the language of the Constitution. Certainly, the fact that the Framers did not choose to insert the word "criminal" into the language of the Eighth Amendment is strong evidence that the Amendment was designed to prohibit all inhumane or barbaric punishments, no matter what the nature of the offense for which the punishment is imposed. No one can deny that spanking of school children is "punishment" under any reasonable reading of the word, for the similarities between spanking in public schools and other forms of punishment are too obvious to ignore. Like other forms of punishment, spanking of school children involves an institutionalized response to the violation of some official rule or regulation proscribing certain conduct and is imposed Page 430 U. S. 686 for the purpose of rehabilitating the offender, deterring the offender and others like him from committing the violation in the future, and inflicting some measure of social retribution for the harm that has been done. B We are fortunate that, in our society, punishments that are severe enough to raise a doubt as to their constitutional validity are ordinarily not imposed without first affording the accused the full panoply of procedural safeguards provided by the criminal process. [ Footnote 2/2 ] The effect has been that "every decision of this Court considering whether a punishment is 'cruel and unusual' within the meaning of the Eighth and Fourteenth Amendments has dealt with a criminal punishment." Ante at 430 U. S. 666 . The Court would have us believe from this fact that there is a recognized distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. This is plainly wrong. "[E]ven a clear legislative classification of a statute as non-penal' would not alter the fundamental nature of a plainly penal statute." Trop v. Dulles, 356 U. S. 86 , 356 U. S. 95 (1958) (plurality opinion). The relevant inquiry is not whether the offense for which a punishment is inflicted has been labeled as criminal, but whether the purpose of the deprivation is among those ordinarily associated Page 430 U. S. 687 with punishment, such as retribution, rehabilitation, or deterrence. [ Footnote 2/3 ] Id. at 356 U. S. 96 . Cf. Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963) If this purposive approach were followed in the present case, it would be clear that spanking in the Florida public schools is punishment within the meaning of the Eighth Amendment. The District Court found that "[c]orporal punishment is one of a variety of measures employed in the school system for the correction of pupil behavior and the preservation of order." App 146. Behavior correction and Page 430 U. S. 688 preservation of order are purposes ordinarily associated with punishment. Without even mentioning the purposive analysis applied in the prior decisions of this Court, the majority adopts a rule that turns on the label given to the offense for which the punishment is inflicted. Thus, the record in this case reveals that one student at Drew Junior High School received 50 licks with a paddle for allegedly making an obscene telephone call. Brief for Petitioners 13. The majority holds that the Eighth Amendment does not prohibit such punishment, since it was only inflicted for a breach of school discipline. However, that same conduct is punishable as a misdemeanor under Florida law, Fla.Stat.Ann. § 365.18 (Supp. 177), and there can be little doubt that, if that same "punishment" had been inflicted by an officer of the state courts for violation of § 365.16, it would have had to satisfy the requirements of the Eighth Amendment. C In fact, as the Court recognizes, the Eighth Amendment has never been confined to criminal punishments. [ Footnote 2/4 ] Nevertheless, the majority adheres to its view that any protections afforded by the Eighth Amendment must have something to do with Page 430 U. S. 689 criminals, and it would therefore confine any exceptions to its general rule that only criminal punishments are covered by the Eighth Amendment to abuses inflicted on prisoners. Thus, if a prisoner is beaten mercilessly for a breach of discipline, he is entitled to the protection of the Eighth Amendment, while a school child who commits the same breach of discipline and is similarly beaten is simply not covered. The purported explanation of this anomaly is the assertion that school children have no need for the Eighth Amendment. We are told that schools are open institutions, subject to constant public scrutiny; that school children have adequate remedies under state law; [ Footnote 2/5 ] and that prisoners suffer the social stigma of being labeled as criminals. How any of these policy considerations got into the Constitution is difficult to discern, for the Court has never considered any of these factors in determining the scope of the Eighth Amendment. [ Footnote 2/6 ] Page 430 U. S. 690 The essence of the majority's argument is that school children do not need Eighth Amendment protection, because corporal punishment is less subject to abuse in the public schools than it is in the prison system. [ Footnote 2/7 ] However, it cannot be reasonably suggested that, just because cruel and unusual punishments may occur less frequently under public scrutiny, they will not occur at all. The mere fact that a public flogging or a public execution would be available for all to see would not render the punishment constitutional if it were otherwise impermissible. Similarly, the majority would not suggest that a prisoner who is placed in a minimum security prison and permitted to go home to his family on the weekends should be any less entitled to Eighth Amendment protections than his counterpart in a maximum security prison. In short, if a punishment is so barbaric and inhumane that it goes beyond the tolerance of a civilized society, its openness to public scrutiny should have nothing to do with its constitutional validity. Nor is it an adequate answer that school children may have other state and constitutional remedies available to them. Even assuming that the remedies available to public school students are adequate under Florida law, [ Footnote 2/8 ] the availability of state remedies has never been determinative of the coverage or of the protections afforded by the Eighth Amendment. The reason is obvious. The fact that a person may have a Page 430 U. S. 691 state law cause of action against a public official who tortures him with a thumbscrew for the commission of an antisocial act has nothing to do with the fact that such official conduct is cruel and unusual punishment prohibited by the Eighth Amendment. Indeed, the majority's view was implicitly rejected this Term in Estelle v. Gamble, 429 U. S. 97 (1976), when the Court held that failure to provide for the medical needs of prisoners could constitute cruel and unusual punishment even though a medical malpractice remedy in tort was available to prisoners under state law. Id. at 429 U. S. 107 n. 15. D By holding that the Eighth Amendment protects only criminals, the majority adopts the view that one is entitled to the protections afforded by the Eighth Amendment only if he is punished for acts that are sufficiently opprobrious for society to make them "criminal." This is a curious holding in view of the fact that the more culpable the offender, the more likely it is that the punishment will not be disproportionate to the offense, and consequently, the less likely it is that the punishment will be cruel and unusual. [ Footnote 2/9 ] Conversely, a public school student who is spanked for a mere breach of discipline may sometimes have a strong argument that the punishment does not fit the offense, depending upon the severity of the beating, and therefore that it is cruel and unusual. Yet the majority would afford the student no protection no matter how inhumane and barbaric the punishment inflicted on him might be. The issue presented in this phase of the case is limited to whether corporal punishment in public schools can ever be prohibited by the Eighth Amendment. I am therefore not Page 430 U. S. 692 suggesting that spanking in the public schools is, in every instance, prohibited by the Eighth Amendment. My own view is that it is not. I only take issue with the extreme view of the majority that corporal punishment in public schools, no matter how barbaric, inhumane, or severe, is never limited by the Eighth Amendment. Where corporal punishment becomes so severe as to be unacceptable in a civilized society, I can see no reason that it should become any more acceptable just because it is inflicted on children in the public schools. II The majority concedes that corporal punishment in the public schools implicates an interest protected by the Due Process Clause -- the liberty interest of the student to be free from "bodily restraint and punishment" involving "appreciable physical pain" inflicted by persons acting under color of state law. Ante at 430 U. S. 674 . The question remaining, as the majority recognizes, is what process is due. The reason that the Constitution requires a State to provide "due process of law" when it punishes an individual for misconduct is to protect the individual from erroneous or mistaken punishment that the State would not have inflicted had it found the facts in a more reliable way. See, e.g., Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 , 344 (1976). In Goss v. Lopez, 419 U. S. 565 (1975), the Court applied this principle to the school disciplinary process, holding that a student must be given an informal opportunity to be heard before he is finally suspended from public school. " Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others, and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference Page 430 U. S. 693 with the educational process." Id. at 419 U. S. 580 . (Emphasis added.) To guard against this risk of punishing an innocent child, the Due Process Clause requires not an "elaborate hearing" before a neutral party, but simply "an informal give-and-take between student and disciplinarian" which gives the student "an opportunity to explain his version of the facts." Id. at 419 U. S. 580 , 419 U. S. 582 , 419 U. S. 584 . The Court now holds that these "rudimentary precautions against unfair or mistaken findings of misconduct," id. at 419 U. S. 581 , are not required if the student is punished with "appreciable physical pain," rather than with a suspension, even though both punishments deprive the student of a constitutionally protected interest. Although the respondent school authorities provide absolutely no process to the student before the punishment is finally inflicted, the majority concludes that the student is nonetheless given due process because he can later sue the teacher and recover damages if the punishment was "excessive." This tort action is utterly inadequate to protect against erroneous infliction of punishment for two reasons. [ Footnote 2/10 ] First, under Florida law, a student punished for an act he did not commit cannot recover damages from a teacher "proceeding Page 430 U. S. 694 in utmost good faith . . . on the reports and advice of others," supra at 430 U. S. 692 ; the student has no remedy at all for punishment imposed on the basis of mistaken facts, at least as long as the punishment was reasonable from the point of view of the disciplinarian, uninformed by any prior hearing. [ Footnote 2/11 ] The "traditional Page 430 U. S. 695 common law remedies" on which the majority relies, ante at 430 U. S. 672 , thus do nothing to protect the student from the danger that concerned the Court in Goss -- the risk of reasonable, good faith mistake in the school disciplinary process. Second, and more important, even if the student could sue for good faith error in the infliction of punishment, the lawsuit occurs after the punishment has been finally imposed. The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding. There is every reason to require, as the Court did in Goss, a few minutes of "informal give-and-take between student and disciplinarian" Page 430 U. S. 696 as a "meaningful hedge" against the erroneous infliction of irreparable injury. 419 U.S. at 419 U. S. 583 -584. [ Footnote 2/12 ] The majority's conclusion that a damages remedy for excessive corporal punishment affords adequate process rests on the novel theory that the State may punish an individual without giving him any opportunity to present his side of the story, as long as he can later recover damages from a state official if he is innocent. The logic of this theory would permit a State that punished speeding with a one-day jail sentence to make a driver serve his sentence first without a trial and then sue to recover damages for wrongful imprisonment. [ Footnote 2/13 ] Similarly, the State could finally take away a prisoner's good-time credits for alleged disciplinary infractions and require him to bring a damages suit after he was eventually released. There is no authority for this theory, nor does the majority purport to find any, [ Footnote 2/14 ] in the procedural due process Page 430 U. S. 697 decisions of this Court. Those cases have "consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests . . . , [and that] a person's liberty is equally protected. . . ." Wolff v. McDonnell, 418 U. S. 539 , 418 U. S. 557 -558 (1974). (Emphasis added.) The majority attempts to support its novel theory by drawing an analogy to warrantless arrests on probable cause, which the Court has held reasonable under the Fourth Amendment. United States v. Watson, 423 U. S. 411 (1976). This analogy fails for two reasons. First, the particular requirements of the Fourth Amendment, rooted in the "ancient common law rule[s]" regulating police practices, id. at 423 U. S. 418 , must be understood in the context of the criminal justice system for which that Amendment was explicitly tailored. Thus, in Gerstein v. Pugh, 420 U. S. 103 (1975), the Court, speaking through MR. JUSTICE POWELL, rejected the argument that procedural protections required in Goss and other due process Page 430 U. S. 698 cases should be afforded to a criminal suspect arrested without a warrant. "The Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interests always has been thought to define the 'process that is due' for seizures of person or property in criminal cases, including the detention of suspects pending trial. . . . Moreover, the Fourth Amendment probable cause determination is, in fact, only the first stage of an elaborate system, unique in jurisprudence, designed to safeguard the rights of those accused of criminal conduct. The relatively simple civil procedures (e.g., prior interview with school principal before suspension) presented in the [procedural due process] cases cited in the concurring opinion are inapposite and irrelevant in the wholly different context of the criminal justice system. " Id. at 420 U. S. 125 n. 27. (Emphasis in last sentence added.) While a case dealing with warrantless arrests is perhaps not altogether "inapposite and irrelevant in the wholly different context" of the school disciplinary process, such a case is far weaker authority than procedural due process cases such as Goss v. Lopez, 419 U. S. 565 (1975), that deal with deprivations of liberty outside the criminal context. Second, contrary to the majority's suggestion, ante at 430 U. S. 680 n. 48, the reason that the Court has upheld warrantless arrests on probable cause is not because the police officer's assessment of the facts "may be subjected to subsequent judicial scrutiny in a civil action against the law enforcement officer or in a suppression hearing. . . ." The reason that the Court has upheld arrests without warrants is that they are the "first stage of an elaborate system" of procedural protections, Gerstein v. Pugh, supra at 420 U. S. 125 n. 27, and that the State is not free to continue the deprivation beyond this first stage without procedures. The Constitution requires the State to provide Page 430 U. S. 699 "a fair and reliable determination of probable cause" by a judicial officer prior to the imposition of " any significant pretrial restraint of liberty " other than "a brief period of detention to take the administrative steps incident to [a warrantless] arrest." Id. at 420 U. S. 114 , 420 U. S. 125 . (Footnote omitted; emphasis added.) This "practical compromise" is made necessary because "requiring a magistrate's review of the factual justification prior to any arrest . . . would constitute an intolerable handicap for legitimate law enforcement," id. at 420 U. S. 113 ; but it is the probable cause determination prior to any significant period of pretrial incarceration, rather than a damages action or suppression hearing, that affords the suspect due process. There is, in short, no basis in logic or authority for the majority's suggestion that an action to recover damages for excessive corporal punishment "afford[s] substantially greater protection to the child than the informal conference mandated by Goss. " [ Footnote 2/15 ] The majority purports to follow the settled principle that what process is due depends on "'the risk of an erroneous deprivation of [the protected] interest . . . and the probable value, if any, of additional or substitute procedural safeguards;' [ Footnote 2/16 ]" it recognizes, as did Goss, the risk of error in the school disciplinary process [ Footnote 2/17 ] and concedes that "the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment . . . ," ante at 430 U. S. 676 ; Page 430 U. S. 700 but it somehow concludes that this risk is adequately reduced by a damages remedy that never has been recognized by a Florida court, that leaves unprotected the innocent student punished by mistake, and that allows the State to punish first and hear the student's version of events later. I cannot agree. The majority emphasizes, as did the dissenters in Goss, that even the "rudimentary precautions" required by that decision would impose some burden on the school disciplinary process. But those costs are no greater if the student is paddled, rather than suspended; the risk of error in the punishment is no smaller; and the fear of "a significant intrusion" into the disciplinary process, ante at 430 U. S. 682 ( cf. Goss, supra at 419 U. S. 585 (POWELL, J., dissenting)), is just as exaggerated. The disciplinarian need only take a few minutes to give the student "notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story." 419 U.S. at 419 U. S. 581 . In this context, the Constitution requires, "if anything, less than a fair-minded school principal would impose upon himself" in order to avoid injustice. [ Footnote 2/18 ] Id. at 419 U. S. 583 . I would reverse the judgment below. [ Footnote 2/1 ] There is little reason to fear that, if the Eighth Amendment is held to apply at all to corporal punishment of school children, all paddlings, however moderate, would be prohibited. Jackson v. Bishop, 404 F.2d 571 (CA8 1968), held that any paddling or flogging of prisoners, convicted of crime and serving prison terms, violated the cruel and unusual punishment ban of the Eighth Amendment. But aside from the fact that Bishop has never been embraced by this Court, the theory of that case was not that bodily punishments are intrinsically barbaric or excessively severe, but that paddling of prisoners is "degrading to the punisher and to the punished alike." Id. at 580. That approach may be acceptable in the criminal justice system, but it has little if any relevance to corporal punishment in the schools, for it can hardly be said that the use of moderate paddlings in the discipline of children is inconsistent with the country's evolving standards of decency. On the other hand, when punishment involves a cruel, severe beating or chopping off an ear, something more than merely the dignity of the individual is involved. Whenever a given criminal punishment is "cruel and unusual" because it is inhumane or barbaric, I can think of no reason why it would be any less inhumane or barbaric when inflicted on a school child, as punishment for classroom misconduct. The issue in this case is whether spankings inflicted on public school children for breaking school rules is "punishment," not whether such punishment is "cruel and unusual." If the Eighth Amendment does not bar moderate spanking in public schools, it is because moderate spanking is not "cruel and unusual," not because it is not "punishment" as the majority suggests. [ Footnote 2/2 ] By no means is it suggested that just because spanking of school children is "punishment" within the meaning of the Cruel and Unusual Punishments Clause, the school disciplinary process is in any way "criminal," and therefore subject to the full panoply of criminal procedural guarantees. See 430 U. S. infra. Ordinarily, the conduct for which school children are punished is not sufficiently opprobrious to be called "criminal" in our society, and even violations of school disciplinary rules that might also constitute a crime, see infra at 430 U. S. 688 , are not subject to the criminal process. See Baxter v. Palmigiano, 425 U. S. 308 (1976), where the Court held that persons who violate prison disciplinary rules are not entitled to the full panoply of criminal procedural safeguards, even if the rule violation might also constitute a crime. [ Footnote 2/3 ] The majority cites Trop as one of the cases that "dealt with a criminal punishment," but neglects to follow the analysis mandated by that decision. In Trop, the petitioner was convicted of desertion by a military court-martial and sentenced to three years at hard labor, forfeiture of all pay and allowances, and a dishonorable discharge. After he was punished for the offense he committed, petitioner's application for a passport was turned down. Petitioner was told that he had been deprived of the "rights of citizenship" under § 401(g) of the Nationality Act of 1940 because he had been dishonorably discharged from the Armed Forces. The plurality took the view that denationalization in this context was cruel and unusual punishment prohibited by the Eighth Amendment. The majority would have us believe that the determinative factor in Trop was that the petitioner had been convicted of desertion; yet there is no suggestion in Trop that the disposition of the military court-martial had anything to do with the decision in that case. Instead, while recognizing that the Eighth Amendment extends only to punishments that are penal in nature, the plurality adopted a purposive approach for determining when punishment is penal. "In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc. -- it has been considered penal. But a statute has been considered nonpenal if it imposes a disability not to punish, but to accomplish some other legitimate governmental purpose." 356 U.S. at 356 U. S. 96 (footnotes omitted). Although the quoted passage is taken from the plurality opinion of Mr Chief Justice Warren, joined by three other Justices, MR. JUSTICE BRENNAN, in a concurring opinion, adopted a similar approach in concluding that § 401(g) was beyond the power of Congress to enact. [ Footnote 2/4 ] Ante at 430 U. S. 669 . In Estelle v. Gamble, 429 U. S. 97 (1976), a case decided this Term, the Court held that "deliberate indifference to the medical needs of prisoners" by prison officials constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Such deliberate indifference to a prisoner's medical needs clearly is not punishment inflicted for the commission of a crime; it is merely misconduct by a prison official. Similarly, the Eighth Circuit has held that whipping a prisoner with a strap in order to maintain discipline is prohibited by the Eighth Amendment. Jackson v. Bishop, 404 F.2d 571 (1968) (Blackmun, J.). See also Knecht v. Gillman, 488 F.2d 1136, 1139-1140 (CA8 1973) (injection of vomit-inducing drugs as part of aversion therapy held to be cruel and unusual); Vann v. Scott, 467 F.2d 1235, 1241241 (CA7 1972) (Stevens, J.) (Eighth Amendment protects runaway children against cruel and inhumane treatment, regardless of whether such treatment is labeled "rehabilitation" or "punishment"). [ Footnote 2/5 ] By finding that bodily punishment invades a constitutionally protected liberty interest within the meaning of the Due Process Clause, the majority suggests that the Clause might also afford a remedy for excessive spanking independently of the Eighth Amendment. If this were the case, the Court's present thesis would have little practical significance. If, rather than holding that the Due Process Clause affords a remedy by way of the express commands of the Eighth Amendment, the majority would recognize a cause of action under 42 U.S.C. § 1983 for a deprivation of "liberty" flowing from an excessive paddling, the Court's opinion is merely a lengthy word of advice with respect to the drafting of civil complaints. Petitioners in this case did raise the substantive due process issue in their petition for certiorari, ante at 430 U. S. 659 n. 12, but consideration of that question was foreclosed by our limited grant of certiorari. If it is probable that school children would be entitled to protection under some theory of substantive due process, the Court should not now affirm the judgment below, but should amend the grant of certiorari and set this case for reargument. [ Footnote 2/6 ] In support of its policy considerations, the only cases from this Court cited by the majority are Morrissey v. Brewer, 408 U. S. 471 (1972), and Meachum v. Fano, 427 U. S. 215 (1976), both cases involving prisoners' rights to procedural due process. [ Footnote 2/7 ] There is no evidence in the record that corporal punishment has been abused in the prison systems more often than in the public schools. Indeed, corporal punishment is seldom authorized in state prisons. See Jackson v. Bishop, supra at 580, where MR. JUSTICE (then Judge) BLACKMUN noted: "[O]nly two states still permit the use of the strap [in prisons]. Thus almost uniformly has it been abolished." By relying on its own view of the nature of these two public institutions, without any evidence being heard on the question below, the majority today predicates a constitutional principle on mere armchair speculation. [ Footnote 2/8 ] There is some doubt that the state law remedies available to public school children are adequate. See 430 U.S. 651 fn2/11|>n. 11, infra. [ Footnote 2/9 ] For a penalty to be consistent with the Eighth Amendment "the punishment must not be grossly out of proportion to the severity of the crime." Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 173 (1976) (joint opinion of STEWART, POWELL, and STEVENS, JJ.). [ Footnote 2/10 ] Here, as in Goss v. Lopez, 419 U. S. 565 , 419 U. S. 580 -581, n. 9 (1975), the record suggests that there may be a substantial risk of error in the discipline administered by respondent school authorities. Respondents concede that some of the petitioners who were punished "denied misconduct," and that, "in some cases, the punishments may have been mistaken. . . ." Brief for Respondents 60-61. The Court of Appeals panel below noted numerous instances of students punished despite claims of innocence, 498 F.2d 248, 256-258 (CA5 1974), and was "particularly disturbed by the testimony that whole classes of students were corporally punished for the misconduct of a few." Id. at 268 n. 36. To the extent that the majority focuses on the incidence of and remedies for unduly severe punishments, it fails to address petitioners' claim that procedural safeguards are required to reduce the risk of punishments that are simply mistaken. [ Footnote 2/11 ] The majority's assurances to the contrary, it is unclear to me whether and to what extent Florida law provides a damages action against school officials for excessive corporal punishment. Giving the majority the benefit of every doubt, I think it is fair to say that the most a student punished on the basis of mistaken allegations of misconduct can hope for in Florida is a recovery for unreasonable or bad faith error. But I strongly suspect that even this remedy is not available. Although the majority does not cite a single case decided under Florida law that recognizes a student's right to sue a school official to recover damages for excessive punishment, I am willing to assume that such a tort action does exist in Florida. I nevertheless have serious doubts about whether it would ever provide a recovery to a student simply because he was punished for an offense he did not commit. All the cases in other jurisdictions cited by the majority, ante at 430 U. S. 663 n. 28, involved allegations of punishment disproportionate to the misconduct with which the student was charged; none of the decisions even suggest that a student could recover by showing that the teacher incorrectly imposed punishment for something the student had not done. The majority appears to agree that the damages remedy is available only in cases of punishment unreasonable in light of the misconduct charged. It states: " In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse . . . afford significant protection against unjustified corporal punishment." Ante at 430 U. S. 678 . (Emphasis added.) Even if the common law remedy for excessive punishment extends to punishment that is "excessive" only in the sense that it is imposed on the basis of mistaken facts, the school authorities are still protected from personal liability by common law immunity. (They are protected by statutory immunity for liability for enforcing disciplinary rules "[e]xcept in the case of excessive force or cruel and unusual punishment." Fla.Stat.Ann. § 232.275 (1976).) At a minimum, this immunity would protect school officials from damages liability for reasonable mistakes made in good faith. "Although there have been differing emphases and formulations of the common law immunity of public school officials in cases of student expulsion or suspension, state courts have generally recognized that such officers should be protected from tort liability under state law for all good faith, nonmalicious action taken to fulfill their official duties." Wood v. Strickland, 420 U. S. 308 , 420 U. S. 318 (1975) (adopting this rule for § 1983 suits involving school discipline) (footnote omitted); see id. at 420 U. S. 318 n. 9 (citing state cases). Florida has applied this rule to a police officer's determination of probable cause to arrest; the officer is not liable in damages for an arrest not based on probable cause if the officer reasonably believed that probable cause existed. Miami v. Albro, 120 So. 2d 23, 26 (Fla.Dist.Ct.App. 1960); cf. Middleton v. Fort Walton Beach, 113 So. 2d 431 (Fla.Dist.Ct.App. 1959) (police officer would be personally liable for intentional tort of making an arrest pursuant to warrant he knew to be void); Wilson v. O'Neal, 118 So. 2d 101 (Fla.Dist.Ct.App. 1960) (law enforcement officer not liable in damages for obtaining an arrest warrant on the basis of an incorrect identification). There is every reason to think that the Florida courts would apply a similar immunity standard in a hypothetical damages suit against a school disciplinarian. A final limitation on the student's damages remedy under Florida law is that the student can recover only from the personal assets of the official; the school board's treasury is absolutely protected by sovereign immunity from damages for the torts of its agents. Buck v. McLean, 115 So. 2d 764 (Fla.Dist.Ct.App. 1959). A teacher's limited resources may deter the jury from awarding, or prevent the student from collecting, the full amount of damages to which he is entitled. Cf. Bonner v. Coughlin, 517 F.2d 1311, 1319 n. 23 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert pending, No. 76-6204 (state law remedy affords due process where no sovereign or official immunity bars tort suit for negligence by prison guard). [ Footnote 2/12 ] Cf. G. M. Leasing Corp. v. United States, 429 U. S. 338 , 429 U. S. 351 -359 (1977). The Court there held that, in levying on a taxpayer's assets pursuant to a jeopardy assessment, revenue agents must obtain a warrant before searching the taxpayer's office, but not before seizing his property in a manner that involves no invasion of privacy. G. M. Leasing thus reflects the principle that the case for advance procedural safeguards (such as a magistrate's determination of probable cause) is more compelling when the Government finally inflicts an injury that cannot be repaired in a subsequent judicial proceeding (invasion of privacy) than when it inflicts a temporary injury which can be undone (seizure of property). The infliction of bodily punishment, like the invasion of privacy, presents this most compelling case for advance procedural safeguards [ Footnote 2/13 ] To the extent that the majority attempts to find "a relevant analogy in the criminal law" -- warrantless arrests on probable cause -- to its holding here, ante at 430 U. S. 679 -680 (and see infra at 430 U. S. 697 -699), it has chosen the wrong analogy. If the majority forthrightly applied its present due process analysis to the area of criminal prosecutions, the police officer not only could arrest a suspect without a warrant, but also could convict the suspect without a trial and sentence him to a short jail term. The accused would get his due process in a tort suit for false imprisonment. [ Footnote 2/14 ] For the proposition that the need for a prior hearing is "significantly less compelling" where the State has preserved "common law remedies," ante at 430 U. S. 679 , 430 U. S. 678 , the majority cites only one case, Bonner v. Coughlin, supra, dismissing an allegation by a prisoner that prison guards acting under color of state law had deprived him of property without due process of law by negligently failing to close the door of his cell after a search, with the foreseeable consequence that his trial transcript was stolen. The panel held that the right to recover under state law for the negligence of state employees provided the prisoner with due process of law. The decision is distinguishable from the instant case on two grounds. First, recovery was not barred by sovereign or official immunity, and the state remedy ensured that the prisoner would be "made whole for any loss of property." 517 F.2d at 1319, and n. 23. Cf. Regional Rail Reorganization Act Cases, 419 U. S. 102 , 419 U. S. 156 (1974). The point here, of course, is that the student cannot be made whole for the infliction of wrongful punishment. Second, the State cannot hold a pre-deprivation hearing where it does not intend to inflict the deprivation; the best it can do to protect the individual from an unauthorized and inadvertent act is to provide a damages remedy. 517 F.2d at 1319 n. 25. Here, the deprivation is intentional, and a prior hearing altogether feasible. [ Footnote 2/15 ] Ante at 430 U. S. 678 n. 46. [ Footnote 2/16 ] Ante at 430 U. S. 675 , quoting Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 (1976). [ Footnote 2/17 ] Ante at 430 U. S. 676 , quoting Goss, 419 U.S. at 419 U. S. 579 -580. Elsewhere in its opinion the majority asserts that the risk of error is "typically insignificant" because "paddlings are usually inflicted in response to conduct directly observed by teachers in their presence." Ante at 430 U. S. 677 -678. But it cites no finding or evidence in the record for this assertion, and there is no such restriction in the statute or regulations authorizing corporal punishment. See ante at 430 U. S. 655 n. 6, 430 U. S. 656 n. 7. Indeed, the panel below noted specific instances in which students were punished by an assistant to the principal who was not present when the alleged offenses were committed. 498 F.2d at 257, 259. [ Footnote 2/18 ] My view here expressed that the minimal procedures of Goss are required for any corporal punishment implicating the student's liberty interest is, of course, not meant to imply that this minimum would be constitutionally sufficient no matter how severe the punishment inflicted. The Court made this reservation explicit in Goss by suggesting that more elaborate procedures such as witnesses, counsel, and cross-examination might well be required for suspensions longer than the 10-day maximum involved in that case. 419 U.S. at 419 U. S. 583 -584. A similar caveat is appropriate here. MR. JUSTICE STEVENS, dissenting. MR. JUSTICE WHITE's analysis of the Eighth Amendment issue is, I believe, unanswerable. I am also persuaded that his analysis of the procedural due process issue is correct. Notwithstanding my disagreement with the Court's holding Page 430 U. S. 701 on the latter question, my respect for MR. JUSTICE POWELL's reasoning in 430 U. S. The constitutional prohibition of state deprivations of life, liberty, or property without due process of law does not, by its express language, require that a hearing be provided before any deprivation may occur. To be sure, the timing of the process may be a critical element in determining its adequacy -- that is, in deciding what process is due in a particular context. Generally, adequate notice and a fair opportunity to be heard in advance of any deprivation of a constitutionally protected interest are essential. The Court has recognized, however, that the wording of the command that there shall be no deprivation "without" due process of law is consistent with the conclusion that a post-deprivation remedy is sometimes constitutionally sufficient. [ Footnote 3/1 ] When only an invasion of a property interest is involved, there is a greater likelihood that a damages award will make a person completely whole than when an invasion of the individual's interest in freedom from bodily restraint and punishment has occurred. In the property context, therefore, frequently a post-deprivation state remedy may be all the process that the Fourteenth Amendment requires. It may also be true -- although I do not express an opinion on the point -- that an adequate state remedy for defamation may satisfy the due process requirement when a State has impaired an individual's interest in his reputation. On that hypothesis, the Court's analysis today gives rise to the thought that Paul v. Davis, 424 U. S. 693 , may have been correctly decided on an incorrect rationale. Perhaps the Court will one day Page 430 U. S. 702 agree with MR. JUSTICE BRENNAN s appraisal of the importance of the constitutional interest at stake in id. at 424 U. S. 720 -723, 424 U. S. 734 (dissenting opinion), and nevertheless conclude that an adequate state remedy may prevent every state-inflicted injury to a person's reputation from violating 42 U.S.C. § 1983. [ Footnote 3/2 ] [ Footnote 3/1 ] Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 ; Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 82 , 407 U. S. 90 -92; Ewing v. Mytinger & Casselberry, 339 U. S. 594 , 339 U. S. 598 -600; Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 595 -599; Lawton v. Steele, 152 U. S. 133 , 152 U. S. 140 -142; cf. Gerstein v. Pugh, 420 U. S. 103 , 420 U. S. 113 -114. [ Footnote 3/2 ] Cf. Bonner v. Coughlin, 517 F.2d 1311, 1318-1320 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. pending, No. 76-6204; see also Judge Swygert's thoughtful opinion, id. at 569-578.

Here is a summary of the Ingraham v. Wright case: The U.S. Supreme Court ruled that the Cruel and Unusual Punishments Clause of the Eighth Amendment does not apply to disciplinary corporal punishment in public schools. The Court also held that prior notice and hearing are not required before imposing corporal punishment, as authorized and limited by common law. The case involved pupils in a Florida junior high school who filed a lawsuit against school officials, alleging that they were subjected to excessively harsh disciplinary corporal punishment. The Court's decision considered the historical context of the Eighth Amendment and the safeguards provided by public school settings and common law constraints.

Due Process

Parratt v. Taylor

https://supreme.justia.com/cases/federal/us/451/527/

U.S. Supreme Court Parratt v. Taylor, 451 U.S. 527 (1981) Parratt v. Taylor No. 79-1734 Argued March 2, 1981 Decided May 18, 1981 451 U.S. 527 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Respondent, an inmate of a Nebraska prison, ordered by mail certain hobby materials. After being delivered to the prison, the packages containing the materials were lost when the normal procedure for receipt of mail packages was not followed. Respondent brought an action in Federal District Court under 42 U.S.C. § 1983 against petitioner prison officials to recover the value of the hobby materials, claiming that petitioners had negligently lost the materials, and thereby deprived respondent of property without due process of law in violation of the Fourteenth Amendment. The District Court entered summary judgment for respondent, holding that negligent actions by state officials can be a basis for an action under § 1983, that petitioners were not immune from liability, and that the deprivation of the hobby materials implicated due process rights. The Court of Appeals affirmed. Held: Respondent has not stated a claim for relief under 42 U.S.C. § 1983. Pp. 451 U. S. 531 -544. (a) In any § 1983 action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Pp. 451 U. S. 531 -535. (b) Although respondent has been deprived of property under color of state law, he has not sufficiently alleged a violation of the Due Process Clause of the Fourteenth Amendment. The deprivation did not occur as the result of some established state procedure, but as the result of the unauthorized failure of state agents to follow established state procedure. Moreover, Nebraska has a tort claims procedure which provides a remedy to persons who have suffered a tortious loss at the hands of the State, but which respondent did not use. Such procedure could have fully compensated respondent for his property loss, and was sufficient to satisfy the requirements of due process. Pp. 451 U. S. 535 -544. 620 F.2d 307, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, and STEVENS, JJ., Page 451 U. S. 528 joined. STEWART, J., post, p. 451 U. S. 544 , WHITE, J., post, p. 451 U. S. 545 , and BLACKMUN, J., post, p. 451 U. S. 545 , filed concurring opinions. POWELL, J., filed an opinion concurring in the result, post, p. 451 U. S. 546 . MARSHALL, J., filed an opinion concurring in part and dissenting in part., post p. 451 U. S. 554 . Page 451 U. S. 529 JUSTICE REHNQUIST delivered the opinion of the Court. The respondent is an inmate at the Nebraska Penal and Correctional Complex who ordered by mail certain hobby materials valued at $23.50. The hobby materials were lost, and respondent brought suit under 42 U.S.C. § 1983 to recover their value. At first blush, one might well inquire why respondent brought an action in federal court to recover damages of such a small amount for negligent loss of property, but because 28 U.S.C. § 1343, the predicate for the jurisdiction of the United States District Court, contains no minimum dollar limitation, he was authorized by Congress to bring his action under that section if he met its requirements and if he stated a claim for relief under 42 U.S.C. § 1983. Respondent claimed that his property was negligently lost by prison officials in violation of his rights under the Fourteenth Amendment to the United States Constitution. More specifically, he claimed that he had been deprived of property without due process of law. [ Footnote 1 ] The United States District Court for the District of Nebraska entered summary judgment for respondent, and the United States Court of Appeals for the Eighth Circuit affirmed Page 451 U. S. 530 in a per curiam order. 620 F.2d 307 (1980). We granted certiorari. 449 U.S. 917 (1980). I The facts underlying this dispute are not seriously contested. Respondent paid for the hobby materials he ordered with two drafts drawn on his inmate account by prison officials. The packages arrived at the complex and were signed for by two employees who worked in the prison hobby center. One of the employees was a civilian, and the other was an inmate. Respondent was in segregation at the time, and was not permitted to have the hobby materials. Normal prison procedures for the handling of mail packages is that, upon arrival, they are either delivered to the prisoner who signs a receipt for the package or the prisoner is notified to pick up the package and to sign a receipt. No inmate other than the one to whom the package is addressed is supposed to sign for a package. After being released from segregation, respondent contacted several prison officials regarding the whereabouts of his packages. The officials were never able to locate the packages or to determine what caused their disappearance. In 1976, respondent commenced this action against the petitioners, the Warden and Hobby Manager of the prison, in the District Court seeking to recover the value of the hobby materials which he claimed had been lost as a result of the petitioners' negligence. Respondent alleged that petitioners' conduct deprived him of property without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Respondent chose to proceed in the United States District Court under 28 U.S.C. § 1343 and 42 U.S.C. § 1983, even though the State of Nebraska had a tort claims procedure which provided a remedy to persons who suffered tortious losses at the hands of the State. On October 25, 1978, the District Court granted respondent's Page 451 U. S. 531 motion for summary judgment. The District Court ruled that negligent actions by state officials can be a basis for an action under 42 U.S.C. § 1983; petitioners were not immune from damages actions of this kind; and the deprivation of the hobby kit "implicate[d] due process rights." The District Court explained: "This is not a situation where prison officials confiscated contraband. The negligence of the officials in failing to follow their own policies concerning the distribution of mail resulted in a loss of personal property for [respondent], which loss should not go without redress." App. to Pet. for Cert. 9. II In the best of all possible worlds, the District Court's above-quoted statement that respondent's loss should not go without redress would be an admirable provision to be contained in a code which governed the administration of justice in a civil law jurisdiction. For better or for worse, however, our traditions arise from the common law of case-by-case reasoning and the establishment of precedent. In 49 of the 50 States, the common law system, as modified by statute, constitutional amendment, or judicial decision governs. Coexisting with the 50 States which make it up, and supreme over them to the extent of its authority under Art. IV of the Constitution, is the National Government. At an early period in the history of this Nation, it was held that there was no federal common law of crimes, United States v. Hudson & Goodwin , 7 Cranch 32 (1812), and, since Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), there has been no general common law applicable in federal courts merely by reason of diversity of citizenship jurisdiction. Therefore, in order properly to decide this case, we must deal not simply with a single, general principle, however just that principle may be in the abstract, but with the complex interplay of the Constitution, Page 451 U. S. 532 statutes, and the facts which form the basis for this litigation. Because federal courts are courts of limited jurisdiction, we must first look to the Act of Congress which confers jurisdiction over claims such as respondent's on a United States district court. Such enactment is found in 28 U.S.C. § 1343, which provides in pertinent part: "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:" " * * * *" "(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." The statute conferring jurisdiction is, in turn, closely related to 42 U.S.C. § 1983, under which respondent brought this action. Section 1983 provided in the year in question: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." While we have twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983, see Procunier v. Navarette, 434 U. S. 555 (1978), and Baker v. McCollan, 443 U. S. 137 (1979), we have in each of those cases found it unnecessary to decide the issue. In Procunier, supra, we held that, regardless of whether the Page 451 U. S. 533 § 1983 complaint framed in terms of negligence stated a claim for relief, the defendants would clearly have been entitled to qualified immunity, and therefore not liable for damages. In Baker, supra, we held that no deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States had occurred, and therefore it was unnecessary to decide whether mere negligence on the part of the actor would have rendered him liable had there been such a deprivation. These two decisions, however, have not aided the various Courts of Appeals and District Courts in their struggle to determine the correct manner in which to analyze claims, such as the present one, which allege facts that are commonly thought to state a claim for a common law tort normally dealt with by state courts, but instead are couched in terms of a constitutional deprivation, and relief is sought under § 1983. The diversity in approaches is legion. See, e.g., Williams v. Kelley, 624 F.2d 695 (CA5 1980); Beard v. Mitchell, 604 F.2d 485 (CA7 1979); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (CA7 1978); O'Grady v. Montpelier, 573 F.2d 747 (CA2 1978); Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (CA3 1976); Jones v. Marshall, 528 F.2d 132 (CA2 1975); Diamond v. Thompson, 523 F.2d 1201 (CA5 1975); Kimbrough v. O'Neil, 523 F.2d 1057 (CA7 1975); Carter v. Estelle, 519 F.2d 1136 (CA5 1975); Pitts v. Griffin, 518 F.2d 72 (CA8 1975); Russell v. Bodner, 489 F.2d 280 (CA3 1973); Johnson v. Glick, 481 F.2d 1028 (CA2 1973); McCray v. Maryland, 456 F.2d 1 (CA4 1972); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971); Madison v. Manter, 441 F.2d 537 (CA1 1971); Howard v. Swenson, 426 F.2d 277 (CA8 1970); Whirl v. Kern, 407 F.2d 781 (CA5 1968); and Striker v. Pancher, 317 F.2d 780 (CA6 1963). We, therefore, once more put our shoulder to the wheel, hoping to be of greater assistance to Page 451 U. S. 534 courts confronting such a fact situation than it appears we have been in the past. Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan, supra, we suggested that simply because a wrong was negligently, as opposed to intentionally, committed did not foreclose the possibility that such action could be brought under § 1983. We explained: "[T]he question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action." 443 U.S. at 443 U. S. 139 -140. Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state of mind requirement. [ Footnote 2 ] The Court recognized as much in Monroe v. Pape, 365 U. S. 167 (1961), when we explained, after extensively reviewing the legislative history of § 1983, that "[i]t is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Page 451 U. S. 535 Amendment might be denied by the state agencies." Id. at 365 U. S. 180 . In distinguishing the criminal counterpart which had earlier been at issue in Screws v. United States, 325 U. S. 91 (1945), the Monroe Court stated: "In the Screws case, we dealt with a statute that imposed criminal penalties for acts 'willfully' done. We construed that word in its setting to mean the doing of an act with 'a specific intent to deprive a person of a federal right.' 325 U.S. at 325 U. S. 103 . We do not think that gloss should be put on [§ 1983] which we have here. The word 'willfully' does not appear in [§ 1983]. Moreover, [§ 1983] provides a civil remedy, while, in the Screws case, we dealt with a criminal law challenged on the grounds of vagueness. [Section 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S. at 365 U. S. 187 . Both Baker v. McCollan and Monroe v. Pape suggest that § 1983 affords a "civil remedy" for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. Accordingly, in any § 1983 action, the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. III Since this Court's decision in Monroe v. Pape, supra, it can no longer be questioned that the alleged conduct by the petitioners in this case satisfies the "under color of state law" requirement. Petitioners were, after all, state employees in Page 451 U. S. 536 positions of considerable authority. They do not seriously contend otherwise. Our inquiry, therefore, must turn to the second requirement -- whether respondent has been deprived of any right, privilege, or immunity secured by the Constitution or laws of the United States. The only deprivation respondent alleges in his complaint is that "his rights under the Fourteenth Amendment of the Constitution of the United States were violated. That he was deprived of his property and Due Process of Law." App. 8. As such, respondent's claims differ from the claims which were before us in Monroe v. Pape, supra, which involved violations of the Fourth Amendment, and the claims presented in Estelle v. Gamble, 429 U. S. 97 (1976), which involved alleged violations of the Eighth Amendment. Both of these Amendments have been held applicable to the States by virtue of the adoption of the Fourteenth Amendment. See Mapp v. Ohio, 367 U. S. 643 (1961); Robinson v. California, 370 U. S. 660 (1962). Respondent here refers to no other right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter. The pertinent text of the Fourteenth Amendment provides: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis supplied.) Unquestionably, respondent's claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently Page 451 U. S. 537 caused, amounted to a deprivation. [ Footnote 3 ] Standing alone, however, these three elements do not establish a violation of the Fourteenth Amendment. Nothing in that Amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations "without due process of law." Baker v. McCollan, 443 U.S. at 443 U. S. 145 . Our inquiry therefore must focus on whether the respondent has suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process. This Court has never directly addressed the question of what process is due a person when an employee of a State negligently takes his property. In some cases, this Court has held that due process requires a predeprivation hearing before the State interferes with any liberty or property interest enjoyed by its citizens. In most of these cases, however, the deprivation of property was pursuant to some established state procedure, and "process" could be offered before any actual deprivation took place. For example, in Mullane v. Page 451 U. S. 538 Central Hanover Trust Co., 339 U. S. 306 (1950), the Court struck down on due process grounds a New York statute that allowed a trust company, when it sought a judicial settlement of its trust accounts, to give notice by publication to all beneficiaries even if the whereabouts of the beneficiaries were known. The Court held that personal notice in such situations was required, and stated that, "when notice is a person's due, process which is a mere gesture is not due process." Id. at 339 U. S. 315 . More recently, in Bell v. Burson, 402 U. S. 535 (1971), we reviewed a state statute which provided for the taking of the driver's license and registration of an uninsured motorist who had been involved in an accident. We recognized that a driver's license is often involved in the livelihood of a person, and, as such, could not be summarily taken without a prior hearing. In Fuentes v. Shevin, 407 U. S. 67 (1972), we struck down the Florida prejudgment replevin statute which allowed secured creditors to obtain writs in ex parte proceedings. We held that due process required a prior hearing before the State authorized its agents to seize property in a debtor's possession. See also Boddie v. Connecticut, 401 U. S. 371 (1971); Goldberg v. Kelly, 397 U. S. 254 (1970); and Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). In all these cases, deprivations of property were authorized by an established state procedure, and due process was held to require predeprivation notice and hearing in order to serve as a check on the possibility that a wrongful deprivation would occur. We have, however, recognized that postdeprivation remedies made available by the State can satisfy the Due Process Clause. In such cases, the normal predeprivation notice and opportunity to be heard is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage Co. v. Chicago, 211 U. S. 306 (1908), we upheld the right of a State to seize and destroy unwholesome food without a preseizure hearing. The possibility of erroneous destruction of property was outweighed by the fact that the public health Page 451 U. S. 539 emergency justified immediate action and the owner of the property could recover his damages in an action at law after the incident. In Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950), we upheld under the Fifth Amendment Due Process Clause the summary seizure and destruction of drugs without a preseizure hearing. Similarly, in Fahey v. Mallonee, 332 U. S. 245 (1947), we recognized that the protection of the public interest against economic harm can justify the immediate seizure of property without a prior hearing when substantial questions are raised about the competence of a bank's management. In Bowles v. Willingham, 321 U. S. 503 (1944), we upheld in the face of a due process challenge the authority of the Administrator of the Office of Price Administration to issue rent control orders without providing a hearing to landlords before the order or regulation fixing rents became effective. See also Corn Exchange Bank v. Coler, 280 U. S. 218 (1930); McKay v. McInnes, 279 U.S. 820 (1929); Coffin Brothers & Co. v. Bennett, 277 U. S. 29 (1928); and Ownbey v. Morgan, 256 U. S. 94 (1921). These cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process. [ Footnote 4 ] As we stated in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974): "Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless Page 451 U. S. 540 mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U. S. 337 (1969), and Fuentes v. Shevin, 407 U. S. 67 (1972). The pre- Sniadach cases are said by petitioner to hold that 'the opportunity to be heard must precede any actual deprivation of private property.' Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property, and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been" "[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process if the opportunity given for ultimate judicial determination of liability is adequate." " Phillips v. Commissioner, 283 U. S. 589 , 283 U. S. 596 -597 (1931)." Id. at 416 U. S. 611 (footnote omitted). Our past cases mandate that some kind of hearing is required at some time before a State finally deprives a person of his property interests. The fundamental requirement of due process is the opportunity to be heard, and it is an "opportunity which must be granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 552 (1965). However, as many of the above cases recognize, we have rejected the proposition that "at a meaningful time and in a meaningful manner" always requires the State to provide a hearing prior to the initial deprivation of property. [ Footnote 5 ] This rejection is based in part on the impracticability Page 451 U. S. 541 in some cases of providing any preseizure hearing under a state-authorized procedure, and the assumption that at some time a full and meaningful hearing will be available. The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation, such as the present one, involving a tortious loss of a prisoner's property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure, and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under "color of law," is in almost all cases beyond the control of the State. Indeed, in most cases, it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation. That does not mean, of course, that the State can take property without providing a meaningful postdeprivation hearing. The prior cases which have excused the prior hearing requirement have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities. A case remarkably similar to the present one is Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978). There, a prisoner alleged that prison officials "made it possible, by leaving the door of Plaintiff's cell open, for others without authority to remove Plaintiff's trial transcript from the cell." 517 F.2d at 1318. The question presented was whether negligence may support a recovery under § 1983. Then Judge Stevens, writing for a panel of the Court of Appeals for the Seventh Circuit, recognized that the question that had to be Page 451 U. S. 542 decided was "whether it can be said that the deprivation was without due process of law.'" Ibid. He concluded: "It seems to us that there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation, the facts satisfy the most literal reading of the Fourteenth Amendment's prohibition against 'state' deprivations of property; in the latter situation, however, even though there is action 'under color of' state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this, the law of Illinois provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of the prison guards. We may reasonably conclude, therefore, that the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment." Id. at 1319. We believe that the analysis recited above in Bonner is the proper manner in which to approach a case such as this. This analysis is also quite consistent with the approach taken by this Court in Ingraham v. Wright, 430 U. S. 651 (1977), where the Court was confronted with the claim that corporal punishment in public schools violated due process. Arguably, the facts presented to the Court in Ingraham were more egregious than those presented here, inasmuch as the Court was faced with both an intentional act (as opposed to negligent conduct) and a deprivation of liberty. However, we reasoned: "'At some point, the benefit of an additional safeguard to the individual affected . . . and to society in terms of Page 451 U. S. 543 increased assurance that the action is just, may be outweighed by the cost.' Mathews v. Eldridge, 424 U.S. at 424 U. S. 348 . We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common law safeguards that already exist, the risk of error that may result in violation of a schoolchild's substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility." Id. at 430 U. S. 682 . (Emphasis supplied.) IV Application of the principles recited above to this case leads us to conclude the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate, nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See Neb.Rev.Stat. § 81-8,209 et seq. (1976). Through this tort claims procedure, the State hears and pays claims of prisoners housed in its penal institutions. This procedure was in existence at the time of the loss here in question, but respondent did not use it. It is argued that the State does not adequately protect the respondent's interests, because it provides only for an action against the State, as opposed to its individual employees, Page 451 U. S. 544 it contains no provisions for punitive damages, and there is no right to a trial by jury. Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process. Our decision today is fully consistent with our prior cases. To accept respondent's argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under "color of law" into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale, any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under 1983. Such reasoning "would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U. S. 693 , 424 U. S. 701 (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society. Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ] As we explained in Board of Regents v. Roth, 408 U. S. 564 (1972), property interests "are not created by the Constitution. Rather, they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 408 U. S. 577 . It is not contended that, under Nebraska law, respondent does not enjoy a property interest in the hobby materials here in question. [ Footnote 2 ] Title 18 U. S.C. § 242 provides in pertinent part: "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life." (Emphasis supplied.) [ Footnote 3 ] Petitioners argue that, even if a negligent deprivation of respondent's property occurred, there is no evidence in the record of negligence on their part. There is merit to petitioners' arguments. Petitioners were not personally involved in the handling of the packages, and respondent's basic allegation appears to be that subordinates of petitioners violated established procedures which, if properly followed, would have ensured the proper delivery of respondent's packages. In the past, this Court has refused to accept § 1983 actions premised on theories of respondeat superior. Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978); Rizzo v. Goode, 423 U. S. 362 (1976). On the other hand, there is no indication in the record that the petitioners ever raised in the District Court the argument that the loss of property was not caused by their negligence. Certainly, the District Court did not consider this an open question. In such a context, and with little or no factual development at the trial level, we can only accept for purposes of this opinion the District Court's assumption that petitioners were negligent and that this negligence contributed to respondent's loss. [ Footnote 4 ] In Arnett v. Kennedy, 416 U. S. 134 (1974), JUSTICE WHITE noted the importance of a meaningful postdeprivation hearing when referring to many of the above cases: "While these cases indicate that the particular interests involved might not have demanded a hearing immediately, they also reaffirm the principle that property may not be taken without a hearing at some time." Id. at 416 U. S. 179 (concurring in part and dissenting in part). [ Footnote 5 ] As we explained in Mathews v. Eldridge, 424 U. S. 319 (1976): "In recent years, this Court increasingly has had occasion to consider the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter. In only one case, Goldberg v. Kelly, 397 U.S. at 397 U. S. 266 -271, has the Court held that a hearing closely approximating a judicial trial is necessary. In other cases requiring some type of pretermination hearing as a matter of constitutional right the Court has spoken sparingly about the requisite procedures." Id. at 424 U. S. 333 . JUSTICE STEWART, concurring. It seems to me extremely doubtful that the property loss here, even though presumably caused by the negligence of state agents, is the kind of deprivation of property to which the Fourteenth Amendment is addressed. If it is, then so too would be damages to a person's automobile resulting from Page 451 U. S. 545 a collision with a vehicle negligently operated by a state official. To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort, the meaning and intent of the Constitution. But even if Nebraska has deprived the respondent of his property in the constitutional sense, it has not deprived him of it without due process of law. By making available to the respondent a reparations remedy, Nebraska has done all that the Fourteenth Amendment requires in this context. On this understanding, I join the opinion of the Court. JUSTICE WHITE, concurring. I join the opinion of the Court, but with the reservations stated by my Brother BLACKMUN in his concurring opinion. JUSTICE BLACKMUN, concurring. While I join the Court's opinion in this case, I write separately to emphasize my understanding of its narrow reach. This suit concerns the deprivation only of property, and was brought only against supervisory personnel, whose simple "negligence" was assumed, but, on this record, not actually proved. I do not read the Court's opinion as applicable to a case concerning deprivation of life or of liberty. Cf. Moore v. East Cleveland, 431 U. S. 494 (1977). I also do not understand the Court to intimate that the sole content of the Due Process Clause is procedural regularity. I continue to believe that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process. See, e.g., Boddie v. Connecticut, 401 U. S. 371 (1971); Roe v. Wade, 410 U. S. 113 (1973). Most importantly, I do not understand the Court to suggest that the provision of "postdeprivation remedies," ante at 451 U.S. 538 , within a state system would cure the unconstitutional Page 451 U. S. 546 nature of a state official's intentional act that deprives a person of property. While the "random and unauthorized" nature of negligent acts by state employees makes it difficult for the State to "provide a meaningful hearing before the deprivation takes place," ante at 451 U. S. 541 , it is rare that the same can be said of intentional acts by state employees. When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so. See Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972); Goldberg v. Kelly, 397 U. S. 254 (1970). In the majority of such cases, the failure to provide adequate process prior to inflicting the harm would violate the Due Process Clause. The mere availability of a subsequent tort remedy before tribunals of the same authority that, through its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks. JUSTICE POWELL, concurring in the result. This case presents the question whether a state prisoner may sue to recover damages under 42 U.S.C. § 1983, alleging that a violation of the Due Process Clause of the Fourteenth Amendment occurred when two shipments mailed to him were lost due to the negligence of the prison's warden and "hobby manager." Unlike the Court, I do not believe that such negligent acts by state officials constitute a deprivation of property within the meaning of the Fourteenth Amendment, regardless of whatever subsequent procedure a State may or may not provide. I therefore concur only in the result. The Court's approach begins with three "unquestionable" facts concerning respondent's due process claim: "the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation. Page 451 U. S. 547 Ante at 451 U. S. 536 -537. It then goes on to reject respondent's claim on the theory that procedural due process is satisfied in such a case where a State provides a 'postdeprivation' procedure for seeking redress -- here, a tort claims procedure. I would not decide this case on that ground, for two reasons. First, the Court passes over a threshold question -- whether a negligent act by a state official that results in loss of or damage to property constitutes a deprivation of property for due process purposes. [ Footnote 2/1 ] Second, in doing so, the Court suggests a narrow, wholly procedural view of the limitation imposed on the States by the Due Process Clause." The central question in this case is whether unintentional but negligent acts by state officials, causing respondent's loss of property, are actionable under the Due Process Clause. In my view, this question requires the Court to determine whether intent is an essential element of a due process claim, just as we have done in cases applying the Equal Protection Clause [ Footnote 2/2 ] and the Eighth Amendment's prohibition of "cruel and unusual punishment." [ Footnote 2/3 ] The intent question cannot be Page 451 U. S. 548 given "a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action," Baker v. McCollan, 443 U. S. 137 , 443 U. S. 139 -140 (1979). Rather, we must give close attention to the nature of the particular constitutional violation asserted in determining whether intent is a necessary element of such a violation. In the due process area, the question is whether intent is required before there can be a "deprivation" of life, liberty, or property. In this case, for example, the negligence of the prison officials caused respondent to lose his property. Nevertheless, I would not hold that such a negligent act, causing unintended loss of or injury to property, works a deprivation in the constitutional sense. Thus, no procedure for compensation is constitutionally required. A "deprivation" connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss. [ Footnote 2/4 ] The most reasonable interpretation of the Fourteenth Amendment would limit due process claims to such active deprivations. [ Footnote 2/5 ] This is the view Page 451 U. S. 549 adopted by an overwhelming number of lower courts, which have rejected due process claims premised on negligent acts without inquiring into the existence or sufficiency of the subsequent procedures provided by the State. [ Footnote 2/6 ] In addition, such a rule would avoid trivializing the right of action provided in § 1983. That provision was enacted to deter real abuses by state officials in the exercise of governmental powers. It would make no sense to open the federal courts to lawsuits where there has been no affirmative abuse of power, merely a negligent deed by one who happens to be acting under color of state law. See 451 U.S. 527 fn2/12|>n. 12, infra. [ Footnote 2/7 ] Page 451 U. S. 550 The Court appears unconcerned about this prospect, probably because of an implicit belief in the availability of state tort remedies in most cases. In its view, such remedies will satisfy procedural due process, and relegate cases of official negligence to nonfederal forums. But the fact is that this rule would "make of the Fourteenth Amendment a font of tort law," Paul v. Davis, 424 U. S. 693 , 424 U. S. 701 (1976), whenever a State has failed to provide a remedy for negligent invasions of liberty or property interests. [ Footnote 2/8 ] Moreover, despite Page 451 U. S. 551 the breadth of.state tort remedies, such claims will be more numerous than might at first be supposed. In Kent v. Prasse, 385 F.2d 406 (CA3 1967) (per curiam), for example, a state prisoner was forced to work on a faulty machine, sustained an injury, and brought suit against prison officials. The United States Court of Appeals for the Third Circuit noted that the State, unfortunately, did not provide compensation for this injury, but stated: "Nor are we able to perceive that a tort committed by a state official acting under color of law is, in and of itself, sufficient to show an invasion of a person's right under [§ 1983]. While not dispositive, we note that there is no allegation that defendants violated any state criminal law or acted out of bad motive. Nor [is it] alleged that any state law was not enforced by the defendants." Id. at 407. [ Footnote 2/9 ] Rather than reject this reasoning, I would adopt the view that negligent official acts do not provide any basis for inquiries Page 451 U. S. 552 by federal courts into the existence, or procedural adequacy, of applicable state tort remedies. Such an approach has another advantage; it avoids a somewhat disturbing implication in the Court's opinion concerning the scope of due process guarantees. The Court analyzes this case solely in terms of the procedural rights created by the Due Process Clause. Finding state procedures adequate, it suggests that no further analysis is required of more substantive limitations on state action located in this Clause. Cf. Paul v. Davis, supra, at 424 U. S. 712 -714 (assessing the claim presented in terms of the "substantive aspects of the Fourteenth Amendment"); Ingraham v. Wright, 430 U. S. 651 , 430 U. S. 679 , n. 47 (1977) (leaving open the question whether "corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause"). The Due Process Clause imposes substantive limitations on state action, and, under proper circumstances, [ Footnote 2/10 ] these limitations Page 451 U. S. 553 may extend to intentional and malicious deprivations of liberty [ Footnote 2/11 ] and property, [ Footnote 2/12 ] even where compensation is available under state law. The Court, however, fails altogether to discuss the possibility that the kind of state action alleged here constitutes a violation of the substantive guarantees of the Due Process Clause. As I do not consider a negligent act the kind of deprivation that implicates the procedural guarantees of the Due Process Clause, I certainly would not view negligent acts as violative of these substantive guarantees. But the Court concludes that there has been such a deprivation. And yet it avoids entirely the question whether the Due Process Clause may place substantive limitations on this form of governmental conduct. In sum, it seems evident that the reasoning and decision of the Court today, even if viewed as compatible with our precedents, create new uncertainties as well as invitations to Page 451 U. S. 554 litigate under a statute that already has burst its historical bounds. [ Footnote 2/13 ] [ Footnote 2/1 ] Assuming that there was a "deprivation" of the hobby kit under color of state law in this case, I would agree with the Court's conclusion that state tort remedies provide adequate procedural protection. Cf. Ingraham v. Wright, 430 U. S. 651 , 430 U. S. 674 -682 (1977) (common law remedies are adequate to afford procedural due process in cases of corporal punishment of students). [ Footnote 2/2 ] Washington v. Davis, 426 U. S. 229 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause). [ Footnote 2/3 ] In Estelle v. Gamble, 429 U. S. 97 , 429 U. S. 105 (1976), we held that "deliberate indifference to a prisoner's serious illness or injury" on the part of prison officials is sufficient to constitute an "infliction" of cruel and unusual punishment under the Eighth Amendment. We also stated that an "accident, although it may produce added anguish, is not, on that basis alone, to be characterized as wanton infliction of unnecessary pain." Ibid. Estelle v. Gamble thus supports my view of the Due Process Clause -- which requires consideration not only of the effect of an injury or loss on a citizen, but also of the intent of the state official whose actions caused the injury or loss. [ Footnote 2/4 ] According to Webster's New International Dictionary of the English Language (2d ed.1945), to "deprive" is to "dispossess; bereave; divest; to hinder from possessing; debar; shut out." [ Footnote 2/5 ] In analogous contexts, we have held that the intent of state officials is a relevant factor to consider in determining whether an individual has suffered a denial of due process. In United States v. Lovasco, 431 U. S. 783 , 431 U. S. 790 (1977), involving preindictment prosecutorial delay, we held that "proof of prejudice is generally a necessary, but not sufficient, element of a due process claim, and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Similarly, in Baker v. McCollan, 443 U. S. 137 (1979), the Court reviewed a claimed violation of due process occurring when a sheriff arrested the individual named in an arrest warrant and failed for a time to realize that the warrant itself had named the wrong person. The Court there noted that "the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place," id. at 443 U. S. 140 , n. 1, and went on to hold that there had been no deprivation of liberty without due process of law. The Court reasoned that there is no duty to investigate "every claim of innocence," id. at 443 U. S. 146 , and no constitutional requirement of an "error-free investigation of such a claim," ibid. It relied on the fact that the sheriff had acted reasonably in relying on a facially valid arrest warrant, thus implicitly distinguishing a case involving an intentional deprivation of liberty without cause. To be sure, even where there has been an intentional deprivation of property, due process claims also must satisfy the requirement that the act be sufficiently linked to an official's state-created duties or powers to constitute "state action." See 451 U.S. 527 fn2/10|>n. 10, infra. [ Footnote 2/6 ] See, e.g., Williams v. Kelley, 624 F.2d 695 (CA5 1980), cert. pending, No. 80-6165; Bonner v. Coughlin, 545 F.2d 565 (CA7 1976) (en banc), cert. denied, 435 U.S. 932 (1978); Harper v. Cserr, 544 F.2d 1121, 1124 (CA1 1976); Williams v. Vincent, 508 F.2d 541, 546 (CA2 1974); Jenkins v. Averett, 424 F.2d 1228, 1232 (CA4 1970); Kent v. Prasse, 385 F.2d 406 (CA3 1967) (per curiam). See also Paul v. Davis, 424 U. S. 693 , 424 U. S. 698 (1976) (suggesting that there should not be a § 1983 action in favor of "the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle"). There is no occasion here to express any view as to the possibility of negligent violations of other, more particular constitutional guarantees. [ Footnote 2/7 ] We have previously expressed concerns about the prospect that the Due Process Clause may become a vehicle for federal litigation of state torts. In Paul v. Davis, supra, we held that an official action damaging the reputation of a private citizen, although an actionable tort under state law, did not constitute a deprivation of "liberty" within the meaning of the Fourteenth Amendment. In so holding, we relied principally on the fact that the individual's interest in his reputation was not accorded a "legal guarantee of present enjoyment" under state law, since it was "simply one of a number [of interests] which the State may protect against injury by virtue of its tort law." Id. at 424 U. S. 711 -712. Attention to the "guarantees" provided by state law is at least as appropriate in a case involving an alleged deprivation of "property." It is clear that the hobby kit was respondent's "property." But it also is clear that, under state law, no remedy other than tort law protects property from interferences caused by the negligence of others. The reasoning of Paul v. Davis would suggest, therefore, that the enjoyment of property free of negligent interference is not sufficiently "guaranteed" by state law to justify a due process claim based on official negligence. A State perhaps could constitutionalize certain negligent actions by state officials by criminalizing negligence, thus extending its guarantee to this kind of interference. Instead, the States merely have created systems for civil compensation of tort victims. In this sense, state law draws a clear distinction between negligently caused injuries and intentional thefts or assaults. [ Footnote 2/8 ] One additional problem with the Court's purely procedural approach is worth noting. In Kent v. Prasse, supra, the Third Circuit faced a claimed deprivation of procedural due process by prison officials based on the failure of a State to provide a tort remedy for official negligence -- the exact claim validated by the Court today. The court noted that, "[i]n any event, such a deprivation would be the work of the state, not these defendants." 385 F.2d at 407. Arguably, if the absence of a tort remedy is the heart of one's constitutional claim, the defendant in the § 1983 suit must be the State itself, or its lawmakers, both of whom are immune from suit. See Tenney v. Brandhove, 341 U. S. 367 (1951) (legislators); Edelman v. Jordan, 415 U. S. 651 , 415 U. S. 662 -663 (1974) (Eleventh Amendment bars suits against States in federal court). If so, the only remedy available to plaintiffs would be a more substantive due process claim -- where grounds for such a claim exist. The Court does not discuss this possibility. [ Footnote 2/9 ] Another example is presented in the case of Hamilton v. Stover, cert. pending, No. 80-1419 (filed Feb. 20, 1981), involving a collision between a police car and another car. In an unpublished order, the Sixth Circuit affirmed dismissal of a resulting § 1983 action against the policeman, reasoning that negligent driving cannot constitute a deprivation of constitutional rights. Hamilton v. Stover, No. 79-3562 (Nov. 24, 1980). In his brief in this Court, however, the policeman points out that he and the employing municipality possess absolute immunity under Ohio law, Ohio Rev.Code § 701.02 (1976), for acts while responding to an emergency call. If this immunity has the effect of cutting off all state law remedies, under the Court's reasoning, there appears to be a deprivation of procedural due process, actionable in federal court. [ Footnote 2/10 ] Even intentional injuries inflicted by state officials must be "state action" to implicate the due process guarantees, and must be "under color of" state law in order to be actionable under § 1983. In this area, we have drawn a distinction between mere "torts of state officials" and "acts done under color' of law . . . which deprived a person of some right secured by the Constitution or laws of the United States." Screws v. United States, 325 U. S. 91 , 325 U. S. 109 (1945) (plurality opinion of Douglas, J.) (discussing the criminal analogue of § 1983 -- now codified as 18 U.S.C. § 242). Actionable deprivations must be based on "`[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Ibid. (quoting United States v. Classic, 313 U. S. 299 , 313 U. S. 326 (1941)). See also Screws, supra, at 325 U. S. 134 (Rutledge, J., concurring in result) (the Constitution protects the "right not to be deprived of life or liberty by a state officer who takes it by abuse of his office and its power ") (emphasis added). Where state officials cause injuries in ways that are equally available to private citizens, constitutional issues are not necessarily raised. As Justice Douglas put it in Screws: "The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States." 325 U.S. at 325 U. S. 108 . [ Footnote 2/11 ] See, e.g., Rochin v. California, 342 U. S. 165 (1952); Hall v. Tawney, 621 F.2d 607, 613 (CA4 1980) (corporal punishment of students may have violated due process if it "amounted to a brutal and inhumane abuse of official power literally shocking to the conscience"); Bellows v. Dainack, 555 F.2d 1105, 1106, n. 1 (CA2 1977) (use of excessive force by policeman during the course of an arrest constitutes a deprivation of "liberty" without due process). [ Footnote 2/12 ] See, e.g., Kimbrough v. O'Neil, 545 F.2d 1059, 1061 (CA7 1976) (en banc) ("a taking with intent (or reckless disregard) of a claimant's property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is actionable under Section 1983"); Carter v. Estelle, 519 F.2d 1136, 1136-137 (CA5 1975) (per curiam) (same). See also San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 656 , n. 23 (1981) (BRENNAN, J., dissenting) (when property is taken by the government, but not in furtherance of a "public use," "the government entity may not be forced to pay just compensation under the Fifth Amend ment, [but] the landowner may nevertheless have a damages cause of action under 42 U.S.C. § 1983 for a Fourteenth Amendment due process violation"). [ Footnote 2/13 ] Section 1983 was enacted in 1871 as one of the statutes intended to implement the Fourteenth Amendment. For many years, it remained a little-used, little-known section of the Code. In the past two decades, however, resourceful counsel and receptive courts have extended its reach vastly. This statute, with a clearly understood and commendable purpose, no longer is confined to deprivations of individual rights, as intended in 1871. As a result, § 1983 has become a major vehicle for general litigation in the federal courts by individuals and corporations. Professor Christina Whitman recently has addressed this expansion of § 1983 with a comprehensive assessment of arguable pluses and minuses. See Whitman, Constitutional Torts, 79 Mich.L.Rev. 5 (1980). There will be no pluses, however, if the striking escalation of suits under § 1983 against state and local officials is augmented by suits based on negligent conduct. Professor Whitman noted, for example, that civil rights petitions by state prisoners in federal court increased from 218 cases in 1966 to 11,195 in 1979. Id. at 6. See also the Annual Report of the Director of the Administrative Office of the U.S. Courts 62 (1980), reporting a further increase in this number to 12,397 in 1980. The societal costs of using this statute for a purpose never contemplated are high indeed: "First, the existence of the statutory cause of action means that every expansion of constitutional rights [through § 1983] will increase the caseload of already overburdened federal courts. This increase dilutes the ability of federal courts to defend our most significant rights. Second, every [such] expansion . . . displaces state lawmaking authority by diverting decisionmaking to the federal courts." Whitman, supra, at 25. The present case, involving a $23 loss, illustrates the extent to which constitutional law has been trivialized, and federal courts often have been converted into small claims tribunals. There is little justification for making such a claim a federal case, requiring a decision by a district court, an appeal as a matter of right to a court of appeals, and potentially, consideration of a petition for certiorari in this Court. It is not in the interest of claimants or of society for disputes of this kind to be resolved by litigation that may take years, particularly in an overburdened federal system that never was designed to be utilized in this way. Congress, recognizing the problem with respect to prisoner petitions, enacted last year the Civil Rights of Institutionalized Persons Act, Pub.L. 96-247, 94 Stat. 349, authorizing federal courts to continue § 1983 prisoner cases for up to 90 days to allow recourse to administrative remedies. The grievance procedures, however, must be certified by the Attorney General or determined by the court to be in compliance with not insubstantial procedural requirements. Id. § 7, 42 U.S.C. § 1997e (1976 ed., Supp. IV). As a result, the Act continues to allow resort to the federal courts in many cases of this kind. In view of increasing damages suit litigation under § 1983, and the inability of courts to identify principles that can be applied consistently, perhaps the time has come for a revision of this century-old statute -- a revision that would clarify its scope while preserving its historical function of protecting individual rights from unlawful state action. JUSTICE MARSHALL, concurring in part and dissenting in part. I join the opinion of the Court insofar as it holds that negligent conduct by persons acting under color of state law Page 451 U. S. 555 may be actionable under 42 U.S.C. § 1983. Ante at 451 U. S. 534 -535. I also agree with the majority that, in cases involving claims of negligent deprivation of property without due process of law, the availability of an adequate postdeprivation cause of action for damages under state law may preclude a finding of a violation of the Fourteenth Amendment. I part company with the majority, however, over its conclusion that there was an adequate state law remedy available to respondent in this case. My disagreement with the majority is not because of any shortcomings in the Nebraska tort claims procedure. [ Footnote 3/1 ] Rather, my problem is with the majority's application of its legal analysis to the facts of this case. It is significant, in my view, that respondent is a state prisoner whose access to information about his legal rights is necessarily limited by his confinement. Furthermore, there is no claim that either petitioners or any other officials informed respondent that he could seek redress for the alleged deprivation of his property by filing an action under the Nebraska tort claims procedure. This apparent failure takes Page 451 U. S. 556 on additional significance in light of the fact that respondent pursued his complaint about the missing hobby kit through the prison's grievance procedure. [ Footnote 3/2 ] In cases such as this, I believe prison officials have an affirmative obligation to inform a prisoner who claims that he is aggrieved by official action about the remedies available under state law. If they fail to do so, then they should not be permitted to rely on the existence of such remedies as adequate alternatives to a § 1983 action for wrongful deprivation of property. Since these prison officials do not represent that respondent was informed about his rights under state law, I cannot join in the judgment of the Court in this case. Thus, although I agree with much of the majority's reasoning, I would affirm the judgment of the Court of Appeals. [ Footnote 3/1 ] To be sure, the state remedies would not have afforded respondent all the relief that would have been available in a § 1983 action. See ante at 451 U. S. 543 -544. I nonetheless agree with the majority that "they are sufficient to satisfy the requirements of due process." Ante at 451 U. S. 544 . [ Footnote 3/2 ] In fact, the prison officials did not raise the issue of the availability of a state law remedy in either the District Court or the Court of Appeals. The issue was first presented in the petition for rehearing filed in the Court of Appeals.

In Parratt v. Taylor, the Supreme Court ruled that a prisoner who lost hobby materials due to prison officials' negligence could not bring a claim under 42 U.S.C. § 1983, as he had not sufficiently alleged a violation of the Due Process Clause of the Fourteenth Amendment. The Court held that the deprivation did not result from established state procedure and that Nebraska's tort claims procedure provided an adequate remedy, satisfying due process requirements. Justice Rehnquist delivered the opinion, with concurring opinions from Justices Stewart, White, and Blackmun, and a partial dissent from Justice Marshall.

Due Process

Moore v. City of East Cleveland

https://supreme.justia.com/cases/federal/us/431/494/

U.S. Supreme Court Moore v. City of East Cleveland, 431 U.S. 494 (1977) Moore v. City of East Cleveland No. 75-6289 Argued November 2, 1976 Decided May 31, 1977 431 U.S. 494 APPEAL FROM THE COURT OF APPEALS OF OHIO, CUYAHOGA COUNTY Syllabus Appellant lives in her East Cleveland, Ohio, home with her son and two grandsons (who are first cousins). An East Cleveland housing ordinance limits occupancy of a dwelling unit to members of a single family, but defines "family" in such a way that appellant's household does not qualify. Appellant was convicted of a criminal violation of the ordinance. Her conviction was upheld on appeal over her claim that the ordinance is unconstitutional. Appellee city contends that the ordinance should be sustained under Village of Belle Terre v. Boraas, 416 U. S. 1 , which upheld an ordinance imposing limits on the types of groups that could occupy a single dwelling unit. Held: The judgment is reversed. Pp. 431 U. S. 498 -506; 431 U. S. 513 -521. Reversed. MR. JUSTICE POWELL, joined by MR JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concluded that the ordinance deprived appellant of her liberty in violation of the Due Process Clause of the Fourteenth Amendment. (a) This case is distinguishable from Belle Terre, supra, where the ordinance affected only unrelated individuals. The ordinance here expressly selects certain categories of relatives who may live together, and declares that others may not, in this instance making it a crime for a grandmother to live with her grandson. Pp. 431 U. S. 498 -499. (b) When the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and the Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. P. 431 U. S. 499 . (c) The ordinance, at best, has but a tenuous relationship to the objectives cited by the city: avoiding overcrowding, traffic congestion, and an undue financial burden on the school system. Pp. 431 U. S. 499 -500. (d) The strong constitutional protection of the sanctity of the family established in numerous decisions of this Court extends to the family choice involved in this case, and is not confined within an arbitrary boundary drawn at the limits of the nuclear family (essentially a couple Page 431 U. S. 495 and their dependent children). Appropriate limits on substantive due process come not from drawing arbitrary lines, but from careful "respect for the teachings of history [and] solid recognition of the basic values that underlie our society." Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 501 (Harlan, J., concurring). The history and tradition of this Nation compel a larger conception of the family. Pp. 431 U. S. 500 -506. MR. JUSTICE STEVENS concluded that, under the limited standard of review preserved in Euclid v. Ambler Realty Co., 272 U. S. 365 , and Nectow v. Cambridge, 277 U. S. 183 , before a zoning ordinance can be declared unconstitutional, it must be shown to be clearly arbitrary and unreasonable as having no substantial relation to the public health, safety, morals, or general welfare; that appellee city has failed totally to explain the need for a rule that would allow a homeowner to have grandchildren live with her if they are brothers, but not if they are cousins; and that, under that standard, appellee city's unprecedented ordinance constitutes a taking of property without due process and without just compensation. Pp. 431 U. S. 513 -521. POWELL, J., announced the judgment of the Court and delivered an opinion in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 431 U. S. 506 . STEVENS, J., filed an opinion concurring in the judgment, post, p. 431 U. S. 513 . BURGER, C.J., filed a dissenting opinion, post, p. 431 U. S. 521 . STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 431 U. S. 531 . WHITE, J., filed a dissenting opinion, post, p. 431 U. S. 541 . MR. JUSTICE POWELL announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN joined. East Cleveland's housing ordinance, like may throughout the country, limits occupancy of a dwelling unit to members Page 431 U. S. 496 of a single family. § 1351.02. [ Footnote 1 ] But the ordinance contains an unusual and complicated definitional section that recognizes as a "family" only a few categories of related individuals. § 1341.08. [ Footnote 2 ] Because her family, living together in her home, fits none of those categories, appellant stands convicted of a criminal offense. The question in this case is whether the ordinance violates the Due Process Clause of the Fourteenth Amendment. [ Footnote 3 ] I Appellant, Mrs. Inez Moore, lives in her East Cleveland home together with her son, Dale Moore, Sr., and her two grandsons, Dale, Jr., and John Moore, Jr. The two boys are first cousins, rather than brothers; we are told that John Page 431 U. S. 497 came to live with his grandmother and with the elder and younger Dale Moores after his mother's death. [ Footnote 4 ] In early 1973, Mrs. Moore received a notice of violation from the city, stating that John was an "illegal occupant" and directing her to comply with the ordinance. When she failed to remove him from her home, the city filed a criminal charge. Mrs. Moore moved to dismiss, claiming that the ordinance was constitutionally invalid on its face. Her motion was overruled, and, upon conviction, she was sentenced to five days in jail and a $25 fine. The Ohio Court of Appeals affirmed after giving full consideration to her constitutional claims, [ Footnote 5 ] Page 431 U. S. 498 and the Ohio Supreme Court denied review. We noted probable jurisdiction of her appeal, 425 U.S. 949 (1976). II The city argues that our decision in Village of Belle Terre v. Boraas, 416 U. S. 1 (1974), requires us to sustain the ordinance attacked here. Belle Terre, like East Cleveland, imposed limits on the types of groups that could occupy a single dwelling unit. Applying the constitutional standard announced in this Court's leading land use case, Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), [ Footnote 6 ] we sustained the Belle Terre ordinance on the ground that it bore a rational relationship to permissible state objectives. But one overriding factor sets this case apart from Belle Terre. The ordinance there affected only unrelated individuals. It expressly allowed all who were related by "blood, adoption, or marriage" to live together, and, in sustaining the ordinance, we were careful to note that it promoted "family needs" and "family values." 416 U.S. at 416 U. S. 9 . East Cleveland, in contrast, has chosen to regulate the occupancy of its housing by slicing deeply into the family itself. This is no mere incidental result of the ordinance. On its face, it selects certain Page 431 U. S. 499 categories of relatives who may live together and declares that others may not. In particular, it makes a crime of a grandmother's choice to live with her grandson in circumstances like those presented here. When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid governs; the usual judicial deference to the legislature is inappropriate. "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U. S. 632 , 414 U. S. 639 -640 (1974). A host of cases, tracing their lineage to Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 -401 (1923), and Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 534 -535 (1925), have consistently acknowledged a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 (1944). See, e.g., Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 -153 (1973); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 231 -233 (1972); Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972); Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 639 (1968); Griswold v. Connecticut, 381 U. S. 479 (1965); id. at 381 U. S. 495 -496 (Goldberg, J., concurring); id. at 381 U. S. 502 -503 (WHITE, J., concurring); Poe v. Ullman, 367 U. S. 497 , 367 U. S. 542 -544, 367 U. S. 549 -553 (1961) (Harlan, J., dissenting); cf. Loving v. Virginia, 388 U. S. 1 , 388 U. S. 12 (1967); May v. Anderson, 345 U. S. 528 , 345 U. S. 533 (1953); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 316 U. S. 541 (1942). Of course, the family is not beyond regulation. See Prince v. Massachusetts, supra at 321 U. S. 166 . But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. See Poe v. Ullman, supra at 367 U. S. 554 (Harlan, J., dissenting). When thus examined, this ordinance cannot survive. The city seeks to justify it as a means of preventing overcrowding, Page 431 U. S. 500 minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland's school system. Although these are legitimate goals, the ordinance before us serves them marginally, at best. [ Footnote 7 ] For example, the ordinance permits any family consisting only of husband, wife, and unmarried children to live together, even if the family contains a half dozen licensed drivers, each with his or her own car. At the same time, it forbids an adult brother and sister to share a household, even if both faithfully use public transportation. The ordinance would permit a grandmother to live with a single dependent son and children, even if his school-age children number a dozen, yet it forces Mrs. Moore to find another dwelling for her grandson John, simply because of the presence of his uncle and cousin in the same household. We need not labor the point. Section 1341.08 has but a tenuous relation to alleviation of the conditions mentioned by the city. III The city would distinguish the cases based on Meyer and Pierce. It points out that none of them "gives grandmothers any fundamental rights with respect to grandsons," Brief for Appellee 18, and suggests that any constitutional right to live together as a family extends only to the nuclear family -- essentially a couple and their dependent children. To be sure, these cases did not expressly consider the family relationship presented here. They were immediately concerned with freedom of choice with respect to childbearing, e.g., LaFleur, Roe v. Wade, Griswold, supra, or with the rights Page 431 U. S. 501 of parents to the custody and companionship of their own children, Stanley v. Illinois, supra, or with traditional parental authority in matters of childrearing and education. Yoder, Ginsberg, Pierce, Meyer, supra. But unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case. Understanding those reasons requires careful attention to this Court's function under the Due Process Clause. Mr. Justice Harlan described it eloquently: "Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed, as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. [ Footnote 8 ] No formula could serve as a substitute, in this area, for judgment and restraint. " Page 431 U. S. 502 ". . . [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, supra at 367 U. S. 542 -543 (dissenting opinion). Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court. [ Footnote 9 ] That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary -- the boundary of the nuclear family. Page 431 U. S. 503 Appropriate limits on substantive due process come not from drawing arbitrary lines, but rather from careful "respect for the teachings of history [and] solid recognition of the basic values that underlie our society." [ Footnote 10 ] Griswold v. Connecticut, 381 U. at 381 U. S. 501 (Harlan, J., concurring). [ Footnote 11 ] See generally Ingraham v. Wright, 430 U. S. 651 , 430 U. S. 672 -674, and nn. 41, 42 (1977); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 162 -163 (1951) (Frankfurter, J., concurring); Lochner v. New York, 198 U. S. 45 , 198 U. S. 76 (1905) (Holmes, J., dissenting). Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. [ Footnote 12 ] It is through the family that we inculcate and Page 431 U. S. 504 pass down many of our most cherished values, moral and cultural. [ Footnote 13 ] Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. [ Footnote 14 ] Over the years, millions Page 431 U. S. 505 of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning childrearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household -- indeed who may take on major responsibility for the rearing of the children. [ Footnote 15 ] Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here. [ Footnote 16 ] Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree Page 431 U. S. 506 of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State's public schools, holding that the Constitution "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 268 U.S. at 268 U. S. 535 . By the same token, the Constitution prevents East Cleveland from standardizing its children -- and its adults -- by forcing all to live in certain narrowly defined family patterns. Reversed. [ Footnote 1 ] All citations by section number refer to the Housing Code of the city of East Cleveland, Ohio. [ Footnote 2 ] Section 1341.0 (1966) provides: "'Family' means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following:" "(a) Husband or wife of the nominal head of the household." "(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them." "(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household." "(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household." "(e) A family may consist of one individual." [ Footnote 3 ] Appellant also claims that the ordinance contravenes the Equal Protection Clause, but it is not necessary for us to reach that contention. [ Footnote 4 ] Brief for Appellant 4, 25. John's father, John Moore, Sr., has apparently been living with the family at least since the time of trial. Whether he was living there when the citation was issued is in dispute. Under the ordinance, his presence too probably would be a violation. But we take the case as the city has framed it. The citation that led to prosecution recited only that John Moore, Jr., was in the home in violation of the ordinance. [ Footnote 5 ] The dissenting opinion of THE CHIEF JUSTICE suggests that Mrs. Moore should be denied a hearing in this Court because she failed to seek discretionary administrative relief in the form of a variance, relief that is no longer available. There are sound reasons for requiring exhaustion of administrative remedies in some situations, but such a requirement is wholly inappropriate where the party is a criminal defendant in circumstances like those present here. See generally McKart v. United States, 395 U. S. 185 (1969). Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve. In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from asserting constitutional invalidity of the statute under which she is being prosecuted. See, e.g., Yakus v. United States, 321 U. S. 414 , 321 U. S. 446 -447 (1944). Moreover, those cases that have denied certain nonconstitutional defenses to criminal defendants for failure to exhaust remedies did so pursuant to statutes that implicitly or explicitly mandated such a holding. See, e.g., Falbo v. United States, 320 U. S. 549 (1944); Yakus v. United States, supra; McGee v. United States, 402 U. S. 479 (1971). Because of the statutes, the defendants were on notice that failure to pursue available administrative relief might result in forfeiture of a defense in an enforcement proceeding. But here no Ohio statute or ordinance required exhaustion or gave Mrs. Moore any such warning. Indeed, the Ohio courts entertained all her claims, perceiving no denigration of state administrative process in according full judicial review. [ Footnote 6 ] Euclid held that land use regulations violate the Due Process Clause if they are "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." 272 U.S. at 272 U. S. 395 . See Nectow v. Cambridge, 277 U. S. 183 , 277 U. S. 188 (1928). Later cases have emphasized that the general welfare is not to be narrowly understood; it embraces a broad range of governmental purposes. See Berman v. Parker, 348 U. S. 26 (1954). But our cases have not departed from the requirement that the government's chosen means must rationally further some legitimate state purpose. [ Footnote 7 ] It is significant that East Cleveland has another ordinance specifically addressed to the problem of overcrowding. See United States Dept. of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 536 -537 (1973). Section 1351.03 limits population density directly, tying the maximum permissible occupancy of a dwelling to the habitable floor area. Even if John, Jr., and his father both remain in Mrs. Moore's household, the family stays well within these limits. [ Footnote 8 ] This explains why Meyer and Pierce have survived and enjoyed frequent reaffirmance, while other substantive due process cases of the same era have been repudiated -- including a number written, as were Meyer and Pierce, by Mr. Justice McReynolds. [ Footnote 9 ] Lochner v. New York, 198 U. S. 45 (1905). See North Dakota Pharmacy Bd. v. Snyder's Drug Stores, Inc., 414 U. S. 156 , 414 U. S. 164 -167 (1973); Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 514 -527 (1965) (Black, J., dissenting); Ferguson v. Skrupa, 372 U. S. 726 (1963); Baldwin v. Missouri, 281 U. S. 586 , 281 U. S. 595 (1930) (Holmes, J., dissenting); G. Gunther, Cases and Materials on Constitutional Law 550-596 (9th ed.1975). [ Footnote 10 ] A similar restraint marks our approach to the questions whether an asserted substantive right is entitled to heightened solicitude under the Equal Protection Clause because it is "explicitly or implicitly guaranteed by the Constitution," San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 33 -34 (1973), and whether or to what extent a guarantee in the Bill of Rights should be "incorporated" in the Due Process Clause because it is "necessary to an Anglo-American regime of ordered liberty." Duncan v. Louisiana, 391 U. S. 145 , 391 U. S. 149 -150, n. 14 (1968); see Johnson v. Louisiana, 406 U. S. 356 , 406 U. S. 372 n. 9 (1972) (opinion of POWELL, J.). [ Footnote 11 ] For a recent suggestion that the holding in Griswold is best understood in this fashion, see Pollak, Comment, 84 Yale L.J. 638, 650-653 (1975). "[I]n due course, we will see Griswold as a reaffirmation of the Court's continuing obligation to test the justifications offered by the state for state-imposed constraints which significantly hamper those modes of individual fulfillment which are at the heart of a free society." Id. at 653. [ Footnote 12 ] In Wisconsin v. Yoder, 406 U. S. 205 (1972), the Court rested its holding in part on the constitutional right of parents to assume the primary role in decisions concerning the rearing of their children. That right is recognized because it reflects a "strong tradition" founded on "the history and culture of Western civilization," and because the parental role "is now established beyond debate as an enduring American tradition." Id. at 406 U. S. 232 . In Ginsberg v. New York, 390 U. S. 629 (1968), the Court spoke of the same right as "basic in the structure of our society." Id. at 390 U. S. 639 . Griswold v. Connecticut, supra, struck down Connecticut's anti-contraception statute. Three concurring Justices, relying on both the Ninth and Fourteenth Amendments, emphasized that "the traditional relation of the family" is "a relation as old and as fundamental as our entire civilization." 381 U.S. at 381 U. S. 496 (Goldberg, J., joined by Warren, C.J., and BRENNAN, J., concurring). Speaking of the same statute as that involved in Griswold, Mr. Justice Harlan wrote, dissenting in Poe v. Ullman, 367 U. S. 497 , 367 U. S. 551 -552 (1961): "[H]ere we have not an intrusion into the home so much as on the life which characteristically has its place in the home. . . . The home derives its preeminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional right." Although he agrees that the Due Process Clause has substantive content, MR. JUSTICE WHITE, in dissent, expresses the fear that our recourse to history and tradition will "broaden enormously the horizons of the Clause." Post at 431 U. S. 549 -550. To the contrary, an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on the abstract formula taken from Palko v. Connecticut, 302 U. S. 319 (1937), and apparently suggested as an alternative. Cf. Duncan v. Louisiana, supra at 391 U. S. 149 -150, n. 14 (rejecting the Palko formula as the basis for deciding what procedural protections are required of a State, in favor of a historical approach based on the Anglo-American legal tradition). Indeed, the passage cited in MR. JUSTICE WHITE's dissent as "most accurately reflect[ing] the thrust of prior decisions" on substantive due process, post at 431 U. S. 545 , expressly points to history and tradition as the source for "supplying . . . content to this Constitutional concept." Poe v. Ullman, supra at 367 U. S. 542 (Harlan, J., dissenting). [ Footnote 13 ] See generally Wilkinson & White, Constitutional Protection for Personal Lifestyles, 62 Cornell L.Rev. 563, 623-624 (1977). [ Footnote 14 ] See generally B. Yorburg, The Changing Family (1973); Bronfenbrenner, The Calamitous Decline of the American Family, Washington Post, Jan. 2, 1977, p. C1. Recent census reports bear out the importance of family patterns other than the prototypical nuclear family. In 1970, 26.5% of all families contained one or more members over 18 years of age, other than the head of household and spouse. U.S. Department of Commerce, 1970 Census of Population, vol. 1, pt. 1, Table 208. In 1960, the comparable figure was 26.1%. U.S. Department of Commerce, 1960 Census of Population, vol. 1, pt. 1, Table 187. Earlier data are not available. [ Footnote 15 ] Cf. Prince v. Massachusetts, 321 U. S. 158 (1944), which spoke broadly of family authority as against the State, in a case where the child was being reared by her aunt, not her natural parents. [ Footnote 16 ] We are told that the mother of John Moore, Jr., died when he was less than one year old. He, like uncounted others who have suffered a similar tragedy, then came to live with the grandmother to provide the infant with a substitute for his mother's care and to establish a more normal home environment. Brief for Appellant 25. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring. I join the plurality's opinion. I agree that the Constitution is not powerless to prevent East Cleveland from prosecuting as a criminal and jailing [ Footnote 2/1 ] a 63-year-old grandmother for refusing to expel from her home her now 10-year-old grandson who has lived with her and been brought up by her since his mother's death when he was less than a year old. [ Footnote 2/2 ] I do not question that a municipality may constitutionally zone to Page 431 U. S. 507 alleviate noise and traffic congestion and to prevent overcrowded and unsafe living conditions, in short, to enact reasonable land use restrictions in furtherance of the legitimate objectives East Cleveland claims for its ordinance. But the zoning power is not a license for local communities to enact senseless and arbitrary restrictions which cut deeply into private areas of protected family life. East Cleveland may not constitutionally define "family" as essentially confined to parents and the parents' own children. [ Footnote 2/3 ] The plurality's opinion conclusively demonstrates that classifying family patterns in this eccentric way is not a rational means of achieving the ends East Cleveland claims for its ordinance, and further that the ordinance unconstitutionally abridges the "freedom of personal choice in matters of . . . family life [that] is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of Education v. LaFleur, 414 U. S. 632 , 414 U. S. 639 -640 (1974). I write only to underscore the cultural myopia of the arbitrary boundary drawn by the East Cleveland ordinance in the light of the tradition of the American home that has been a feature of our society since our beginning as a Nation -- the "tradition" in the plurality's words, "of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children. . . ." Ante at 431 U. S. 504 . The line drawn by this ordinance Page 431 U. S. 508 displays a depressing insensitivity toward the economic and emotional needs of a very large part of our society. In today's America, the "nuclear family" is the pattern so often found in much of white suburbia. J. Vander Zanden, Sociology: A Systematic Approach 322 (3d ed.1975). The Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of white suburbia's preference in patterns of family living. The "extended family" that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities, [ Footnote 2/4 ] remains not merely still a pervasive living pattern, but, under the goad of brutal economic necessity, a prominent pattern -- virtually a means of survival -- for large numbers of the poor and deprived minorities of our society. For them, compelled pooling of scant resources requires compelled sharing of a household. [ Footnote 2/5 ] Page 431 U. S. 509 The "extended" form is especially familiar among black families. [ Footnote 2/6 ] We may suppose that this reflects the truism that black citizens, like generations of white immigrants before them, have been victims of economic and other disadvantages that would worsen if they were compelled to abandon extended, for nuclear, living patterns. [ Footnote 2/7 ] Even in husband and wife households, 13% of black families compared with 3% of white families include relatives under 18 years old, in addition Page 431 U. S. 510 to the couple's own children. [ Footnote 2/8 ] In black households whose head is an elderly woman, as in this case, the contrast is even more striking: 48% of such black households, compared with 10% of counterpart white households, include related minor children not offspring of the head of the household. [ Footnote 2/9 ] I do not wish to be understood as implying that East Cleveland's enforcement of its ordinance is motivated by a racially discriminatory purpose: the record of this case would not support that implication. But the prominence of other than nuclear families among ethnic and racial minority groups, including our black citizens, surely demonstrates that the "extended family" pattern remains a vital tenet of our society. [ Footnote 2/10 ] It suffices that, in prohibiting this pattern of family living as a means of achieving its objectives, appellee city has chosen a device that deeply intrudes into family associational rights that historically have been central, and today remain central, to a large proportion of our population. Moreover, to sanction the drawing of the family line at the arbitrary boundary chosen by East Cleveland would surely conflict with prior decisions that protected "extended" family Page 431 U. S. 511 relationships. For the "private realm of family life which the state cannot enter," recognized as protected in Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 (1944), was the relationship of aunt and niece. And in Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 534 -535 (1925), the protection held to have been unconstitutionally abridged was "the liberty of parents and guardians to direct the upbringing and education of children under their control" (emphasis added). See also Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 232 -233 (1972). Indeed, Village of Belle Terre v. Boraas, 416 U. S. 1 (1974), the case primarily relied upon by the appellee, actually supports the Court's decision. The Belle Terre ordinance barred only unrelated individuals from constituting a family in a single-family zone. The village took special care in its brief to emphasize that its ordinance did not in any manner inhibit the choice of related individuals to constitute a family, whether in the "nuclear" or "extended" form. This was because the village perceived that choice as one it was constitutionally powerless to inhibit. Its brief stated: "Whether it be the extended family of a more leisurely age or the nuclear family of today, the role of the family in raising and training successive generations of the species makes it more important, we dare say, than any other social or legal institution. . . . If any freedom not specifically mentioned in the Bill of Rights enjoys a 'preferred position' in the law, it is most certainly the family. " (Emphasis supplied.) Brief for Appellants in No. 73-191, O.T. 1973, p. 26. The cited decisions recognized, as the plurality recognizes today, that the choice of the "extended family" pattern is within the "freedom of personal choice in matters of . . . family life [that] is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." 414 U.S. at 414 U. S. 639 -640. Any suggestion that the variance procedure of East Cleveland's Housing Code assumes special significance is without merit. This is not only because this grandmother Page 431 U. S. 512 was not obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause. Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), the leading case in the zoning field, expressly held that one attacking the constitutionality of a building or zoning code need not first seek a variance. Id. at 272 U. S. 386 . Rather, the matter of a variance is irrelevant also because the municipality is constitutionally powerless to abridge, as East Cleveland has done, the freedom of personal choice of related members of a family to live together. Thus, the existence of the variance procedure serves to lessen neither the irrationality of the definition of "family" nor the extent of its intrusion into family lifestyle decisions. There is no basis for an inference -- other than the city's self-serving statement that a hardship variance "possibly with some stipulation(s) would probably have been granted" -- that this grandmother would have obtained a variance had she requested one. Indeed, a contrary inference is more supportable. In deciding to prosecute her in the first place, the city tipped its hand how discretion would have been exercised. In any event, § 1311.02 (1965), limits the discretion of the Board of Building Code Appeals to grant variances to those which are "in harmony with the general intent of such ordinance. . . ." If one of the legitimate objectives of the definition of "family" was to preserve the single (nuclear) family character of East Cleveland, then granting this grandmother a variance would be in excess of the Board's powers under the ordinance. Furthermore, the very existence of the "escape hatch" of the variance procedure only heightens the irrationality of the restrictive definition, since application of the ordinance then depends upon which family units the zoning authorities permit to reside together and whom the prosecuting authorities choose to prosecute. The Court's disposition of the analogous situation in Roe v. Wade, 410 U. S. 113 (1973), Page 431 U. S. 513 is instructive. There, Texas argued that, despite a rigid and narrow statute prohibiting abortions except for the purpose of saving the mother's life, prosecuting authorities routinely tolerated elective abortion procedures in certain cases, such as nonconsensual pregnancies resulting from rape or incest. The Court was not persuaded that this saved the statute, THE CHIEF JUSTICE commenting that "no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion." Id. at 410 U. S. 208 (concurring opinion). Similarly, this grandmother cannot be denied the opportunity to defend against this criminal prosecution because of a variance procedure that holds her family hostage to the vagaries of discretionary administrative decisions. Smith v. Cahoon, 283 U. S. 553 , 283 U. S. 562 (1931). We have now passed well beyond the day when illusory escape hatches could justify the imposition of burdens on fundamental rights. Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 647 -649 (1972); Staub v. City of Baxley, 355 U. S. 313 , 355 U. S. 319 (1958). [ Footnote 2/1 ] This is a criminal prosecution which resulted in the grandmother's conviction and sentence to prison and a fine. Section 1345.99 permits imprisonment of up to six months, and a fine of up to $1,000, for violation of any provision of the Housing Code. Each day such violation continues may, by the terms of this section, constitute a separate offense. [ Footnote 2/2 ] Brief for Appellant 4. In addition, we were informed by appellant's counsel at oral argument that "application of this ordinance here would not only sever and disrupt the relationship between Mrs. Moore and her own son, but it would disrupt the relationship that is established between young John and young Dale, which is in essence a sibling type relationship, and it would, most importantly, disrupt the relationship between young John and his grandmother, which is the only maternal influence that he has had during his entire life." Tr. of Oral Arg. 16. The city did not dispute these representations, and it is clear that this case was argued from the outset as requiring decision in this context. [ Footnote 2/3 ] The East Cleveland ordinance defines "family" to include, in addition to the spouse of the "nominal head of the household," the couple's childless unmarried children, but only one dependent child (married or unmarried) having dependent children, and one parent of the nominal head of the household or of his or her spouse. Thus, an "extended family" is authorized in only the most limited sense, and "family" is essentially confined to parents and their own children. Appellant grandmother was charged with violating the ordinance because John, Jr., lived with her at the same time her other grandson, Dale, Jr., was also living in the home; the latter is classified as an "unlicensed roomer" authorized by the ordinance to live in the house. [ Footnote 2/4 ] See Report of the National Advisory Commission on Civil Disorders 278-281 (1968); Kosa & Nash, Social Ascent of Catholics, 8 Social Order 98-103 (1958); M. Novak, The Rise of the Unmeltable Ethnics 209-210 (1972); B. Yorburg, The Changing Family 106-109 (1973); Kosa, Rachiele, & Schommer, Sharing the Home with Relatives, 22 Marriage and Family Living 129 (1960). [ Footnote 2/5 ] See, e.g., H. Gans, The Urban Villagers 45-73, 245-249 (1962). "Perhaps the most important -- or at least the most visible -- difference between the classes is one of family structure. The working class subculture is distinguished by the dominant role of the family circle. . . ." "The specific characteristics of the family circle may differ widely -- from the collateral peer group form of the West Enders, to the hierarchical type of the Irish, or to the classical three-generation extended family. . . . What matters most -- and distinguishes this subculture from others -- is that there be a family circle which is wider than the nuclear family, and that all of the opportunities, temptations, and pressures of the larger society be evaluated in terms of how they affect the ongoing way of life that has been built around this circle." Id. at 244 245 (emphasis in original). [ Footnote 2/6 ] Yorburg, supra, 431 U.S. 494 fn2/4|>n. 4, at 108. "Within the black lower-class, it has been quite common for several generations, or parts of the kin, to live together under one roof. Often a maternal grandmother is the acknowledged head of this type of household, which has given rise to the term 'matrifocal' to describe lower-class black family patterns." See J. Scanzoni, The Black Family in Modern Society 134 (1971); see also Anderson, The Pains and Pleasures of Old Black Folks, Ebony 123, 128-130 (Mar.1973). See generally E. Frazier, The Negro Family in the United States (1939); Lewis, The Changing Negro Family, in E. Ginzberg, ed., The Nation's Children 108 (1960). The extended family often plays an important role in the rearing of young black children whose parents must work. Many such children frequently "spend all of their growing-up years in the care of extended kin. . . . Often children are 'given' to their grandparents, who rear them to adulthood. . . . Many children normally grow up in a three-generation household, and they absorb the influences of grandmother and grandfather, as well as mother and father." J. Ladner, Tomorrow's Tomorrow: The Black Woman 60 (1972). [ Footnote 2/7 ] The extended family has many strengths not shared by the nuclear family. "The case histories behind mounting rates of delinquency, addiction, crime, neurotic disabilities, mental illness, and senility in societies in which autonomous nuclear families prevail suggest that frequent failure to develop enduring family ties is a serious inadequacy for both individuals and societies." D. Blitsten, The World of the Family 256 (1963). Extended families provide services and emotional support not always found in the nuclear family: "The troubles of the nuclear family in industrial societies, generally, and in American society, particularly, stem largely from the inability of this type of family structure to provide certain of the services performed in the past by the extended family. Adequate health, education, and welfare provision, particularly for the two nonproductive generations in modern societies, the young and the old, is increasingly an insurmountable problem for the nuclear family. The unrelieved and sometimes unbearably intense parent-child relationship, where childrearing is not shared at least in part by others, and the loneliness of nuclear family units, increasingly turned in on themselves in contracted and relatively isolated settings, is another major problem." Yorburg, supra, 431 U.S. 494 fn2/4|>n. 4, at 194. [ Footnote 2/8 ] R. Hill, The Strengths of Black Families 5 (1972). [ Footnote 2/9 ] Id. at 5-6. It is estimated that at least 26% of black children live in other than husband-wife families, "including foster parents, the presence of other male or female relatives (grandfather or grandmother, older brother or sister, uncle or aunt), male or female nonrelatives, [or with] only one adult (usually mother) present. . . ." Scanzoni, supra, 431 U.S. 494 fn2/6|>n. 6, at 44. [ Footnote 2/10 ] Novak, supra, 431 U.S. 494 fn2/4|>n. 4; Hill, supra at 5-6; N. Glazer & D. Moynihan, Beyond the Melting Pot 50-53 (2d ed.1970); L. Rainwater & W. Yancey, The Moynihan Report and the Politics of Controversy 51-60 (1967). MR. JUSTICE STEVENS, concurring in the judgment. In my judgment, the critical question presented by this case is whether East Cleveland's housing ordinance is a permissible restriction on appellant's right to use her own property as she sees fit. Long before the original States adopted the Constitution, the common law protected an owner's right to decide how best to use his own property. This basic right has always been limited by the law of nuisance, which proscribes uses that impair the enjoyment of other property in the vicinity. But the question whether an individual owner's use could be further limited by a municipality's comprehensive zoning plan was not finally decided until this century. The holding in Euclid v. Ambler Realty Co., 272 U. S. 365 , that a city could use its police power not just to abate a specific use of property which proved offensive, but also to create and implement a comprehensive plan for the use Page 431 U. S. 514 of land in the community, vastly diminished the rights of individual property owners. It did not, however, totally extinguish those rights. On the contrary, that case expressly recognized that the broad zoning power must be exercised within constitutional limits. In his opinion for the Court, Mr. Justice Sutherland fused the two express constitutional restrictions on any state interference with private property -- that property shall not be taken without due process nor for a public purpose without just compensation -- into a single standard: "[B]efore [a zoning] ordinance can be declared unconstitutional, [it must be shown to be] clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, moral, or general welfare. " Id. at 272 U. S. 395 (emphasis added). This principle was applied in Nectow v. Cambridge, 277 U. S. 183 ; on the basis of a specific finding made by the state trial court that "the health, safety, convenience and general welfare of the inhabitants of the part of the city affected" would not be promoted by prohibiting the landowner's contemplated use, this Court held that the zoning ordinance as applied was unconstitutional. Id. at 277 U. S. 188 . [ Footnote 3/1 ] With one minor exception, [ Footnote 3/2 ] between the Nectow decision in 1928 and the 1974 decision in Village of Belle Terre v. Boraas, 416 U. S. 1 , this Court did not review the substance of any zoning ordinances. The case-by-case development of the constitutional limits on the zoning power has not, therefore, taken place in this Court. On the other hand, during Page 431 U. S. 515 the past half century the broad formulations found in Euclid and Nectow have been applied in countless situations by the state courts. Those cases shed a revelatory light on the character of the single-family zoning ordinance challenged in this case. Litigation involving single-family zoning ordinances is common. Although there appear to be almost endless differences in the language used in these ordinances, [ Footnote 3/3 ] they contain three principal types of restrictions. First, they define the kind of structure that may be erected on vacant land. [ Footnote 3/4 ] Second, they require that a single-family home be occupied only by a "single housekeeping unit." [ Footnote 3/5 ] Third, they often Page 431 U. S. 516 require that the housekeeping unit be made up of persons related by blood, adoption, or marriage, with certain limited exceptions. Although the legitimacy of the first two types of restrictions is well settled, [ Footnote 3/6 ] attempts to limit occupancy to related persons have not been successful. The state courts have recognized a valid community interest in preserving the stable character of residential neighborhoods which justifies a prohibition against transient occupancy. [ Footnote 3/7 ] Nevertheless, in well reasoned opinions, the Courts of Illinois, [ Footnote 3/8 ] New York, [ Footnote 3/9 ] New Jersey, [ Footnote 3/10 ] Page 431 U. S. 517 California, [ Footnote 3/11 ] Connecticut, [ Footnote 3/12 ] Wisconsin, [ Footnote 3/13 ] and other jurisdictions, [ Footnote 3/14 ] have permitted unrelated persons to occupy single-family residences notwithstanding an ordinance prohibiting, either expressly or implicitly, such occupancy. Page 431 U. S. 518 These cases delineate the extent to which the state courts have allowed zoning ordinances to interfere with the right of a property owner to determine the internal composition of his Page 431 U. S. 519 household. The intrusion on that basic property right has not previously gone beyond the point where the ordinance defines a family to include only persons related by blood, marriage, or adoption. Indeed, as the cases in the margin demonstrate, state courts have not always allowed the intrusion to penetrate that far. The state decisions have upheld zoning ordinances which regulated the identity, as opposed to the number, of persons who may compose a household only to the extent that the ordinances require such households to remain nontransient, single-housekeeping units. [ Footnote 3/15 ] Page 431 U. S. 520 There appears to be no precedent for an ordinance which excludes any of an owner's relatives from the group of persons who may occupy his residence on a permanent basis. Nor does there appear to be any Justification for such a restriction on an owner's use of his property. [ Footnote 3/16 ] The city has failed totally to explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins. Since this ordinance has not been shown to have any "substantial relation to the public health, safety, morals, or general welfare" of the city of East Cleveland, and since it cuts so deeply into a fundamental right normally associated with the ownership of residential property -- that of an owner to decide who may reside on his or her property -- it must fall under the limited standard of review of zoning decisions which this Court preserved in Page 431 U. S. 521 Euclid and Nectow. Under that standard, East Cleveland's unprecedented ordinance constitutes a taking of property without due process and without just compensation. For these reasons, I concur in the Court's judgment. [ Footnote 3/1 ] The Court cited Zahn v. Board of Public Works, 274 U. S. 325 . The statement of the rule in Zahn remains viable today: "The most that can be said [of this zoning ordinance] is that whether that determination was an unreasonable, arbitrary or unequal exercise of power is fairly debatable. In such circumstances, the settled rule of this court is that it will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question." Id. at 274 U. S. 328 . [ Footnote 3/2 ] Goldblatt v. Town of Hempstead, 369 U. S. 590 . [ Footnote 3/3 ] See, for example, the various provisions quoted or paraphrased in Brady v. Superior Court, 200 Cal. App. 2d 69 , 80-81, n. 3, 19 Cal. Rptr. 242, 249 n. 3 (1962). [ Footnote 3/4 ] As this Court recognized in Euclid, even residential apartments can have a negative impact on an area of single-family homes. "[O]ften the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by [a single-family dwelling area]. . . . [T]he coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities, -- until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances." 272 U.S. at 272 U. S. 394 -395. [ Footnote 3/5 ] Limiting use to single-housekeeping units, like limitations on the number of occupants, protects the community's interest in minimizing overcrowding, avoiding the excessive use of municipal services, traffic control, and other aspects of an attractive physical environment. See Village of Belle Terre v. Boraas, 416 U. S. 1 , 416 U. S. 9 . [ Footnote 3/6 ] See nn. 431 U.S. 494 fn3/4|>4 and 431 U.S. 494 fn3/5|>5, supra, and also Professor N. Williams' discussion of the subject in his excellent treatise on zoning law, 2 American Land Planning Law 349-361 (1974). [ Footnote 3/7 ] Types of group living which have not fared well under single-family ordinances include fraternities, Schenectady v. Alumni Assn., 5 App.Div.2d 14, 168 N.Y.S.2d 754 (1957); sororities, Cassidy v. Triebel, 337 Ill.App. 117, 85 N.E.2d 461 (1948); a retirement home designed for over 20 people, Kello v. Joint Council of Women's Auxiliaries Welfare Assn., 265 S.W.2d 374 (Mo.1954); and a commercial therapeutic home for emotionally disturbed children, Browndale International v. Board of Adjustment, 60 Wis.2d 182, 208 N.W.2d 121 (1973). These institutional uses are not only inconsistent with the "single housekeeping unit" concept, but include many more people than would normally inhabit a single-family dwelling. [ Footnote 3/8 ] In City of Des Plaines v. Trottner, 34 Ill. 2d 432 , 216 N.E.2d 116 (1966), the Illinois Supreme Court faced a challenge to a single-family zoning ordinance by a group of four unrelated young men who occupied a dwelling in violation of the ordinance which provided that a " family' consists of one or more persons each related to the other by blood (or adoption or marriage). . . ." Id. at 433, 216 N.E.2d at 117. In his opinion for the court, Justice Schaefer wrote: "When other courts have been called upon to define the term 'family' they have emphasized the single housekeeping unit aspect of the term, rather than the relationship of the occupants. [Citing cases.]" " * * * *" "In terms of permissible zoning objectives, a group of persons bound together only by their common desire to operate a single housekeeping unit, might be thought to have a transient quality that would affect adversely the stability of the neighborhood, and so depreciate the value of other property. An ordinance requiring relationship by blood, marriage or adoption could be regarded as tending to limit the intensity of land use. And it might be considered that a group of unrelated persons would be more likely to generate traffic and parking problems than would an equal number of related persons." "But none of these observations reflects a universal truth. Family groups are mobile today, and not all family units are internally stable and well disciplined. Family groups with two or more cars are not unfamiliar. And so far as intensity of use is concerned, the definition in the present ordinance, with its reference to the 'respective spouses' of persons related by blood, marriage or adoption, can hardly be regarded as an effective control upon the size of family units." "The General Assembly has not specifically authorized the adoption of zoning ordinances that penetrate so deeply as this one does into the internal composition of a single housekeeping unit. Until it has done so, we are of the opinion that we should not read the general authority that it has delegated to extend so far." Id. at 436-438, 216 N.E.2d at 119-120. [ Footnote 3/9 ] In White Plains v. Ferraioli, 34 N.Y.2d 300, 313 N.E.2d 756 (1974), the Court of Appeals of New York refused to apply an ordinance limiting occupancy of single-family dwellings to related individuals to a "group home" licensed by the State to care for abandoned and neglected children. The court wrote: "Zoning is intended to control types of housing and living, and not the genetic or intimate internal family relations of human beings." "Whether a family be organized along ties of blood or formal adoptions, or be a similarly structured group sponsored by the State, as is the group home, should not be consequential in meeting the test of the zoning ordinance. So long as the group home bears the generic character of a family unit as a relatively permanent household, and is not a framework for transients or transient living, it conforms to the purpose of the ordinance. . . ." Id. at 305-306, 313 N.E.2d at 758. [ Footnote 3/10 ] In Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 252, 281 A.2d 513 , 518 (1971), the Supreme Court of New Jersey reviewed a complex single-family zoning ordinance designed to meet what the court recognized to be a pressing community problem. The community, a seaside resort, had been inundated during recent summers by unruly groups of summer visitors renting seaside cottages. To solve the problems of excessive noise, overcrowding, intoxication, wild parties, and immorality that resulted from these group rentals, the community passed a zoning ordinance which prohibited seasonal rentals of cottages by most groups other than "families" related by blood or marriage. The court found that even though the problems were severe, the ordinance "preclude[d] so many harmless dwelling uses" that it became "sweepingly excessive, and therefore legally unreasonable." Ibid. The court quoted, id. at 252, 281 A.2d at 519, the following language from Gabe Collins Realty, Inc. v. Margate City, 112 N.J.Super. 341, 349, 271 A.2d 430 , 434 (1970), in a similar case as "equally applicable here": "Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experienced in Margate City, and of the presumption of validity of municipal ordinances, we are satisfied that the remedy here adopted constitutes a sweepingly excessive restriction of property rights as against the problem sought to be dealt with, and in legal contemplation deprives plaintiffs of their property without due process." The court in Kirsch Holding Co., supra at 251 n. 6, 281 A.2d at 518 n. 6, also quoted with approval the following statement from Marino v. Mayor & Council of Norwood, 77 N.J.Super. 587, 594, 187 A.2d 217 , 221 (1963): "Until compelled to do so by a New Jersey precedent squarely in point, this court will not conclude that persons who have economic or other personal reasons for living together as a bona fide single housekeeping unit and who have no other orientation, commit a zoning violation, with possible penal consequences, just because they are not related." [ Footnote 3/11 ] A California appellate court, in Brady v. Superior Court, 200 Cal. App. 2d at 81, 19 Cal. Rptr. at 250, allowed use of a single-family dwelling by two unrelated students, noting: "The erection or construction of a 'single family dwelling,' in itself, would imply that any building so constructed would contain a central kitchen, dining room, living room, bedrooms; that is, constitute a single housekeeping unit. Consequently, to qualify as a 'single family dwelling,' an erected structure need only be used as a single housekeeping unit." [ Footnote 3/12 ] The Supreme Court of Connecticut allowed occupancy of a large summer home by four related families because the families did "not occupy separate quarters within the house, [but used] the lodging, cooking and eating facilities [as] common to all." Neptune Park Assn. v. Steinberg, 138 Conn.357, 360, 84 A.2d 687, 689 (1951). [ Footnote 3/13 ] The Supreme Court of Wisconsin, noting that "the letter killeth but the spirit giveth life," 2 Corinthians 3:6, held that six priests and two lay brothers constituted a "family," and that their use, for purely residential purposes of a single-family dwelling did not violate a single-family zoning ordinance. Missionaries of Our Lady of LaSalette v. Whitefish Bay, 267 Wis. 609, 66 N.W.2d 627 (1954). [ Footnote 3/14 ] Carroll v. Miami Beach, 198 So. 2d 643 (Fla.App. 1967); Robertson v. Western Baptist Hospital, 267 S.W.2d 395 (Ky.App. 1954); Women's Kansas City St. Andrew Soc. v. Kansas City, 58 F.2d 593 (CA8 1932); University Heights v. Cleveland Jewish Orphans' Home, 20 F.2d 743 (CA6 1927). [ Footnote 3/15 ] Village of Belle Terre v. Boraas, 416 U. S. 1 , is consistent with this line of state authority. Chief Judge Breitel, in White Plains v. Ferraioli, supra at 304-305, 313 N.E.2d at 758, cogently characterized the Belle Terre decision upholding a single-family ordinance as one primarily concerned with the prevention of transiency in a small, quiet suburban community. He wrote: "The group home [in White Plains ] is not, for purposes of a zoning ordinance, a temporary living arrangement as would be a group of college students sharing a house and commuting to a nearby school ( cf. Village of Belle Terre v. Boraas . . . ). Every year or so, different college students would come to take the place of those before them. There would be none of the permanency of community that characterizes a residential neighborhood of private homes." [ Footnote 3/16 ] Of course, a community has other legitimate concerns in zoning an area for single-family use, including prevention of overcrowding in residences and prevention of traffic congestion. A community which attacks these problems by restricting the composition of a household is using a means not reasonably related to the ends it seeks to achieve. See Des Plaines v. Trottner, 34 Ill. 2d at 435-436, 216 N.E.2d at 118. To prevent overcrowding, a community can certainly place a limit on the number of occupants in a household, either in absolute terms or in relation to the available floor space. Indeed, the city of East Cleveland had on its books an ordinance requiring a minimum amount of floor space per occupant in every dwelling. See Nolden v. East Cleveland City Comm'n, 12 Ohio Misc. 205, 232 N.E.2d 421 (Com.Pl.Ct., Cuyahoga Cty.1966). Similarly, traffic congestion can be reduced by prohibiting on-street parking. To attack these problems through use of a restrictive definition of family is, as one court noted, like "burn[ing] the house to roast the pig." Larson v. Mayor, 99 N.J.Super. 365, 374, 240 A.2d 31 , 36 (1968). More narrowly, a limitation on which of the owner's grandchildren may reside with her obviously has no relevance to these problems. MR. CHIEF JUSTICE BURGER, dissenting. It is unnecessary for me to reach the difficult constitutional issue this case presents. Appellant's deliberate refusal to use a plainly adequate administrative remedy provided by the city should foreclose her from pressing in this Court any constitutional objections to the city's zoning ordinance. Considerations of federalism and comity, as well as the finite capacity of federal courts, support this position. In courts, as in hospitals, two bodies cannot occupy the same space at the same time; when any case comes here which could have been disposed of long ago at the local level, it takes the place that might well have been given to some other case in which there was no alternative remedy. (1) The single-family zoning ordinances of the city of East Cleveland define the term "family" to include only the head of the household and his or her most intimate relatives, principally the spouse and unmarried and dependent children. Excluded from the definition of "family," and hence from cohabitation, are various persons related by blood or adoption to the head of the household. The obvious purpose of the city is the traditional one of preserving certain areas as family residential communities. The city has established a Board of Building Code Appeals to consider variances from this facially stringent single-family limit when necessary to alleviate "practical difficulties and unnecessary hardships" and "to secure the general welfare and [do] substantial justice. . . ." East Cleveland Codified Ordinances § 1311.02 (1965). The Board has power to grant variances to "[a]ny person adversely affected by a decision of Page 431 U. S. 522 any City official made in the enforcement of any [zoning] ordinance," so long as appeal is made to the Board within 10 days of notice of the decision appealed from. § 1311.03. After appellant's receipt of the notice of violation, her lawyers made no effort to apply to the Board for a variance to exempt her from the restrictions of the ordinance, even though her situation appears on its face to present precisely the kind of "practical difficulties and unnecessary hardships" the variance procedure was intended to accommodate. Appellant's counsel does not claim appellant was unaware of the right to go to the Board and seek a variance, or that any attempt was made to secure relief by an application to the Board. [ Footnote 4/1 ] Indeed, appellant's counsel makes no claim that the failure to seek a variance was due to anything other than a deliberate decision to forgo the administrative process in favor of a judicial forum. (2) In view of appellant's deliberate bypass of the variance procedure, the question arises whether she should now be permitted to complain of the unconstitutionality of the single-family ordinance as it applies to her. This Court has not yet required one in appellant's position to utilize available state administrative remedies as a prerequisite to obtaining federal relief; but experience has demonstrated that such a requirement is imperative if the critical overburdening of federal courts at all levels is to be alleviated. That burden has now become "a crisis of overload, a crisis so serious that it threatens the capacity of the federal system to function as it should." Page 431 U. S. 523 Department of Justice Committee on Revision of the Federal Judicial System, Report on the Needs of the Federal Courts 1 (1977). The same committee went on to describe the disastrous effects an exploding caseload has had on the administration of justice: "Overloaded courts . . . mean long delays in obtaining a final decision and additional expense as court procedures become more complex in the effort to handle the rush of business. . . . [T]he quality of justice must necessarily suffer. Overloaded courts, seeking to deliver justice on time insofar as they can, necessarily begin to adjust their processes, sometimes in ways that threaten the integrity of the law and of the decisional process." "District courts have delegated more and more of their tasks to magistrates. . . . Time for oral argument is steadily cut back. . . . [T]he practice of delivering written opinions is declining." " * * * *" ". . . Courts are forced to add more clerks, more administrative personnel, to move cases faster and faster. They are losing . . . time for reflection, time for the deliberate maturation of principles." Id. at 3-4 The devastating impact overcrowded dockets have on the quality of justice received by all litigants makes it essential that courts be reserved for the resolution of disputes for which no other adequate forum is available. A The basis of the doctrine of exhaustion of administrative remedies was simply put in Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 , 303 U. S. 50 -51 (1938), as "the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or Page 431 U. S. 524 threatened injury until the prescribed administrative remedy has been exhausted." Exhaustion is simply one aspect of allocation of overtaxed judicial resources. Appellant wishes to use a residential property in a manner at variance with a municipal housing code. That claim could have been swiftly and inexpensively adjudicated in a municipal administrative tribunal, without engaging cumbersome federal judicial machinery at the highest level. Of course, had appellant utilized the local administrative remedies and state judicial remedies to no avail, resort to this Court would have been available. [ Footnote 4/2 ] The exhaustion principle asks simply that absent compelling circumstances -- and none are claimed here -- the avenues of relief nearest and simplest should be pursued first. This Court should now make unmistakably clear that, when state or local governments provide administrative remedial procedures, no federal forum will be open unless the claimant can show either that the remedy is inadequate or that resort to those remedies is futile. Utilization of available administrative processes is mandated for a complex of reasons. Statutes sometimes provide administrative procedures as the exclusive remedy. Even apart from a statutory command, it is common sense to permit the simple, speedy, and inexpensive processes of the administrative machinery to sift the facts and compile a complete record for the benefit of any reviewing courts. Exhaustion avoids interruption of the administrative process and allows application of an agency's specialized experience and the broad discretion granted to local entities, such as zoning boards. Page 431 U. S. 525 Indeed, judicial review may be seriously hampered if the appropriate agency has no chance to apply its experience, exercise its discretion, or make a factual record reflecting all aspects of the problem. Most important, if administrative remedies are pursued, the citizen may win complete relief without needlessly invoking judicial process. This permits the parties to resolve their disputes by relatively informal means far less costly and time consuming than litigation. By requiring exhaustion of administrative processes, the courts are assured of reviewing only final agency decisions arrived at after considered judgment. It also permits agencies an opportunity to correct their own mistakes or give discretionary relief short of judicial review. Consistent failure by courts to mandate utilization of administrative remedies -- under the growing insistence of lawyers demanding broad judicial remedies -- inevitably undermines administrative effectiveness and defeats fundamental public policy by encouraging "end runs" around the administrative process. It is apparent without discussion that resort to the local appeals board in this case would have furthered these policies, particularly since the exercise of informed discretion and experience by the proper agency is the essence of any housing code variance procedure. We ought not to encourage litigants to bypass simple, inexpensive, and expeditious remedies available at their doorstep in order to invoke expensive judicial machinery on matters capable of being resolved at local levels. B The suggestion is made that exhaustion of administrative remedies is not required on issues of constitutional law. In one sense, this argument is correct, since administrative agencies have no power to decide questions of federal constitutional law. But no one has a right to a federal constitutional adjudication Page 431 U. S. 526 on an issue capable of being resolved on a less elevated plane. Indeed, few concepts have had more faithful adherence in this Court than the imperative of avoiding constitutional resolution of issues capable of being disposed of otherwise. Mr. Justice Brandeis put it well in a related context, arguing for judicial restraint in Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (concurring opinion): "[This] Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter." This Court has frequently remanded cases for exhaustion "before a challenge can be made in a reviewing court of the constitutionality of the basic statute, on which the agency may not pass. . . ." K. Davis, Administrative Law Text 394 (3d ed. 1972). Indeed, exhaustion is often required precisely because there are constitutional issues present in a case, in order to avoid unnecessary adjudication of these delicate questions by giving the affected administrative agency an opportunity to resolve the matter on nonconstitutional grounds. See Christian v. New York Dept. of Labor, 414 U. S. 614 ( 1974); Public Utilities Comm'n of California v. United States, 355 U. S. 534 , 355 U. S. 539 -540 (1958); Allen v. Grand Central Aircraft Co., 347 U. S. 535 , 347 U. S. 553 (1954); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752 , 331 U. S. 766 -767 (1947); Natural Gas Co. v. Slattery, 302 U. S. 300 , 302 U. S. 309 -311 ( 1937); Fuchs, Prerequisites to Judicial Review of Administrative Agency Action, 51 Ind.L. J. 817, 883 (1976). Of course, if administrative authority fails to afford relief, further exhaustion is pointless and judicial relief may be available. See Weinberger v. Salfi, 422 U. S. 749 (1975). Page 431 U. S. 527 But so long as favorable administrative action is still possible, the policies favoring exhaustion are not mitigated in the slightest by the presence of a constitutional issue. See Christian, supra. To the extent that a nonconstitutional decision is possible only at the administrative level, those policies are reinforced. Plainly we have here precisely such a case. Appearance before the local city Board would have provided an opportunity for complete relief without forcing a constitutional ruling. The posture of the constitutional issues in this case thus provides an additional reason supporting the exhaustion requirement. C It is also said that exhaustion is not required when to do so would inflict irreparable injury on the litigant. In the present case, as in others in which a constitutional claim is asserted, injury is likely to include the "loss or destruction of substantive rights." In such a case, "the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened or impending irreparable injury flowing from delay . . . , has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention." Aircraft & Diesel Equipment Corp., supra at 331 U. S. 773 . But there is every reason to require resort to administrative remedies "where the individual charged is to be deprived of nothing until the completion of [the administrative] proceeding." Gibson v. Berryhill, 411 U. S. 564 , 411 U. S. 574 -575 (1973); see Natural Gas Co., supra at 302 U. S. 309 -311; Schlesinger v. Councilman, 420 U. S. 738 (1975); Aircraft & Diesel Equipment Corp., supra at 331 U. S. 773 -774. The focus must be on the adequacy of the administrative remedy. If the desired relief may be obtained without undue burdens, and if substantial rights are protected as the process moves forward, no harm is done by requiring the litigant to pursue and exhaust those remedies before calling on the Constitution of Page 431 U. S. 528 the United States. To do otherwise trivializes constitutional adjudication. [ Footnote 4/3 ] In this case, appellant need have surrendered no asserted constitutional rights in order to pursue the local administrative remedy. No reason appears why appellant could not have sought a variance as soon as notice of a claimed violation was received, without altering the living arrangements in question. The notice of violation gave appellant 10 days within which to seek a variance; no criminal or civil sanctions could possibly have attached pending the outcome of that proceeding. Though timely invocation of the administrative remedy would have had no effect on appellant's asserted rights, and would have inflicted no irreparable injury, the present availability of such relief under the city ordinance is less clear. But it is unrealistic to expect a municipality to hold open its administrative process for years after legal enforcement action has begun. Appellant cannot rely on the current absence Page 431 U. S. 529 of administrative relief either as justification for the original failure to seek it, or as a reason why accountability for that failure is unreasonable. See Huffman v. Pursue, Ltd., 420 U. S. 592 , 420 U. S. 611 n. 22 (1975). Any other rule would make a mockery of the exhaustion doctrine by placing no penalty on its violation. D This is not a case where inadequate or unclear or costly remedies make exhaustion inappropriate, or where the Board's position relating to appellant's claims is so fixed that further administrative review would be fruitless. There is not the slightest indication of any fixed Board policy against variances, or that a prompt application for a variance would not have been granted. [ Footnote 4/4 ] Nor is it dispositive that the case involves criminal, rather than civil, penalties. The applicability of the exhaustion principle to bar challenges to the legality of prosecutions is established even where, unlike the present case, substantial felony penalties are at stake. McGee v. United States, 402 U. S. 479 (1971); Yakus v. United States, 321 U. S. 414 (1944); Falbo v. United States, 320 U. S. 549 (1944); see McKart v. United States, 395 U. S. 185 (1969). There is far less reason to take into account the criminal nature of the proceedings when only misdemeanor penalties are involved. (3) Thus, the traditional justifications offered in support of the exhaustion principle point toward application of the doctrine. But there is a powerful additional reason why exhaustion should be enforced in this case. We deal here with federal Page 431 U. S. 530 judicial review of an administrative determination by a subdivision of the State of Ohio. When the question before a federal court is whether to enforce exhaustion of state administrative remedies, interests of federalism and comity make the analysis strikingly similar to that appropriate when the question is whether federal courts should abstain from interference with ongoing state judicial proceedings. [ Footnote 4/5 ] In both situations, federal courts are being requested to act in ways lacking deference to, and perhaps harmful to, important state interests in order to vindicate rights which can be protected in the state system, as well as in the federal. Cf. Wisconsin v. Constantineau, 400 U. S. 433 , 400 U.S. 439 (1971) (BURGER, C.J., dissenting). The policies underlying this Court's refusals to jeopardize important state objectives needlessly in Huffman v. Pursue, Ltd., supra; Juidice v. Vail, 430 U. S. 327 (1977); and Trainor v. Hernandez, ante p. 431 U. S. 434 , argue strongly against action which encourages evasion and undermining of other important state interests embodied in regulatory procedures. When the State asserts its sovereignty through the administrative process, no less than when it proceeds judicially, "federal courts . . . should abide by standards of restraint that go well beyond those of private equity jurisprudence." Huffman, supra at 420 U. S. 603 ; cf. Younger v. Harris, 401 U. S. 37 , 401 U. S. 41 (1971). A proper respect for state integrity is manifested by and, in part, dependent on, our reluctance to disrupt state Page 431 U. S. 531 proceedings even when important federal rights are asserted as a reason for doing so. Where, as here, state law affords an appropriate "doorstep" vehicle for vindication of the claims underlying those rights, federal courts should not be called upon unless those remedies have been utilized. No litigant has a right to force a constitutional adjudication by eschewing the only forum in which adequate nonconstitutional relief is possible. Appellant seeks to invoke federal judicial relief. We should now make clear that the finite resources of this Court are not available unless the litigant has first pursued all adequate and available administrative remedies. The doctrine of exhaustion of administrative remedies has a long history. Though its salutary effects are undisputed, they have often been casually neglected, due to the judicial penchant of honoring the doctrine more in the breach than in the observance. For my part, the time has come to insist on enforcement of the doctrine whenever the local or state remedy is adequate and where asserted rights can be protected and irreparable injury avoided within the administrative process. Only by so doing will this Court and other federal courts be available to deal with the myriad new problems clamoring for resolution. [ Footnote 4/1 ] Counsel for appellant candidly admitted at oral argument that "Mrs. Moore did not seek a variance in this case," but argued that her failure to do so is constitutionally irrelevant. Tr. of Oral Arg. 20. Thus, this was not an unpublicized administrative remedy of which appellant remained unaware until after it became unavailable. Such a case would, of course, present materially different considerations. Cf. Lambert v. California, 355 U. S. 225 (1957). [ Footnote 4/2 ] Exhaustion does not deny or limit litigants' rights to a federal forum "because state administrative agency determinations do not create res judicata or collateral estoppel effects. The exhaustion of state administrative remedies postpones, rather than precludes, the assertion of federal jurisdiction." Comment, Exhaustion of State Administrative Remedies in Section 1983 Cases, 41 U.Chi.L.Rev. 537, 551 (1974). [ Footnote 4/3 ] This analysis explains those cases in which this Court has allowed persons subject to claimed unconstitutional restrictions on their freedom of expression to challenge that restriction without first applying for a permit which, if granted, would moot their claim. E.g., Hynes v. Mayor of Oradell, 425 U. S. 610 (1976); Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Staub v. City of Baxley, 355 U. S. 313 (1958). In each instance, the permit procedure was itself an unconstitutional infringement on First Amendment rights. Thus, in those cases irreparable injury -- the loss or postponement of precious First Amendment rights -- was a concomitant of the available administrative procedure. Similarly explicable are those cases in which challenge is made to the constitutionality of the administrative proceedings themselves. See Freedman v. Maryland, 380 U. S. 51 (1965); Public Utilities Comm'n of California v. United States, 355 U. S. 534 , 355 U. S. 540 (1958). But see Christian v. New York Dept. of Labor, 414 U. S. 614 , 414 U. S. 622 (1974), where appellants' constitutional due process challenge to administrative procedures was deferred pending agency action. Exhaustion in those situations would similarly risk infringement of a constitutional right by the administrative process itself. [ Footnote 4/4 ] To be adequate for exhaustion purposes, an administrative remedy need not guarantee the litigant sue on the merits in advance. What is required is a forum with the power to grant relief, capable of hearing the case with objectivity and dispatch. There is no reason to doubt that appellant would have received a fair hearing before the Board. [ Footnote 4/5 ] See Parisi v. Davidson, 405 U. S. 34 , 405 U. S. 37 , 40 n. 6 (1972); Public Utilities Comm'n v. United Fuel Co., 317 U. S. 456 (1943); Natural Gas Co. v. Slattery, 302 U. S. 300 , 302 U. S. 311 (1937); Prentis v. Atlantic Coast Line, 211 U. S. 210 , 211 U. S. 229 (1908); First Nat. Bank v. Board of County Comm'rs, 264 U. S. 450 (1924); cf. Schlesinger v. Councilman, 420 U. S. 738 , 420 U. S. 756 -757 (1975). See generally L. Jaffe, Judicial Control of Administrative Action 437-438 (1965); Fuchs, Prerequisites to Judicial Review of Administrative Agency Action, 51 Ind. L.J. 817, 861-862 (1976); Comment, Exhaustion of State Administrative Remedies Under the Civil Rights Act, 8 Ind.L.Rev. 565 (1975). MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins, dissenting. In Village of Belle Terre v. Boraas, 416 U. S. 1 , the Court considered a New York village ordinance that restricted land use within the village to single-family dwellings. That ordinance defined "family" to include all persons related by blood, adoption, or marriage who lived and cooked together as a single housekeeping unit; it forbade occupancy by any group of three or more persons who were not so related. We held that the ordinance was a valid effort by the village government to promote the general community welfare, and that it did not violate the Fourteenth Amendment or infringe Page 431 U. S. 532 any other rights or freedoms protected by the Constitution. The present case brings before us a similar ordinance of East Cleveland, Ohio, one that also limits the occupancy of any dwelling unit to a single family, but that defines "family" to include only certain combinations of blood relatives. The question presented, as I view it, is whether the decision in Belle Terre is controlling, or whether the Constitution compels a different result because East Cleveland's definition of "family" is more restrictive than that before us in the Bell Terre case. The city of East Cleveland is a residential suburb of Cleveland, Ohio. It has enacted a comprehensive Housing Code, one section of which prescribes that "[t]he occupancy of any dwelling unit shall be limited to one, and only one, family. . . ." [ Footnote 5/1 ] The Code defines the term "family" as follows: "'Family' means a number of individuals related to the nominal head of the household or to the spouse of the nominal head of the household living as a single housekeeping unit in a single dwelling unit, but limited to the following:" "(a) Husband or wife of the nominal head of the household." "(b) Unmarried children of the nominal head of the household or of the spouse of the nominal head of the household, provided, however, that such unmarried children have no children residing with them." "(c) Father or mother of the nominal head of the household or of the spouse of the nominal head of the household." "(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not more than one dependent married or unmarried child of the nominal head of the household or of the spouse of the nominal head of Page 431 U. S. 533 the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has more than fifty percent of his total support furnished for him by the nominal head of the household and the spouse of the nominal head of the household." "(e) A family may consist of one individual. [ Footnote 5/2 ]" The appellant, Inez Moore, owns a 2 1/2-story frame house in East Cleveland. The building contains two "dwelling units." [ Footnote 5/3 ] At the time this litigation began, Mrs. Moore occupied one of these dwelling units with her two sons, John Moore, Sr., and Dale Moore, Sr., and their two sons, John, Jr., and Dale, Jr. [ Footnote 5/4 ] These five persons constituted more than one family under the ordinance. In January, 1973, a city housing inspector cited Mrs. Moore for occupation of the premises by more than one family. [ Footnote 5/5 ] She received a notice of violation directing her to Page 431 U. S. 534 correct the situation, which she did not do. Sixteen months passed, during which the city repeatedly complained about the violation. Mrs. Moore did not request relief from the Board of Building Code Appeals, although the Code gives the Board the explicit power to grant a variance "where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance. . . . [ Footnote 5/6 ]" Finally, in May, 1974, a municipal court found Mrs. Moore guilty of violating the single-family occupancy ordinance. The court overruled her motion to dismiss the charge, rejecting her claim that the ordinance's definition of "family" is invalid on its face under the United States Constitution. The Ohio Court of Appeals affirmed on the authority of Village of Belle Terre v. Boraas, and the Ohio Supreme Court dismissed Mrs. Moore's appeal. In my view, the appellant's claim that the ordinance in question invades constitutionally protected rights of association and privacy is in large part answered by the Belle Terre decision. The argument was made there that a municipality could not zone its land exclusively for single-family occupancy because to do so would interfere with protected rights of privacy or association. We rejected this contention, and held that the ordinance at issue "involve[d] no 'fundamental' right guaranteed by the Constitution, such as . . . the right of association, NAACP v. Alabama, 357 U. S. 449 ; . . . or any rights of privacy, cf. Griswold v. Connecticut, 381 U. S. 479 ; Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 -454." 416 U.S. at 416 U. S. 7 -8. The Belle Terre decision thus disposes of the appellant's contentions to the extent they focus not on her blood relationships with her sons and grandsons, but on more general Page 431 U. S. 535 notions about the "privacy of the home." Her suggestion that every person has a constitutional right permanently to share his residence with whomever he pleases, and that such choices are "beyond the province of legitimate governmental intrusion," amounts to the same argument that was made and found unpersuasive in Belle Terre. To be sure, the ordinance involved in Belle Terre did not prevent blood relatives from occupying the same dwelling, and the Court's decision in that case does not, therefore, foreclose the appellant's arguments based specifically on the ties of kinship present in this case. Nonetheless, I would hold, for the reasons that follow, that the existence of those ties does not elevate either the appellant's claim of associational freedom or her claim of privacy to a level invoking constitutional protection. To suggest that the biological fact of common ancestry necessarily gives related persons constitutional rights of association superior to those of unrelated persons is to misunderstand the nature of the associational freedoms that the Constitution has been understood to protect. Freedom of association has been constitutionally recognized because it is often indispensable to effectuation of explicit First Amendment guarantees. See NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 , 357 U. S. 460 -461; Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 523 ; Shelton v. Tucker, 364 U. S. 479 ; NAACP v. Button, 371 U. S. 415 , 371 U. S. 430 -431; Railroad Trainmen v. Virginia Bar, 377 U. S. 1 ; Kusper v. Pontikes, 414 U. S. 51 , 414 U. S. 56 -61; cf. Edwards v. South Carolina, 372 U. S. 229 . But the scope of the associational right, until now, at least, has been limited to the constitutional need that created it; obviously not every "association" is for First Amendment purposes or serves to promote the ideological freedom that the First Amendment was designed to protect. The "association" in this case is not for any purpose relating to the promotion of speech, assembly, the press, or religion. And wherever the outer boundaries of constitutional protection Page 431 U. S. 536 of freedom of association may eventually turn out to be, they surely do not extend to those who assert no interest other than the gratification, convenience, and economy of sharing the same residence. The appellant is considerably closer to the constitutional mark in asserting that the East Cleveland ordinance intrudes upon "the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 . Several decisions of the Court have identified specific aspects of what might broadly be termed "private family life" that are constitutionally protected against state interference. See, e.g., Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 -154 (woman's right to decide whether to terminate pregnancy); Loving v. Virginia, 388 U. S. 1 , 388 U. S. 12 (freedom to marry person of another race); Griswold v. Connecticut, 381 U. S. 479 ; Eisenstadt v. Baird, 405 U. S. 438 (right to use contraceptives); Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 534 -535 (parents' right to send children to private schools); Meyer v. Nebraska, 262 U. S. 390 (parents' right to have children instructed in foreign language). Although the appellant's desire to share a single-dwelling unit also involves "private family life" in a sense, that desire can hardly be equated with any of the interests protected in the cases just cited. The ordinance about which the appellant complains did not impede her choice to have or not to have children, and it did not dictate to her how her own children were to be nurtured and reared. The ordinance clearly does not prevent parents from living together or living with their unemancipated offspring. But even though the Court's previous cases are not directly in point, the appellant contends that the importance of the "extended family" in American society requires us to hold that her decision to share her residence with her grandsons may not be interfered with by the State. This decision, like the decisions involved in bearing and raising children, is said Page 431 U. S. 537 to be an aspect of "family life" also entitled to substantive protection under the Constitution. Without pausing to inquire how far under this argument an "extended family" might extend, I cannot agree. [ Footnote 5/7 ] When the Court has found that the Fourteenth Amendment placed a substantive limitation on a State's power to regulate, it has been in those rare cases in which the personal interests at issue have been deemed " implicit in the concept of ordered liberty.'" See Roe v. Wade, supra at 410 U. S. 152 , quoting Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 . The interest that the appellant may have in permanently sharing a single kitchen and a suite of contiguous rooms with some of her relatives simply does not rise to that level. To equate this interest with the fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Due Process Clause beyond recognition. The appellant also challenges the single-family occupancy ordinance on equal protection grounds. Her claim is that the city has drawn an arbitrary and irrational distinction between groups of people who may live together as a "family" and those who may not. While acknowledging the city's right to preclude more than one family from occupying a single-dwelling unit, the appellant argues that the purposes of the single-family occupancy law would be equally served by an ordinance that did not prevent her from sharing her residence with her two sons and their sons. This argument misconceives the nature of the constitutional inquiry. In a case such as this one, where the challenged Page 431 U. S. 538 ordinance intrudes upon no substantively protected constitutional right, it is not the Court's business to decide whether its application in a particular case seems inequitable, or even absurd. The question is not whether some other ordinance, drafted more broadly, might have served the city's ends as well or almost as well. The task, rather, is to determine if East Cleveland's ordinance violates the Equal Protection Clause of the United States Constitution. And in performing that task, it must be borne in mind that "[w]e deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be " reasonable, not arbitrary'" (quoting Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 ) and bears "a rational relationship to a [permissible] state objective." Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 ." Village of Belle Terre v. Boraas, 416 U.S. at 416 U. S. 8 . "[E]very line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function." Ibid. (footnote omitted). [ Footnote 5/8 ] Viewed in the light of these principles, I do not think East Cleveland's definition of "family" offends the Constitution. The city has undisputed power to ordain single-family residential Page 431 U. S. 539 occupancy. Village of Belle Terre v. Boraas, supra; Euclid v. Ambler Realty Co., 272 U. S. 365 . And that power plainly carries with it the power to say what a "family" is. Here the city has defined "family" to include not only father, mother, and dependent children, but several other close relatives as well. The definition is rationally designed to carry out the legitimate governmental purposes identified in the Belle Terre opinion: "The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." 416 U.S. at 416 U. S. 9 . [ Footnote 5/9 ] Obviously, East Cleveland might have as easily and perhaps as effectively hit upon a different definition of "family." But a line could hardly be drawn that would not sooner or later become the target of a challenge like the appellant's. If "family" included all of the householder's grandchildren, there would doubtless be the hard case of an orphaned niece or nephew. If, as the appellant suggests, a "family" must include all blood relatives, what of longtime friends? The point is that any definition would produce hardships in some cases without materially advancing the legislative purpose. That this ordinance also does so is no reason to hold it unconstitutional, unless we are to use our power to interpret the United States Constitution as a sort of generalized authority to correct seeming inequity wherever it surfaces. It is not for us to rewrite the ordinance, or substitute our judgment for Page 431 U. S. 540 the discretion of the prosecutor who elected to initiate this litigation. [ Footnote 5/10 ] In this connection, the variance provisions of East Cleveland's Building Code assume special significance, for they show that the city recognized the difficult problems its ordinances were bound to create in particular cases, and provided a means to solve at least some of them. Section 1311.01 of the Code establishes a Board of Building Code Appeals. Section 1311.02 then provides, in pertinent part: "The Board of Building Code Appeals shall determine all matters properly presented to it and where practical difficulties and unnecessary hardships shall result from the strict compliance with or the enforcement of the provisions of any ordinance for which it is designated as Page 431 U. S. 541 the Board of Appeals, such Board shall have the power to grant variances in harmony with the general intent of such ordinance and to secure the general welfare and substantial justice in the promotion of the public health, comfort, convenience, morals, safety and general welfare of the City." The appellant did not request a variance under this section, although she could have done so. While it is impossible to know whether such a request would have been granted, her situation appears to present precisely the kind of "practical difficulties" and "unnecessary hardships" that the variance provisions were designed to accommodate. This is not to say that the appellant was obligated to exhaust her administrative remedy before defending this prosecution on the ground that the single-family occupancy ordinance violates the Equal Protection Clause. In assessing her claim that the ordinance is "arbitrary" and "irrational," however, I think the existence of the variance provisions is particularly persuasive evidence to the contrary. The variance procedure, a traditional part of American land use law, bends the straight lines of East Cleveland's ordinances, shaping their contours to respond more flexibly to the hard cases that are the inevitable byproduct of legislative linedrawing. For these reasons, I think the Ohio courts did not err in rejecting the appellant's constitutional claims. Accordingly, I respectfully dissent. [ Footnote 5/1 ] East Cleveland Housing Code § 1351.02 (1964). [ Footnote 5/2 ] East Cleveland Housing Code § 1341.08 (1966). [ Footnote 5/3 ] The Housing Code defines a "dwelling unit" as "a group of rooms arranged, maintained or designed to be occupied by a single family and consisting of a complete bathroom with toilet, lavatory and tub or shower facilities; one, and one only, complete kitchen or kitchenette with approved cooking, refrigeration and sink facilities; approved living and sleeping facilities. All of such facilities shall be in contiguous rooms and used exclusively by such family and by any authorized persons occupying such dwelling unit with the family." § 1341.07. [ Footnote 5/4 ] There is some suggestion in the record that the other dwelling unit in the appellant's house was also occupied by relatives of Mrs. Moore. A notice of violation dated January 16, 1973, refers to "Ms. Carol Moore and her son, Derik," as illegal occupants in the other unit, and at some point the illegal occupancy in one of the units allegedly was corrected by transferring one occupant over to the other unit. [ Footnote 5/5 ] Mrs. Moore, as the owner of the house was responsible for compliance with the Housing Code. East Cleveland Housing Code § 1343.04 (1966). The illegal occupant, however, was identified by the city as John Moore, Jr., Mrs. Moore's grandson. The record suggests no reason why he was named, rather than Dale Moore, Jr. The occupancy might have been legal but for one of the two grandsons. One of Mrs. Moore's sons, together with his son, could have lived with Mrs. Moore under § 1341.08(d) of the Code if they were dependent on her. The other son, provided he was "unmarried," could have been included under § 1341.08(b). [ Footnote 5/6 ] East Cleveland Building Code § 1311.02 (1965). [ Footnote 5/7 ] The opinion of MR. JUSTICE POWELL and MR. JUSTICE BRENNAN's concurring opinion both emphasize the traditional importance of the extended family in American life. But I fail to understand why it follows that the residents of East Cleveland are constitutionally prevented from following what MR. JUSTICE BRENNAN calls the pattern of "white suburbia," even though that choice may reflect "cultural myopia." In point of fact, East Cleveland is a predominantly Negro community, with a Negro City Manager and City Commission. [ Footnote 5/8 ] The observation of Mr. Justice Holmes quoted in the Belle Terre opinion, 416 U.S. at 416 U. S. 8 n. 5, bears repeating here. "When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself, without regard to the necessity behind it, the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U. S. 32 , 277 U. S. 41 (dissenting opinion). [ Footnote 5/9 ] The appellant makes much of East Cleveland Housing Code § 1351.03 (1966), which prescribes a minimum habitable floor area per person; she argues that, because the municipality has chosen to establish a specific density control, the single-family ordinance can have no role to play. It is obvious, however, that § 1351.03 is directed not at preserving the character of a residential area, but at establishing minimum health and safety standards. [ Footnote 5/10 ] MR. JUSTICE STEVENS, in his opinion concurring in the judgment, frames the issue in terms of the "appellant's right to use her own property as she sees fit." Ante at 431 U. S. 513 . Focusing on the householder's property rights does not substantially change the constitutional analysis. If the ordinance is invalid under the Equal Protection Clause as to those classes of people whose occupancy it forbids, I should suppose it is also invalid as an arbitrary intrusion upon the property owner's rights to have them live with her. On the other hand, if the ordinance is a rational attempt to promote "the city's interest in preserving the character of its neighborhoods," Young v. American Mini Theatres, 427 U. S. 50 , 427 U. S. 71 (opinion of STEVENS, J.), it is consistent with the Equal Protection Clause and a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U. S. 365 , and Nectow v. Cambridge, 277 U. S. 183 . The state cases that MR. JUSTICE STEVENS discusses do not answer this federal constitutional issue. For the most part, they deal with state law issues concerning the proper statutory construction of the term "family," and they indicate only that state courts have been reluctant to extend ambiguous single-family zoning ordinances to nontransient, single-housekeeping units. By no means do they establish that narrow definitions of the term "family" are unconstitutional. Finally, MR. JUSTICE STEVENS calls the city to task for failing "to explain the need" for enacting this particular ordinance. Ante at 431 U. S. 520 . This places the burden on the wrong party. MR JUSTICE WHITE, dissenting. The Fourteenth Amendment forbids any State to "deprive any person of life, liberty, or property, without due process of law," or to "deny to any person within its jurisdiction the equal protection of the laws." Both provisions are invoked in this case in an attempt to invalidate a city zoning ordinance. Page 431 U. S. 542 I The emphasis of the Due Process Clause is on "process." As Mr. Justice Harlan once observed, it has been "ably and insistently argued in response to what were felt to be abuses by this Court of its reviewing power," that the Due Process Clause should be limited "to a guarantee of procedural fairness." Poe v. Ullman, 367 U. S. 497 , 367 U. S. 540 (1961) (dissenting opinion). These arguments had seemed "persuasive" to Justices Brandeis and Holmes, Whitney v. California, 274 U. S. 357 , 274 U. S. 373 (1927), but they recognized that the Due Process Clause, by virtue of case-to-case "judicial inclusion and exclusion," Davidson v. New Orleans, 96 U. S. 97 , 96 U. S. 104 (1878), had been construed to proscribe matters of substance, as well as inadequate procedures, and to protect from invasion by the States "all fundamental rights comprised within the term liberty." Whitney v. California, supra at 274 U. S. 373 . Mr. Justice Black also recognized that the Fourteenth Amendment had substantive as well as procedural content. But believing that its reach should not extend beyond the specific provisions of the Bill of Rights, see Adamson v. California, 332 U. S. 46 , 332 U. S. 68 (1947) (dissenting opinion), he never embraced the idea that the Due Process Clause empowered the courts to strike down merely unreasonable or arbitrary legislation, nor did he accept Mr. Justice Harlan's consistent view. See Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 507 (1965) (Black, J., dissenting), and id. at 381 U. S. 499 (Harlan, J., concurring in judgment). Writing at length in dissent in Poe v. Ullman, supra at 367 U. S. 543 , Mr. Justice Harlan stated the essence of his position as follows: "This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; Page 431 U. S. 543 and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. Louisiana, 165 U. S. 578 ; Holden v. Hardy, 169 U. S. 366 ; Booth v. Illinois, 184 U. S. 425 ; Nebbia v. New York, 291 U. S. 502 ; Skinner v. Oklahoma, 316 U. S. 535 , 316 U. S. 544 (concurring opinion); Schware v. Board of Bar Examiners, 353 U. S. 232 , and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. Oklahoma, supra; 347 U. S. Sharpe, [ 347 U.S. 497 (1954)]." This construction was far too open-ended for Mr. Justice Black. For him, Meyer v. Nebraska, 262 U. S. 390 (1923), and Pierce v. Society of Sisters, 268 U. S. 510 (1925), as substantive due process cases, were as suspect as Lochner v. New York, 198 U. S. 45 (1905), Coppage v. Kansas, 236 U. S. 1 (1915), and Adkins v. Children's Hospital, 261 U. S. 525 (1923). In his view, Ferguson v. Skrupa, 372 U. S. 726 (1963), should have finally disposed of them all. But neither Meyer nor Pierce has been overruled, and recently there have been decisions of the same genre -- Roe v. Wade, 410 U. S. 113 (1973); Loving v. Virginia, 388 U. S. 1 (1967); Griswold v. Connecticut, supra; and Eisenstadt v. Baird, 405 U. S. 438 (1972). Not all of these decisions purport to rest on substantive due process grounds, compare Roe v. Wade, supra at 410 U. S. 152 -153, with Eisenstadt v. Baird, supra at 405 U. S. 453 -454, but all represented substantial reinterpretations of the Constitution. Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of Page 431 U. S. 544 the Fifth and Fourteenth Amendments. This is not to suggest, at this point, that any of these cases should be overruled, or that the process by which they were decided was illegitimate or even unacceptable, but only to underline Mr. Justice Black's constant reminder to his colleagues that the Court has no license to invalidate legislation which it thinks merely arbitrary or unreasonable. And no one was more sensitive than Mr. Justice Harlan to any suggestion that his approach to the Due Process Clause would lead to judges "roaming at large in the constitutional field." Griswold v. Connecticut, supra at 381 U. S. 502 . No one proceeded with more caution than he did when the validity of state or federal legislation was challenged in the name of the Due Process Clause. This is surely the preferred approach. That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. Realizing that the present construction of the Due Process Clause represents a major judicial gloss on its terms, as well as on the anticipation of the Framers, and that much of the underpinning for the broad, substantive application of the Clause disappeared in the conflict between the Executive and the Judiciary in the 1930's and 1940's, the Court should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare. Whenever the Judiciary does so, it unavoidably preempts for itself another part of the governance of the country without express constitutional authority. II Accepting the cases as they are and the Due Process Clause as construed by them, however, I think it evident that the Page 431 U. S. 545 threshold question in any due process attack on legislation, whether the challenge is procedural or substantive, is whether there is a deprivation of life, liberty, or property. With respect to "liberty," the statement of Mr. Justice Harlan in Poe v. Ullman, quoted supra at 504 most accurately reflects the thrust of prior decisions -- that the Due Process Clause is triggered by a variety of interests, some much more important than others. These interests have included a wide range of freedoms in the purely commercial area such as the freedom to contract and the right to set one's own prices and wages. Meyer v. Nebraska, supra at 262 U. S. 399 , took a characteristically broad view of "liberty": "While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." As I have said, Meyer has not been overruled, nor its definition of liberty rejected. The results reached in some of the cases cited by Meyer have been discarded or undermined by later cases, but those cases did not cut back the definition of liberty espoused by earlier decisions. They disagreed only, but sharply, as to the protection that was "due" the particular liberty interests involved. See, for example, West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), overruling Adkins v. Children's Hospital, 261 U. S. 525 (1923). Just a few years ago, we recognized that, while "the range of interests protected by procedural due process is not infinite," Page 431 U. S. 546 and while we must look to the nature of the interest, rather than its weight, in determining whether a protected interest is at issue, the term "liberty" has been given broad meaning in our cases. Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 570 -571 (1972). "In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed. See, e.g., Bolling v. Sharpe, 347 U. S. 497 , 347 U. S. 499 -500; Stanley v. Illinois, 405 U. S. 645 ." Id. at 408 U. S. 572 . It would not be consistent with prior cases to restrict the liberties protected by the Due Process Clause to those fundamental interests "implicit in the concept of ordered liberty." Ante at 431 U. S. 537 . Palko v. Connecticut, 302 U. S. 319 (1937), from which this much-quoted phrase is taken, id. at 302 U. S. 325 , is not to the contrary. Palko was a criminal case, and the issue was thus not whether a protected liberty interest was at stake, but what protective process was "due" that interest. The Court used the quoted standard to determine which of the protections of the Bill of Rights was due a criminal defendant in a state court within the meaning of the Fourteenth Amendment. Nor do I think the broader view of "liberty" is inconsistent with or foreclosed by the dicta in Roe v. Wade, 410 U.S. at 410 U. S. 152 , and Paul v. Davis, 424 U. S. 693 , 424 U. S. 713 (1976). These cases, at most, assert that only fundamental liberties will be given substantive protection; and they may be understood as merely identifying certain fundamental interests that the Court has deemed deserving of a heightened degree of protection under the Due Process Clause. It seems to me that Mr. Justice Douglas was closest to the mark in Poe v. Ullman, 367 U.S. at 367 U. S. 517 , when he said that the trouble with the holdings of the "old Court" was not in its definition of liberty, but in its definition of the protections guaranteed to that liberty -- "not in entertaining inquiries concerning the constitutionality of social legislation, but in applying the standards that it did." Page 431 U. S. 547 The term "liberty" is not, therefore, to be given a crabbed construction. I have no more difficulty than MR. JUSTICE POWELL apparently does in concluding that appellant in this case properly asserts a liberty interest within the meaning of the Due Process Clause. The question is not one of liberty vel non. Rather, there being no procedural issue at stake, the issue is whether the precise interest involved -- the interest in having more than one set of grandchildren live in her home -- is entitled to such substantive protection under the Due Process Clause that this ordinance must be held invalid. III Looking at the doctrine of "substantive" due process as having to do with the possible invalidity of an official rule of conduct rather than of the procedures for enforcing that rule, I see the doctrine as taking several forms under the cases, each differing in the severity of review and the degree of protection offered to the individual. First, a court may merely assure itself that there is in fact a duly enacted law which proscribes the conduct sought to be prevented or sanctioned. In criminal cases, this approach is exemplified by the refusal of courts to enforce vague statutes that no reasonable person could understand as forbidding the challenged conduct. There is no such problem here. Second is the general principle that "liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." Meyer v. Nebraska, 262 U.S. at 262 U. S. 399 -400. This means-end test appears to require that any statute restrictive of liberty have an ascertainable purpose and represent a rational means to achieve that purpose, whatever the nature of the liberty interest involved. This approach was part of the substantive due process doctrine Page 431 U. S. 548 prevalent earlier in the century, and it made serious inroads on the presumption of constitutionality supposedly accorded to state and federal legislation. But with Nebbia v. New York, 291 U. S. 502 (1934), and other cases of the 1930's and 1940's such as West Coast Hotel Co. v. Parrish, supra, the courts came to demand far less from and to accord far more deference to legislative judgments. This was particularly true with respect to legislation seeking to control or regulate the economic life of the State or Nation. Even so, "while the legislative judgment on economic and business matters is well nigh conclusive'. . . , it is not beyond judicial inquiry." Poe v. Ullman, supra at 367 U. S. 518 (Douglas, J., dissenting). No case that I know of, including Ferguson v. Skrupa, 372 U. S. 726 (1963), has announced that there is some legislation with respect to which there no longer exists a means-ends test as a matter of substantive due process law. This is not surprising, for otherwise a protected liberty could be infringed by a law having no purpose or utility whatsoever. Of course, the current approach is to deal more gingerly with a state statute, and to insist that the challenger bear the burden of demonstrating its unconstitutionality; and there is a broad category of cases in which substantive review is indeed mild and very similar to the original thought of Munn v. Illinois, 94 U. S. 113 , 94 U. S. 132 (1877), that, "if a state of facts could exist that would justify such legislation," it passes its initial test. There are various "liberties," however, which require that infringing legislation be given closer judicial scrutiny, not only with respect to existence of a purpose and the means employed, but also with respect to the importance of the purpose itself relative to the invaded interest. Some interests would appear almost impregnable to invasion, such as the freedoms of speech, press, and religion, and the freedom from cruel and unusual punishments. Other interests, for example, the right of association, the right to vote, and various Page 431 U. S. 549 claims sometimes referred to under the general rubric of the right to privacy, also weigh very heavily against state claims of authority to regulate. It is this category of interests which, as I understand it, MR. JUSTICE STEWART refers to as " implicit in the concept of ordered liberty.'" Ante at 431 U. S. 537 . Because he would confine the reach of substantive due process protection to interests such as these, and because he would not classify in this category the asserted right to share a house with the relatives involved here, he rejects the due process claim. Given his premise, he is surely correct. Under our cases, the Due Process Clause extends substantial protection to various phases of family life, but none requires that the claim made here be sustained. I cannot believe that the interest in residing with more than one set of grandchildren is one that calls for any kind of heightened protection under the Due Process Clause. To say that one has a personal right to live with all, rather than some, of one's grandchildren, and that this right is implicit in ordered liberty, is, as my Brother STEWART says, "to extend the limited substantive contours of the Due Process Clause beyond recognition." Ibid. The present claim is hardly one of which it could be said that "neither liberty nor justice would exist if [it] were sacrificed." Palko v. Connecticut, 302 U.S. at 302 U. S. 326 . MR. JUSTICE POWELL would apparently construe the Due Process Clause to protect from all but quite important state regulatory interests any right or privilege that, in his estimate, is deeply rooted in the country's traditions. For me, this suggests a far too expansive charter for this Court, and a far less meaningful and less confining guiding principle than MR. JUSTICE STEWART would use for serious substantive due process review. What the deeply rooted traditions of the country are is arguable; which of them deserve the protection of the Due Process Clause is even more debatable. The suggested view would broaden enormously the horizons of Page 431 U. S. 550 the Clause; and, if the interest involved here is any measure of what the States would be forbidden to regulate, the courts would be substantively weighing and very likely invalidating a wide range of measures that Congress and state legislatures think appropriate to respond to a changing economic and social order. Mrs. Moore's interest in having the offspring of more than one dependent son live with her qualifies as a liberty protected by the Due Process Clause; but, because of the nature of that particular interest, the demands of the Clause are satisfied once the Court is assured that the challenged proscription is the product of a duly enacted or promulgated statute, ordinance, or regulation and that it is not wholly lacking in purpose or utility. That under this ordinance any number of unmarried children may reside with their mother, and that this number might be as destructive of neighborhood values as one or more additional grandchildren, is just another argument that children and grandchildren may not constitutionally be distinguished by a local zoning ordinance. That argument remains unpersuasive to me. Here the head of the household may house himself or herself and spouse, their parents, and any number of their unmarried children. A fourth generation may be represented by only one set of grandchildren, and then only if born to a dependent child. The ordinance challenged by appellant prevents her from living with both sets of grandchildren only in East Cleveland, an area with a radius of three miles and a population of 40,000. Brief for Appellee 16 n. 1. The ordinance thus denies appellant the opportunity to live with all her grandchildren in this particular suburb; she is free to do so in other parts of the Cleveland metropolitan area. If there is power to maintain the character of a single-family neighborhood, as there surely is, some limit must be placed on the reach of the "family." Had it been our task to legislate, we Page 431 U. S. 551 might have approached the problem in a different manner than did the drafters of this ordinance; but I have no trouble in concluding that the normal goals of zoning regulation are present here and that the ordinance serves these goals by limiting, in identifiable circumstances, the number of people who can occupy a single household. The ordinance does not violate the Due Process Clause. IV For very similar reasons, the equal protection claim must fail, since it is not to be judged by the strict scrutiny standard employed when a fundamental interest or suspect classification is involved, see, e.g., Dunn v. Blumstein, 405 U. S. 330 (1972), and Korematsu v. United States, 323 U. S. 214 (1944), or by the somewhat less strict standard of Craig v. Boren, 429 U. S. 190 (1976), Califano v. Webster, 430 U. S. 313 (1977), Reed v. Reed, 404 U. S. 71 (1971), and Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 (1920). Rather, it is the generally applicable standard of McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 425 (1961): "The constitutional safeguard [of the Equal Protection Clause] is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." See also Dandridge v. Williams, 397 U. S. 471 (1970); Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976). Under this standard, it is not fatal if the purpose of the law is not articulated on its face, and there need be only a rational relation to the ascertained purpose. Page 431 U. S. 552 On this basis, as already indicated, I have no trouble in discerning a rational justification for an ordinance that permits the head of a household to house one, but not two, dependent sons and their children. Respectfully, therefore, I dissent and would affirm the judgment.

In Moore v. City of East Cleveland, the Supreme Court ruled that a housing ordinance in East Cleveland, Ohio, that restricted who could live together in a single family dwelling violated the Due Process Clause of the Fourteenth Amendment. The ordinance, which prohibited a grandmother from living with her grandson, was deemed unconstitutional as it infringed on the sanctity of the family and the freedom to make choices regarding family living arrangements. The Court distinguished this case from previous rulings, asserting that the government's interest in zoning regulations did not outweigh the constitutional protection of family relationships.

Due Process

Cleveland Board of Education v. Loudermill

https://supreme.justia.com/cases/federal/us/470/532/

U.S. Supreme Court Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) Cleveland Board of Education v. Loudermill No. 83-1362 Argued December 3, 1984 Decided March 19, 1985 470 U.S. 532 ast|>* 470 U.S. 532 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus In No. 83-1362, petitioner Board of Education hired respondent Loudermill as a security guard. On his job application, Loudermill stated that he had never been convicted of a felony. Subsequently, upon discovering that he had in fact been convicted of grand larceny, the Board dismissed him for dishonesty in filling out the job application. He was not afforded an opportunity to respond to the dishonesty charge or to challenge the dismissal. Under Ohio law, Loudermill was a "classified civil servant," and by statute, as such an employee, could be terminated only for cause, and was entitled to administrative review of the dismissal. He filed an appeal with the Civil Service Commission, which, after hearings before a referee and the Commission, upheld the dismissal some nine months after the appeal had been filed. Although the Commission's decision was subject to review in the state courts, Loudermill instead filed suit in Federal District Court, alleging that the Ohio statute providing for administrative review was unconstitutional on its face because it provided no opportunity for a discharged employee to respond to charges against him prior to removal, thus depriving him of liberty and property without due process. It was also alleged that the statute was unconstitutional as applied, because discharged employees were not given sufficiently prompt postremoval hearings. The District Court dismissed the suit for failure to state a claim on which relief could be granted, holding that, because the very statute that created the property right in continued employment also specified the procedures for discharge, and because those procedures were followed, Loudermill was, by definition, afforded all the process due; that the post-termination hearings also adequately protected Loudermill's property interest; and that, in light of the Commission's crowded docket, the delay in processing his appeal was constitutionally acceptable. In No. 83-1363, petitioner Board of Education fired respondent Donnelly from his job as a bus mechanic because he had Page 470 U. S. 533 failed an eye examination. He appealed to the Civil Service Commission, which ordered him reinstated, but without backpay. He then filed a complaint in Federal District Court essentially identical to Loudermill's, and the court dismissed for failure to state a claim. On a consolidated appeal, the Court of Appeals reversed in part and remanded, holding that both respondents had been deprived of due process and that the compelling private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing. But with regard to the alleged deprivation of liberty and Loudermill's 9-month wait for an administrative decision, the court affirmed the District Court, finding no constitutional violation. Held: All the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute; since respondents alleged that they had no chance to respond, the District Court erred in dismissing their complaints for failure to state a claim. Pp. 470 U. S. 538 -548. (a) The Ohio statute plainly supports the conclusion that respondents possess property rights in continued employment. The Due Process Clause provides that the substantive rights of life, liberty, and property cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. "Property" cannot be defined by the procedures provided for its deprivation. Pp. 470 U. S. 538 -541. (b) The principle that, under the Due Process Clause, an individual must be given an opportunity for a hearing before he is deprived of any significant property interest requires "some kind of hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. The need for some form of pretermination hearing is evident from a balancing of the competing interests at stake: the private interest in retaining employment, the governmental interests in expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination. Pp. 470 U. S. 542 -545. (c) The pretermination hearing need not definitively resolve the propriety of the discharge, but should be an initial check against mistaken decisions essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. The essential requirements of due process are notice and an opportunity to respond. Pp. 470 U. S. 545 -546. (d) The delay in Loudermill's administrative proceedings did not constitute a separate constitutional violation. The Due Process Clause Page 470 U. S. 534 requires provision of a hearing "at a meaningful time," and here the delay stemmed in part from the thoroughness of the procedures. Pp. 470 U. S. 546 -547. 721 F.2d 550, affirmed and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined, in Parts I, II, III, and IV of which BRENNAN, J., joined, and in Part II of which MARSHALL, J., joined. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 470 U. S. 548 . BRENNAN, J., filed an opinion concurring in part and dissenting in part, post p. 470 U. S. 551 . REHNQUIST, J., filed a dissenting opinion, post, p. 470 U. S. 559 . Page 470 U. S. 535 JUSTICE WHITE delivered the opinion of the Court. In these cases, we consider what pretermination process must be accorded a public employee who can be discharged only for cause. I In 1979, the Cleveland Board of Education, petitioner in No. 83-1362, hired respondent James Loudermill as a security guard. On his job application, Loudermill stated that he had never been convicted of a felony. Eleven months later, as part of a routine examination of his employment records, the Board discovered that, in fact, Loudermill had been convicted of grand larceny in 1968. By letter dated November 3, 1980, the Board's Business Manager informed Loudermill that he had been dismissed because of his dishonesty in filling out the employment application. Loudermill was not afforded an opportunity to respond to the charge of dishonesty or to challenge his dismissal. On November 13, the Board adopted a resolution officially approving the discharge. Under Ohio law, Loudermill was a "classified civil servant." Ohio Rev.Code Ann. § 124.11 (1984). Such employees can be terminated only for cause, and may obtain administrative review if discharged. § 124.34. Pursuant to this provision, Loudermill filed an appeal with the Cleveland Civil Service Commission on November 12. The Commission appointed a referee, who held a hearing on January 29, 1981. Loudermill argued that he had thought that his 1968 larceny conviction was for a misdemeanor, rather than a felony. The referee recommended reinstatement. On July 20, 1981, the Page 470 U. S. 536 full Commission heard argument and orally announced that it would uphold the dismissal. Proposed findings of fact and conclusions of law followed on August 10, and Loudermill's attorneys were advised of the result by mail on August 21. Although the Commission's decision was subject to judicial review in the state courts, Loudermill instead brought the present suit in the Federal District Court for the Northern District of Ohio. The complaint alleged that § 124.34 was unconstitutional on its face because it did not provide the employee an opportunity to respond to the charges against him prior to removal. As a result, discharged employees were deprived of liberty and property without due process. The complaint also alleged that the provision was unconstitutional as applied because discharged employees were not given sufficiently prompt postremoval hearings. Before a responsive pleading was filed, the District Court dismissed for failure to state a claim on which relief could be granted. See Fed.Rule Civ.Proc. 12(b)(6). It held that, because the very statute that created the property right in continued employment also specified the procedures for discharge, and because those procedures were followed, Loudermill was, by definition, afforded all the process due. The post-termination hearing also adequately protected Loudermill's liberty interests. Finally, the District Court concluded that, in light of the Commission's crowded docket, the delay in processing Loudermill's administrative appeal was constitutionally acceptable. App. to Pet. for Cert. in No. 83-1362, pp. A36-A42. The other case before us arises on similar facts, and followed a similar course. Respondent Richard Donnelly was a bus mechanic for the Parma Board of Education. In August, 1977, Donnelly was fired because he had failed an eye examination. He was offered a chance to retake the examination, but did not do so. Like Loudermill, Donnelly appealed to the Civil Service Commission. After a year of wrangling about the timeliness of his appeal, the Commission heard Page 470 U. S. 537 the case. It ordered Donnelly reinstated, though without backpay. [ Footnote 1 ] In a complaint essentially identical to Loudermill's, Donnelly challenged the constitutionality of the dismissal procedures. The District Court dismissed for failure to state a claim, relying on its opinion in Loudermill. The District Court denied a joint motion to alter or amend its judgment, [ Footnote 2 ] and the cases were consolidated for appeal. A divided panel of the Court of Appeals for the Sixth Circuit reversed in part and remanded. 721 F.2d 550 (983). After rejecting arguments that the actions were barred by failure to exhaust administrative remedies and by res judicata -- arguments that are not renewed here -- the Court of Appeals found that both respondents had been deprived of due process. It disagreed with the District Court's original rationale. Instead, it concluded that the compelling private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing. Id. at 561-562. With regard to the alleged deprivation of liberty, and Loudermill's 9-month wait for an administrative decision, the court affirmed the District Court, finding no constitutional violation. Id. at 563-564. Page 470 U. S. 538 The dissenting judge argued that respondents' property interests were conditioned by the procedural limitations accompanying the grant thereof. He considered constitutional requirements satisfied because there was a reliable pretermination finding of "cause," coupled with a due process hearing at a meaningful time and in a meaningful manner. Id. at 566. Both employers petitioned for certiorari. Nos. 83-1362 and 83-1363. In a cross-petition, Loudermill sought review of the rulings adverse to him. No. 83-6392. We granted all three petitions, 467 U.S. 1204 (1984), and now affirm in all respects. II Respondents' federal constitutional claim depends on their having had a property right in continued employment. [ Footnote 3 ] Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 576 -578 (1972); Reagan v. United States, 182 U. S. 419 , 182 U. S. 425 (1901). If they did, the State could not deprive them of this property without due process. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1 , 436 U. S. 11 -12 (1978); Goss v. Lopez, 419 U. S. 565 , 419 U. S. 573 -574 (1975). Property interests are not created by the Constitution, "they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source, such as state law. . . ." Board of Regents v. Roth, supra, at 408 U. S. 577 . See also Paul v. Davis, 424 U. S. 693 , 424 U. S. 709 (1976). The Ohio statute plainly creates such an interest. Respondents were "classified civil service employees," Ohio Rev.Code Ann. § 124.11 (1984), entitled to retain their positions "during good behavior and efficient service," who could not be dismissed "except . . . for . . . misfeasance, Page 470 U. S. 539 malfeasance, or nonfeasance in office," § 124.34. [ Footnote 4 ] The statute plainly supports the conclusion, reached by both lower courts, that respondents possessed property rights in continued employment. Indeed, this question does not seem to have been disputed below. [ Footnote 5 ] The Parma Board argues, however, that the property right is defined by, and conditioned on, the legislature's choice of procedures for its deprivation. Brief for Petitioner in No. 83-1363, pp. 26-27. The Board stresses that, in addition to specifying the grounds for termination, the statute sets out procedures by which termination may take place. [ Footnote 6 ] The Page 470 U. S. 540 procedures were adhered to in these cases. According to petitioner, "[t]o require additional procedures would, in effect, expand the scope of the property interest itself." Id. at 27. See also Brief for State of Ohio et al. as Amici Curiae 5-10. This argument, which was accepted by the District Court, has its genesis in the plurality opinion in Arnett v. Kennedy, 416 U. S. 134 (1974). Arnett involved a challenge by a former federal employee to the procedures by which he was dismissed. The plurality reasoned that, where the legislation conferring the substantive right also sets out the procedural mechanism for enforcing that right, the two cannot be separated: "The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause." " * * * *" "[W]here the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet." Id. at 416 U. S. 152 -154. This view garnered three votes in Arnett, but was specifically rejected by the other six Justices. See id. at 416 U. S. 166 -167 (POWELL, J., joined by BLACKMUN, J.,); id. at 416 U. S. 177 -178, 185 (WHITE, J.,); id. at 416 U. S. 211 (MARSHALL, J., joined by Douglas and BRENNAN, JJ.). Since then, this theory has at times seemed to gather some additional support. See Bishop v. Wood, 426 U. S. 341 , 426 U. S. 355 -361 (1976) (WHITE, J., dissenting); Goss v. Lopez, 419 U.S. at 419 U. S. 586 -587 (POWELL, J., joined Page 470 U. S. 541 by BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., dissenting). More recently, however, the Court has clearly rejected it. In Vitek v. Jones, 445 U. S. 480 , 445 U. S. 491 (1980), we pointed out that "minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action." This conclusion was reiterated in Logan v. Zimmerman Brush Co., 455 U. S. 422 , 455 U. S. 432 (1982), where we reversed the lower court's holding that, because the entitlement arose from a state statute, the legislature had the prerogative to define the procedures to be followed to protect that entitlement. In light of these holdings, it is settled that the "bitter with the sweet" approach misconceives the constitutional guarantee. If a clearer holding is needed, we provide it today. The point is straightforward: the Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. " Property" cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process "is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards." Arnett v. Kennedy, supra, at 416 U. S. 167 (POWELL, J., concurring in part and concurring in result in part); see id. at 416 U. S. 185 (WHITE, J., concurring in part and dissenting in part). In short, once it is determined that the Due Process Clause applies, "the question remains what process is due." Morrissey v. Brewer, 408 U. S. 471 , 408 U. S. 481 (1972). The answer to that question is not to be found in the Ohio statute. Page 470 U. S. 542 III An essential principle of due process is that a deprivation of life, liberty, or property "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 , 339 U. S. 313 (1950). We have described "the root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." [ Footnote 7 ] Boddie v. Connecticut, 401 U. S. 371 , 401 U. S. 379 (1971) (emphasis in original); see Bell v. Burson, 402 U. S. 535 , 402 U. S. 542 (1971). This principle requires "some kind of a hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S. at 408 U. S. 569 -570; Perry v. Sindermann, 408 U. S. 593 , 408 U. S. 599 (1972). As we pointed out last Term, this rule has been settled for some time now. Davis v. Scherer, 468 U. S. 183 , 468 U. S. 192 , n. 10 (1984); id. at 468 U. S. 200 -203 (BRENNAN, J., concurring in part and dissenting in part). Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond. For example, in Arnett, six Justices found constitutional minima satisfied where the employee had access to the material upon which the charge was based, and could respond orally and in writing and present rebuttal affidavits. See also Barry v. Barchi, 443 U. S. 55 , 443 U. S. 65 (1979) (no due process violation where horse trainer whose license was suspended "was given more than one opportunity to present his side of the story"). The need for some form of pretermination hearing, recognized in these cases, is evident from a balancing of the competing interests at stake. These are the private interest in Page 470 U. S. 543 retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination. See Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 (1976). First, the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. See Fusari v. Steinberg, 419 U. S. 379 , 419 U. S. 389 (1975); Bell v. Burson, supra, at 402 U. S. 539 ; Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 264 (1970); Sniadach v. Family Finance Corp., 395 U. S. 337 , 395 U. S. 340 (1969). While a fired worker may find employment elsewhere, doing so will take some time, and is likely to be burdened by the questionable circumstances under which he left his previous job. See Lefkowitz v. Turley, 414 U. S. 70 , 414 U. S. 83 -84 (1973). Second, some opportunity for the employee to present his side of the case is recurringly of obvious value in reaching an accurate decision. Dismissals for cause will often involve factual disputes. Cf. Califano v. Yamasaki, 442 U. S. 682 , 442 U. S. 686 (1979). Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect. See Goss v. Lopez, 419 U.S. at 419 U. S. 583 -584; Gagnon v. Scarpelli, 411 U. S. 778 , 411 U. S. 784 -786 (1973). [ Footnote 8 ] Page 470 U. S. 544 The cases before us illustrate these considerations. Both respondents had plausible arguments to make that might have prevented their discharge. The fact that the Commission saw fit to reinstate Donnelly suggests that an error might have been avoided had he been provided an opportunity to make his case to the Board. As for Loudermill, given the Commission's ruling, we cannot say that the discharge was mistaken. Nonetheless, in light of the referee's recommendation, neither can we say that a fully informed decisionmaker might not have exercised its discretion and decided not to dismiss him, notwithstanding its authority to do so. In any event, the termination involved arguable issues, [ Footnote 9 ] and the right to a hearing does not depend on a demonstration of certain success. Carey v. Piphus, 435 U. S. 247 , 435 U. S. 266 (1978). The governmental interest in immediate termination does not outweigh these interests. As we shall explain, affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. Furthermore, the employer shares the employee's interest in avoiding disruption and erroneous decisions; and until the matter is settled, the employer would continue to receive the benefit of the employee's labors. It is preferable to keep a qualified employee on than to train a new one. A governmental employer also has an interest in keeping citizens usefully employed, rather than taking the possibly erroneous and counterproductive step of forcing its employees onto the welfare rolls. Finally, in those situations where the employer perceives a significant hazard in Page 470 U. S. 545 keeping the employee on the job, [ Footnote 10 ] it can avoid the problem by suspending with pay. IV The foregoing considerations indicate that the pretermination "hearing," though necessary, need not be elaborate. We have pointed out that "[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, 401 U.S. at 401 U. S. 378 . See Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 894 -895 (1961). In general, "something less" than a full evidentiary hearing is sufficient prior to adverse administrative action. Mathews v. Eldridge, 424 U.S. at 424 U. S. 343 . Under state law, respondents were later entitled to a full administrative hearing and judicial review. The only question is what steps were required before the termination took effect. In only one case, Goldberg v. Kelly, 397 U. S. 254 (1970), has the Court required a full adversarial evidentiary hearing prior to adverse governmental action. However, as the Goldberg Court itself pointed out, see id. at 397 U. S. 264 , that case presented significantly different considerations than are present in the context of public employment. Here, the pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions -- essentially, a determination of whether Page 470 U. S. 546 there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. See Bell v. Burson, 402 U.S. at 402 U. S. 540 . The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. See Friendly, "Some Kind of Hearing," 123 U.Pa.L.Rev. 1267, 1281 (1975). The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. See Arnett v. Kennedy, 416 U.S. at 416 U. S. 170 -171 (opinion of POWELL, J.); id. at 416 U. S. 195 -196 (opinion of WHITE, J.); see also Goss v. Lopez, 419 U.S. at 419 U. S. 581 . To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee. Our holding rests in part on the provisions in Ohio law for a full post-termination hearing. In his cross-petition, Loudermill asserts, as a separate constitutional violation, that his administrative proceedings took too long. [ Footnote 11 ] The Court of Page 470 U. S. 547 Appeals held otherwise, and we agree. [ Footnote 12 ] The Due Process Clause requires provision of a hearing "at a meaningful time." E.g., Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 552 (1965). At some point, a delay in the post-termination hearing would become a constitutional violation. See Barry v. Barchi, 443 U.S. at 443 U. S. 66 . In the present case, however, the complaint merely recites the course of proceedings and concludes that the denial of a "speedy resolution" violated due process. App. 10. This reveals nothing about the delay except that it stemmed in part from the thoroughness of the procedures. A 9-month adjudication is not, of course, unconstitutionally lengthy per se. Yet Loudermill offers no indication that his wait was unreasonably prolonged, other than the fact that it took nine months. The chronology of the proceedings set out in the complaint, coupled with the assertion that nine months is too long to wait, does not state a claim of a constitutional deprivation. [ Footnote 13 ] VI We conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination Page 470 U. S. 548 administrative procedures as provided by the Ohio statute. Because respondents allege in their complaints that they had no chance to respond, the District Court erred in dismissing for failure to state a claim. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. So ordered. * Together with No. 83-1363, Parma Board of Education v. Donnelly et al., and No. 83-6392, Loudermill v. Cleveland Board of Education et al., also on certiorari to the same court. [ Footnote 1 ] The statute authorizes the Commission to "affirm, disaffirm, or modify the judgment of the appointing authority." Ohio Rev.Code Ann. § 124.34 (1984). Petitioner Parma Board of Education interprets this as authority to reinstate with or without backpay, and views the Commission's decision as a compromise. Brief for Petitioner in No. 83-1363, p. 6, n. 3; Tr. of Oral. Arg. 14. The Court of Appeals, however, stated that the Commission lacked the power to award backpay. 721 F.2d 550, 554, n. 3 (1983). As the decision of the Commission is not in the record, we are unable to determine the reasoning behind it. [ Footnote 2 ] In denying the motion, the District Court no longer relied on the principle that the state legislature could define the necessary procedures in the course of creating the property right. Instead, it reached the same result under a balancing test based on JUSTICE POWELL's concurring opinion in Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 168 -169 (1974), and the Court's opinion in Mathews v. Eldridge, 424 U. S. 319 (1976). App. to Pet. for Cert. in No. 83-1362, pp. A54-A57. [ Footnote 3 ] Of course, the Due Process Clause also protects interests of life and liberty. The Court of Appeals' finding of a constitutional violation was based solely on the deprivation of a property interest. We address below Loudermill's contention that he has been unconstitutionally deprived of liberty. See n 13, infra. [ Footnote 4 ] The relevant portion of § 124.34 provides that no classified civil servant may be removed except "for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office." [ Footnote 5 ] The Cleveland Board of Education now asserts that Loudermill had no property right under state law because he obtained his employment by lying on the application. It argues that, had Loudermill answered truthfully, he would not have been hired. He therefore lacked a "legitimate claim of entitlement" to the position. Brief for Petitioner in No. 83-1362, pp. 14-15. For several reasons, we must reject this submission. First, it was not raised below. Second, it makes factual assumptions -- that Loudermill lied and that he would not have been hired had he not done so -- that are inconsistent with the allegations of the complaint and inappropriate at this stage of the litigation, which has not proceeded past the initial pleadings stage. Finally, the argument relies on a retrospective fiction inconsistent with the undisputed fact that Loudermill was hired, and did hold the security guard job. The Board cannot escape its constitutional obligations by rephrasing the basis for termination as a reason why Loudermill should not have been hired in the first place. [ Footnote 6 ] After providing for dismissal only for cause, see n 4, supra, § 124.34 states that the dismissed employee is to be provided with a copy of the order of removal giving the reasons therefor. Within 10 days of the filing of the order with the Director of Administrative Services, the employee may file a written appeal with the State Personnel Board of Review or the Commission. "In the event such an appeal is filed, the board or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the board or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority." Either side may obtain review of the Commission's decision in the State Court of Common Pleas. [ Footnote 7 ] There are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements. See Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); North American Cold Storage Co. v. Chicago, 211 U. S. 306 (1908). [ Footnote 8 ] This is not to say that, where state conduct is entirely discretionary, the Due Process Clause is brought into play. See Meachum v. Fano, 427 U. S. 215 , 427 U. S. 228 (1976). Nor is it to say that a person can insist on a hearing in order to argue that the decisionmaker should be lenient and depart from legal requirements. See Dixon v. Love, 431 U. S. 105 , 431 U. S. 114 (1977). The point is that, where there is an entitlement, a prior hearing facilitates the consideration of whether a permissible course of action is also an appropriate one. This is one way in which providing "effective notice and informal hearing permitting the [employee] to give his version of the events will provide a meaningful hedge against erroneous action. At least the [employer] will be alerted to the existence of disputes about facts and arguments about cause and effect. . . . [H]is discretion will be more informed, and we think the risk of error substantially reduced." Goss v. Lopez, 419 U.S. at 419 U. S. 583 -584. [ Footnote 9 ] Loudermill's dismissal turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective question whether he had lied on his application form. His explanation for the false statement is plausible in light of the fact that he received only a suspended 6-month sentence and a fine on the grand larceny conviction. Tr. of Oral Arg. 35. [ Footnote 10 ] In the cases before us, no such danger seems to have existed. The examination Donnelly failed was related to driving school buses, not repairing them. Id. at 39-40. As the Court of Appeals stated, "[n]o emergency was even conceivable with respect to Donnelly." 721 F.2d at 562. As for Loudermill, petitioner states that "to find that we have a person who is an ex-felon as our security guard is very distressful to us." Tr. of Oral Arg.19. But the termination was based on the presumed misrepresentation on the employment form, not on the felony conviction. In fact, Ohio law provides that an employee "shall not be disciplined for acts," including criminal convictions, occurring more than two years previously. See Ohio Admin.Code § 124-3-04 (1979). Petitioner concedes that Loudermill's job performance was fully satisfactory. [ Footnote 11 ] Loudermill's hearing before the referee occurred two and one-half months after he filed his appeal. The Commission issued its written decision six and one-half months after that. Administrative proceedings in Donnelly's case, once it was determined that they could proceed at all, were swifter. A writ of mandamus requiring the Commission to hold a hearing was issued on May 9, 1978; the hearing took place on May 30; the order of reinstatement was issued on July 6. Section 124.34 provides that a hearing is to be held within 30 days of the appeal, though the Ohio courts have ruled that the time limit is not mandatory. E.g., In re Bronkar, 53 Ohio Misc. 13, 17, 372 N.E.2d 1345, 1347 (Com.Pl.1977). The statute does not provide a time limit for the actual decision. [ Footnote 12 ] It might be argued that, once we find a due process violation in the denial of a pretermination hearing, we need not and should not consider whether the post-termination procedures were adequate. See Barry v. Barchi, 443 U. S. 55 , 443 U. S. 72 -74 (1979) (BRENNAN, J., concurring in part). We conclude that it is appropriate to consider this issue, however, for three reasons. First, the allegation of a distinct due process violation in the administrative delay is not an alternative theory supporting the same relief, but a separate claim altogether. Second, it was decided by the court below, and is raised in the cross-petition. Finally, the existence of post-termination procedures is relevant to the necessary scope of pretermination procedures. [ Footnote 13 ] The cross-petition also argues that Loudermill was unconstitutionally deprived of liberty because of the accusation of dishonesty that hung over his head during the administrative proceedings. As the Court of Appeals found, 721 F.2d at 563, n. 18, the failure to allege that the reasons for the dismissal were published dooms this claim. See Bishop v. Wood, 426 U. S. 341 , 426 U. S. 348 (1976). JUSTICE MARSHALL, concurring in part and concurring in the judgment. I agree wholeheartedly with the Court's express rejection of the theory of due process, urged upon us by the petitioner Boards of Education, that a public employee who may be discharged only for cause may be discharged by whatever procedures the legislature chooses. I therefore join 470 U. S. I also agree that, before discharge, the respondent employees were entitled to the opportunity to respond to the charges against them (which is all they requested), and that the failure to accord them that opportunity was a violation of their constitutional rights. Because the Court holds that the respondents were due all the process they requested, I concur in the judgment of the Court. I write separately, however, to reaffirm my belief that public employees who may be discharged only for cause are entitled, under the Due Process Clause of the Fourteenth Amendment, to more than respondents sought in this case. I continue to believe that, before the decision is made to terminate an employee's wages, the employee is entitled to an opportunity to test the strength of the evidence "by confronting and cross-examining adverse witnesses and by presenting witnesses on his own behalf, whenever there are substantial disputes in testimonial evidence," Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 214 (1974) (MARSHALL, J., dissenting). Because the Court suggests that, even in this situation, due process requires no more than notice and an opportunity to be heard before wages are cut off, I am not able to join the Court's opinion in its entirety. Page 470 U. S. 549 To my mind, the disruption caused by a loss of wages may be so devastating to an employee that, whenever there are substantial disputes about the evidence, additional predeprivation procedures are necessary to minimize the risk of an erroneous termination. That is, I place significantly greater weight than does the Court on the public employee's substantial interest in the accuracy of the pretermination proceeding. After wage termination, the employee often must wait months before his case is finally resolved, during which time he is without wages from his public employment. By limiting the procedures due prior to termination of wages, the Court accepts an impermissibly high risk that a wrongfully discharged employee will be subjected to this often lengthy wait for vindication, and to the attendant and often traumatic disruptions to his personal and economic life. Considerable amounts of time may pass between the termination of wages and the decision in a post-termination evidentiary hearing -- indeed, in this case, nine months passed before Loudermill received a decision from his postdeprivation hearing. During this period, the employee is left in limbo, deprived of his livelihood and of wages on which he may well depend for basic sustenance. In that time, his ability to secure another job might be hindered, either because of the nature of the charges against him or because of the prospect that he will return to his prior public employment if permitted. Similarly, his access to unemployment benefits might seriously be constrained, because many States deny unemployment compensation to workers discharged for cause.* Absent an interim source of wages, the employee might be unable to meet his basic, fixed costs, such as food, rent or mortgage payments. He would be forced to spend his savings, if he had any, and to convert his possessions to Page 470 U. S. 550 cash before becoming eligible for public assistance. Even in that instance "[t]he substitution of a meager welfare grant for a regular paycheck may bring with it painful and irremediable personal as well as financial dislocations. A child's education may be interrupted, a family's home lost, a person's relationship with his friends and even his family may be irrevocably affected. The costs of being forced, even temporarily, onto the welfare rolls because of a wrongful discharge from tenured Government employment cannot be so easily discounted. . . ." id. at 221. Moreover, it is in no respect certain that a prompt postdeprivation hearing will make the employee economically whole again, and the wrongfully discharged employee will almost inevitably suffer irreparable injury. Even if reinstatement is forthcoming, the same might not be true of backpay -- as it was not to respondent Donnelly in this case -- and the delay in receipt of wages would thereby be transformed into a permanent deprivation. Of perhaps equal concern, the personal trauma experienced during the long months in which the employee awaits decision, during which he suffers doubt, humiliation, and the loss of an opportunity to perform work, will never be recompensed, and indeed probably could not be with dollars alone. That these disruptions might fall upon a justifiably discharged employee is unfortunate; that they might fall upon a wrongfully discharged employee is simply unacceptable. Yet, in requiring only that the employee have an opportunity to respond before his wages are cut off, without affording him any meaningful chance to present a defense, the Court is willing to accept an impermissibly high risk of error with respect to a deprivation that is substantial. Were there any guarantee that the postdeprivation hearing and ruling would occur promptly, such as within a few days of the termination of wages, then this minimal predeprivation Page 470 U. S. 551 process might suffice. But there is no such guarantee. On a practical level, if the employer had to pay the employee until the end of the proceeding, the employer obviously would have an incentive to resolve the issue expeditiously. The employer loses this incentive if the only suffering as a result of the delay is borne by the wage earner, who eagerly awaits the decision on his livelihood. Nor has this Court grounded any guarantee of this kind in the Constitution. Indeed, this Court has in the past approved, at least implicitly, an average 10- or 11-month delay in the receipt of a decision on Social Security benefits, Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 341 -342 (1976), and, in the case of respondent Loudermill, the Court gives a stamp of approval to a process that took nine months. The hardship inevitably increases as the days go by, but nevertheless the Court countenances such delay. The adequacy of the predeprivation and postdeprivation procedures are inevitably intertwined, and only a constitutional guarantee that the latter will be immediate and complete might alleviate my concern about the possibility of a wrongful termination of wages. The opinion for the Court does not confront this reality. I cannot and will not close my eyes today -- as I could not 10 years ago -- to the economic situation of great numbers of public employees, and to the potentially traumatic effect of a wrongful discharge on a working person. Given that so very much is at stake, I am unable to accept the Court's narrow view of the process due to a public employee before his wages are terminated, and before he begins the long wait for a public agency to issue a final decision in his case. * See U.S. Dept. of Labor, Comparison of State Unemployment Insurance Laws §§ 425, 435 (1984); see also id. at 4-33 to 4-36 (table of state rules governing disqualification from benefits for discharge for misconduct). JUSTICE BRENNAN, concurring in part and dissenting in part. Today the Court puts to rest any remaining debate over whether public employers must provide meaningful notice and hearing procedures before discharging an employee for Page 470 U. S. 552 cause. As the Court convincingly demonstrates, the employee's right to fair notice and an opportunity to "present his side of the story" before discharge is not a matter of legislative grace, but of "constitutional guarantee." Ante at 470 U. S. 541 , 470 U. S. 546 . This principle, reaffirmed by the Court today, has been clearly discernible in our "repeated pronouncements" for many years. See Davis v. Scherer, 468 U. S. 183 , 468 U. S. 203 (1984) (BRENNAN, J., concurring in part and dissenting in part). Accordingly, I concur in Parts I-IV of the Court's opinion. I write separately to comment on two issues the Court does not resolve today, and to explain my dissent from the result in 470 U. S. First, the Court today does not prescribe the precise form of required pretermination procedures in cases where an employee disputes the facts proffered to support his discharge. The cases at hand involve, as the Court recognizes, employees who did not dispute the facts, but had "plausible arguments to make that might have prevented their discharge." Ante at 470 U. S. 544 . In such cases, notice and an "opportunity to present reasons," ante at 470 U. S. 546 , are sufficient to protect the important interests at stake. As the Court also correctly notes, other cases "will often involve factual disputes," ante at 470 U. S. 543 , such as allegedly erroneous records or false accusations. As JUSTICE MARSHALL has previously noted and stresses again today, ante at 470 U. S. 548 , where there exist not just plausible arguments to be made, but also "substantial disputes in testimonial evidence," due process may well require more than a simple opportunity to argue or deny. Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 214 (1974) (MARSHALL, J., dissenting). The Court acknowledges that what the Constitution requires prior to discharge, in general terms, is pretermination procedures sufficient to provide "an initial check against mistaken decisions -- essentially, a determination of whether there are reasonable grounds to believe Page 470 U. S. 553 that the charges against the employee are true, and support the proposed action." Ante at 470 U. S. 545 -546 (emphasis added). When factual disputes are involved, therefore, an employee may deserve a fair opportunity before discharge to produce contrary records or testimony, or even to confront an accuser in front of the decisionmaker. Such an opportunity might not necessitate "elaborate" procedures, see ante at 470 U. S. 545 , but the fact remains that, in some cases, only such an opportunity to challenge the source or produce contrary evidence will suffice to support a finding that there are "reasonable grounds" to believe accusations are "true." Factual disputes are not involved in these cases, however, and the "very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961). I do not understand 470 U. S. ante p. 470 U. S. 548 , with respect to discharges based on disputed evidence or testimony. I therefore join Parts I-IV of the Court's opinion. II The second issue not resolved today is that of administrative delay. In holding that Loudermill's administrative proceedings did not take too long, the Court plainly does not state a flat rule that 9-month delays in deciding discharge appeals will pass constitutional scrutiny as a matter of course. To the contrary, the Court notes that a full post-termination hearing and decision must be provided at "a meaningful time" and that "[a]t some point, a delay in the post-termination hearing would become a constitutional violation." Ante at 470 U. S. 547 . For example, in Barry v. Barchi, 443 U. S. 55 (1979), we disapproved as "constitutionally infirm" the shorter administrative delays that resulted under a statute that required "prompt" postsuspension hearings for suspended racehorse trainers with decision to follow within 30 days of the hearing. Id. at 443 U. S. 61 , 443 U. S. 66 . AS JUSTICE MARSHALL demonstrates, when an employee's wages are terminated pending Page 470 U. S. 554 administrative decision, "hardship inevitably increases as the days go by." Ante at 470 U. S. 551 ; see also Arnett v. Kennedy, supra, at 416 U. S. 194 (WHITE, J., concurring in part and dissenting in part) ("The impact on the employee of being without a job pending a full hearing is likely to be considerable because [m]ore than 75 percent of actions contested within employing agencies require longer to decide than the 60 days required by . . . regulations'") (citation omitted). In such cases, the Constitution itself draws a line, as the Court declares, "at some point" beyond which the State may not continue a deprivation absent decision. [ Footnote 2/1 ] The holding in 470 U. S. in this particular case, Loudermill failed to allege facts sufficient to state a cause of action, and not that nine months can never exceed constitutional limits. III Recognizing the limited scope of the holding in 470 U. S. I must still dissent from its result, because the record in this case is insufficiently developed to permit an informed judgment on the issue of overlong delay. Loudermill's complaint was dismissed without answer from the respondent Cleveland Civil Service Commission. Allegations at this early stage are to be liberally construed, and "[i]t is axiomatic that a complaint should not be dismissed unless 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232 , 444 U. S. 246 (1980) (citation omitted). Loudermill alleged that it took the Commission over two and one-half months simply to hold Page 470 U. S. 555 a hearing in his case, over two months more to issue a nonbinding interim decision, and more than three and one-half months after that to deliver a final decision. Complaint �� 20, 21, App. 10. [ Footnote 2/2 ] The Commission provided no explanation for these significant gaps in the administrative process; we do not know if they were due to an overabundance of appeals, Loudermill's own foot-dragging, bad faith on the part of the Commission, or any other of a variety of reasons that might affect our analysis. We do know, however, that, under Ohio law, the Commission is obligated to hear appeals like Loudermill's "within thirty days." Ohio Rev.Code Ann. § 124.34 (1984). [ Footnote 2/3 ] Although this statutory limit has been Page 470 U. S. 556 viewed only as "directory" by Ohio courts, those courts have also made it clear that, when the limit is exceeded, "[t]he burden of proof [is] placed on the [Commission] to illustrate to the court that the failure to comply with the 30-day requirement . . . was reasonable." In re Bronkar, 53 Ohio Misc. 13, 17, 372 N.E.2d 1345, 1347 (Com.Pl.1977). I cannot conclude on this record that Loudermill could prove "no set of facts" that might have entitled him to relief after nine months of waiting. Page 470 U. S. 557 The Court previously has recognized that constitutional restraints on the timing, no less than the form, of a hearing and decision "will depend on appropriate accommodation of the competing interests involved." Goss v. Lopez, 419 U. S. 565 , 419 U. S. 579 (1975). The relevant interests have generally been recognized as threefold: "the importance of the private interest and the length or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests involved." Logan v. Zimmerman Brush Co., 455 U. S. 422 , 455 U. S. 434 (1982) (citations omitted); accord, Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 334 -335 (1976); cf. United States v. $8,850, 461 U. S. 555 , 461 U. S. 564 (1983) (four-factor test for evaluating constitutionality of delay between time of property seizure and initiation of forfeiture action). "Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case." Id. at 461 U. S. 565 . Thus, the constitutional analysis of delay requires some development of the relevant factual context when a plaintiff alleges, as Loudermill has, that the administrative process has taken longer than some minimal amount of time. Indeed, all of our precedents that have considered administrative delays under the Due Process Clause, either explicitly or sub silentio, have been decided only after more complete proceedings in the District Courts. See, e.g., $8,850, supra; Barry v. Barchi, 443 U. S. 55 (1979); Arnett v. Kennedy, 416 U. S. 134 (1974); Mathews v. Eldridge, supra. [ Footnote 2/4 ] Yet in 470 U. S. the Court summarily holds Loudermill's allegations Page 470 U. S. 558 insufficient, without adverting to any considered balancing of interests. Disposal of Loudermill's complaint without examining the competing interests involved marks an unexplained departure from the careful multifaceted analysis of the facts we consistently have employed in the past. I previously have stated my view that "[t]o be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided -- i.e., either before or immediately after suspension." Barry v. Barchi, supra, at 443 U. S. 74 (BRENNAN, J., concurring in part). Loudermill's allegations of months-long administrative delay, taken together with the facially divergent results regarding length of administrative delay found in Barchi as compared to Arnett, see 470 U.S. 532 fn2/4|>n. 4, supra, are sufficient in my mind to require further factual development. In no other way can the third Mathews factor -- "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement [in this case, a speedier hearing and decision] would entail," 424 U.S. at 424 U. S. 335 -- sensibly be evaluated in this case. [ Footnote 2/5 ] I therefore would remand the delay issue to the District Court for further evidentiary proceedings consistent with the Mathews approach. I respectfully dissent from the Court's contrary decision in 470 U. S. Page 470 U. S. 559 [ Footnote 2/1 ] Post-termination administrative procedures designed to determine fully and accurately the correctness of discharge actions are to be encouraged. Multiple layers of administrative procedure, however, may not be created merely to smother a discharged employee with "thoroughness," effectively destroying his constitutionally protected interests by overextension. Cf. ante at 470 U. S. 547 ("thoroughness" of procedures partially explains delay in this case). [ Footnote 2/2 ] The interim decision, issued by a hearing examiner, was in Loudermill's favor, and recommended his reinstatement. But Loudermill was not reinstated, nor were his wages even temporarily restored; in fact, there apparently exists no provision for such interim relief or restoration of backpay under Ohio's statutory scheme. See ante at 470 U. S. 537 , n. 1; cf. Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 196 (1974) (WHITE, J., concurring in part and dissenting in part) (under federal civil service law, discharged employee's wages are only "provisionally cut off" pending appeal); id. at 416 U. S. 146 (opinion of REHNQUIST, J.) (under federal system, backpay is automatically refunded "if the [discharged] employee is reinstated on appeal"). See also N.Y.Civ.Serv.Law § 75(3) (McKinney 1983) (suspension without pay pending determination of removal charges may not exceed 30 days). Moreover, the final decision of the Commission to reverse the hearing examiner apparently was arrived at without any additional evidentiary development; only further argument was had before the Commission. 721 F.2d 550, 553 (CA6 1983). These undisputed facts lead me at least to question the administrative value of, and justification for, the 9-month period it took to decide Loudermill's case. [ Footnote 2/3 ] A number of other States similarly have specified time limits for hearings and decisions on discharge appeals taken by tenured public employees, indicating legislative consensus that a month or two normally is sufficient time to resolve such actions. No state statutes permit administrative delays of the length alleged by Loudermill. See, e.g., Ariz.Rev.Stat.Ann. § 41-785(A), (C) (Supp.1984-1985) (hearing within 30 days, decision within 30 days of hearing); Colo.Rev.Stat. § 24-50-125(4) (Supp.1984) (hearing within 45 days, decision within 45 days of hearing); Conn.Gen.Stat.Ann. § 5-202(b) (Supp.1984) (decision within 60 days of hearing); Ill.Rev.Stat., ch. 24 1/2, � 38b14 (1983) (hearing within 45 days); Ind.Code § 4-15-2-35 (1982) (decision within 30 days of hearing); Iowa Code § 19 A. 14 (1983) (hearing within 30 days); Kan.Stat.Ann. § 75-2949(f) (Supp.1983) (hearing within 45 days); Ky.Rev.Stat. § 18A.095(3) (1984) (hearing within 60 days of filing, decision within 90 days of filing); Maine Rev.Stat.Ann., Tit. 5, § 753(5) (1979) (decision within 30 days of hearing); Md.Ann.Code, Art. 64A, §§ 33(b)(2), (e) (Supp.1984) (salary suspension hearing within 5 days and decision within 5 more days; discharge hearing within 90 days and decision within 45 days of hearing); Mass.Gen.Laws Ann., ch. 31, § 43 (Supp.1984-1985) (hearing within 10 days, findings "forthwith," decision within 30 days of findings); Minn.Stat. § 44.08 (1970) (hearing within 10 days, decision within 3 days of hearing); Nev.Rev.Stat. § 284.390(2) (1983) (hearing within 20 days); N.J.Stat.Ann. §§ 11:15-4, 11:15-6 (West 1976) (hearing within 30 days, decision within 15 days of hearing); Okla.Stat., Tit. 74, §§ 841.13, 841.13A (Supp.1984) (hearing within 35 days, decision within 15 days of hearing); R.I.Gen.Laws §§ 36-4-40, 36-4-40.2, 36-4-41 (1984) (initial hearing within 14 days, interim decision within 20 days of hearing, appeal decision within 30 more days, final decision of Governor within 15 more days); S.C.Code §§ 8-17-330, 8-17-340 (Supp.1984) (interim decision within 45 days of filing, final decision within 20 days of hearing); Utah Code Ann. § 67-19-25 (Supp.1983) (interim decision within 5-20 days, final hearing within 30 days of filing final appeal, final decision within 40 days of hearing); Wash.Rev.Code § 41.64.100 (1983) (final decision within 90 days of filing); Wis.Stat. § 230.44(4)(f) (Supp.1984-1985) (decision within 90 days of hearing); see also Ala.Code § 36-26-27(b) (Supp.1984) (hearings on citizen removal petitions within 20 days of service); D.C.Code § 1-617.3(a)(1)(D) (1981) ("Career and Educational Services" employees "entitled" to decision within 45 days); Ga.Code Ann. § 45-20-9(e)(1) (1982) (hearing officer's decision required within 30 days of hearing); Miss.Code Ann. § 21-31-23 (Supp.1984) (hearing required within 20 days of termination for "extraordinary circumstances"). [ Footnote 2/4 ] After giving careful consideration to well-developed factual contexts, the Court has reached results that might be viewed as inconsistent in the abstract. Compare Barchi, 443 U.S. at 443 U. S. 66 (disapproving statute requiring decision within 30 days of hearing), with Arnett, 416 U.S. at 416 U. S. 194 (WHITE, J., concurring in part and dissenting in part) (approving statutory scheme under which over 50 percent of discharge appeals "take more than three months"). Rather than inconsistency, however, these differing results demonstrate the impossibility of drawing firm lines and the importance of factual development in such cases. [ Footnote 2/5 ] In light of the complete absence of record evidence, it is perhaps unsurprising that the Court of Appeals below was forced to speculate that "[t]he delays in the instant cases, in all likelihood, were inadvertent." 721 F.2d at 564, n.19. Similarly, the Cleveland Board of Education and Civil Service Commission assert only that "[n]o authority is necessary to support the proposition" that administrative resolution of a case like Loudermill's in less than nine months is "almost impossible." Brief for Respondents in No. 83-6392, p. 8, n. 4. To the contrary, however, I believe our precedents clearly require demonstration of some "authority" in these circumstances. JUSTICE REHNQUIST, dissenting. In Arnett v. Kennedy, 416 U. S. 134 (1974), six Members of this Court agreed that a public employee could be dismissed for misconduct without a full hearing prior to termination. A plurality of Justices agreed that the employee was entitled to exactly what Congress gave him, and no more. THE CHIEF JUSTICE, Justice Stewart, and I said: "Here, appellee did have a statutory expectancy that he not be removed other than for 'such cause as will promote the efficiency of [the] service.' But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which 'cause' was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where, in the absence of statutory limitation, the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 896 -897 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive Page 470 U. S. 560 right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause." Id. at 416 U. S. 151 -152. In these cases, the relevant Ohio statute provides in its first paragraph that "[t]he tenure of every officer or employee in the classified service of the state and the counties, civil service townships, cities, city health districts, general health districts, and city school districts thereof, holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except . . . for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office." Ohio Rev.Code Ann. § 124.34 (1984). The very next paragraph of this section of the Ohio Revised Code provides that, in the event of suspension of more than three days or removal, the appointing authority shall furnish the employee with the stated reasons for his removal. The next paragraph provides that, within 10 days following the receipt of such a statement, the employee may appeal in writing to the State Personnel Board of Review or the Commission, such appeal shall be heard within 30 days from the time of its filing, and the Board may affirm, disaffirm, or modify the judgment of the appointing authority. Page 470 U. S. 561 Thus, in one legislative breath, Ohio has conferred upon civil service employees such as respondents in these cases a limited form of tenure during good behavior, and prescribed the procedures by which that tenure may be terminated. Here, as in Arnett, "[t]he employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which [the Ohio Legislature] has designated for the determination of cause." 416 U.S. at 416 U. S. 152 (opinion of REHNQUIST, J.). We stated in Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 577 (1972): "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." We ought to recognize the totality of the State's definition of the property right in question, and not merely seize upon one of several paragraphs in a unitary statute to proclaim that, in that paragraph, the State has inexorably conferred upon a civil service employee something which it is powerless under the United States Constitution to qualify in the next paragraph of the statute. This practice ignores our duty under Roth to rely on state law as the source of property interests for purposes of applying the Due Process Clause of the Fourteenth Amendment. While it does not impose a federal definition of property, the Court departs from the full breadth of the holding in Roth by its selective choice from among the sentences the Ohio Legislature chooses to use in establishing and qualifying a right. Having concluded by this somewhat tortured reasoning that Ohio has created a property right in the respondents in these cases, the Court naturally proceeds to inquire what process is "due" before the respondents may be divested of Page 470 U. S. 562 that right. This customary "balancing" inquiry conducted by the Court in these cases reaches a result that is quite unobjectionable, but it seems to me that it is devoid of any principles which will either instruct or endure. The balance is simply an ad hoc weighing which depends to a great extent upon how the Court subjectively views the underlying interests at stake. The results in previous cases and in these cases have been quite unpredictable. To paraphrase Justice Black, today's balancing act requires a "pretermination opportunity to respond," but there is nothing that indicates what tomorrow's will be. Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 276 (1970) (Black, J., dissenting). The results from today's balance certainly do not jibe with the result in Goldberg or Mathews v. Eldridge, 424 U. S. 319 (1976).* The lack of Page 470 U. S. 563 any principled standards in this area means that these procedural due process cases will recur time and again. Every different set of facts will present a new issue on what process was due and when. One way to avoid this subjective and varying interpretation of the Due Process Clause in cases such as these is to hold that one who avails himself of government entitlements accepts the grant of tenure along with its inherent limitations. Because I believe that the Fourteenth Amendment of the United States Constitution does not support the conclusion that Ohio's effort to confer a limited form of tenure upon respondents resulted in the creation of a "property right" in their employment, I dissent. * Today, the balancing test requires a pretermination opportunity to respond. In Goldberg, we required a full-fledged trial-type hearing, and in Mathews, we declined to require any pretermination process other than those required by the statute. At times, this balancing process may look as if it were undertaken with a thumb on the scale, depending upon the result the Court desired. For example, in Mathews, we minimized the importance of the benefit to the recipient, stating that, after termination, he could always go on welfare to survive. 424 U.S. at 424 U. S. 340 -343; see also id. at 424 U. S. 350 (BRENNAN, J., dissenting). Today, however, the Court exalts the recipient's interest in retaining employment; not a word is said about going on welfare. Conversely, in Mathews, we stressed the interests of the State, while today, in a footnote, the Court goes so far as to denigrate the State's interest in firing a school security guard who had lied about a prior felony conviction. Ante at 470 U. S. 545 , n. 10. Today, the Court purports to describe the State's interest, ante at 470 U. S. 544 -545, but does so in a way that is contrary to what petitioner Boards of Education have asserted in their briefs. The description of the State's interests looks more like a makeweight to support the Court's result. The decision whom to train and employ is strictly a decision for the State. The Court attempts to ameliorate its ruling by stating that a State may always suspend an employee with pay, in lieu of a predischarge hearing, if it determines that he poses a threat. Ibid. This does less than justice to the State's interest in its financial integrity and its interest in promptly terminating an employee who has violated the conditions of his tenure, and ignores Ohio's current practice of paying back wages to wrongfully discharged employees.

In Cleveland Board of Education v. Loudermill, the US Supreme Court held that a public employee with a property right to their job is entitled to a pre-termination hearing as part of their due process rights. The Court found that the Ohio statute, which provided no opportunity for employees to respond to charges before dismissal, was unconstitutional. The Court also held that discharged employees were entitled to prompt post-removal hearings. Justice Black dissented, arguing that the Fourteenth Amendment did not support the creation of a "property right" in employment and that the majority's decision lacked principled standards, leading to varying interpretations of due process in similar cases.

Government Agencies

Camara v. Municipal Court

https://supreme.justia.com/cases/federal/us/387/523/

U.S. Supreme Court Camara v. Municipal Court, 387 U.S. 523 (1967) Camara v. Municipal Court of the City and County of San Francisco No. 92 Argued February 15, 1967 Decided June 5, 1967 387 U.S. 523 APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT Syllabus Appellant was charged with violating the San Francisco Housing Code for refusing, after three efforts by city housing inspectors to secure his consent, to allow a warrantless inspection of the ground-floor quarters which he leased and residential use of which allegedly violated the apartment building's occupancy permit. Claiming the inspection ordinance unconstitutional for failure to require a warrant for inspections, appellant while awaiting trial, sued in a State Superior Court for a writ of prohibition, which the court denied. Relying on Frank v. Maryland, 359 U. S. 360 , and similar cases, the District Court of Appeal affirmed, holding that the ordinance did not violate the Fourth Amendment. The State Supreme Court denied a petition for hearing. Held: 1. The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence. Frank v. Maryland, supra, pro tanto overruled. Pp. 387 U. S. 528 -534. (a) The basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of "unreasonable" searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. P. 387 U. S. 528 . (b) With certain carefully defined exceptions, an unconsented warrantless search of private property is "unreasonable." Pp. 387 U. S. 528 -529. (c) Contrary to the assumption of Frank v. Maryland, supra, Fourth Amendment interests are not merely "peripheral" where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. Those programs, moreover, are enforceable by criminal process, as is refusal to allow an inspection. Pp. 387 U. S. 529 -531. (d) Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants; Page 387 U. S. 524 that warrant in such cases are unfeasible; or that area inspection programs could not function under reasonable search warrant requirements. Pp. 387 U. S. 531 -533. 2. Probable cause upon the basis of which warrants are to be issued for area code enforcement inspections is not dependent on the inspector's belief that a particular dwelling violates the code, but on the reasonableness of the enforcement agency's appraisal of conditions in the area as a whole. The standards to guide the magistrate in the issuance of such search warrants will necessarily vary with the municipal program being enforced. Pp. 387 U. S. 534 -539. 3. Search warrants which are required in nonemergency situations should normally be sought only after entry is refused. Pp. 387 U. S. 539 -540. 4. In the nonemergency situation here, appellant had a right to insist that the inspectors obtain a search warrant. P. 387 U. S. 540 . 237 Cal. App. 2d 128 , 46 Cal. Rptr. 585, vacated and remanded. Page 387 U. S. 525 MR. JUSTICE WHITE delivered the opinion of the Court. In Frank v. Maryland, 359 U. S. 360 , this Court upheld, by a five-to-four vote, a state court conviction of a homeowner who refused to permit a municipal health inspector to enter and inspect his premises without a search warrant. In Eaton v. Price, 364 U. S. 263 , a similar conviction was affirmed by an equally divided Court. Since those closely divided decisions, more intensive efforts at all levels of government to contain and eliminate urban blight have led to increasing use of such inspection techniques, while numerous decisions of this Court have more fully defined the Fourth Amendment's effect on state and municipal action. E.g., Mapp v. Ohio, 367 U. S. 643 ; Ker v. California, 374 U. S. 23 . In view of the growing nationwide importance of the problem, we noted probable jurisdiction in this case and in See v. City of Seattle, post, p. 387 U. S. 541 , to reexamine whether administrative inspection programs, as presently authorized and conducted, violate Fourth Amendment rights as those rights are enforced against the States through the Fourteenth Amendment. 385 U.S. 808. Appellant brought this action in a California Superior Court alleging that he was awaiting trial on a criminal charge of violating the San Francisco Housing Code by refusing to permit a warrantless inspection of his residence, and that a writ of prohibition should issue to the criminal court because the ordinance authorizing such inspections is unconstitutional on its face. The Superior Court denied the writ, the District Court of Appeal affirmed, and the Supreme Court of California denied a petition for hearing. Appellant properly raised and had considered by the California courts the federal constitutional questions he now presents to this Court. Though there were no judicial findings of fact in this prohibition proceeding, we shall set forth the parties' factual allegations. On November 6, 1963, an inspector Page 387 U. S. 526 of the Division of Housing Inspection of the San Francisco Department of Public Health entered an apartment building to make a routine annual inspection for possible violations of the city's Housing Code. [ Footnote 1 ] The building's manager informed the inspector that appellant, lessee of the ground floor, was using the rear of his leasehold as a personal residence. Claiming that the building's occupancy permit did not allow residential use of the ground floor, the inspector confronted appellant and demanded that he permit an inspection of the premises. Appellant refused to allow the inspection because the inspector lacked a search warrant. The inspector returned on November 8, again without a warrant, and appellant again refused to allow an inspection. A citation was then mailed ordering appellant to appear at the district attorney's office. When appellant failed to appear, two inspectors returned to his apartment on November 22. They informed appellant that he was required by law to permit an inspection under § 503 of the Housing Code: "Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments or City agencies, so far as may be necessary for the performance of their duties, shall, upon presentation of proper credentials, have the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them by the Municipal Code. " Page 387 U. S. 527 Appellant nevertheless refused the inspectors access to his apartment without a search warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful inspection in violation of § 507 of the Code. [ Footnote 2 ] Appellant was arrested on December 2 and released on bail. When his demurrer to the criminal complaint was denied, appellant filed this petition for a writ of prohibition. Appellant has argued throughout this litigation that § 503 is contrary to the Fourth and Fourteenth Amendments in that it authorizes municipal officials to enter a private dwelling without a search warrant and without probable cause to believe that a violation of the Housing Code exists therein. Consequently, appellant contends, he may not be prosecuted under § 507 for refusing to permit an inspection unconstitutionally authorized by § 503. Relying on Frank v. Maryland, Eaton v. Price, and decisions in other States, [ Footnote 3 ] the District Page 387 U. S. 528 Court of Appeal held that § 503 does not violate Fourth Amendment rights because it "is part of a regulatory scheme which is essentially civil, rather than criminal in nature, inasmuch as that section creates a right of inspection which is limited in scope and may not be exercised under unreasonable conditions." Having concluded that Frank v. Maryland, to the extent that it sanctioned such warrantless inspections, must be overruled, we reverse. I The Fourth Amendment provides that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which "is basic to a free society." Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 27 . As such, the Fourth Amendment is enforceable against the States through the Fourteenth Amendment. Ker v. California, 374 U. S. 23 , 374 U. S. 30 . Though there has been general agreement as to the fundamental purpose of the Fourth Amendment, translation of the abstract prohibition against "unreasonable searches and seizures" into workable guidelines for the decision of particular cases is a difficult task which has for many years divided the members of this Court. Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent Page 387 U. S. 529 is "unreasonable" unless it has been authorized by a valid search warrant. See, e.g., Stoner v. California, 376 U. S. 483 ; United States v. Jeffers, 342 U. S. 48 ; McDonald v. United States, 335 U. S. 451 ; Agnello v. United States, 269 U. S. 20 . As the Court explained in Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 : "The right of officers to thrust themselves into a home is also a grave concern not only to the individual, but to a society, which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." In Frank v. Maryland, this Court upheld the conviction of one who refused to permit a warrantless inspection of private premises for the purposes of locating and abating a suspected public nuisance. Although Frank can arguably be distinguished from this case on its facts, [ Footnote 4 ] the Frank opinion has generally been interpreted as carving out an additional exception to the rule that warrantless searches are unreasonable under the Fourth Amendment. See Eaton v. Price, supra. The District Court of Appeal so interpreted Frank in this case, and that ruling is the core of appellant's challenge here. We proceed to a reexamination of the factors which Page 387 U. S. 530 persuaded the Frank majority to adopt this construction of the Fourth Amendment's prohibition against unreasonable searches. To the Frank majority, municipal fire, health, and housing inspection programs "touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion," 359 U.S. at 359 U. S. 367 , because the inspections are merely to determine whether physical conditions exist which do not comply with minimum standards prescribed in local regulatory ordinances. Since the inspector does not ask that the property owner open his doors to a search for "evidence of criminal action" which may be used to secure the owner's criminal conviction, historic interests of "self-protection" jointly protected by the Fourth and Fifth Amendments [ Footnote 5 ] are said not to be involved, but only the less intense "right to be secure from intrusion into personal privacy." Id. at 359 U. S. 365 . We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. For this reason alone, Frank differed from the great bulk of Fourth Amendment cases which have been considered by this Court. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely "peripheral." It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. [ Footnote 6 ] For instance, even the most law-abiding citizen Page 387 U. S. 531 has a very tangible interest in limiting the circumstances under which the sanctity of his home may be broken by official authority, for the possibility of criminal entry under the guise of official sanction is a serious threat to personal and family security. And even accepting Frank's rather remarkable premise, inspections of the kind we are here considering do, in fact, jeopardize "self-protection" interests of the property owner. Like most regulatory laws, fire, health, and housing codes are enforced by criminal processes. In some cities, discovery of a violation by the inspector leads to a criminal complaint. [ Footnote 7 ] Even in cities where discovery of a violation produces only an administrative compliance order, [ Footnote 8 ] refusal to comply is a criminal offense, and the fact of compliance is verified by a second inspection, again without a warrant. [ Footnote 9 ] Finally, as this case demonstrates, refusal to permit an inspection is itself a crime, punishable by fine or even by jail sentence. The Frank majority suggested, and appellee reasserts, two other justifications for permitting administrative health and safety inspections without a warrant. First, it is argued that these inspections are "designed to make the least possible demand on the individual occupant." 359 U.S. at 359 U. S. 367 . The ordinances authorizing inspections are hedged with safeguards, and at any rate the inspector's particular decision to enter must comply with the constitutional standard of reasonableness even if he may enter without a warrant. [ Footnote 10 ] In addition, the argument Page 387 U. S. 532 proceeds, the warrant process could not function effectively in this field. The decision to inspect an entire municipal area is based upon legislative or administrative assessment of broad factors such as the area's age and condition. Unless the magistrate is to review such policy matters, he must issue a "rubber stamp" warrant which provides no protection at all to the property owner. In our opinion, these arguments unduly discount the purposes behind the warrant machinery contemplated by the Fourth Amendment. Under the present system, when the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization. These are questions which may be reviewed by a neutral magistrate without any reassessment of the basic agency decision to canvass an area. Yet only by refusing entry and risking a criminal conviction can the occupant at present challenge the inspector's decision to search. And even if the occupant possesses sufficient fortitude to take this risk, as appellant did here, he may never learn any more about the reason for the inspection than that the law generally allows housing inspectors to gain entry. The practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to Page 387 U. S. 533 search. See cases cited p. 387 U. S. 529 supra. We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty. The final justification suggested for warrantless administrative searches is that the public interest demands such a rule: it is vigorously argued that the health and safety of entire urban populations is dependent upon enforcement of minimum fire, housing, and sanitation standards, and that the only effective means of enforcing such codes is by routine systematized inspection of all physical structures. Of course, in applying any reasonableness standard, including one of constitutional dimension, an argument that the public interest demands a particular rule must receive careful consideration. But we think this argument misses the mark. The question is not, at this stage, at least, whether these inspections may be made, but whether they may be made without a warrant. For example, to say that gambling raids may not be made at the discretion of the police without a warrant is not necessarily to say that gambling raids may never be made. In assessing whether the public interest demands creation of a general exception to the Fourth Amendment's warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. See Schmerber v. California, 384 U. S. 757 , 384 U. S. 770 -771. It has nowhere been urged that fire, health, and housing code inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement. Thus, we do not find the public need argument dispositive. Page 387 U. S. 534 In summary, we hold that administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches, when authorized and conducted without a warrant procedure, lack the traditional safeguards which the Fourth Amendment guarantees to the individual, and that the reasons put forth in Frank v. Maryland and in other cases for upholding these warrantless searches are insufficient to justify so substantial a weakening of the Fourth Amendment's protections. Because of the nature of the municipal programs under consideration, however, these conclusions must be the beginning, not the end, of our inquiry. The Frank majority gave recognition to the unique character of these inspection programs by refusing to require search warrants; to reject that disposition does not justify ignoring the question whether some other accommodation between public need and individual rights is essential. II The Fourth Amendment provides that, "no Warrants shall issue but upon probable cause." Borrowing from more typical Fourth Amendment cases, appellant argues not only that code enforcement inspection programs must be circumscribed by a warrant procedure, but also that warrants should issue only when the inspector possesses probable cause to believe that a particular dwelling contains violations of the minimum standards prescribed by the code being enforced. We disagree. In cases in which the Fourth Amendment requires that a warrant to search be obtained, "probable cause" is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. To apply this standard, it is obviously necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected Page 387 U. S. 535 interests of the private citizen. For example, in a criminal investigation, the police may undertake to recover specific stolen or contraband goods. But that public interest would hardly justify a sweeping search of an entire city conducted in the hope that these goods might be found. Consequently, a search for these goods, even with a warrant, is "reasonable" only when there is "probable cause" to believe that they will be uncovered in a particular dwelling. Unlike the search pursuant to a criminal investigation, the inspection programs at issue here are aimed at securing city-wide compliance with minimum physical standards for private property. The primary governmental interest at stake is to prevent even the unintentional development of conditions which are hazardous to public health and safety. Because fires and epidemics may ravage large urban areas, because unsightly conditions adversely affect the economic values of neighboring structures, numerous courts have upheld the police power of municipalities to impose and enforce such minimum standards even upon existing structures. [ Footnote 11 ] In determining whether a particular inspection is reasonable -- and thus in determining whether there is probable cause to issue a warrant for that inspection -- the need for the inspection must be weighed in terms of these reasonable goals of code enforcement. There is unanimous agreement among those most familiar with this field that the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic Page 387 U. S. 536 inspections of all structures. [ Footnote 12 ] It is here that the probable cause debate is focused, for the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building. Appellee contends that, if the probable cause standard urged by appellant is adopted, the area inspection will be eliminated as a means of seeking compliance with code standards, and the reasonable goals of code enforcement will be dealt a crushing blow. In meeting this contention, appellant argues, first, that his probable cause standard would not jeopardize area inspection programs because only a minute portion of the population will refuse to consent to such inspections, and second, that individual privacy, in any event, should be given preference to the public interest in conducting such inspections. The first argument, even if true, is irrelevant to the question whether the area inspection is reasonable within the meaning of the Fourth Amendment. The second argument is, in effect, an assertion that the area inspection is an unreasonable search. Unfortunately, there can be no ready test for determining reasonableness Page 387 U. S. 537 other than by balancing the need to search against the invasion which the search entails. But we think that a number of persuasive factors combine to support the reasonableness of area code enforcement inspections. First, such programs have a long history of judicial and public acceptance. See Frank v. Maryland, 359 U.S. at 359 U. S. 367 -371. Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions -- faulty wiring is an obvious example -- are not observable from outside the building, and indeed may not be apparent to the inexpert occupant himself. Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's privacy. Both the majority and the dissent in Frank emphatically supported this conclusion: "Time and experience have forcefully taught that the power to inspect dwelling places, either as a matter of systematic area-by-area search or, as here, to treat a specific problem, is of indispensable importance to the maintenance of community health; a power that would be greatly hobbled by the blanket requirement of the safeguards necessary for a search of evidence of criminal acts. The need for preventive action is great, and city after city has seen this need and granted the power of inspection to its health officials, and these inspections are apparently welcomed by all but an insignificant few. Certainly the nature of our society has not vitiated the need for inspections first thought necessary 158 years ago, nor has experience revealed any abuse or inroad on freedom in meeting this need by means that history and dominant public opinion have sanctioned." 359 U.S. at 359 U. S. 372 . Page 387 U. S. 538 ". . . This is not to suggest that a health official need show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits or instrumentalities of crime. Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of a warrant. The test of 'probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought. 359 U.S. at 359 U. S. 383 (MR. JUSTICE DOUGLAS, dissenting)." Having concluded that the area inspection is a "reasonable" search of private property within the meaning of the Fourth Amendment, it is obvious that "probable cause" to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building ( e.g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. It has been suggested that so to vary the probable cause test from the standard applied in criminal cases would be to authorize a "synthetic search warrant," and thereby to lessen the overall protections of the Fourth Amendment. Frank v. Maryland, 359 Page 387 U. S. 539 U.S. at 359 U. S. 373 . But we do not agree. The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186 . Such an approach neither endangers time-honored doctrines applicable to criminal investigations nor makes a nullity of the probable cause requirement in this area. It merely gives full recognition to the competing public and private interests here at stake and, in so doing, best fulfills the historic purpose behind the constitutional right to be free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S. at 364 U. S. 273 -274 (opinion of MR. JUSTICE BRENNAN). III Since our holding emphasizes the controlling standard of reasonableness, nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations. See North American Cold Storage Co. v. City of Chicago, 211 U. S. 306 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U. S. 11 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U. S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle). On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter, and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless Page 387 U. S. 540 there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect. IV In this case, appellant has been charged with a crime for his refusal to permit housing inspectors to enter his leasehold without a warrant. There was no emergency demanding immediate access; in fact, the inspectors made three trips to the building in an attempt to obtain appellant's consent to search. Yet no warrant was obtained, and thus appellant was unable to verify either the need for or the appropriate limits of the inspection. No doubt, the inspectors entered the public portion of the building with the consent of the landlord, through the building's manager, but appellee does not contend that such consent was sufficient to authorize inspection of appellant's premises. Cf. Stoner v. California, 376 U. S. 483 ; Chapman v. United States, 365 U. S. 610 ; McDonald v. United States, 335 U. S. 451 . Assuming the facts to be as the parties have alleged, we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection. It appears from the opinion of the District Court of Appeal that, under these circumstances, a writ of prohibition will issue to the criminal court under California law. The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [For dissenting opinion of MR. JUSTICE CLARK, see post, p. 387 U. S. 546 .] [ Footnote 1 ] The inspection was conducted pursuant to § 86(3) of the San Francisco Municipal Code, which provides that apartment house operators shall pay an annual license fee in part to defray the cost of periodic inspections of their buildings. The inspections are to be made by the Bureau of Housing Inspection "at least once a year and as often thereafter as may be deemed necessary." The permit of occupancy, which prescribes the apartment units which a building may contain, is not issued until the license is obtained. [ Footnote 2 ] "Sec. 507 PENALTY FOR VIOLATION. Any person, the owner or his authorized agent who violates, disobeys, omits, neglects, or refuses to comply with, or who resists or opposes the execution of any of the provisions of this Code, or any order of the Superintendent, the Director of Public Works, or the Director of Public Health made pursuant to this Code, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars ($500.00), or by imprisonment, not exceeding six (6) months or by both such fine and imprisonment, unless otherwise provided in this Code, and shall be deemed guilty of a separate offense for every day such violation, disobedience, omission, neglect or refusal shall continue." [ Footnote 3 ] Givner v. State, 210 Md. 484, 124 A.2d 764 (1956); City of St. Louis v. Evans, 337 S.W.2d 948 (Mo.1960); State ex rel. Eaton v. Price, 168 Ohio St. 123, 151 N.E.2d 523 (1958), aff'd by an equally divided Court, 364 U. S. 263 (1960). See also State v. Rees, 258 Iowa 813, 139 N.W.2d 406 (1966); Commonwealth v. Hadley, 351 Mass. 439, 222 N.E.2d 681 (1966), appeal docketed Jan. 5, 1967, No. 1179, Misc., O.T. 1966; People v. Laverne, 14 N.Y.2d 304, 200 N.E.2d 441 (1964). [ Footnote 4 ] In Frank, the Baltimore ordinance required that the health inspector "have cause to suspect that a nuisance exists in any house, cellar or enclosure" before he could demand entry without a warrant, a requirement obviously met in Frank because the inspector observed extreme structural decay and a pile of rodent feces on the appellant's premises. Section 503 of the San Francisco Housing Code has no such "cause" requirement, but neither did the Ohio ordinance at issue in Eaton v. Price, a case which four Justices thought was controlled by Frank. 364 U.S. at 364 U. S. 264 , 364 U. S. 265 , n. 2 (opinion of MR. JUSTICE BRENNAN). [ Footnote 5 ] See Boyd v. United States, 116 U. S. 616 . Compare Schmerber v. California, 384 U. S. 757 , 384 U. S. 766 -772. [ Footnote 6 ] See Abel v. United States, 362 U. S. 217 , 362 U. S. 254 -256 (MR. JUSTICE BRENNAN, dissenting); District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, aff'd, 339 U. S. 1 . [ Footnote 7 ] See New York, N.Y. Administrative Code § D26-8.0 (1964). [ Footnote 8 ] See Washington, D.C. Housing Regulations § 2104. [ Footnote 9 ] This is the more prevalent enforcement procedure. See Note, Enforcement of Municipal Housing Codes, 78 Harv.L.Rev. 801, 813-816. [ Footnote 10 ] The San Francisco Code requires that the inspector display proper credentials, that he inspect "at reasonable times," and that he not obtain entry by force, at least when there is no emergency. The Baltimore ordinance in Frank required that the inspector "have cause to suspect that a nuisance exists." Some cities notify residents in advance, by mail or posted notice, of impending area inspections. State courts upholding these inspections without warrants have imposed a general reasonableness requirement. See cases cited, n 3, supra. [ Footnote 11 ] See Abbate Bros. v. City of Chicago, 11 Ill. 2d 337 , 142 N.E.2d 691 ; City of Louisville v. Thompson, 339 S.W.2d 869 (Ky.); Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120; Paquette v. City of Fall River, 338 Mass. 368, 155 N.E.2d 775 ; Richards v. City of Columbia, 227 S.C. 538, 88 S.E.2d 683 ; Boden v. City of Milwaukee, 8 Wis.2d 318, 99 N.W.2d 156. [ Footnote 12 ] See Osgood & Zwerner, Rehabilitation and Conservation, 25 Law & Contemp.Prob. 705, 718 and n. 43; Schwartz, Crucial Areas in Administrative Law, 34 Geo.Wash.L.Rev. 401, 423 and n. 93; Comment, Rent Withholding and the Improvement of Substandard Housing, 53 Calif.L.Rev. 304, 316-317; Note, Enforcement of Municipal Housing Codes, 78 Harv.L.Rev. 801, 807, 851; Note, Municipal Housing Codes, 69 Harv.L.Rev. 1115, 1124-1125. Section 311(a) of the Housing and Urban Development Act of 1965, 79 Stat. 478, 42 U.S. C. § 1468 (1964 ed., Supp. I), authorizes grants of federal funds "to cities, other municipalities, and counties for the purpose of assisting such localities in carrying out programs of concentrated code enforcement in deteriorated or deteriorating areas in which such enforcement, together with those public improvements to be provided by the locality, may be expected to arrest the decline of the area."

Here is a summary of the Supreme Court case, Camara v. Municipal Court: The case centered around the Fourth Amendment and the right to privacy in one's home, specifically regarding code enforcement inspections. The Court held that a warrant is required for administrative searches, such as housing inspections, and overruled a previous case, Frank v. Maryland, which had allowed warrantless inspections. The Fourth Amendment protects individuals from unreasonable searches and seizures, and the Court found that warrantless searches of private property are generally unreasonable. The Court also addressed the probable cause standard for issuing warrants in code enforcement cases. It held that probable cause is based on the reasonableness of the agency's appraisal of conditions in the area, rather than an inspector's belief that a particular dwelling violates the code. The standards for issuing search warrants will vary depending on the specific municipal program being enforced. Overall, the case established important privacy rights for individuals and set a precedent for requiring warrants in administrative search contexts.

Government Agencies

U.S. v. Storer Broadcasting Co.

https://supreme.justia.com/cases/federal/us/351/192/

U.S. Supreme Court United States v. Storer Broadcasting Co., 351 U.S. 192 (1956) United States v. Storer Broadcasting Co. No. 94 Argued February 28-29, 1956 Decided May 21, 1956 351 U.S. 192 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus After rulemaking proceedings under the Communications Act of 1934, as amended, in which respondent appeared, filed written objections and argued orally, the Federal Communications Commission amended its rules so as to provide, in effect, that it would issue no license for an additional television broadcast station to any party already having five such stations. On the same day, applying this rule, the Commission dismissed, without hearing, respondent's application for a license for an additional television broadcast station, because respondent already had five such stations. Under the Communications Act, the Administrative Procedure Act and 5 U.S.C. § 1034, respondent applied to the Court of Appeals for review of the Commission's order amending its rule. Held: 1. Though the question of respondent's right to appeal was not raised by either party or by the Court of Appeals, it may be considered by this Court. P. 351 U. S. 197 . 2. Respondent had standing to bring this action. Pp. 351 U. S. 198 -200. (a) The process of rulemaking having been completed, the amended rules constituted final agency action within the meaning of the Administrative Procedure Act. Pp. 351 U. S. 198 -199. (b) The amended rules presently "aggrieve" respondent. Pp. 351 U. S. 199 -200. 3. Section 309(b) of the Communications Act, which requires a "full hearing" before denial of an application for a license, does not prevent the Commission from adopting the rules here involved limiting the number of broadcast stations that will be licensed to any one party. Pp. 351 U. S. 200 -206. (a) Section 309 (b) entitles each applicant for a license to a "full hearing," including the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. P. 351 U. S. 202 . (b) However, § 309(b) does not withdraw from the Commission the rulemaking authority necessary for the orderly conduct of its business. Pp. 351 U. S. 202 -203. Page 351 U. S. 193 (c) Nor does § 309(b) bar rules that declare a present intent to limit the number of stations consistent with a permissible "concentration of control." Pp. 351 U. S. 203 -205. (d) The Act and rules are to be read as providing a "full hearing" for applicants who have reached the existing limit of stations, upon presentation of proper applications that set out adequate reasons why the rules should be waived or amended. The Act, considered as a whole, requires no more. P. 351 U. S. 205 . 95 U.S.App.D.C. 97, 220 F.2d 204, reversed and remanded. MR. JUSTICE REED delivered the opinion of the Court. The Federal Communications Commission issued, on August 19, 1948, a notice of proposed rulemaking under the authority of 47 U.S.C. §§ 303(r), 311, 313 and 314 (Communications Act of 1934, as amended, 47 U.S.C. § 301 et seq. ). It was proposed, so far as is pertinent to this case, to amend Rules 3.35, 3.240, and 3.636 relating to Multiple Ownership of standard, FM and television broadcast stations. Those rules provide that licenses for broadcasting stations will not be granted if the applicant, directly or indirectly, has an interest in other stations beyond a limited number. The purpose of the limitations is to avoid overconcentration of broadcasting facilities. As required by 5 U.S.C. § 1003(b), the notice permitted "interested" parties to file statements or briefs. Such parties might also intervene in appeals. 47 U.S.C. § 402(d) and (e). Respondent, licensee of a number of radio and television stations, filed a statement objecting to the proposed changes, as did other interested broadcasters. Page 351 U. S. 194 Respondent based its objections largely on the fact that the proposed rules did not allow one person to hold as many FM and television stations as standard stations. Storer argued that such limitations might cause irreparable financial damage to owners of standard stations if an obsolescent standard station could not be augmented by FM and television facilities. In November, 1953, the Commission entered an order amending the Rules in question without significant changes from the proposed forms. [ Footnote 1 ] A review was sought Page 351 U. S. 195 in due course by respondent in the Court of Appeals for the District of Columbia Circuit under 5 U.S.C. § 1034, [ Footnote 2 ] 47 U.S.C. § 402(a), [ Footnote 3 ] and 5 U.S.C. § 1009(a), (c). [ Footnote 4 ] Respondent alleged it owned or controlled, within the meaning of the Multiple Ownership Rules, seven standard radio, five FM radio, and five television broadcast stations. It asserted that the Rules complained of were in conflict with the statutory mandates that applicants should be granted licenses if the public interest would be served and that applicants must have a hearing before denial of an application. 47 U.S.C. § 309(a) and (b). [ Footnote 5 ] Page 351 U. S. 196 Respondent also claimed: "The Rules, in considering the ownership of one (1%) percent or more of the voting stock of a broadcast licensee corporation as equivalent to ownership, operation or control of the station, are unreasonable and bear no rational relationship to the national Anti-Trust policy." This latter claim was important to respondent because, allegedly, 20% of its voting stock was in scattered ownership, and was traded in by licensed dealers. This stock was thus beyond its control. Respondent asserted it was a "party aggrieved" and a "person suffering legal wrong" or adversely affected under the several statutes that authorize review of FCC action. See notes 2 3 and | 3 and S. 192fn4|>4, supra. It stated its injuries from the Rules thus: "Storer is adversely affected and aggrieved by the Order of the Commission adopted on November 25, 1953, amending the Multiple Ownership Rules, in that:" "(a) Storer is denied the right of a full and fair hearing to determine whether its ownership of an interest in more than seven (7) standard radio and five (5) television broadcast stations, in light of and upon a showing of all material circumstances, will Page 351 U. S. 197 thereby serve the public interest, convenience and necessity." "(b) The acquisition of Storer's voting stock by the public under circumstances beyond the control of Storer, may and could be violative of the Multiple Ownership rules, as amended, and result in a forfeiture of licenses now held by Storer, with resultant loss and injury to Storer and to all other Storer stockholders." On the day the amendments to the Rules were adopted, a pending application of Storer for an additional television station at Miami was dismissed on the basis of the Rules. While the question of respondent's right to appeal has not been raised by either party or by the Court of Appeals, our jurisdiction is now mooted. It may be considered. Federal Communications Commission v. National Broadcasting Co., 319 U. S. 239 , 319 U. S. 246 . Jurisdiction depends upon standing to seek review, and upon ripeness. If respondent could not rightfully seek review from the order adopting the challenged regulations, it must await action to its disadvantage under them, and neither the Court of Appeals nor this Court has jurisdiction of the controversy. Under the above-cited Code sections, review of Commission action is granted any party aggrieved or suffering legal wrong by that action. [ Footnote 6 ] Page 351 U. S. 198 We think respondent had standing to sue at the time it exercised its privilege. The process of rulemaking was complete. It was final agency action, 5 U.S.C. § 1001(c) and (g), by which Storer claimed to be "aggrieved." When the authority to appeal was substantially the same, we held that an appellant who complained of the grant of a license to a competitor because it would reduce its own income had standing to appeal against a contention, admittedly sound, that such economic injury to appellant was not a proper issue before the Commission. We said: "Congress had some purpose in enacting section 402(b)(2). It may have been of opinion that one likely to be financially injured by the issue of a license would by the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal." Federal Communications Comm'n v. Sanders Bros. Radio Station, 309 U. S. 470 , 309 U. S. 477 . We added that such an appellant could raise any relevant question of law in respect to the order. Again, in Columbia Broadcasting System v. United States, 316 U. S. 407 , this Court considered the problem of standing to review Commission action under the then existing § 402(a), 48 Stat. 1093, and the Urgent Deficiencies Act, 38 Stat. 219. CBS there sought review of the adoption of Chain Broadcasting Regulations by the Commission. Against the contention that the adoption of regulations did not command CBS to do or refrain from doing anything (dissent, 316 U.S. at 316 U. S. 429 ), this Court held that the order promulgating regulations was Page 351 U. S. 199 reviewable because it presently affected existing contractual relationships. It said: "The regulations are not any the less reviewable because their promulgation did not operate of their own force to deny or cancel a license. It is enough that failure to comply with them penalizes licensees, and appellant, with whom they contract. If an administrative order has that effect, it is reviewable, and it does not cease to be so merely because it is not certain whether the Commission will institute proceedings to enforce the penalty incurred under its regulations for non-compliance." Id. at 316 U. S. 417 -418. The Court said that the regulations "presently determine rights." Id. at 316 U. S. 421 . "Appellant's standing to maintain the present suit in equity is unaffected by the fact that the regulations are not directed to appellant and do not, in terms, compel action by it or impose penalties upon it because of its action or failure to act. It is enough that, by setting the controlling standards for the Commission's action, the regulations purport to operate to alter and affect adversely appellant's contractual rights and business relations with station owners whose applications for licenses the regulations will cause to be rejected and whose licenses the regulations may cause to be revoked." Id. at 316 U. S. 422 . See Federal Communications Commission v. American Broadcasting Co., 347 U. S. 284 , 347 U. S. 289 , and E; Dorado Oil Works v. United States, 328 U. S. 12 , 328 U. S. 18 -19. The regulations here under consideration presently aggrieve the respondent. The Commission exercised a power of rulemaking which controls broadcasters. The Rules now operate to control the business affairs of Storer. Unless it obtains a modification of this declared administrative Page 351 U. S. 200 policy, Storer cannot enlarge the number of its standard of FM stations. It seems, too, that the note to Rule 3.636 ( n 1, supra ) endangers Storer's stations as alleged in its petition for review. See this opinion, supra, p. 351 U. S. 197 , at (b). Commission hearings are affected now by the Rules. Storer cannot cogently plan its present or future operations. [ Footnote 7 ] It cannot plan to enlarge the number of its standard or FM stations, and, at any moment, the purchase of Storer's voting stock by some member of the public could endanger its existing structure. These are grievances presently restricting Storer's operations. In the light of the legislation allowing review of the Commission's actions, we hold that Storer has standing to bring this action. In its petition for review, Storer prayed the court to vacate the provisions of the Multiple Ownership Rules insofar as they denied to an applicant already controlling the allowable number of stations a "full and fair hearing" to determine whether additional licenses to the applicant would be in the public interest. [ Footnote 8 ] The Court of Appeals struck out, as contrary to § 309(a) and (b) of the Communications Act ( n 5, supra ), the words italicized in Rule 3.636 ( n 1, supra ) and the similar words in Rules 3.35 and 3.240. The case was remanded to the Commission with directions to eliminate these words. 95 U.S.App.D.C. 97, 220 F.2d 204. We granted certiorari, 350 U.S. 816 Page 351 U. S. 201 . The Commission asserts that its power to make regulations gives it the authority to limit concentration of stations under a single control. [ Footnote 9 ] It argues that rules may go beyond the technical aspects of radio, that rules may validly give concreteness to a standard of public interest, and that the right to a hearing does not exist where an applicant admittedly does not meet those standards, as there would be no facts to ascertain. The Commission shows that its regulations permit applicants to seek amendments and waivers of, or exceptions to, its Rules. [ Footnote 10 ] It adds: "This does not mean, of course, that the mere filing of an application for a waiver . . . would necessarily require the holding of a hearing, for, if that were the case, a rule would no longer be a rule. It means Page 351 U. S. 202 only that it might be an abuse of discretion to fail to hear a request for a waiver which showed, on its face, the existence of circumstances making application of the rule inappropriate." Respondent defends the position of the Court of Appeals. It urges that an application cannot be rejected under 47 U.S.C. § 309 without a "full hearing" to applicant. We agree that a "full hearing" under § 309 means that every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Cf. 5 U.S.C. § 1006(c). Such a hearing is essential for wise and just application of the authority of administrative boards and agencies. We do not read the hearing requirement, however, as withdrawing from the power of the Commission the rulemaking authority necessary for the orderly conduct of its business. As conceded by Storer, "Section 309(b) does not require the Commission to hold a hearing before denying a license to operate a station in ways contrary to those that the Congress has determined are in the public interest. [ Footnote 11 ]" The challenged Rules contain limitations Page 351 U. S. 203 against licensing not specifically authorized by statute. But that is not the limit of the Commission's rulemaking authority. 47 U.S.C. § 154(i) and § 303(r) grant general rulemaking power not inconsistent with the Act or law. This Commission, like other agencies, deals with the public interest. Scripps-Howard Radio v. Federal Communications Commission, 316 U. S. 4 , 316 U. S. 14 . Its authority covers new and rapidly developing fields. Congress sought to create regulation for public protection with careful provision to assure fair opportunity for open competition in the use of broadcasting facilities. Accordingly, we cannot interpret § 309(b) as barring rules that declare a present intent to limit the number of stations consistent with a permissible "concentration of control." It is but a rule that announces the Commission's attitude on public protection against such concentration. [ Footnote 12 ] The Communications Act must be read as a whole and with appreciation of the responsibilities of the body charged with its fair and efficient operation. The growing complexity of our economy induced the Congress to place regulation of businesses like communication in specialized agencies with broad powers. Courts are slow to interfere with their conclusions when reconcilable with statutory directions. [ Footnote 13 ] We think the Multiple Ownership Rules, as adopted, are reconcilable with the Communications Page 351 U. S. 204 Act as a whole. An applicant files his application with knowledge of the Commission's attitude toward concentration of control. In National Broadcasting Co. v. United States, 319 U. S. 190 , similar rules prohibiting certain methods of chain broadcasting were upheld despite a claim that the Rules caused licenses to be denied without "examination of written applications presented . . . as required by §§ 308 and 309." Id. at 319 U. S. 230 . [ Footnote 14 ] The National Broadcasting case validated numerous regulations couched in the prohibitory language of the present regulations. The one in the margin will serve as an example. [ Footnote 15 ] In the National Broadcasting case, we called attention to the necessity for flexibility in the Rules there involved. Page 351 U. S. 205 The "Commission provided that 'networks will be given full opportunity, on proper application for new facilities or renewal of existing licenses, to call to our attention any reasons why the principle should be modified or held inapplicable.'" Id. at 319 U. S. We said: "The Commission therefore did not bind itself inflexibly to the licensing policies expressed in the Regulations. In each case that comes before it, the Commission must still exercise an ultimate judgment whether the grant of a license would serve the 'public interest, convenience, or necessity.' If time and changing circumstances reveal that the 'public interest' is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations." Id. at 319 U. S. 225 . That flexibility is here under the present § 309(a) and (b) and the FCC's regulations. See n 10, supra. We read the Act and Regulations as providing a "full hearing" for applicants who have reached the existing limit of stations, upon their presentation of applications conforming to Rules 1.361(c) and 1.702, that set out adequate reasons why the Rules should be waived or amended. The Act, considered as a whole, requires no more. We agree with the contention of the Commission that a full hearing, such as is required by § 309(b), note 5 supra, would not be necessary on all such applications. As the Commission has promulgated its Rules after extensive administrative hearings, it is necessary for the accompanying papers to set forth reasons, sufficient if true, to justify a change or waiver of the Rules. We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for a hearing. If any applicant is aggrieved by a refusal, the way for review is open. Page 351 U. S. 206 We reverse the judgment of the Court of Appeals, and remand the case to that court so that it may consider respondent's other objections to the Multiple Ownership Rules. Reversed and remanded. MR. JUSTICE DOUGLAS concurs in the result. [ Footnote 1 ] Section 3.636 will illustrate the problem: "§ 3.636 Multiple ownership. (a) No license for a television broadcast station shall be granted to any party (including all parties under common control) if:" "(1) Such party directly or indirectly owns, operates, or controls another television broadcast station which serves substantially the same area; or" "(2) Such party, or any stockholder, officer or director of such party, directly or indirectly owns, operates, controls, or has any interest in, or is an officer or director of any other television broadcast station if the grant of such license would result in a concentration of control of television broadcasting in a manner inconsistent with public interest, convenience, or necessity. In determining whether there is such a concentration of control, consideration will be given to the facts of each case with particular reference to such factors as the size, extent, and location of areas served, the number of people served, and the extent of other competitive service to the areas in question. The Commission, however, will in any event consider that there would be such a concentration of control contrary to the public interest, convenience or necessity for any party or any of its stockholders, officers, or directors to have a direct or indirect interest in, or be stockholders, officers, or directors of more than five television broadcast stations. *" (The italicized material is common to all three Rules.) * "In applying the provisions of paragraph (a) of this section to the stockholders of a corporation which has more than 50 voting stockholders, only those stockholders need be considered who are officers or directors or who directly or indirectly own 1 per cent or more of the outstanding voting stock." 47 CFR, Rev. 1953. The standard and FM Rules limited stations to seven. [ Footnote 2 ] "Any party aggrieved by a final order reviewable under this chapter may, within sixty days after entry of such order, file in the court of appeals, wherein the venue as prescribed by section 1033 of this title lies, a petition to review such order. . . ." [ Footnote 3 ] "(a) Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in chapter 19A of Title 5." [ Footnote 4 ] "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion --" "(a) Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." " * * * *" "(c) Every agency action made reviewable by statute, and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. . . ." [ Footnote 5 ] 47 U.S.C. § 309: "Examination; action by Commission." "(a) If upon examination of any application provided for in section 308 of this title the Commission shall find that public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application." "(b) Notification of denial; contents; reply; hearing; intervention." "If, upon examination of any such application, the Commission is unable to make the finding specified in subsection (a) of this section, it shall forthwith notify the applicant and other known parties in interest of the grounds and reasons for its inability to make such finding. . . . Following such notice, the applicant shall be given an opportunity to reply. If the Commission, after considering such reply, shall be unable to make the finding specified in subsection (a) of this section, it shall formally designate the application for hearing on the grounds or reasons then obtaining and shall notify the applicant . . . specifying with particularity the matters and things in issue. . . . Any hearing subsequently held upon such application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate but in which both the burden of proceeding with the introduction of evidence upon any issue specified by the Commission, as well as the burden of proof upon all such issues, shall be upon the applicant." [ Footnote 6 ] Legal wrong, as a ground for standing to appeal, was introduced by the Administrative Procedure Act, § 10(a). 60 Stat. 243. In explanation the reports of the Senate, No. 752, 79th Cong., 1st Sess. 26, and the House, No. 1980, 79th Cong., 2d Sess. 42, define "legal wrong": "The phrase 'legal wrong' means such a wrong as is specified in section 10(e). It means that something more than mere adverse personal effect must be shown in order to prevail -- that is, that the adverse effect must be an illegal effect." Section 10(e) of the bill required reviewing courts to "hold unlawful any action . . . (3) contrary to statutes or statutory right." Section 10(e) of the Act is now in substantially the same language. 5 U.S.C. § 1009(e). [ Footnote 7 ] Cf. Frozen Food Express v. United States, 351 U. S. 40 , 351 U. S. 43 -44. [ Footnote 8 ] Storer also attacked the 1% ownership provision that appears as a note to Rule 3.636, n 1, supra. This was not passed upon by the Court of Appeals. 95 U.S.App.D.C. 97, 220 F.2d 204. Its judgment leaves that portion of the Rule unaffected. As there was no cross-petition for certiorari, we leave open the question of its validity. [ Footnote 9 ] "The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its function." 47 U.S.C. § 154(i). "Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall --" " * * * *" "(f) Make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of this chapter:" " * * * *" "(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter. . . ." 47 U.S.C. § 303. [ Footnote 10 ] 47 CFR, Rev.1953, § 1.361(c): "(c) Applications which, because of the nature of the particular rule, regulation, or requirement involved, are patently not in accordance with the Commission's rules, regulations, or other requirements will be considered defective, and will be dismissed unless accompanied by a request of the applicant for waiver of, or exception to, any rule, regulation, or requirements with which the application is in conflict. Such requests shall show the nature of the waiver or exception desired and set forth the reasons in support thereof." Section 1.702: " Petition for amendment or waiver of rules. Any interested person may petition for issuance, amendment, repeal or waiver of any rule or regulation. Such petition shall show the text of the proposed rule, or its change, and set forth the reason in support of the petition." See also 47 CFR, 1941 Supp., §§ 1.72, 1.81. [ Footnote 11 ] See 47 U.S.C. §§ 310 and 311. Cf. Ashbacker Radio Corp. v. Federal Communications Commission, 326 U. S. 327 , 326 U. S. 333 , n. 9, and 47 CFR, Rev. 1953 § 1.724; Felman v. United States, 339 U.S. 973; Federal Communications Comm'n v. American Broadcasting Co., 347 U. S. 284 . [ Footnote 12 ] See National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 196 . We said last Term that determination of improper concentration of control was for appraisal by the Commission after hearing. Federal Communications Commission v. Allentown Broadcasting Co., 349 U. S. 358 , 349 U. S. 363 -364. [ Footnote 13 ] See Unemployment Compensation Comm'n v. Aragan, 329 U. S. 143 , 329 U. S. 153 ; O'Leary v. Brown-Pacific-Maxon, 340 U. S. 504 , 340 U. S. 508 . [ Footnote 14 ] Point III of the National Broadcasting Company brief argued the matter under this heading, "The Commission Cannot Escape Its Duty to Evaluate and Decide Each License Application on Its Own Facts." At that time, § 309(a) had the hearing provision. It read: "SEC. 309. (a) If, upon examination of any application for a station license or for the renewal or modification of a station license, the Commission shall determine that public interest, convenience, or necessity would be served by the granting thereof, it shall authorize the issuance, renewal, or modification thereof in accordance with said finding. In the event the Commission, upon examination of any such application does not reach such decision with respect thereto, it shall notify the applicant thereof, shall fix and give notice of a time and place for hearing thereon, and shall afford such applicant an opportunity to be heard under such rules and regulations as it may prescribe." 48 Stat. 1085. Change to the present form was merely for more certainty and clarification, to avoid the possibility of arbitrary Commission action. See S.Rep. No. 44, 82d Cong., 1st Sess. 8. [ Footnote 15 ] "No license shall be granted to a standard broadcast station having any contract, arrangement, or understanding, express or implied, with a network organization under which the station is prevented or hindered from, or penalized for, broadcasting the programs of any other network organization." Id. at 319 U. S. 200 ; 47 CFR, 1941 Supp., § 3.101. MR. JUSTICE HARLAN, concurring in part and dissenting in part. The Court has properly deemed it necessary to question sua sponte the jurisdiction of the Court of Appeals to entertain this case, [ Footnote 2/1 ] but I am unable to agree with its decision that such jurisdiction existed. In my view, Storer was not a "party aggrieved by a final order" of the Commission, within the meaning of 5 U.S.C. § 1034, and hence was not entitled to invoke the jurisdiction of the Court of Appeals. Accordingly, I would vacate the judgment below and remand the case to the Court of Appeals with directions to dismiss the petition for lack of jurisdiction. Page 351 U. S. 207 1. These regulations do not, in my view, constitute an "order" within the meaning of § 1034. They simply establish certain standards to be followed by the Commission in the future exercise of its licensing powers; they do not require any licensee to do or to refrain from doing anything, attach no consequences to his action or inaction, and determine no questions as to his legal status. As such, they are quite unlike the Chain Broadcasting regulations which were held to be a reviewable "order" in Columbia Broadcasting System v. United States, 316 U. S. 407 , in a proceeding comparable to this one. Those regulations were held reviewable not because every Commission action in the form of a regulation was considered to be an "order," but for the specific reason that they proscribed certain kinds of contracts between licensees and the national networks and, by prescribing the sanction of license cancellation for noncompliance, operated to coerce action by the licensees and to determine the legal status of the networks' contracts. Of their own force and with no further administrative action's being taken, the regulations induced licensees to cancel existing network contracts, and deterred them from entering into new ones. That coercive effect of the regulations on present conduct, the very characteristic which led the Court to regard the Chain Broadcasting regulations as an "order" despite their form, is totally lacking here. [ Footnote 2/2 ] Page 351 U. S. 208 2. A second obstacle to review of the regulations here is that, even if they be deemed an "order," Storer has not shown that it is "aggrieved" by them. In assessing the character of Storer's grievance, we must put aside the Commission's order, made simultaneously with its promulgation of the challenged regulations, which denied a pending application by Storer for a sixth television license. That order was reviewable only by a direct appeal within 30 days under 47 U.S.C. § 402(b), (c), Federal Communications Commission v. Columbia Broadcasting System, 311 U. S. 132 , and became final and conclusive upon Storer's failure to appeal from it. Since that order cannot be reviewed, and no relief from it may be granted in this proceeding, it is only of the prospective effect of the regulations, not their past application, that Storer may complain. And it is by that effect that Storer must show it is "aggrieved." In its petition for review, Storer alleged that it was aggrieved by the regulations in that: "(a) Storer is denied the right of a full and fair hearing to determine whether its ownership of an interest in more than seven (7) standard radio and five (5) television broadcast stations, in light of and upon a showing of all material circumstances, will thereby serve the public interest, convenience and necessity." "The acquisition of Storer's voting stock by the public under circumstances beyond the control of Storer, may and could be violative of the Multiple Ownership rules, as amended, and result in a forfeiture of licenses now held by Storer, with resultant loss and injury to Storer and to all other Storer stockholders." However these allegations are read, they assert no more than that the Commission may, in the future, take action Page 351 U. S. 209 pursuant to the regulations to deny or revoke a license. Of course, if such action should ever be taken, Storer would then be "aggrieved." But, by the same token, it would then have a complete remedy through a direct appeal from such action under § 402(b). Until such time as the regulations are applied to it, however, Storer will not have been "aggrieved," and hence will not be entitled to review. Indeed, in this case, we do not even reach often difficult problem whether an alleged injury is sufficient or of such a nature as to entitle the complaining party to review; here, we have that rare case in which no present injury of any kind is even alleged. It is said, however, that the regulations "now operate to control the business affairs of Storer," despite the absence of any such allegation by Storer. Since the Regulations do not have any coercive effect, I take that to mean only that Storer, if it exercises prudent business judgment, will take into account the announced policy of the Commission in deciding whether or not to apply for an additional license. No doubt that is true, but I fail to see show Storer has been "aggrieved" by being told in advance one of the factors that will govern the disposition of any future license application on its part. If anything, Storer is now able to make a more enlightened judgment as to the probabilities of success in obtaining a further license. 3. So clear is it, in fact, that Storer has not been "aggrieved" by the mere issuance of the regulations that the Court's grant of review in this case must be premised not upon the effect of the regulations themselves, but simply upon Storer's interest in knowing whether or not a future application of them would be valid. The result is that the statutory procedure for obtaining relief from a present injury caused by an order has been converted into something quite different -- namely, a procedure for obtaining a declaratory judgment as to the validity of a Page 351 U. S. 210 future application of new regulations. Not only is such a proceeding not authorized by the statute, however, but Storer would not have standing to invoke it even if it were. That declaratory relief from future orders is not contemplated by § 1034 seems clear. That section authorizes review only of an "order" only if the order is "final," and only at the instance of one aggrieved "by" the challenged order itself. The regulations here are not an "order"; if they were, it would not be "final," since further administrative action must be taken before Storer will be affected, and Storer's grievance, if any, will be caused not "by" the regulations, but only by their future application. Moreover, quite apart from these obstacles, the procedure provided for by § 1034 is inappropriate for anticipatory equitable relief. That section requires, for example, that petitions for review be filed within 60 days after the order is issued. While such a time limitation is clearly appropriate to a procedure for relief from an injury already suffered, there seems no justification for so limiting the availability of declaratory relief from future action. Why should declaratory relief be denied as the threat of the future injury becomes more imminent, or be granted to those who have a sufficient interest to seek review immediately while being denied to those who later acquire a similar or even greater interest? Finally, no reason is apparent why existing procedures for declaratory judgments are not adequate; to construe § 1034 as an alternative declaratory judgment procedure simply produces the incongruous result of authorizing declaratory relief in the Courts of Appeals within 60 days after the order is issued and in the District Courts thereafter. In the second place, even if § 1034 is to be construed as authorizing declaratory relief, I see no reason why the usual requirements for invoking equity jurisdiction should not be as applicable to such a proceeding as they are to Page 351 U. S. 211 an ordinary declaratory judgment action or to a proceeding to set aside a Commission order under the Urgent Deficiencies Act, the predecessor to § 1034, under which the CBS case arose. In that case, CBS' right to equitable relief in advance of the application of the regulations was expressly based on the irreparable injury it would suffer -- the wholesale cancellation of its contracts with licensees -- before any further administrative action was taken, and for which there was no other adequate remedy. Unless these requirements for equitable relief are to be abandoned, there can be no right to relief here, for Storer alleges no threatened injury of any kind other than the possibility of future administrative action for which there would be a complete remedy by appeal. It is said, however -- again without support of any allegations by Storer -- that Storer "cannot cogently plan its present or future operations" unless it is advised whether or not the regulations are valid. But plans for expansion of communications facilities have always had to be made subject to the contingency that the Commission might refuse to grant the necessary license for any one of a number of reasons. Storer's position in this respect is now no different than it was before the regulations were issued: any plan to acquire a new station must simply take into account, among the several contingencies, the likelihood that a denial of a license under the regulations would be upheld on appeal. What this argument comes down to, therefore, is that Storer needs to know whether or not it can validly be denied a license under the regulations so that, if it can, it need not make an application. That is, the injury that Storer will have suffered if the decision on the validity of the regulations is postponed until Storer in fact applies for a license is the expense of making that very application, the same injury that is suffered by all unsuccessful license applicants. Until today, I should not have thought argument was necessary to reject such Page 351 U. S. 212 a basis for declaratory relief. Declaratory relief has been denied persons whose only alternative was to risk both dismissal from public employment and the imposition of criminal penalties, United Public Workers v. Mitchell, 330 U. S. 75 , yet it is granted here to relieve Storer of the mere burden of making an application for a license. [ Footnote 2/3 ] 4. The holding of the Court today amounts to this: that regulations which impose no duty and determine no rights may be reviewed at the instance of a person who alleges no injury to settle whether a future application of the regulations that may never occur would be valid. The lack of support for this decision is disclosed by the Court's primary reliance on CBS, [ Footnote 2/4 ] a case which, in my view, not only fails to support the Court's conclusion but is persuasive, if not controlling, authority for precisely the opposite result. [ Footnote 2/5 ] In my opinion, the implications of the Page 351 U. S. 213 decision undermine much of the settled law on reviewability of administrative action, and it is the more unfortunate because made without the benefit of briefs or argument by the parties. I cannot concur in that part the Court's opinion. The Court having decided, however, that the Court of Appeals had jurisdiction, I concur with the Court on the merits. [ Footnote 2/1 ] Although the question of reviewability was not raised below or argued here, there can be no doubt of the power of the Court to consider the issue sua sponte, since it goes to the jurisdiction of the Court of Appeals and of this Court. Cf. Federal Communications Commission v. National Broadcasting Co., 319 U. S. 239 , 319 U. S. 246 ; Rochester Telephone Corp. v. United States, 307 U. S. 125 , 307 U. S. 128 , n. 3; American Federation of Labor v. Labor Board, 308 U. S. 401 , 308 U. S. 404 . The jurisdiction of the Courts of Appeals to review orders of the Federal Communications Commission, other than those granting or denying licenses, is granted by the Act of December 29, 1950, 64 Stat. 1129, 5 U.S.C. §§ 1031-1042. Section 1032, which confers the jurisdiction, provides that "[s]uch jurisdiction shall be invoked by the filing of a petition as provided in section 1034." Section 1034, in turn, provides that "Any party aggrieved by a final order . . . may, within sixty days after entry of such order, file in the court of appeals . . . a petition to review such order." In short, the court's jurisdiction may be invoked only upon the petition of a "party aggrieved by a final order." [ Footnote 2/2 ] Insofar as the Multiple Ownership regulations provide for the revocation of existing licenses upon the purchase by a licensee of a stock interest in more than the maximum number of stations, they could arguably be deemed an "order" forbidding licensees, under pain of license revocation, to engage in stock transactions the result of which would violate the numerical limitations. Storer is not complaining, however, of any such deterrent effect of the regulations, and does not allege that it desires either to buy or to sell stock in any licensee. It objects only to the possibility of a future loss of a license should persons beyond its control -- and, by hypothesis, not deterred by the regulations -- purchase its stock. See paragraph (b) of Storer's allegations, p. 351 U. S. 208 , infra. [ Footnote 2/3 ] The recent holding of this Court in East Texas Motor Freight Lines, Inc. v. Frozen Food Express, ante, p. 351 U. S. 49 , does not support the result reached here. In that case, the declaratory interpretation of the Interstate Commerce Act -- sought by way of review of the Commission's interpretative regulations in a proceeding under the Urgent Deficiencies Act -- was considered justified because of the possibility of criminal penalties being imposed for violations of the Act and the risk of loss of substantial investments in operations that might subsequently be enjoined by the Commission. No such necessity for declaratory relief is even alleged here; there is no threat of criminal prosecutions, and, since a license is always a condition precedent to acquisition of a new station, there is no danger of the loss of investments to be made prior to the future administrative action. [ Footnote 2/4 ] Of the other cases cited by the Court, only Federal Communications Commission v. American Broadcasting Co., 347 U. S. 284 , involved a similar situation, and there, the jurisdictional problem was neither raised by the parties nor noted by the Court. [ Footnote 2/5 ] Throughout the opinion in the CBS case, the Court emphasized the exceptional circumstances which justified immediate review of the Chain Broadcasting regulations and distinguished them from regulations of the sort here involved. See, e.g., 316 U.S. at 316 U. S. 424 -425: "We need not stop to discuss here the great variety of administrative rulings which, unlike this one, are not reviewable -- either because they do not adjudicate rights or declare them legislatively, or because there are adequate administrative remedies which must be pursued before resorting to judicial remedies, or because there is no occasion to resort to equitable remedies. But we should not for that reason fail to discriminate between them and this case, in which, because of its peculiar circumstances, all the elements prerequisite to judicial review are present. The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control." MR. JUSTICE FRANKFURTER, dissenting. While I agree that the amendatory Rules promulgated by the Federal Communications Commission relating to Multiple Ownership of standard, FM and television stations constitute a reviewable "order" within the meaning of 5 U.S.C. § 1034, my Brother HARLAN's reasoning convinces me that the respondent was not on the record before us a "party aggrieved" under that section. Therefore, the court below should not have entertained the petition to review the Commission's order. Procedural and jurisdictional limitations on judicial action by the federal courts are not playthings of lawyers, nor obstructions on the road of justice. Whether formulated by the Constitution, congressional enactments, or settled judicial precedents, they are means designed to keep the courts within appropriate limits, and to enforce Page 351 U. S. 214 rights according to general standards, and not have them depend on the impact of the individual case. To be sure, dealing as we are with general standards, differences of views regarding their scope and applicability are bound to arise from time to time. Who is a "party aggrieved" or a "party in interest" turns on the context, often confused and dubious, of a particular set of circumstances, and therefore raises issues on which judges not unnaturally divide, as they do on other unmathematical problems of the law. See Singer & Sons v. Union Pacific R. Co., 311 U. S. 295 . To the laity, such matters may seem technicalities in a derogatory sense of the term. But this is only one phase of an attitude of mind that thinks ill of law which does not accord with private wishes. When informed by a legal adviser that to carry out his desires would encounter "technical legal difficulties," a strenuous President of the United States impatiently observed that "all law is technicality." But even professionally competent officials are at times impatient with decisions that fail to adjudicate substantive issues on which light is sought. It seems to me important, therefore, not to minimize the function of jurisdictional limitations upon adjudication by expressing views on the merits. There are, of course, exceptional situations where it is proper for a dissenter to go to the merits when a majority of the Court removes from the case threshold objections of procedure and jurisdiction. See e.g., Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 341 . This is not such a case.

The U.S. Supreme Court case United States v. Storer Broadcasting Co. (1956) concerned the Federal Communications Commission's (FCC) amended rules limiting the number of television broadcast licenses that could be issued to a single party. The respondent, Storer Broadcasting Co., already had five television stations and applied for an additional license. The FCC dismissed their application without a hearing, citing the new rule. The Court of Appeals reviewed the FCC's order and allowed the case, which was then brought to the Supreme Court. The Supreme Court held that Storer Broadcasting Co. had the standing to bring the case and that the amended rules constituted final agency action, allowing for judicial review. The Court also interpreted the Communications Act, finding that while applicants were entitled to a "full hearing," the FCC retained rulemaking authority to limit the number of broadcast licenses for orderly conduct. The Court concluded that the Act and rules provided for a "full hearing" for applicants who reached the station limit and presented proper applications with adequate reasons for rule waivers or amendments. The case established the Court's deference to administrative agencies' rulemaking authority and the limits of judicial review, especially regarding technical and complex matters like broadcast licensing.

Due Process

Kahler v. Kansas

https://supreme.justia.com/cases/federal/us/589/18-6135/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–6135 _________________ JAMES K. KAHLER, PETITIONER v. KANSAS on writ of certiorari to the supreme court of kansas [March 23, 2020] Justice Kagan delivered the opinion of the Court. This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement. I A In Clark v. Arizona , 548 U.S. 735 , 749 (2006), this Court catalogued state insanity defenses, counting four “strains variously combined to yield a diversity of American standards” for when to absolve mentally ill defendants of criminal culpability. The first strain asks about a defendant’s “cognitive capacity”—whether a mental illness left him “unable to understand what he [was] doing” when he committed a crime. Id. , at 747, 749. The second examines his “moral capacity”—whether his illness rendered him “un- able to understand that his action [was] wrong.” Ibid. Those two inquiries, Clark explained, appeared as alternative pathways to acquittal in the landmark English ruling M’Naghten’s Case , 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843), as well as in many follow-on American decisions and statutes: If the defendant lacks either cognitive or moral capacity, he is not criminally responsible for his behavior. Yet a third “building block[ ]” of state insanity tests, gaining popularity from the mid-19th century on, focuses on “volitional incapacity”—whether a defendant’s mental illness made him subject to “irresistible[ ] impulse[s]” or otherwise unable to “control[ ] his actions.” Clark , 548 U. S., at 749, 750, n. 11; see, e.g. , Parsons v. State , 81 Ala. 577, 597, 2 So. 854, 866–867 (1887). And bringing up the rear, in Clark ’s narration, the “product-of-mental-illness test” broadly considers whether the defendant’s criminal act stemmed from a mental disease. 548 U. S., at 749–750. As Clark explained, even that taxonomy fails to capture the field’s complexity. See id. , at 750, n. 11. Most notable here, M’Naghten ’s “moral capacity” prong later produced a spinoff, adopted in many States, that does not refer to morality at all. Instead of examining whether a mentally ill defendant could grasp that his act was immoral , some jurisdictions took to asking whether the defendant could understand that his act was illegal . Compare, e.g. , People v. Schmidt , 216 N.Y. 324, 333–334, 110 N.E. 945, 947 (1915) (Cardozo, J.) (asking about moral right and wrong), with, e.g. , State v. Hamann , 285 N.W.2d 180 , 183 (Iowa 1979) (substituting ideas of legal right and wrong). That change in legal standard matters when a mentally ill defendant knew that his act violated the law yet believed it morally justified. See, e.g. , Schmidt , 216 N. Y., at 339, 110 N. E., at 949; People v. Serravo , 823 P.2d 128 , 135 (Colo. 1992).[ 1 ] Kansas law provides that “[i]t shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged.” Kan. Stat. Ann. §21–5209 (2018 Cum. Supp.).[ 2 ] Under that statute, a defendant may introduce any evidence of any mental illness to show that he did not have the intent needed to commit the charged crime. Suppose, for example, that the defendant shot someone dead and goes on trial for murder. He may then offer psychiatric testimony that he did not understand the function of a gun or the consequences of its use—more generally stated, “the nature and quality” of his actions. M’Naghten , 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722. And a jury crediting that testimony must acquit him. As everyone here agrees, Kansas law thus uses M’Naghten ’s “cognitive capacity” prong—the inquiry into whether a mentally ill defendant could comprehend what he was doing when he committed a crime. See Brief for Petitioner 41; Brief for Respondent 31; Brief for United States as Amicus Curiae 18. If the defendant had no such capacity, he could not form the requisite intent—and thus is not criminally responsible. At the same time, the Kansas statute provides that “[m]ental disease or defect is not otherwise a defense.” §21–5209. In other words, Kansas does not recognize any additional way that mental illness can produce an acquittal.[ 3 ] Most important for this case, a defendant’s moral incapacity cannot exonerate him, as it would if Kansas had adopted both original prongs of M’Naghten . Assume, for example, that a defendant killed someone because of an “insane delusion that God ha[d] ordained the sacrifice.” Schmidt , 216 N. Y., at 339, 110 N. E., at 949. The defendant knew what he was doing (killing another person), but he could not tell moral right from wrong; indeed, he thought the murder morally justified. In many States, that fact would preclude a criminal conviction, although it would almost always lead to commitment in a mental health facility. In Kansas, by contrast, evidence of a mentally ill defendant’s moral incapacity—or indeed, of anything except his cognitive inability to form the needed mens rea —can play no role in determining guilt. That partly closed-door policy changes once a verdict is in. At the sentencing phase, a Kansas defendant has wide latitude to raise his mental illness as a reason to judge him not fully culpable and so to lessen his punishment. See §§21–6815(c)(1)(C), 21–6625(a). He may present evidence (of the kind M’Naghten deemed relevant) that his disease made him unable to understand his act’s moral wrongness—as in the example just given of religious delusion. See §21–6625(a) . Or he may try to show (in line with M’Naghten ’s spinoff ) that the illness prevented him from “appreciat[ing] the [conduct’s] criminality.” §21–6625(a)(6). Or again, he may offer testimony (here invoking volitional incapacity) that he simply could not “conform [his] conduct” to legal restraints. Ibid. Kansas sentencing law thus provides for an individualized determination of how mental illness, in any or all of its aspects, affects culpability. And the same kind of evidence can persuade a court to place a defendant who needs psychiatric care in a mental health facility rather than a prison. See §22–3430. In that way, a defendant in Kansas lacking, say, moral capacity may wind up in the same kind of institution as a like defendant in a State that would bar his conviction. B This case arises from a terrible crime. In early 2009, Karen Kahler filed for divorce from James Kahler and moved out of their home with their two teenage daughters and 9-year-old son. Over the following months, James Kahler became more and more distraught. On Thanksgiving weekend, he drove to the home of Karen’s grandmother, where he knew his family was staying. Kahler entered through the back door and saw Karen and his son. He shot Karen twice, while allowing his son to flee the house. He then moved through the residence, shooting Karen’s grandmother and each of his daughters in turn. All four of his victims died. Kahler surrendered to the police the next day and was charged with capital murder. Before trial, Kahler filed a motion arguing that Kansas’s treatment of insanity claims violates the Fourteenth Amendment’s Due Process Clause. Kansas, he asserted, had “unconstitutionally abolished the insanity defense” by allowing the conviction of a mentally ill person “who cannot tell the difference between right and wrong.” App. 11–12. The trial court denied the motion, leaving Kahler to attempt to show through psychiatric and other testimony that severe depression had prevented him from forming the intent to kill. See id. , at 16; §21–5209. The jury convicted Kahler of capital murder. At the penalty phase, the court permitted Kahler to offer additional evidence of his mental illness and to argue in whatever way he liked that it should mitigate his sentence. The jury still decided to impose the death penalty. Kahler appealed, again challenging the constitutionality of Kansas’s approach to insanity claims. The Kansas Supreme Court rejected his argument, relying on an earlier precedential decision. See 307 Kan. 374, 400–401, 410 P.3d 105, 124–125 (2018) (discussing State v. Bethel , 275 Kan. 456, 66 P.3d 840 (2003)). There, the court denied that any single version of the insanity defense is so “ingrained in our legal system” as to count as “fundamental.” Id. , at 473, 66 P. 3d, at 851. The court thus found that “[d]ue process does not mandate that a State adopt a particular insanity test.” Ibid. Kahler then asked this Court to decide whether the Due Process Clause requires States to provide an insanity defense that acquits a defendant who could not “distinguish right from wrong” when committing his crime—or, otherwise put, whether that Clause requires States to adopt the moral-incapacity test from M’Naghten . Pet. for Cert. 18. We granted certiorari, 586 U. S. ___ (2019), and now hold it does not.[ 4 ] II A A challenge like Kahler’s must surmount a high bar. Under well-settled precedent, a state rule about criminal liability—laying out either the elements of or the defenses to a crime—violates due process only if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Leland v. Oregon , 343 U.S. 790 , 798 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is “historical practice.” Montana v. Egelhoff , 518 U.S. 37 , 43 (1996) (plurality opinion). And in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g. , id. , at 44–45; Patterson v. New York , 432 U.S. 197 , 202 (1977). The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. See, e.g. , Clark , 548 U. S., at 752 (“[T]he conceptualization of criminal offenses” is mostly left to the States). In Powell v. Texas , 392 U.S. 514 (1968), this Court explained why. There, Texas declined to recognize “chronic alcoholism” as a defense to the crime of public drunkenness. Id. , at 517 (plurality opinion). The Court upheld that decision, emphasizing the paramount role of the States in setting “standards of criminal responsibility.” Id. , at 533. In refusing to impose “a constitutional doctrine” defining those standards, the Court invoked the many “interlocking and overlapping concepts” that the law uses to assess when a person should be held criminally accountable for “his antisocial deeds.” Id. , at 535–536. “The doctrines of actus reus , mens rea , insanity, mistake, justification, and duress”—the Court counted them off—reflect both the “evolving aims of the criminal law” and the “changing religious, moral, philosophical, and medical views of the nature of man.” Id. , at 536. Or said a bit differently, crafting those doctrines involves balancing and rebalancing over time complex and oft-competing ideas about “social policy” and “moral culpability”—about the criminal law’s “practical effectiveness” and its “ethical foundations.” Id. , at 538, 545, 548 (Black, J., concurring). That “constantly shifting adjustment” could not proceed in the face of rigid “[c]onstitution[al] formulas.” Id. , at 536–537 (plurality opinion). Within broad limits, Powell thus concluded, “doctrine[s] of criminal responsibility” must remain “the province of the States.” Id. , at 534, 536. Nowhere has the Court hewed more closely to that view than in addressing the contours of the insanity defense. Here, uncertainties about the human mind loom large. See, e.g. , Ake v. Oklahoma , 470 U.S. 68 , 81 (1985) (“[P]sychiatrists disagree widely and frequently on what constitutes mental illness, on [proper] diagnos[es, and] on cure and treatment”). Even as some puzzles get resolved, others emerge. And those perennial gaps in knowledge intersect with differing opinions about how far, and in what ways, mental illness should excuse criminal conduct. See Clark , 548 U. S., at 749–752 (canvassing how those competing views produced a wealth of insanity tests); supra , at 1–2. “This whole problem,” we have noted, “has evoked wide disagreement.” Leland , 343 U. S., at 801. On such unsettled ground, we have hesitated to reduce “experimentation, and freeze [the] dialogue between law and psychiatry into a rigid constitutional mold.” Powell , 392 U. S., at 536–537. Indeed, while addressing the demand for an alcoholism defense in Powell , the Court pronounced—as something close to self-evident—that “[n]othing could be less fruitful” than to define a specific “insanity test in constitutional terms.” Id. , at 536. And twice before we have declined to do so. In Leland v. Oregon , a criminal defendant challenged as a violation of due process the State’s use of the moral-incapacity test of insanity—the very test Kahler now asks us to require. See 343 U. S., at 800–801. According to the defendant, Oregon instead had to adopt the volitional-incapacity (or irresistible-impulse) test to comply with the Constitution. See ibid. ; supra , at 2. We rejected that argument. “[P]sychiatry,” we first noted, “has made tremendous strides since [the moral-incapacity] test was laid down in M’Naghten’s Case ,” implying that the test seemed a tad outdated. 343 U. S., at 800–801. But still, we reasoned, “the progress of science has not reached a point where its learning” would demand “eliminat[ing] the right and wrong test from [the] criminal law.” Id. , at 801. And anyway, we continued, the “choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy” about when mental illness should absolve someone of “criminal responsibility.” Ibid. The matter was thus best left to each State to decide on its own. The dissent agreed (while parting from the majority on another ground): “[I]t would be indefensible to impose upon the States[ ] one test rather than another for determining criminal culpability” for the mentally ill, “and thereby to displace a State’s own choice.” Id. , at 803 (opinion of Frankfurter, J.). A half-century later, we reasoned similarly in Clark . There, the defendant objected to Arizona’s decision to discard the cognitive-incapacity prong of M’Naghten and leave in place only the moral-incapacity one—essentially the flipside of what Kansas has done. Again, we saw no due process problem. Many States, we acknowledged, allowed a defendant to show insanity through either prong of M’Naghten . See 548 U. S., at 750. But we denied that this approach “represents the minimum that a government must provide.” Id. , at 748. In so doing, we invoked the States’ traditional “capacity to define crimes and defenses,” and noted how views of mental illness had been particularly “subject to flux and disagreement.” Id. , at 749, 752. And then we surveyed the disparate ways that state laws had historically excused criminal conduct because of mental disease—those “strains variously combined to yield a diversity of American standards.” See id. , at 749–752; supra , at 1–2. The takeaway was “clear”: A State’s “insanity rule[ ] is substantially open to state choice.” Clark , 548 U. S., at 752. Reiterating Powell ’s statement, Clark held that “no particular” insanity test serves as “a baseline for due process.” 548 U. S., at 752. Or said just a bit differently, that “due process imposes no single canonical formulation of legal insanity.” Id. , at 753. B Yet Kahler maintains that Kansas’s treatment of insanity fails to satisfy due process. He sometimes makes his argument in the broadest of strokes, as he did before trial. See supra , at 5. Kansas, he then contends, has altogether “abolished the insanity defense,” in disregard of hundreds of years of historical practice. Brief for Petitioner 39. His central claim, though, is more confined. It is that Kansas has impermissibly jettisoned the moral-incapacity test for insanity. See id. , at 12, 23. As earlier noted, both Clark and Leland described that test as coming from M’Naghten . See 548 U. S., at 749; 343 U. S., at 801; supra , at 2, 8. But according to Kahler (and the dissent), the moral-incapacity inquiry emerged centuries before that decision, thus forming part of the English common-law heritage this country inherited. See Brief for Petitioner 21, 42; post , at 4–14 (opinion of Breyer, J.). And the test, he claims, served for all that time—and continuing into the present—as the touchstone of legal insanity: If a defendant could not understand that his act was morally wrong, then he could not be found criminally liable. See Brief for Petitioner 20–23; see also post , at 15. So Kahler concludes that the moral-incapacity standard is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Leland , 343 U. S., at 798; see supra , at 6. In essence—and contra Clark —that test is the “single canonical formulation of legal insanity” and thus the irreducible “baseline for due process.” 548 U. S., at 752–753; see supra , at 9.[ 5 ] One point, first, of agreement: Kahler is right that for hundreds of years jurists and judges have recognized insanity (however defined) as relieving responsibility for a crime. “In criminal cases therefore,” Sir William Blackstone wrote, “lunatics are not chargeable for their own acts, if committed when under these incapacities.” 4 Commentaries on the Laws of England 24 (1769). Sir Edward Coke even earlier explained that in criminal cases, “the act and wrong of a mad man shall not be imputed to him.” 2 Institutes of the Laws of England §405, p. 247b (1628) (Coke). And so too Henry de Bracton thought that a “madman” could no sooner be found criminally liable than a child. 2 Bracton on Laws and Customs of England 384 (S. Thorne transl. 1968) (Bracton). That principle of non-culpability appeared in case after case involving allegedly insane defendants, on both sides of the Atlantic. “The defense of insanity[ ] is a defense for all crimes[,] from the highest to the lowest,” said the Court in Old Bailey. Trial of Samuel Burt (July 19, 1786), in 6 Proceedings in the Old Bailey 874 (E. Hodgson ed. 1788) (Old Bailey Proceedings). Repeated Justice Story, when riding circuit: “In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibility.” United States v. Drew , 25 F. Cas. 913 (No. 14,993) (CC Mass. 1828); see also, e.g. , State v. Marler , 2 Ala. 43, 49 (1841) (“If the prisoner was insane, he was not an accountable being”); Cornwell v. State , 8 Tenn. 147, 156 (1827) (“[P]erfect madness” will “free a man from punishment for crime”). We have not found a single case to the contrary. But neither do we think Kansas departs from that broad principle. First, Kansas has an insanity defense negating criminal liability—even though not the type Kahler demands. As noted earlier, Kansas law provides that it is “a defense to a prosecution” that “the defendant, as a result of mental disease or defect, lacked the culpable mental state required” for a crime. §21–5209; see supra , at 3. That provision enables a defendant to present psychiatric and other evidence of mental illness to defend himself against a criminal charge. More specifically, the defendant can use that evidence to show that his illness left him without the cognitive capacity to form the requisite intent. See supra , at 3. Recall that such a defense was exactly what the defendant in Clark wanted, in preference to Arizona’s moral-incapacity defense: His (unsuccessful) appeal rested on the trial court’s exclusion of psychiatric testimony to show that he lacked the relevant mens rea . See 548 U. S., at 745–747; supra , at 9. Here, Kahler could do what Clark could not—try to show through such testimony that he had no intent to kill. Of course, Kahler would have preferred Arizona’s kind of insanity defense (just as Clark would have liked Kansas’s). But that does not mean that Kansas (any more than Arizona) failed to offer any insanity defense at all. Second, and significantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. See §§21–6815(c)(1)(C), 21–6625(a); supra , at 4. A mentally ill defendant may argue there that he is not blameworthy because he could not tell the difference between right and wrong. Or, because he did not know his conduct broke the law. Or, because he could not control his behavior. Or, because of anything else. In other words, any manifestation of mental illness that Kansas’s guilt-phase insanity defense disregards—including the moral incapacity Kahler highlights—can come in later to mitigate culpability and lessen punishment. And that same kind of evidence can persuade a judge to replace any prison term with commitment to a mental health facility. See §22–3430; supra , at 4–5. So as noted above, a defendant arguing moral incapacity may well receive the same treatment in Kansas as in States that would acquit—and, almost certainly, commit—him for that reason. See supra , at 4–5. In sum, Kansas does not bar, but only channels to sentencing, the mental health evidence that falls outside its intent-based insanity defense. When combined with Kansas’s allowance of mental health evidence to show a defendant’s inability to form criminal intent, that sentencing regime defeats Kahler’s charge that the State has “abolish[ed] the insanity defense entirely.”[ 6 ] Brief for Petitioner 39. So Kahler can prevail here only if he can show (again, contra Clark ) that due process demands a specific test of legal insanity—namely, whether mental illness prevented a defendant from understanding his act as immoral. Kansas, as we have explained, does not use that type of insanity rule. See supra , at 3–4. If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder morally justified. In Kansas’s judgment, that delusion does not make an intentional killer entirely blameless. See Brief for Respondent 40. Rather than eliminate, it only lessens the defendant’s moral culpability. See ibid. And sentencing is the appropriate place to consider mitigation: The decisionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See ibid. In any event, so Kansas thinks.[ 7 ] Those views are contested and contestable; other States—many others—have made a different choice. But Kahler must show more than that. He must show that adopting the moral-incapacity version of the insanity rule is not a choice at all—because, again, that version is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Leland , 343 U. S., at 798. And he cannot. The historical record is, on any fair reading, complex—even messy. As we will detail, it reveals early versions of not only Kahler’s proposed standard but also Kansas’s alternative. Early commentators on the common law proposed various formulations of the insanity defense, with some favoring a morality inquiry and others a mens rea approach. Kahler cites William Lambard’s 16th-century treatise defining a “mad man” as one who “hath no knowledge of good nor evil” (the right and wrong of the day). Eirenarcha, ch. 21, p. 218 (1581). He likewise points to William Hawkins’s statement, over a hundred years later, that a “lunatick[ ]” is not punishable because “under a natural disability of distinguishing between good and evil.” 1 Pleas of the Crown §1, p. 2 (1716) (capitalization omitted). Both true enough. But other early versions of the insanity test—and from a more famous trio of jurists—demanded the kind of cognitive impairment that prevented a defendant from understanding the nature of his acts, and thus intending his crime. Henry de Bracton’s 13th-century treatise gave rise to what became known as the “wild beast” test. See J. Biggs, The Guilty Mind 82 (1955). Used for hundreds of years, it likened a “madman” to an “animal[ ] which lack[s] reason” and so could not have “the intention to injure.” Bracton 384; see ibid. (A “madman” cannot commit a crime because “[i]t is will and purpose which mark” misdeeds). Sir Edward Coke similarly linked the definition of insanity to a defendant’s inability to form criminal intent. He described a legally insane person in 1628 as so utterly “without his mind or discretion” that he could not have the needed mens rea . 2 Coke §405, at 247b. So too Lord Matthew Hale a century later. He explained that insanity involves “a total alienation of the mind or perfect madness,” such that a defendant could not act “ animo felonico ,” meaning with felonious intent. 1 Pleas of the Crown, ch. 4, pp. 30, 37 (1736); see id. , at 37 (“[F]or being under a full alienation of mind, he acts not per electionem or intentionem [by choice or intent]”).[ 8 ] Quite a few of the old common-law cases similarly stressed the issue of cognitive capacity. To be sure, even these cases included some references to the ability to tell right from wrong (and the dissent eagerly cherry-picks every one of them). But the decisions’ overall focus was less on whether a defendant thought his act moral than on whether he had the ability to do much thinking at all. In the canonical case of Rex v. Arnold , 16 How. St. Tr. 695 (1724), for example, the jury charge descended straight from Bracton: “[I]t is not every kind of frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as is to be exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.” Id. , at 764–765. And the court offered an accompanying test linking that lack of reason to mens rea : If a man is “deprived of his reason, and consequently of his intention, he cannot be guilty.” Id. , at 764; see ibid. (defining a “madman” as a “person that hath no design”); see also Trial of William Walker (Apr. 21, 1784), in 4 Old Bailey Proceedings 544, 547 (asking whether the defendant had a “distemper of mind which had deprived him of the use of his reason” or instead whether “he knew what he was doing [and] meant to do it”); Beverley’s Case , 4 Co. Rep. 123b, 124b, 76 Eng. Rep. 1118, 1121 (K. B. 1603) (asking whether a man “is deprived of reason and understanding” and so “cannot have a felonious intent”). The House of Lords used much the same standard in Rex v. Lord Ferrers , 19 How. St. Tr. 886 (1760), when sitting in judgment on one of its members. There, the Solicitor General told the Lords to address “the capacity and intention of the noble prisoner.” Id. , at 948. Relying heavily on Hale’s treatise, he defined the legally insane as suffering from an “alienation of mind” and a “total[ ] want of reason.” Id. , at 947. And in recapping the evidence on that issue, he asked about the defendant’s intention: “Did [Ferrers] proceed with deliberation? Did he know the consequences” of his act? Id. , at 948.[ 9 ] In such cases, even the language of morality mostly worked in service of the emphasis on cognition and mens rea . The idea was that if a defendant had such a “total[ ] want of reason” as to preclude moral thinking, he could not possibly have formed the needed criminal intent. Id. , at 947. Lord Chief Justice Mansfield put the point neatly in Bellingham’s Case , 1 G. Collinson, Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compotes Mentis 636 (1812) (Collinson). He instructed the jury: “If a man were deprived of all power of reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law. Such a man, so destitute of all power of judgment, could have no intention at all.” Id. , at 671. On that account, moral incapacity was a byproduct of the kind of cognitive breakdown that precluded finding mens rea , rather than a self-sufficient test of insanity. See also Rex v. Offord , 5 Car. & P. 168, 169, 172 Eng. Rep. 924, 925 (N. P. 1831) (“express[ing] complete accordance in the observations of th[e] learned Judge” in Bellingham ). Or said another way, a mentally ill defendant’s inability to distinguish right from wrong, rather than independently producing an insanity acquittal, served as a sign—almost a kind of evidence—that the defendant lacked the needed criminal intent. Other early common-law cases do not adopt the mens rea approach—but neither can they sustain Kahler’s position. Kahler relies mainly on Hadfield’s Case , 27 How. St. Tr. 1281 (1800), to show that common-law courts would acquit a mentally ill defendant who understood the nature of his act, but believed it moral. See Reply Brief 4. There, the defendant had deliberately set out to assassinate King George III on the view that doing so would bring about the Second Coming. See 27 How. St. Tr., at 1322. The judge instructed the jury that the defendant was so “deranged” as to make acquittal appropriate. Id. , at 1353. Maybe, as Kahler argues, that directive stemmed from the defendant’s inability to tell right from wrong. But the judge never used that language, or stated any particular legal standard, so it is hard to know. Still other judges explained insanity to juries by throwing everything against the wall—mixing notions of cognitive incapacity, moral incapacity, and more, without trying to order, prioritize, or even distinguish among them. See, e.g. , Regina v. Oxford , 9 Car. & P. 525, 545–548, 173 Eng. Rep. 941, 950 (N. P. 1840); Trial of Francis Parr (Jan. 15, 1787), in 2 Old Bailey Proceedings 228–229; Bowler’s Case , 1 Collinson 674. Those decisions treat the inability to make moral judgments more as part of an all-things-considered assessment of legal insanity, and less as its very definition. But even if some of them belong in Kahler’s corner, that would be far from enough. Taken as a whole, the common-law cases reveal no settled consensus favoring Kahler’s preferred insanity rule. And without that, they cannot support his proposed constitutional baseline. Only with M’Naghten , in 1843, did a court articulate, and momentum grow toward accepting, an insanity defense based independently on moral incapacity. See Clark , 548 U. S., at 749; Leland , 343 U. S., at 801; supra , at 2, 8. The M’Naghten test, as already described, found insanity in either of two circumstances. See supra , at 1–2. A defendant was acquitted if he “labour[ed] under such a defect of reason, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or , [2] if he did know it, that he did not know he was doing what was wrong.” 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722 (emphasis added). That test disaggregated the concepts of cognitive and moral incapacity, so that each served as a stand-alone defense. And its crisp two-part formulation proved influential, not only in Great Britain but in the United States too. Over the course of the 19th century, many States adopted the test, making it the most popular one in the country. Still, Clark unhesitatingly declared: “History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle.” 548 U. S., at 749. As Clark elaborated, even M’Naghten failed to unify state insanity defenses. See 548 U. S., at 749–752. States continued to experiment with insanity rules, reflecting what one court called “the infinite variety of forms [of] insanity” and the “difficult and perplexing” nature of the defense. Roberts v. State , 3 Ga. 310, 328, 332 (1847). Some States in the 1800s gravitated to the newly emergent “volitional incapacity” standard, focusing on whether the defendant could at all control his actions. Clark , 548 U. S., at 749; see, e.g. , Roberts , 3 Ga., at 331. One court viewed that inquiry as “much more practical” than the “right and wrong test,” which it thought often “speculative and difficult of determination.” State v. Felter , 25 Iowa 67, 82, 84 (1868); see Leland , 343 U. S., at 801 (recognizing such skepticism about the moral-incapacity test); supra , at 8–9. Another prophesied that the volitional test was the one “towards which all the modern authorities in this country[ ] are gradually but surely tending.” Parsons , 81 Ala., at 586, 2 So., at 859. But that test, too, failed to sweep all before it: State innovation proceeded apace. See, e.g. , State v. Pike , 49 N. H. 399, 442 (1870) (applying the “product” test, which excuses a defendant whose crime “was the offspring or product of mental disease”); N. D. Cent. Code Ann. §12.1–04.1–01(1)(a) (2012) (replacing the right-from-wrong test with an inquiry into whether the defendant’s act arose from “[a] serious distortion of [his] capacity to recognize reality”). Much as medical views of mental illness changed as time passed, so too did legal views of how to account for that illness when assigning blame. As earlier noted, even the States that adopted M’Naghten soon divided on what its second prong should mean. See supra , at 2–3. Most began by asking, as Kahler does, about a defendant’s ability to grasp that his act was immoral . See, e.g. , Wright v. State , 4 Neb. 407, 409 (1876); State v. Spencer , 21 N. J. L. 196, 201 (1846). Thus, Clark labeled M’Naghten ’s second prong a test of “moral capacity,” and invoked the oft-used phrase “telling right from wrong” (or in older language, good from evil) to describe its central inquiry. 548 U. S., at 747, 753; see supra , at 2. But over the years, 16 States have reoriented the test to focus on the defendant’s understanding that his act was illegal —that is, legally rather than morally “wrong.”[ 10 ] They thereby excluded from the ranks of the insane those who knew an act was criminal but still thought it right. Contrary to Kahler’s (and the dissent’s) contention, that difference matters. See Reply Brief 7 (claiming that “there is little daylight between these inquiries”); post , at 17, 21 (same). The two tests will treat some, even though not all, defendants in opposite ways. And the defendants they will treat differently are exactly those Kahler (and the dissent) focus on: those who know exactly what they are doing (including that it is against the law) but believe it morally justified—because, say, it is commanded by God (or in the dissent’s case, a dog). See Brief for Petitioner 15; post , at 20; Schmidt , 216 N. Y., at 339, 110 N. E., at 949.[ 11 ] A famed theorist of criminal law put the point this way: “A kills B knowing that he is killing B, and knowing that it is illegal to kill B, but under an insane delusion that the salvation of the human race will be obtained by . . . the murder of B[.] A’s act is a crime if the word ‘wrong’ [in M’Naghten ] means illegal. It is not a crime if the word wrong means morally wrong.” 2 J. Stephen, History of the Criminal Law of England, ch. 19, p. 149 (1883). So constitutionalizing the moral-incapacity standard, as Kahler requests, would require striking down not only the five state laws like Kansas’s (as the dissent at times suggests, see post , at 16), but 16 others as well (as the dissent eventually concedes is at least possible, see post , at 21). And with what justification? The emergence of M’Naghten ’s legal variant, far from raising a due process problem, merely confirms what Clark already recognized. Even after its articulation in M’Naghten (much less before), the moral-incapacity test has never commanded the day. Clark , 548 U. S., at 749.[ 12 ] Indeed, just decades ago Congress gave serious consideration to adopting a mens rea approach like Kansas’s as the federal insanity rule. See United States v. Pohlot , 827 F.2d 889, 899, and n. 9 (CA3 1987) (describing bipartisan support for that proposal). The Department of Justice at the time favored that version of the insanity test. Perhaps more surprisingly, the American Medical Association did too. And the American Psychiatric Association took no position one way or the other. Although Congress chose in the end to adhere to the M’Naghten rule, the debate over the bill itself reveals continuing division over the proper scope of the insanity defense. Nor is that surprising, given the nature of the inquiry. As the American Psychiatric Association once noted, “insanity is a matter of some uncertainty.” Insanity Defense Work Group, Statement on the Insanity Defense, 140 Am. J. Psych. 681, 685 (1983). Across both time and place, doctors and scientists have held many competing ideas about mental illness. And that is only the half of it. Formulating an insanity defense also involves choosing among theories of moral and legal culpability, themselves the subject of recurrent controversy. At the juncture between those two spheres of conflict and change, small wonder there has not been the stasis Kahler sees—with one version of the insanity defense entrenched for hundreds of years. And it is not for the courts to insist on any single criterion going forward. We have made the point before, in Leland , Powell , and Clark . See supra , at 7–9. Just a brief reminder: “[F]ormulating a constitutional rule would reduce, if not eliminate, [the States’] fruitful experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold.” Powell , 392 U. S., at 536–537. Or again: In a sphere of “flux and disagreement,” with “fodder for reasonable debate about what the cognate legal and medical tests should be,” due process imposes no one view of legal insanity. Clark , 548 U. S., at 752–753. Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law. We therefore decline to require that Kansas adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong. Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands centuries later. For that reason, we affirm the judgment below. It is so ordered. Notes 1 Another complicating factor in Clark ’s classification scheme is that States “limit, in varying degrees, which sorts of mental illness” can support an insanity claim. Clark v. Arizona , 548 U.S. 735 , 750, n. 11 (2006). So even two States using the same test for judging culpability may apply it to differently sized sets of offenders. See infra , at 21, n. 11. 2 At the time of the crime in this case, a materially identical provision was codified at §22–3220 (2007). 3 Four other States similarly exonerate a mentally ill defendant only when he cannot understand the nature of his actions and so cannot form the requisite mens rea . See Alaska Stat. §§12.47.010(a), 12.47.020 (2018); Idaho Code Ann. §§18–207(1), (3) (2016); Mont. Code Ann. §46–14–102 (2019); Utah Code §76–2–305 (2017). 4 Kahler also asked us to decide whether the Eighth Amendment requires that States make available the moral-incapacity defense. See Pet. for Cert. 18. But that claim is not properly before us. Kahler did not raise the argument below, and the Kansas courts therefore did not address it. 5 Although the dissent at times claims to the contrary, its argument is the same. Given the clear direction of our precedent, the dissent must purport to grant the States “leeway” in defining legal insanity. Post , at 1. But the entirety of the dissent’s historical analysis focuses on the moral-incapacity standard—attempting to show, just as Kahler does, that it both preceded and succeeded M’Naghten . See post , at 4–17. And in line with that narration, the dissent insists on moral understanding as the indispensable criterion of legal sanity—the sine qua non of criminal responsibility. See, e.g. , post , at 1, 3–4, 8–9, 18–21. Indeed, the dissent offers only one way the States have actual “leeway” to change their insanity rules: They can “ expand upon M’Naghten ’s principles” by finding that even some who have moral capacity are insane. Post , at 22. But that is just to say that moral capacity is the constitutional floor—again, exactly what Kahler argues. 6 We here conclude only that Kansas’s scheme does not abolish the insanity defense. We say nothing, one way or the other, about whether any other scheme might do so. 7 The dissent is therefore wrong to suggest that Kansas’s law has become untethered from moral judgments about culpability. See post , at 1, 3, 16–22. No doubt, Kansas’s moral judgments differ from the dissent’s. Again, Kansas believes that an intentional killer is not wholly blameless, even if, for example, he thought his actions commanded by God. The dissent, in contrast, considers Kansas’s view benighted (as maybe some in the majority do too). But that is not a dispute, as the dissent suggests, about whether morality should play a role in assigning legal responsibility. It is instead a disagreement about what morality entails—that is, about when a defendant is morally culpable for an act like murder. See State v. Bethel , 275 Kan. 456, 465–471, 66 P.3d 840, 847–850 (2003) (accepting Kansas’s view that “moral blameworthiness” is linked to a defendant’s intent to kill, rather than to his ability to tell right from wrong). And we have made clear, from Leland to Powell to Clark , that courts do not get to make such judgments. See supra , at 7–9. Instead, the States have broad discretion to decide who counts as blameworthy, and to weigh that along with other factors in defining the elements of, and defenses to, crimes. 8 The dissent tries to recruit these three jurists to the side of the moral-incapacity test, see post , at 5–7, but cannot succeed. Even the carefully curated passages the dissent quotes focus on cognitive capability rather than moral judgment. See, e.g. , post , at 5–6 (asking whether a defendant had “sense and reason” or “understanding and liberty of will”). In so doing, they refer to the defendant’s ability to form the requisite mens rea , or felonious intent. See Clark , 548 U. S., at 747; supra , at 1–3. The dissent still insists all is not lost because (it says) mens rea itself hinged at common law on a defendant’s “moral understanding.” Post , at 8–9. Here, the dissent infers from the use of “good-from-evil” language in various common-law treatises and cases that moral blameworthiness must have defined the mens rea inquiry. See ibid. But to begin with—and to repeat the point made in the text—the most influential treatises used little of that language, emphasizing instead the need for a defendant to intend his act in the ordinary sense of the term. And as we will explain, the joint presence of references to mens rea and moral understanding in other common-law sources involving insanity does not show that most jurists saw the two concepts as one and the same. See infra , at 16–19. Some may well have viewed mens rea through a moral prism; but others emphasized cognitive understanding in using that term; and still others combined the moral and cognitive in diverse ways. Which is to say that the record is far more complicated than the dissent lets on, with jurists invoking, both within particular sources and across all of them, a variety of ways to resolve insanity claims. And under our long-established precedent, that motley sort of history cannot provide the basis for a successful due process claim. 9 Even in the face of these instructions, the dissent claims that Arnold and Ferrers actually used the moral-incapacity test. See post , at 9–11. The assertion is based on some “good and evil” language (in Ferrers , mostly from witnesses) appearing in the case reports. But scholars generally agree, in line with our view, that Arnold and Ferrers “demonstrate how strictly” courts viewed “the criteria of insanity.” 1 N. Walker, Crime and Insanity in England 53 (1968) (noting that the two decisions “have often been cited” for that proposition). Kahler himself does not dispute the point; indeed, he essentially concedes our reading. Rather than try to make the decisions say something they do not, he argues only that they were “outlier[s]” and “could hardly have been less typical.” Brief for Petitioner 22, n. 5; Reply Brief 4 (internal quotation marks omitted). But that contrasting response fares no better. As even the dissent agrees, these were the “seminal” common-law decisions relating to insanity—indeed, two of only a small number in that period to make it into official reports. Post , at 9. 10 See State v. Skaggs , 120 Ariz. 467, 472, 586 P.2d 1279 , 1284 (1978); Wallace v. State , 766 So. 2d 364, 367 (Fla. App. 2000); State v. Hamann , 285 N.W.2d 180 , 184 (Iowa 1979); Commonwealth v. Lawson , 475 Mass. 806, 811, 62 N. E. 3d 22, 28 (2016); State v. Worlock , 117 N. J. 596, 610–611, 569 A.2d 1314 , 1322 (1990); People v. Wood , 12 N.Y.2d 69, 76, 187 N.E.2d 116, 121–122 (1962); State v. Carreiro , 2013–Ohio–1103, 988 N.E.2d 21, 27 (App.); McElroy v. State , 242 S.W. 883, 884 (Tenn. 1922); McAfee v. State , 467 S.W.3d 622, 636 (Tex. Crim. App. 2015); State v. Crenshaw , 98 Wash. 2d 789 , 794–795, 659 P.2d 488 , 492–493 (1983); Ark. Code Ann. §5–2–301(6) (2017); Ill. Comp. Stat., ch. 720, §5/6–2(a) (West 2016); Ky. Rev. Stat. Ann. §504.020(1) (West 2016); Md. Crim. Proc. Code Ann. §3–109(a) (2018); Ore. Rev. Stat. §161.295(1) (2019); Vt. Stat. Ann., Tit. 13, §4801(a)(1) (2019). 11 The great judge (later Justice) whom the dissent cites to suggest there is no real difference between the legal wrong and moral wrong tests wrote a lengthy opinion whose point was the opposite. Consider a case, Judge Cardozo said: “A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice.” People v. Schmidt , 216 N.Y. 324, 339, 110 N.E. 945, 949 (1915). If the legal wrong test were used, Judge Cardozo continued, “it would be the duty of a jury to hold her responsible for the crime.” Ibid. But not if the focus was, as in the original M’Naghten test, on moral wrong. And that difference led the New York Court of Appeals to hold that the trial court’s jury instruction was in error. See 216 N. Y., at 340, 110 N. E., at 950. The additional cases the dissent cites to downplay the distinction between moral and legal wrong in fact follow Schmidt in recognizing when they diverge. See Worlock , 117 N. J., at 611, 569 A. 2d, at 1322 (explaining that “the distinction between moral and legal wrong may be critical” when, for example, a defendant “knowingly kill[s] another in obedience to a command from God”); Crenshaw , 98 Wash. 2d, at 798, 659 P. 2d, at 494 (acknowledging Schmidt ’s view that even when a defendant “knows that the law and society condemn [her] act,” she should not be held responsible if “her free will has been subsumed by her belief in [a] deific decree”). 12 The diversity of American approaches to insanity is also evident in the States’ decisions about which kinds of mental illness can support the defense. See Clark , 548 U. S., at 750, n. 11; supra , at 3, n. 1. Some States limit the defense to those with a “severe” mental disease. See, e.g. , Ala. Code §13A–3–1 (2015). Others prohibit its assertion by defendants with specific mental disorders. See, e.g. , Ariz. Rev. Stat. Ann. §13–502 (2010) (“psychosexual” or “impulse control disorders”); Ore. Rev. Stat. §161.295(2) (“personality disorders”). In particular, many States follow the Model Penal Code in prohibiting psychopaths from raising the defense. See ALI, Model Penal Code §4.01(2), p. 163 (1985); e.g. , Ind. Code §35–41–3–6(b) (2019) (“abnormality manifested only by repeated unlawful or otherwise antisocial conduct”). All those limitations apply even when the defendant’s mental illness prevented him from recognizing that his crime was immoral. In that way too, many States have departed from the principle that Kahler (along with the dissent) claims the Constitution commands. SUPREME COURT OF THE UNITED STATES _________________ No. 18–6135 _________________ JAMES K. KAHLER, PETITIONER v. KANSAS on writ of certiorari to the supreme court of kansas [March 23, 2020] Justice Breyer, with whom Justice Ginsburg and Justice Sotomayor join, dissenting. Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity. But here, Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness , lacked the mental capacity necessary for his conduct to be considered morally blameworthy. Seven hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself, convince me that Kansas’ law “ ‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Leland v. Oregon , 343 U.S. 790 , 798 (1952) (quoting Snyder v. Massachusetts , 291 U.S. 97 , 105 (1934)). I A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first. To put the matter in more explicitly legal terms, consider the most famous statement of the traditional insanity defense, that contained in M’Naghten’s Case , 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843). Lord Chief Justice Tindal, speaking for a majority of the judges of the common-law courts, described the insanity defense as follows: “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or, [2] if he did know it, that he did not know he was doing what was wrong.” Id. , at 210, 8 Eng. Rep., at 722. The first prong (sometimes referred to as “cognitive incapacity”) asks whether the defendant knew what he was doing. This prong corresponds roughly to the modern concept of mens rea for many offenses. The second (sometimes referred to as “moral incapacity”) goes further. It asks, even if the defendant knew what he was doing, did he have the capacity to know that it was wrong? Applying this test to my example, a court would find that both defendants successfully established an insanity defense. Prosecution One (he thought the victim was a dog) falls within M’Naghten ’s first prong, while Prosecution Two (he thought the dog ordered him to do it) falls within its second prong. In Kansas’ early years of statehood, its courts recognized the M’Naghten test as the “cardinal rule of responsibility in the criminal law.” State v. Nixon , 32 Kan. 205, 206, 4 P. 159, 160 (1884). Kansas “steadfastly adhered to that test” for more than a century. State v. Baker , 249 Kan. 431, 449–450, 819 P.2d 1173 , 1187 (1991). But in 1995, Kansas “ ‘legislatively abolish[ed] the insanity defense.’ ” State v. Jorrick , 269 Kan. 72, 82, 4 P.3d 610, 617 (2000) (quoting Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J. L. & Pub. Pol’y 253, 254–255 (1997)). Under the new provision, a criminal defendant’s mental disease or defect is relevant to his guilt or innocence only insofar as it shows that he lacked the intent defined as an element of the offense, or mens rea . If the defendant acted with the required level of intent, then he has no defense based on mental illness. Kan. Stat. Ann. §21–5209 (2018 Cum. Supp.). Under Kansas’ changed law, the defendant in Prosecution One could defend against the charge by arguing that his mental illness prevented him from forming the mental state required for murder (intentional killing of a human being)—just as any defendant may attempt to rebut the State’s prima facie case for guilt. The defendant in Prosecution Two has no defense. Because he acted with the requisite level of intent, he must be convicted regardless of any role his mental illness played in his conduct. See 307 Kan. 374, 401, 410 P.3d 105, 125 (2018) (acknowledging that Kansas’ mens rea approach “allows conviction of an individual who had no capacity to know that what he or she was doing was wrong”). I do not mean to suggest that M’Naghten ’s particular approach to insanity is constitutionally required. As we have said, “[h]istory shows no deference to M’Naghten .” Clark v. Arizona , 548 U.S. 735 , 749 (2006). M’Naghten ’s second prong is merely one way of describing something more fundamental. Its basic insight is that mental illness may so impair a person’s mental capacities as to render him no more responsible for his actions than a young child or a wild animal. Such a person is not properly the subject of the criminal law. As I shall explain in the following section, throughout history, the law has attempted to embody this principle in a variety of ways. As a historical matter, M’Naghten is by far its most prominent expression, but not its exclusive one. Other ways of capturing it may well emerge in the future. The problem with Kansas’ law is that it excises this fundamental principle from its law entirely. II The Due Process Clause protects those “ ‘principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Leland , 343 U. S., at 798. Our “primary guide” in determining whether a principle of justice ranks as fundamental is “historical practice.” Montana v. Egelhoff , 518 U.S. 37 , 43 (1996) (plurality opinion). The Court contends that the historical formulations of the insanity defense were so diverse, so contested, as to make it impossible to discern a unified principle that Kansas’ approach offends. I disagree. Few doctrines are as deeply rooted in our common-law heritage as the insanity defense. Although English and early American sources differ in their linguistic formulations of the legal test for insanity, with striking consistency, they all express the same underlying idea: A defendant who, due to mental illness, lacks sufficient mental capacity to be held morally responsible for his actions cannot be found guilty of a crime. This principle remained embedded in the law even as social mores shifted and medical understandings of mental illness evolved. Early American courts incorporated it into their jurisprudence. The States eventually codified it in their criminal laws. And to this day, the overwhelming majority of U. S. jurisdictions recognize insanity as an affirmative defense that excuses a defendant from criminal liability even where he was capable of forming the mens rea required for the offense. See Appendix, infra . A Consider the established common-law background of the insanity defense at and around the time the Framers wrote the Constitution. The four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, each linked criminality to the presence of reason, free will, and moral understanding. It is “will and purpose,” wrote Henry de Bracton in his 13th-century treatise, that “mark maleficia [misdeeds].” 2 Bracton On Laws and Customs of England 384 (S. Thorne transl. 1968) (Bracton); Oxford Latin Dictionary 1067 (P. Glare ed. 1982). A “madman,” he explained, “can no more commit an injuria [unlawful conduct] or a felony than a brute animal, since they are not far removed from brutes.” 2 Bracton 424; Oxford Latin Dictionary, at 914. Seizing on Bracton’s reference to “brute animals” (sometimes translated “wild beasts”), the Court concludes that Bracton’s approach, like Kansas’, would excuse only those who lack capacity to form any intention at all. See ante , at 15. But what does it mean to be like a “brute animal”? A brute animal may well and readily intend to commit a violent act without being able to judge its moral nature. For example, when a lion stalks and kills its prey, though it acts intentionally, it does not offend against the criminal laws. See 2 Bracton 379 (noting that “murder” is defined as “by the hand of man” to “distinguish it from the case of those slain or devoured by beasts and animals which lack reason”). Bracton’s other references to “madmen” shed further light on the meaning he attached to that term. Bracton described such persons as “without sense and reason” and “lack[ing] animus .” Id. , at 324, 424. And he likened a “lunatic” to an “infant,” who cannot be held liable in damages unless he “is capable of perceiving the wrongful character of his act.” Id. , at 324; see also 4 id ., at 356 (“in many ways a minor and a madman are considered equals or not very different, because they lack reason” (footnote omitted)). Thus, Bracton’s “brute animal” included those who lacked the qualities of reason and judgment that make human beings responsible moral agents. See Platt, The Origins and Development of the “Wild Beast” Concept of Mental Illness and Its Relation to Theories of Criminal Responsibility, 1 Issues in Crim. 1, 6 (1965). Leaving Bracton, let us turn to Sir Edward Coke, writing in the early 17th century. Coke wrote that “the act and wrong of a mad man shall not be imputed to him,” not because he could not engage in intentional conduct (the equivalent of the modern concept of mens rea ), but because he lacked something more—“mind or discretion.” 2 Institutes of the Laws of England §405, p. 247b (1628). Coke, like Bracton before him, likened a “mad man” to an “[i]nfant,” who could not be punished as a criminal “untill he be of the age of fourteene, which in Law is accounted the age of discretion.” Ibid . What is it that the “[i]nfant” lacks? Since long before Coke’s time, English jurists and scholars believed that it was the moral nature, not the physical nature, of an act that a young child is unlikely to understand. See Platt & Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey, 54 Cal. L. Rev. 1227, 1233–1234 (1966) (Platt & Diamond). Sir Matthew Hale also premised criminal liability on the presence of “understanding and liberty of will,” without which “there can be no transgression, or just reason to incur the penalty or sanction that law instituted for the punishment of the crimes or offenses.” 1 Pleas of the Crown, ch. 2, pp. 14–15 (1736). Hale, too, likened insane persons to “infants” under the age of 14, who were subject to the criminal laws only if they “had discretion to judge between good and evil.” Id. , ch. 3, at 26–27; id. , ch. 4, at 30 (a person who is “labouring under melancholy distempers hath yet ordinarily as great understanding, as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony”). Those suffering from “total insanity” could not be guilty of capital offenses, “for they have not the use of understanding, and act not as reasonable creatures, but their actions are in effect in the condition of brutes.” Id. , at 30–32. Sir William Blackstone, whose influence on the founding generation was the most profound, was yet more explicit. A criminal offense, he explained, requires both a “vitious will” and a “vitious act.” 4 Commentaries on the Laws of England 21 (1769). Persons suffering from a “deficiency in will” arising from a “defective or vitiated understanding” were “not [criminally] chargeable for their own acts.” Id. , at 24. Citing Coke, he explained that murder must be “committed by a person of sound memory and discretion” because a “lunatic or infant” is “incapable of committing any crime, unless in such cases where they shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.” Id. , at 195–196. And he opined that deprivation of “the capacity of discerning right from wrong” is necessary “to form a legal excuse.” Id. , at 189. These four eminent jurists were not alone. Numerous other commentators expressly linked criminal liability with the accused’s capacity for moral agency. William Lambard’s 1581 treatise ranked a “mad man” as akin to a “childe” who had “no knowledge of good nor evil.” Eirenarcha, ch. 21, p. 218. If such a person killed a man, that is “no felonious acte” because “they can[n]ot be said to have any understanding wil[l].” Ibid. But if “upon examination” it appeared that “they knew what they did, [and] it was ill , the[n] seemeth it to be otherwise.” Ibid. (emphasis added). Michael Dalton’s 1618 manual for justices of the peace instructed that “[i]f one that is Non compos mentis . . . kill a man, this is no felonie; for they have no knowledge of good and evill, nor can have a felonious intent, nor a will or mind to do harme.” The Countrey Justice 215. William Hawkins, in 1716, wrote that “those who,” like “[l]unaticks,” are “under a natural Disability of distinguishing between Good and Evil . . . are not punishable by any criminal Prosecution whatsoever.” 1 Pleas of the Crown §1, p. 2; see also id. , at 1 (“The Guilt of offending against any Law whatsoever . . . can never justly be imputed to those who are either uncapable of understanding it, or of conforming themselves to it”). English treatises on the law of mental disability adopted the same view. George Collinson explained that “[t]o excuse a man in the commission of a crime, he must at the period when he committed the offense, have been wholly incapable of distinguishing between good and evil, or of comprehending the nature of what he is doing.” Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compotes Mentis §7, p. 474 (1812) (Collinson); see also id. , §2, at 471 (“[A]n evil intention is implied in every offence, and constitutes the charge of every indictment: but a non compos, not having a will of his own, cannot have an intention morally good or bad; so that the overt act by which alone the motives of other men are discerned, with respect to him proves nothing”). Similarly, Leonard Shelford, summarizing English case law, wrote that “[t]he essence of a crime consists in the animus or intention of the person who commits it, considered as a free agent, and in a capacity of distinguishing between moral good and evil.” Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind 458 (1833) (emphasis deleted). The majority believes that I am “cherry-pick[ing]” references to moral understanding while ignoring references to intent and mens rea . See ante , at 15–17, nn. 8, 9. With respect, I disagree. The Court points out, correctly, that many of the common-law sources state that the insane lack mens rea or felonious intent. But what did they mean by that? At common law, the term mens rea ordinarily incorporated the notion of “general moral blameworthiness” required for criminal punishment. Sayre, Mens Rea, 45 Harv. L. Rev. 974, 988 (1932); 3 Encyclopedia of Crime and Justice 995 (2d ed. 2002) (as used at common law, the term mens rea “is synonymous with a person’s blameworthiness”). The modern meaning of mens rea is narrower and more technical. Ibid. It refers to the “state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense.” Ibid. When common-law writers speak of intent or mens rea , we cannot simply assume that they use those terms in the modern sense. That is an anachronism. Instead, we must examine the context to understand what meaning they ascribed to those terms. And when we do so, we see that, over and over again, they link criminal intent to the presence of free will and moral understanding. The Court dismisses those passages as just “some ‘good and evil’ language.” Ante , at 17, n. 9. But it fails to explain why, if mens rea in the modern sense were sufficient, these common-law writers discuss the role of moral agency at all, much less why such language appears in virtually every treatise and virtually every case. In the Court’s view, all that is just spilled ink. The English case law illustrates this point. In the seminal case of Rex v. Arnold , 16 How. St. Tr. 695 (1724), the defendant stood accused of shooting Lord Onslow while laboring under the insane delusion that Onslow had bewitched him. Id. , at 699, 721. The Court emphasizes Justice Tracy’s statement to the jury that if a man is “ ‘deprived of his reason, and consequently of his intention, he cannot be guilty,’ ” concluding that the court adopted a modern mens rea test. Ante , at 16. But in the passage immediately preceding that statement, Justice Tracy explained that the defendant’s intent to shoot was clearly proved, and that the only remaining question was whether his mental illness excused him from blame: “That he shot, and that wilfully [is proved]: but whether maliciously, that is the thing: that is the question; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arises from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his intention, he cannot be guilty ; and if that be the case, though he had actually killed my lord Onslow, he is exempted from punishment.” 16 How. St. Tr., at 764 (emphasis added; brackets in original). See also ibid. (summarizing the testimony of one Mr. Coe, who testified that he went to the defendant three days after the shooting “and asked him, If he intended to kill my lord Onslow? and he said, Yes, to be sure”). On the next page, Justice Tracy concluded that the jury must determine whether the evidence “doth shew a man, who knew what he was doing, and was able to distinguish whether he was doing good or evil, and understood what he did.” Id. , at 765. Likewise, in the case of Rex v. Lord Ferrers , 19 How. St. Tr. 886 (1760), the solicitor general instructed the members of the House of Lords to consider the “ ‘capacity and intention’ ” of the accused, to be sure, ante , at 17, but what did he mean by those terms? The ultimate question of insanity, he explained, depended on the defendant’s capacity at the time of the offense to distinguish right from wrong: “My lords, the question therefore must be asked; is the noble prisoner at the bar to be acquitted from the guilt of murder, on account of insanity? It is not pretended to be a constant general insanity. Was he under the power of it, at the time of the offence committed? Could he, did he, at that time, distinguish between good and evil?” 19 How. St. Tr., at 948. In summation, the solicitor general argued that Lord Ferrers’ own witnesses failed to provide any testimony “which proves his lunacy or insanity at any time.” Id. , at 952. Reviewing the pertinent evidence, he noted that one witness testified that he “had observed great oddities in my lord,” but acknowledged that he “never saw him in such a situation, as not to be capable of distinguishing between good and evil, and not to know, that murder was a great crime.” Ibid. Another admitted under questioning by the Lords that “he thought lord Ferrers capable of distinguishing between moral and immoral actions.” Ibid. The defendant’s brother was the only witness to testify that “at particular times, the noble lord might not be able to distinguish between moral good and evil,” but even he, the solicitor general argued, had been unable to testify to “any instance within his own recollection.” Id. , at 953. If Lord Ferrers’ bare intention to kill were sufficient to convict, why the extensive discussion of the evidence concerning his capacity for moral understanding? These examples reflect the prevailing view of the law around the time of the founding. Judges regularly instructed juries that the defendant’s criminal liability depended on his capacity for moral responsibility. See, e.g. , Trial of Samuel Burt (July 19, 1786), in 6 Old Bailey Proceedings 875 (E. Hodgson ed. 1788) (to acquit based on insanity, it must be shown that the mental disorder “takes away from the party all moral agency and accountability,” and “destroys in them, for the time at least, all power of judging between right and wrong”); Trial of Francis Parr (Jan. 15, 1787), 2 id. , at 228 (jury must “judge whether at the moment of committing [the offense] he was not a moral agent, capable of discerning between good and evil, and of knowing the consequences of what he did”); Bowler’s Case , 1 Collinson 673–674, n. (judge “concluded by observing to the jury, that it was for them to determine whether the Prisoner, when he committed the offence with which he stood charged, was or was not incapable of distinguishing right from wrong”). The government’s attorneys agreed that this was the proper inquiry. See, e.g. , Parker’s Case , 1 id. , at 479–480 (the Attorney General argued that “the jury must be perfectly satisfied, that at the time when the crime was committed, the prisoner did not really know right from wrong”). In none of the common-law cases was the judge’s reference to the defendant’s capacity for moral agency simply a proxy for the narrow modern notion of mens rea . See ante , at 17. Something more was required. Consider Bellingham’s Case , 1 Collinson 636. The defendant stood accused of the murder of Spencer Perceval, the Chancellor of the Exchequer, in the lobby of the House of Commons. Ibid. The Court emphasizes Chief Justice Mansfield’s statement that one who could not distinguish right from wrong “ ‘could have no intention at all,’ ” concluding that Chief Justice Mansfield viewed moral incapacity as a symptom of cognitive breakdown rather than a test of insanity. Ante , at 18. But, as in Rex v. Arnold , see supra, at 9–10, the defendant’s intention to shoot Perceval was not seriously in dispute. 1 Collinson 670. Instead, his guilt or innocence turned on his capacity for moral blame. The “single question” for the jury, charged the Chief Justice, “was whether, when [the defendant] committed the offence charged upon him, he had sufficient understanding to distinguish good from evil, right from wrong, and that murder was a crime not only against the law of God, but against the law of his Country.” Id ., at 673. Lord Lyndhurst, presiding over the case of Rex v. Offord , 5 Car. & P. 168, 172 Eng. Rep. 924 (N. P. 1831), certainly understood that inquiry to be the crux of Chief Justice Mansfield’s charge. Citing Bellingham’s Case , he instructed the jury that “[t]he question was, did [the accused] know that he was committing an offence against the laws of God and nature?” 5 Car. & P., at 168, 172 Eng. Rep., at 925. The Court dismisses other common-law cases as failing to articulate a clear legal standard. See ante , at 18–19. But these cases, too, required more than bare intent. In Hadfield’s Case , 27 How. St. Tr. 1281 (1800), the defendant was acquitted after the prosecution conceded that he was “in a deranged state of mind” when he shot at King George III. Id ., at 1353. And in Regina v. Oxford , 9 Car. & P. 525, 173 Eng. Rep. 941 (N. P. 1840), the court observed that a “person may commit a criminal act, and yet not be responsible.” Id. , at 546, 173 Eng. Rep., at 950. Although it acknowledged the difficulty of “lay[ing] down the rule of the English law on the subject,” it summed up the inquiry as “whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the nature, character, and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime.” Id. , at 546–547, 173 Eng. Rep., at 950. Although these and other English cases discuss insanity in terms that are less precise than our modern taxonomy of mental states, their lesson is clear. To be guilty of a crime, the accused must have something more than bare ability to form intentions and carry them out. B These fundamental principles of criminal responsibility were incorporated into American law from the early days of the Republic. Early American commentaries on the criminal law generally consisted of abridgments of the works of prominent English jurists. As early as 1792, one such abridgment instructed that “lunaticks, who are under a natural disability of distinguishing between good and evil are not punishable by any criminal prosecution.” R. Burn, Abridgment, or the American Justice 300; see also W. Stubbs, Crown Circuit Companion 288 (1 Am. ed. 1816) (“If one that is non compos mentis . . . kill a man, this is no felony; for they have not knowledge of good and evil, nor can have a felonious intent, nor a will or mind to do harm”). And an influential founding-era legal dictionary described the “general rule” that lunatics, “being by reason of their natural disabilities incapable of judging between good and evil, are punishable by no criminal prosecution whatsoever.” 2 T. Cunningham, New and Complete Law Dictionary (2d corr. ed. 1771). Similarly, the first comprehensive American text on forensic medicine, published in 1823, cited Chief Justice Mansfield’s charge to the jury in Bellingham’s Case for the proposition that “[s]o long as they could distinguish good from evil, so long would they be answerable for their conduct.” 1 T. Beck, Elements of Medical Jurisprudence 369. These principles, it concluded, “are doubtless correct, and conducive to the ends of justice.” Id. , at 370. Early American jurists closely hewed to these principles. In case after case, judges instructed juries that they must inquire into the defendant’s capacity for moral understanding. See, e.g. , Meriam’s Case , 7 Mass. 168 (1810), 6 N. Y. City-Hall Recorder 162 (1822) (whether the defendant was “at the time, capable of distinguishing good from evil”); Clark’s Case , 1 N. Y. City-Hall Recorder 176, 177 (1816) (same); Ball’s Case , 2 N. Y. City-Hall Recorder 85, 86 (1817) (same); United States v. Clarke , 25 F. Cas. 454 (No. 14,811) (CC DC 1818) (whether defendant was “in such a state of mental insanity . . . as not to have been conscious of the moral turpitude of the act”); Cornwell v. State , 8 Tenn. 147, 155 (1827) (whether the prisoner “had not sufficient understanding to know right from wrong”). C As the foregoing demonstrates, by the time the House of Lords articulated the M’Naghten test in 1843, its “essential concept and phraseology” were “already ancient and thoroughly embedded in the law.” Platt & Diamond 1258; see also 1 W. Russell, Crimes and Misdemeanors 8–14 (3d ed. 1843) (summarizing the pre- M’Naghten English case law and concluding that the key questions were whether “there be thought and design, a faculty to distinguish the nature of actions, [and] to discern the difference between moral good and evil”). Variations on the M’Naghten rules soon became the predominant standard in the existing states of the United States. Platt & Diamond 1257. That tradition has continued, almost without exception, to the present day. It is true that, even following M’Naghten , States continued to experiment with different formulations of the insanity defense. See ante , at 19–20. Some adopted the volitional incapacity, or “irresistible-impulse,” test. But those States understood that innovation to expand, not contract, the scope of the insanity defense, excusing not only defendants who met some variant of the traditional M’Naghten test but also those who understood that their conduct was wrong but were incapable of restraint. See, e.g. , Parsons v. State , 81 Ala. 577, 584–585, 2 So. 854, 858–859 (1887); Bradley v. State , 31 Ind. 492, 507–508 (1869); State v. Felter , 25 Iowa 67, 82–83 (1868); Hopps v. People , 31 Ill. 385, 391–392 (1863). So too, the “offspring” or “product” test, which asks whether the defendant’s conduct was attributable to mental disease or defect. The States that adopted this test did so out of the conviction that the M’Naghten test was too restrictive in its approach to assessing the accused’s capacity for criminal responsibility. See Durham v. United States , 214 F.2d 862, 874 (CADC 1954) (“We conclude that a broader test should be adopted”); State v. Pike , 49 N. H. 399, 441–442 (1870); see also Reid, Understanding the New Hampshire Doctrine of Criminal Insanity, 69 Yale L. J. 367, 386 (1960) (“[T]he New Hampshire doctrine . . . is more liberal and has a wider range than M’Naghten rules”). Even as States experimented with broader insanity rules, they retained the core of the traditional common-law defense. In the early 20th century, several States attempted to break with that tradition. The high courts of those States quickly struck down their restrictive laws. As one justice of the Mississippi Supreme Court wrote in 1931: The “common law proceeds upon an idea that before there can be a crime there must be an intelligence capable of comprehending the act prohibited, and the probable consequence of the act, and that the act is wrong.” Sinclair v. State , 161 Miss. 142, 158, 132 So. 581, 583 (Ethridge, J., concurring). Accordingly, Justice Ethridge said, insanity “has always been a complete defense to all crimes from the earliest ages of the common law.” Ibid. ; State v. Strasburg , 60 Wash. 106, 116, 110 P. 1020, 1022–1023 (1910); cf. State v. Lange , 168 La. 958, 965, 123 So. 639, 642 (1929). Today, 45 States, the Federal Government, and the District of Columbia continue to recognize an insanity defense that retains some inquiry into the blameworthiness of the accused. Seventeen States and the Federal Government use variants of the M’Naghten test, with its alternative cognitive and moral incapacity prongs. Three States have adopted M’Naghten plus the volitional test. Ten States recognize a defense based on moral incapacity alone. Thirteen States and the District of Columbia have adopted variants of the Model Penal Code test, which combines volitional incapacity with an expanded version of moral incapacity. See Appendix, infra . New Hampshire alone continues to use the “product” test, asking whether “a mental disease or defect caused the charged conduct.” State v. Fichera , 153 N. H. 588, 593, 903 A.2d 1030, 1035 (2006). This broad test encompasses “ ‘whether the defendant knew the difference between right and wrong and whether the defendant acted impulsively,’ ” as well as “ ‘whether the defendant was suffering from delusions or hallucinations.’ ” State v. Cegelis , 138 N. H. 249, 255, 638 A.2d 783, 786 (1994). And North Dakota uses a unique formulation that asks whether the defendant “lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality.” N. D. Cent. Code Ann. §12.1–04.1–01(1) (2012). Of the States that have adopted the M’Naghten or Model Penal Code tests, some interpret knowledge of wrongfulness to refer to moral wrong, whereas others hold that it means legal wrong. See ante , at 2–3, 20–22 . While there is, of course, a logical distinction between those interpretations, there is no indication that it makes a meaningful difference in practice. The two inquiries are closely related and excuse roughly the same universe of defendants. See State v. Worlock , 117 N. J. 596, 609–611, 569 A.2d 1314 , 1321–1322 (1990) (“In most instances, legal wrong is coextensive with moral wrong”); State v. Crenshaw , 98 Wash. 2d 789 , 799, 659 P.2d 488 , 494 (1983) (“ ‘[S]ince by far the vast majority of cases in which insanity is pleaded as a defense to criminal prosecutions involves acts which are universally recognized as morally wicked as well as illegal, the hair-splitting distinction between legal and moral wrong need not be given much attention’ ”); People v. Schmidt , 216 N.Y. 324, 340, 110 N.E. 945, 949 (1915) (Cardozo, J.) (“Knowledge that an act is forbidden by law will in most cases permit the inference of knowledge that, according to the accepted standards of mankind, it is also condemned as an offense against good morals”); see also ALI, Model Penal Code §4.01, Explanatory Note, p. 164 (1985) (explaining that “few cases are likely to arise in which the variation will be determinative”). III A Consider the basic reason that underlies and explains this long legal tradition. That reason reveals that more is at stake than its duration alone. The tradition reflects the fact that a community’s moral code informs its criminal law. As Henry Hart stated it, the very definition of crime is conduct that merits “a formal and solemn pronouncement of the moral condemnation of the community.” The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 405 (1958). The criminal law does not adopt, nor does it perfectly track, moral law. It is no defense simply to claim that one’s criminal conduct was morally right. But the criminal law nonetheless tries in various ways to prevent the distance between criminal law and morality from becoming too great. In the words of Justice Holmes, a law that “punished conduct [that] would not be blameworthy in the average member of the community would be too severe for that community to bear.” O. Holmes, The Common Law 50 (1881); see also ibid. (“[T]o deny that criminal liability . . . is founded on blameworthiness . . . would shock the moral sense of any civilized community”). Sometimes the criminal law seeks to keep its strictures roughly in line with the demands of morality through grants of discretion that will help it to reach appropriate results in individual cases, including special instances where the law points one way and morality the other. Thus, prosecutors need not prosecute. Jurors (however instructed) may decide to acquit. Judges may exercise the discretion the law allows them to impose a lenient sentence. Executives may grant clemency. And sometimes the law attempts to maintain this balance by developing and retaining a “collection of interlocking and overlapping concepts,” including defenses, that will help “assess the moral accountability of an individual for his antisocial deeds.” Powell v. Texas , 392 U.S. 514 , 535–536 (1968) (plurality opinion). These concepts and defenses include “ actus reus , mens rea , insanity, mistake, justification, and duress.” Id. , at 536. As we have recognized, the “process of adjustment” within and among these overlapping legal concepts “has always been thought to be the province of the States.” Ibid. Matters of degree, specific content, and aptness of application all may be, and have always been, the subject of legal dispute. But the general purpose—to ensure a rough congruence between the criminal law and widely accepted moral sentiments—persists. To gravely undermine the insanity defense is to pose a significant obstacle to this basic objective. The majority responds that Kansas has not removed the element of blameworthiness from its treatment of insanity; it has simply made a different judgment about what conduct is blameworthy. See ante , at 13, n. 7 . That is not how the Kansas Supreme Court has characterized its law. See State v. Bethel , 275 Kan. 456, 472, 66 P.3d 840, 850 (2003) (holding that Kansas law provides for “no consideration,” at the guilt phase, “of whether wrongfulness was inherent in the defendant’s intent”). In any event, as the Court acknowledges, the States’ discretion in this area must be constrained within “broad limits,” ante , at 7, which are derived from history and tradition. The question is whether Kansas’ approach transgresses those limits. I doubt that the Court would declare, for example, that a State may do away with the defenses of duress or self-defense on the ground that, in its idiosyncratic judgment, they are not required. With respect to the defense of insanity, I believe that our history shows clearly that the criminal law has always required a higher degree of individual culpability than the modern concept of mens rea . See Part II, supra . And in my view, Kansas’ departure from this long uniform tradition poses a serious problem. B To see why Kansas’ departure is so serious, go back to our two simplified prosecutions: the first of the defendant who, because of serious mental illness, believes the victim is a dog; the second of a defendant who, because of serious mental illness, believes the dog commanded him to kill the victim. Now ask, what moral difference exists between the defendants in the two examples? Assuming equivalently convincing evidence of mental illness, I can find none at all. In both cases, the defendants differ from ordinary persons in ways that would lead most of us to say that they should not be held morally responsible for their acts. I cannot find one defendant more responsible than the other. And for centuries, neither has the law. More than that, scholars who have studied this subject tell us that examples of the first kind are rare. See Brief for 290 Criminal Law and Mental Health Law Professors as Amici Curiae 12. Others repeat this claim. See Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1205 (2000); Morse, Mental Disorder and Criminal Law, 101 J. Crim. L. & C. 885, 933 (2011). That is because mental illness typically does not deprive individuals of the ability to form intent. Rather, it affects their motivations for forming such intent. Brief for 290 Criminal Law and Mental Health Law Professors as Amici Curiae 12. For example, the American Psychiatric Association tells us that individuals suffering from mental illness may experience delusions—erroneous perceptions of the outside world held with strong conviction. They may believe, incorrectly, that others are threatening them harm (persecutory delusions), that God has commanded them to engage in certain conduct (religious delusions), or that they or others are condemned to a life of suffering (depressive delusions). Brief for American Psychiatric Association et al. as Amici Curiae 25–26. Such delusions may, in some cases, lead the patient to behave violently. Id. , at 28. But they likely would not interfere with his or her perception in such a way as to negate mens rea . See H. R. Rep. No. 98–577, p. 15 n. 23 (1984) (“Mental illness rarely, if ever, renders a person incapable of understanding what he or she is doing. Mental illness does not, for example, alter the perception of shooting a person to that of shooting a tree.”). Kansas’ abolition of the second part of the M’Naghten test requires conviction of a broad swath of defendants who are obviously insane and would be adjudged not guilty under any traditional form of the defense. This result offends deeply entrenched and widely recognized moral principles underpinning our criminal laws. See, e.g. , National Comm’n on Reform of Fed. Crim. Laws, Final Report, Proposed New Fed. Crim. Code §503, pp. 40–41 (1971) (to attribute guilt to a “manifestly psychotic person” would “be immoral and inconsistent with the aim of a criminal code”); H. R. Rep. No. 98–577, at 7–8 (“[T]he abolition of the affirmative insanity defense would alter that fundamental basis of Anglo-American criminal law: the existence of moral culpability as a prerequisite for punishment”); ABA Criminal Justice Mental Health Standards §7–6.1, pp. 336–338 (1989) (rejecting the mens rea approach “out of hand” as “a jarring reversal of hundreds of years of moral and legal history” that “inhibits if not prevents the exercise of humane judgment that has distinguished our criminal law heritage”). By contrast, the rule adopted by some States that a defendant must be acquitted if he was unable to appreciate the legal wrongfulness of his acts, see ante , at 20–22, would likely lead to acquittal in the mine run of such cases. See supra, at 17. If that is so, then that rule would not pose the same due process problem as Kansas’ approach. That issue is not before us, as Kansas’ law does not provide even that protection to mentally ill defendants. C Kansas and the Solicitor General, in their efforts to justify Kansas’ change, make four important arguments. First, they point to cases in this Court in which we have said that the States have broad leeway in shaping the insanity defense. See Leland , 343 U.S. 790 ; Clark , 548 U.S. 735 . In Leland , we rejected the defendant’s argument that the Constitution required the adoption of the “ ‘irresistible impulse’ ” test. 343 U. S., at 800–801. Similarly, in Clark , we upheld Arizona’s effort to eliminate the first part of the M’Naghten rule, applicable to defendants whose mental illness deprived them of the ability to know the “ ‘nature and quality of the act,’ ” 548 U. S., at 747–748. If Arizona can eliminate the first prong of M’Naghten , Kansas asks, why can Kansas not eliminate the second part? The answer to this question lies in the fact that Arizona, while amending the insanity provisions of its criminal code, did not in practice eliminate the traditional insanity defense in any significant part. See 548 U. S., at 752, n. 20 (reserving the question whether “the Constitution mandates an insanity defense”). As we pointed out, “cognitive incapacity is itself enough to demonstrate moral incapacity.” Id. , at 753. Evidence that the defendant did not know what he was doing would also tend to establish that he did not know that it was wrong. Id. , at 753–754. And Prosecution One (he thought the victim was a dog) would still fail. The ability of the States to refuse to adopt other insanity tests, such as the “irresistible impulse” test or the “product of mental illness” test are also beside the point. See Leland , 343 U. S., at 800–801. Those tests both expand upon M’Naghten ’s principles. Their elimination would cut the defense back to what it traditionally has been, not, as here, eliminate its very essence. Second, the United States as amicus curiae suggests that the insanity defense is simply too difficult for juries to administer. Brief for United States as Amicus Curiae 12–13. Without doubt, assessing the defendant’s claim of insanity is difficult. That is one reason I believe that States must remain free to refine and redefine their insanity rules within broad bounds. But juries have been making that determination for centuries and continue to do so in 45 States. And I do not see how an administrative difficulty can justify abolishing the heart of the defense. Third, Kansas argues that it has not abolished the insanity defense or any significant part of it. It has simply moved the stage at which a defendant can present the full range of mental-capacity evidence to sentencing. See Brief for Respondent 8; ante , at 4–5. But our tradition demands that an insane defendant should not be found guilty in the first place. Moreover, the relief that Kansas offers, in the form of sentencing discretion and the possibility of commitment in lieu of incarceration, is a matter of judicial discretion, not of right. See State v. Maestas , 298 Kan. 765, 316 P.3d 724 (2014). The insane defendant is, under Kansas law, exposed to harsh criminal sanctions up to and including death. And Kansas’ sentencing provisions do nothing to alleviate the stigma and the collateral consequences of a criminal conviction. Finally, Kansas argues that the insane, provided they are capable of intentional action, are culpable and should be held liable for their antisocial conduct. Brief for Respondent 40. To say this, however, is simply to restate the conclusion for which Kansas argues in this case. It is a conclusion that in my view runs contrary to a legal tradition that embodies a fundamental precept of our criminal law and that stretches back, at least, to the origins of our Nation. For these reasons, with respect, I dissent. APPENDIX M’Naghten M’Naghten plus volitional incapacity Moral incapacity Model Penal Code Unique formulation

The Supreme Court case of Kahler v. Kansas (2020) concerned the constitutionality of Kansas's treatment of a criminal defendant's insanity claim. The defendant, James Kahler, argued that his mental illness prevented him from understanding the wrongfulness of his actions when he committed murder. Kansas, unlike many other states, does not recognize the "moral incapacity" test for insanity, which would exonerate a defendant who, due to mental illness, could not distinguish between right and wrong at the time of the crime. Instead, Kansas allows defendants to present evidence of mental illness during sentencing to seek a reduced sentence or commitment to a mental health facility. The Court, in an opinion delivered by Justice Kagan, held that the Due Process Clause of the Constitution does not require states to adopt the moral incapacity test for insanity. The Court found that while the insanity defense has a long history in common law, it is not a fundamental principle that applies to the states via the Due Process Clause. Justice Breyer dissented, arguing that the moral incapacity test is a fundamental aspect of the insanity defense and that its elimination in Kansas violates due process. He highlighted the role of the insanity defense in ensuring that only morally culpable individuals are subject to criminal punishment. The Court's decision affirmed Kansas's approach to insanity defenses, allowing states flexibility in defining the standards for criminal culpability in cases involving mental illness.

Due Process

Timbs v. Indiana

https://supreme.justia.com/cases/federal/us/586/17-1091/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 17–1091 _________________ TYSON TIMBS, PETITIONER v. INDIANA on writ of certiorari to the supreme court of indiana [February 20, 2019] Justice Ginsburg delivered the opinion of the Court. Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he received from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction. Forfeiture of the Land Rover, the court determined, would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amendment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. 84 N. E. 3d 1179 (2017). The Indiana Supreme Court did not decide whether the forfeit-ure would be excessive. Instead, it held that the Exces- sive Fines Clause constrains only federal action and is inapplicable to state impositions. We granted certiorari. 585 U. S. __ (2018). The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago , 561 U.S. 742 , 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. I A When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833). “The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald , 561 U. S., at 754. With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id. , at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Id., at 767 (internal quotation marks omitted; emphasis deleted). Incorporated Bill of Rights guarantees are “enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id., at 765 (internal quotation marks omitted). Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.[ 1 ] B Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc. , 492 U.S. 257 , 263 (1989) (quoting Ingraham v. Wright , 430 U.S. 651 , 664 (1977)). Directly at issue here is the phrase “nor excessive fines imposed,” which “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” United States v. Bajakajian , 524 U.S. 321 , 327–328 (1998) (quoting Austin v. United States , 509 U.S. 602 , 609–610 (1993)). The Fourteenth Amendment, we hold, incorporates this protection. The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).[ 2 ] As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning-Ferris , 492 U. S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”). But cf. Bajakajian , 524 U. S., at 340, n. 15 (taking no position on the question whether a person’s income and wealth are relevant considerations in judging the excessiveness of a fine). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those un-able to pay. E.g. , The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris , 492 U. S., at 267. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689). Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. See, e.g. , Pa. Frame of Govt., Laws Agreed Upon in England, Art. XVIII (1682), in 5 Federal and State Constitutions 3061 (F. Thorpe ed. 1909) (“[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.”). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and 1791, 85 S. Cal. L. Rev. 1451, 1517 (2012). An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008). Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g. , Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g. , id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor. See, e.g. , Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124. Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. Brief in Opposition 8–9. Indeed, Indiana explains that its own Supreme Court has held that the Indiana Constitution should be interpreted to impose the same restrictions as the Eighth Amendment. Id. , at 9 (citing Norris v. State , 271 Ind. 568, 576, 394 N.E.2d 144 , 150 (1979)). For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. See Browning-Ferris , 492 U. S., at 267. Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” Harmelin v. Michigan , 501 U.S. 957 , 979, n. 9 (1991) (opinion of Scalia, J.) (“it makes sense to scrutinize governmental action more closely when the State stands to benefit”). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curiae 7 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”). In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald , 561 U. S., at 767 (internal quotation marks omitted; emphasis deleted). II The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. In Austin v. United States , 509 U.S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” McDonald , 561 U. S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin , the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not properly before us, and the second misapprehends the nature of our incorporation inquiry. A In the Indiana Supreme Court, the State argued that forfeiture of Timbs’s SUV would not be excessive. See Brief in Opposition 5. It never argued, however, that civil in rem forfeitures were categorically beyond the reach of the Excessive Fines Clause. The Indiana Supreme Court, for its part, held that the Clause did not apply to the States at all, and it nowhere addressed the Clause’s application to civil in rem forfeitures. See 84 N. E. 3d 1179. Accordingly, Timbs sought our review of the question “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.” Pet. for Cert. i. In opposing review, Indiana attempted to reformulate the question to ask “[w]hether the Eighth Amendment’s Excessive Fines Clause restricts States’ use of civil asset forfeitures.” Brief in Opposition i. And on the merits, Indiana has argued not only that the Clause is not incorporated, but also that Austin was wrongly decided. Respondents’ “right, in their brief in opposition, to restate the questions presented,” however, “does not give them the power to expand [those] questions.” Bray v. Alexandria Women’s Health Clinic , 506 U.S. 263 , 279, n. 10 (1993) (emphasis deleted). That is particularly the case where, as here, a respondent’s reformulation would lead us to address a question neither pressed nor passed upon below. Cf. Cutter v. Wilkinson , 544 U.S. 709 , 718, n. 7 (2005) (“[W]e are a court of review, not of first view . . . .”). We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive. B As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina , 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g. , Riley v. California , 573 U.S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. *  *  * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The sole exception is our holding that the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings. Apodaca v. Oregon , 406 U.S. 404 (1972). As we have explained, that “exception to th[e] general rule . . . was the result of an unusual division among the Justices,” and it “does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” McDonald , 561 U. S., at 766, n. 14. 2 “Amercements were payments to the Crown, and were required of individuals who were ‘in the King’s mercy,’ because of some act offensive to the Crown.” Browning-Ferris , 492 U. S., at 269. “[T]hough fines and amercements had distinct historical antecedents, they served fundamentally similar purposes—and, by the seventeenth and eighteenth centuries, the terms were often used interchangeably.” Brief for Eighth Amendment Scholars as Amici Curiae 12. SUPREME COURT OF THE UNITED STATES _________________ No. 17–1091 _________________ TYSON TIMBS, PETITIONER v. INDIANA on writ of certiorari to the supreme court of indiana [February 20, 2019] Justice Gorsuch, concurring. The majority faithfully applies our precedent and, based on a wealth of historical evidence, concludes that the Fourteenth Amendment incorporates the Eighth Amendment’s Excessive Fines Clause against the States. I agree with that conclusion. As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. See, e.g. , post , at 1–3 (Thomas, J., concurring in judgment); McDonald v. Chicago , 561 U.S. 742 , 805–858 (2010) (Thomas, J., concurring in part and concurring in judgment) (documenting evidence that the “privileges or immunities of citizens of the United States” include, at minimum, the individual rights enumerated in the Bill of Rights); Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509 (2007); A. Amar, The Bill of Rights: Creation and Reconstruction 163–214 (1998); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment. SUPREME COURT OF THE UNITED STATES _________________ No. 17–1091 _________________ TYSON TIMBS, PETITIONER v. INDIANA on writ of certiorari to the supreme court of indiana [February 20, 2019] Justice Thomas, concurring in the judgment. I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. I The Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” “On its face, this appears to grant . . . United States citizens a certain collection of rights— i.e. , privileges or immunities—attributable to that status.” McDonald v. Chicago , 561 U.S. 742 , 808 (2010) (Thomas, J., concurring in part and concurring in judgment). But as I have previously explained, this Court “marginaliz[ed]” the Privileges or Immunities Clause in the late 19th century by defining the collection of rights covered by the Clause “quite narrowly.” Id. , at 808–809. Litigants seeking federal protection of substantive rights against the States thus needed “an alternative fount of such rights,” and this Court “found one in a most curious place,” id. , at 809—the Fourteenth Amendment’s Due Process Clause, which prohibits “any State” from “depriv[ing] any person of life, liberty, or property, without due process of law.” Because this Clause speaks only to “process,” the Court has “long struggled to define” what substantive rights it protects. McDonald , supra , at 810 (opinion of Thomas, J.). The Court ordinarily says, as it does today, that the Clause protects rights that are “fundamental.” Ante , at 2, 3, 7, 9. Sometimes that means rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Ante , at 3, 7 (quoting McDonald , supra , at 767 (majority opinion)). Other times, when that formulation proves too restrictive, the Court defines the universe of “fundamental” rights so broadly as to border on meaningless. See, e.g. , Obergefell v. Hodges , 576 U. S. ___, ___–___ (2015) (slip op., at 1–2) (“rights that allow persons, within a lawful realm, to define and express their identity”); Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 , 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”). Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” McDonald , supra , at 811 (opinion of Thomas, J.). And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g. , Roe v. Wade , 410 U.S. 113 (1973); Dred Scott v. Sandford , 19 How. 393, 450 (1857). The present case illustrates the incongruity of the Court’s due process approach to incorporating fundamental rights against the States. Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to “ ‘proceed according to the “law of the land”—that is, according to written constitutional and statutory provisions,’ ” or that the State failed to provide “some baseline procedures.” Nelson v. Colorado , 581 U. S. ___, ___, n. 1 (2017) (Thomas, J., dissenting) (slip op., at 2, n. 1). His claim has nothing to do with any “process” “due” him. I therefore decline to apply the “legal fiction” of substantive due process. McDonald , 561 U. S., at 811 (opinion of Thomas, J.). II When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’ ” Id. , at 813. Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. Id. , at 822, 837. Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution. “Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.” Id. , at 818. The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was. A The Excessive Fines Clause “was taken verbatim from the English Bill of Rights of 1689,” United States v. Bajakajian , 524 U.S. 321 , 335 (1998), which itself formalized a longstanding English prohibition on disproportionate fines. The Charter of Liberties of Henry I, issued in 1101, stated that “[i]f any of my barons or men shall have committed an offence he shall not give security to the extent of forfeiture of his money, as he did in the time of my father, or of my brother, but according to the measure of the offence so shall he pay . . . .” Sources of English Legal and Constitutional History ¶8, p. 50 (M. Evans & R. Jack eds. 1984) (emphasis added). Expanding this principle, Magna Carta required that “amercements (the medieval predecessors of fines) should be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood,” Bajakajian , supra , at 335: “A free man shall be amerced for a small fault only according to the measure thereof, and for a great crime according to its magnitude, saving his position; and in like manner, a merchant saving his trade, and a villein saving his tillage, if they should fall under Our mercy.” Magna Carta, ch. 20 (1215), in A. Howard, Magna Carta: Text & Commentary 42 (rev. ed. 1998). Similar clauses levying amercements “only in proportion to the measure of the offense” applied to earls, barons, and clergymen. Chs. 21–22, ibid. One historian posits that, due to the prevalence of amercements and their use in increasing the English treasury, “[v]ery likely there was no clause in Magna Carta more grateful to the mass of the people than that about amercements.” Pleas of the Crown for the County of Gloucester xxxiv (F. Maitland ed. 1884). The principle was reiterated in the First Statute of Westminster, which provided that no man should “be amerced, without reasonable cause, and according to the quantity of his Trespass.” 3 Edw. I, ch. 6 (1275). The English courts have long enforced this principle. In one early case, for example, the King commanded the bailiff “to take a moderate amercement proper to the magnitude and manner of th[e] offense, according to the tenour of the Great Charter of the Liberties of England,” and the bailiff was sued for extorting “a heavier ransom.” Le Gras v. Bailiff of Bishop of Winchester , Y. B. Mich. 10 Edw. II, pl. 4 (1316), reprinted in 52 Selden Society 3, 5 (1934); see also Richard Godfrey’s Case , 11 Co. Rep. 42a, 44a, 77 Eng. Rep. 1199, 1202 (1615) (excessive fines are “against law”). During the reign of the Stuarts in the period leading up to the Glorious Revolution of 1688–1689, fines were a flashpoint “in the constitutional and political struggles between the king and his parliamentary critics.” L. Schwoerer, The Declaration of Rights, 1689, p. 91 (1981) (Schwoerer). From 1629 to 1640, Charles I attempted to govern without convening Parliament, but “in the absence of parliamentary grants,” he needed other ways of raising revenue. 4 H. Walter, A History of England 135 (1834); see 1 T. Macaulay, History of England 85 (1899). He thus turned “to exactions, some odious and obsolete, some of very questionable legality, and others clearly against law.” 1 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II 462 (1827) (Hallam); see 4 Walter, supra , at 135. The Court of Star Chamber, for instance, “imposed heavy fines on the king’s enemies,” Schwoerer 91, in disregard “of the provision of the Great Charter, that no man shall be amerced even to the full extent of his means. . . .” 2 Hallam 46–47. “[T]he strong interest of th[is] court in these fines . . . had a tendency to aggravate the punishment. . . .” 1 id. , at 490. “The statute abolishing” the Star Chamber in 1641 “specifically prohibited any court thereafter from . . . levying . . . excessive fines.” Schwoerer 91. “But towards the end of Charles II’s reign” in the 1670s and early 1680s, courts again “imposed ruinous fines on the critics of the crown.” Ibid. In 1680, a committee of the House of Commons “examined the transcripts of all the fines imposed in King’s Bench since 1677” and found that “the Court of King’s Bench, in the Imposition of Fines on Offenders of late Years, hath acted arbitrarily, illegally, and partially; favouring Papists and Persons popishly affected; and excessively oppressing his Majesty’s Protestant Subjects.” Ibid. ; 9 Journals of the House of Commons 692 (Dec. 23, 1680). The House of Commons determined that the actions of the judges of the King’s Bench, particularly the actions of Chief Justice William Scroggs, had been so contrary to law that it prepared articles of impeachment against him. The articles alleged that Scroggs had “most notoriously departed from all Rules of Justice and Equality, in the Imposition of Fines upon Persons convicted of Misdemeanors” without “any Regard to the Nature of the Offences, or the Ability of the Persons.” Id. , at 698. Yet “[o]ver the next few years fines became even more excessive and partisan.” Schwoerer 91. The King’s Bench, presided over by the infamous Chief Justice Jeffreys, fined Anglican cleric Titus Oates 2,000 marks (among other punishments) for perjury. Id. , at 93. For speaking against the Duke of York, the sheriff of London was fined £100,000 in 1682, which corresponds to well over $10 million in present-day dollars[ 1 ]—“an amount, which, as it extended to the ruin of the criminal, was directly contrary to the spirit of [English] law.” The History of England Under the House of Stuart, pt. 2, p. 801 (1840). The King’s Bench fined Sir Samuel Barnadiston £10,000 for allegedly seditious letters, a fine that was overturned by the House of Lords as “exorbitant and excessive.” 14 Journals of the House of Lords 210 (May 14, 1689). Several members of the committees that would draft the Declaration of Rights—which included the prohibition on excessive fines that was enacted into the English Bill of Rights of 1689—had themselves “suffered heavy fines.” Schwoerer 91–92. And in 1684, judges in the case of John Hampden held that Magna Carta did not limit “fines for great offences” against the King, and imposed a £40,000 fine. Trial of Hampden , 9 State Trials 1054, 1125 (K. B. 1684); 1 J. Stephen, A History of the Criminal Law of England 490 (1883). “Freedom from excessive fines” was considered “indisputably an ancient right of the subject,” and the Declaration of Rights’ indictment against James II “charged that during his reign judges had imposed excessive fines, thereby subverting the laws and liberties of the kingdom.” Schwoerer 90. Article 10 of the Declaration declared “[t]hat excessive Bayle ought not to be required nor excessive fynes imposed nor cruel and unusuall Punishments inflicted.” Id. , at 297. Shortly after the English Bill of Rights was enacted, Parliament addressed several excessive fines imposed before the Glorious Revolution. For example, the House of Lords overturned a £30,000 fine against the Earl of Devonshire as “excessive and exorbitant, against Magna Charta, the common right of the subject, and against the law of the land.” Case of Earl of Devonshire , 11 State Trials 1354, 1372 (K. B. 1687). Although the House of Lords refused to reverse the judgments against Titus Oates, a minority argued that his punishments were “contrary to Law and ancient Practice” and violated the prohibition on “excessive Fines.” Harmelin v. Michigan , 501 U.S. 957 , 971 (1991); Trial of Oates , 10 State Trials 1080, 1325 (K. B. 1685). The House of Commons passed a bill to overturn Oates’s conviction, and eventually, after a request from Parliament, the King pardoned Oates. Id. , at 1329–1330. Writing a few years before our Constitution was adopted, Blackstone—“whose works constituted the preeminent authority on English law for the founding generation,” Alden v. Maine , 527 U.S. 706 , 715 (1999)—explained that the prohibition on excessive fines contained in the English Bill of Rights “had a retrospect to some unprecedented proceedings in the court of king’s bench.” 4 W. Blackstone, Commentaries 372 (1769). Blackstone confirmed that this prohibition was “only declaratory . . . of the old constitutional law of the land,” which had long “regulated” the “discretion” of the courts in imposing fines. Ibid. In sum, at the time of the founding, the prohibition on excessive fines was a longstanding right of Englishmen. B “As English subjects, the colonists considered themselves to be vested with the same fundamental rights as other Englishmen,” McDonald , 561 U. S., at 816 (opinion of Thomas, J.), including the prohibition on excessive fines. E.g. , J. Dummer, A Defence of the New-England Charters 16–17 (1721) (“The Subjects Abroad claim the Privilege of Magna Charta , which says that no Man shall be fin’d above the Nature of his Offence, and whatever his Miscarriage be, a Salvo Contenemento suo is to be observ’d by the Judge”). Thus, the text of the Eighth Amendment was “ ‘based directly on . . . the Virginia Declaration of Rights,’ which ‘adopted verbatim the language of the English Bill of Rights.’ ” Browning-Ferris Industries of Vt. , Inc. v. Kelco Disposal , Inc. , 492 U.S. 257 , 266 (1989) (quoting Solem v. Helm , 463 U.S. 277 , 285, n. 10 (1983)); see Jones v. Commonwealth , 5 Va. 555, 557 (1799) (opinion of Carrington, J.) (explaining that the clause in the Virginia Declaration of Rights embodied the traditional legal understanding that any “fine or amercement ought to be according to the degree of the fault and the estate of the defendant”). When the States were considering whether to ratify the Constitution, advocates for a separate bill of rights emphasized the need for an explicit prohibition on excessive fines mirroring the English prohibition. In colonial times, fines were “the drudge-horse of criminal justice,” “probably the most common form of punishment.” L. Friedman, Crime and Punishment in American History 38 (1993). To some, this fact made a constitutional prohibition on excessive fines all the more important. As the well-known Anti-Federalist Brutus argued in an essay, a prohibition on excessive fines was essential to “the security of liberty” and was “as necessary under the general government as under that of the individual states; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, . . . and seizing . . . property . . . as the other.” Brutus II (Nov. 1, 1787), in The Complete Bill of Rights 621 (N. Cogan ed. 1997). Similarly, during Virginia’s ratifying convention, Patrick Henry pointed to Virginia’s own prohibition on excessive fines and said that it would “depart from the genius of your country” for the Federal Constitution to omit a similar prohibition. Debate on Virginia Convention (June 14, 1788), in 3 Debates on the Federal Constitution 447 (J. Elliot 2d ed. 1854). Henry continued: “[W]hen we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives” to “define punishments without this control.” Ibid. Governor Edmund Randolph responded to Henry, arguing that Virginia’s charter was “nothing more than an investiture, in the hands of the Virginia citizens, of those rights which belonged to British subjects.” Id. , at 466. According to Randolph, “the exclusion of excessive bail and fines . . . would follow of itself without a bill of rights,” for such fines would never be imposed absent “corruption in the House of Representatives, Senate, and President,” or judges acting “contrary to justice.” Id. , at 467–468. For all the debate about whether an explicit prohibition on excessive fines was necessary in the Federal Constitution, all agreed that the prohibition on excessive fines was a well-established and fundamental right of citizenship. When the Excessive Fines Clause was eventually considered by Congress, it received hardly any discussion before “it was agreed to by a considerable majority.” 1 Annals of Cong. 754 (1789). And when the Bill of Rights was ratified, most of the States had a prohibition on excessive fines in their constitutions.[ 2 ] Early commentary on the Clause confirms the widespread agreement about the fundamental nature of the prohibition on excessive fines. Justice Story, writing a few decades before the ratification of the Fourteenth Amendment, explained that the Eighth Amendment was “adopted, as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts,” when “[e]normous fines and amercements were . . . sometimes imposed.” 3 J. Story, Commentaries on the Constitution of the United States §1896, pp. 750–751 (1833). Story included the prohibition on excessive fines as a right, along with the “right to bear arms” and others protected by the Bill of Rights, that “operates, as a qualification upon powers, actually granted by the people to the government”; without such a “restrict[ion],” the government’s “exercise or abuse” of its power could be “dangerous to the people.” Id. , §1858, at 718–719. Chancellor Kent likewise described the Eighth Amendment as part of the “right of personal security . . . guarded by provisions which have been transcribed into the constitutions in this country from magna carta , and other fundamental acts of the English Parliament.” 2 J. Kent, Commentaries on American Law 9 (1827). He understood the Eighth Amendment to “guard against abuse and oppression,” and emphasized that “the constitutions of almost every state in the Unio[n] contain the same declarations in substance, and nearly in the same language.” Ibid. Accordingly, “they must be regarded as fundamental doctrines in every state, for all the colonies were parties to the national declaration of rights in 1774, in which the . . . rights and liberties of English subjects were peremptorily claimed as their undoubted inheritance and birthright.” Ibid. ; accord, W. Rawle, A View of the Constitution of the United States of America 125 (1825) (describing the prohibition on excessive fines as “founded on the plainest principles of justice”). C The prohibition on excessive fines remained fundamental at the time of the Fourteenth Amendment. In 1868, 35 of 37 state constitutions “expressly prohibited excessive fines.” Ante , at 5. Nonetheless, as the Court notes, abuses of fines continued, especially through the Black Codes adopted in several States. Ante , at 5–6. The “centerpiece” of the Codes was their “attempt to stabilize the black work force and limit its economic options apart from plantation labor.” E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 199 (1988). Under the Codes, “the state would enforce labor agreements and plantation discipline, punish those who refused to contract, and prevent whites from competing among themselves for black workers.” Ibid. The Codes also included “ ‘antienticement’ measures punishing anyone offering higher wages to an employee already under contract.” Id. , at 200. The 39th Congress focused on these abuses during its debates over the Fourteenth Amendment, the Civil Rights Act of 1866, and the Freedmen’s Bureau Act. During those well-publicized debates, Members of Congress consistently highlighted and lamented the “severe penalties” inflicted by the Black Codes and similar measures, Cong. Globe, 39th Cong., 1st Sess., 474 (1866) (Sen. Trumbull), suggesting that the prohibition on excessive fines was understood to be a basic right of citizenship. For example, under Mississippi law, adult “freedmen, free negroes and mulattoes” “without lawful employment” faced $50 in fines and 10 days’ imprisonment for vagrancy. Reports of Assistant Commissioners of Freedmen, and Synopsis of Laws on Persons of Color in Late Slave States, S. Exec. Doc. No. 6, 39th Cong., 2d Sess., §2, p. 192 (1867). Those convicted had five days to pay or they would be arrested and leased to “any person who will, for the shortest period of service, pay said fine and forfeiture and all costs.” §5, ibid. Members of Congress criticized such laws “for selling [black] men into slavery in punishment of crimes of the slightest magnitude.” Cong. Globe, 39th Cong., 1st Sess., 1123 (1866) (Rep. Cook); see id. , at 1124 (“It is idle to say these men will be protected by the States”). Similar examples abound. One congressman noted that Alabama’s “aristocratic and anti-republican laws, almost reenacting slavery, among other harsh inflictions impose . . . a fine of fifty dollars and six months’ imprisonment on any servant or laborer (white or black) who loiters away his time or is stubborn or refractory.” Id. , at 1621 (Rep. Myers). He also noted that Florida punished vagrants with “a fine not exceeding $500 and imprison[ment] for a term not exceeding twelve months, or by being sold for a term not exceeding twelve months, at the discretion of the court.” Ibid. At the time, such fines would have been ruinous for laborers. Cf. id. , at 443 (Sen. Howe) (“A thousand dollars! That sells a negro for his life”). These and other examples of excessive fines from the historical record informed the Nation’s consideration of the Fourteenth Amendment. Even those opposed to civil-rights legislation understood the Privileges or Immunities Clause to guarantee those “fundamental principles” “fixed” by the Constitution, including “immunity from . . . excessive fines.” 2 Cong. Rec. 384–385 (1874) (Rep. Mills); see also id. , at App. 241 (Sen. Norwood). And every post-1855 state constitution banned excessive fines. S. Calabresi & S. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008). The attention given to abusive fines at the time of the Fourteenth Amendment, along with the ubiquity of state excessive-fines provisions, demonstrates that the public continued to understand the prohibition on excessive fines to be a fundamental right of American citizenship. *  *  * The right against excessive fines traces its lineage back in English law nearly a millennium, and from the founding of our country, it has been consistently recognized as a core right worthy of constitutional protection. As a constitutionally enumerated right understood to be a privilege of American citizenship, the Eighth Amendment’s prohibition on excessive fines applies in full to the States. Notes 1 See Currency Converter: 1270–2017 (estimating the 2017 equivalent of £100,000 in 1680), http://nationalarchives.gov.uk/currency-converter (as last visited Feb. 8, 2019) 2 Del. Const., Art. I, §11 (1792), in 1 Federal and State Constitutions 569 (F. Thorpe ed. 1909); Md. Const., Decl. of Rights, Art. XXII (1776), in 3 id ., at 1688; Mass. Const., pt. 1, Art. XXVI (1780), in id ., at 1892; N. H. Const., pt. 1, Art. 1, §XXXIII (1784), in 4 id ., at 2457; N. C. Const., Decl. of Rights, Art. X (1776), in 5 id ., at 2788; Pa. Const., Art. IX, §13 (1790), in id ., at 3101; S. C. Const., Art. IX, §4 (1790), in 6 id ., at 3264; Va. Const., Bill of Rights, §9 (1776), in 7 id ., at 3813. Vermont had a clause specifying that “all fines shall be proportionate to the offences.” Vt. Const., ch. II, §XXIX (1786), in id ., at 3759. Georgia’s 1777 Constitution had an excessive fines clause, Art. LIX, but its 1789 Constitution did not. And the Northwest Ordinance provided that “[a]ll fines shall be moderate; and no cruel or unusual punishments inflicted.” §14, Art. 2 (1787)

The Supreme Court ruled that the Eighth Amendment's Excessive Fines Clause, which prohibits excessive fines imposed by the government as punishment or for criminal law enforcement, is applicable to the states under the Fourteenth Amendment's Due Process Clause. This means that states cannot impose excessive fines on individuals, and any fines must be proportionate to the offense committed.

Due Process

Chicago v. Morales

https://supreme.justia.com/cases/federal/us/527/41/

OCTOBER TERM, 1998 Syllabus CITY OF CHICAGO v. MORALES ET AL. CERTIORARI TO THE SUPREME COURT OF ILLINOIS No.97-1121. Argued December 9, 1998-Decided June 10, 1999 Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. The police department's General Order 92-4 purports to limit officers' enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas. Two trial judges upheld the ordinance's constitutionality, but 11 others ruled it invalid. The Illinois Appellate Court affirmed the latter cases and reversed the convictions in the former. The State Supreme Court affirmed, holding that the ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties. Held: The judgment is affirmed. 177 Ill. 2d 440, 687 N. E. 2d 53, affirmed. JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I, II, and V, concluding that the ordinance's broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U. S. 352 , 358. The ordinance encompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member "shall" be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance's loitering definition-"to remain in anyone place with no apparent purpose"-as giving officers absolute discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the language of a state statute more narrowly than the State's highest court. See Smiley v. Kansas, 196 U. S. 447 , 455. The three features of the ordinance that, the city argues, limit the officer's discretion-(l) it does not permit issuance of a dispersal order to anyone who is moving along or who has an apparent purpose; (2) it does not permit an arrest if individuals obey a dispersal order; and (3) no order can issue unless the officer reasonably believes that one of the loiterers is a gang mem- 42 Syllabus ber-are insufficient. Finally, the Illinois Supreme Court is correct that General Order 92-4 is not a sufficient limitation on police discretion. See Smith v. Goguen, 415 U. S. 566 , 575. Pp. 60-64. JUSTICE STEVENS, joined by JUSTICE SOUTER and JUSTICE GINSBURG, concluded in Parts III, IV, and VI: 1. It was not improper for the state courts to conclude that the ordinance, which covers a significant amount of activity in addition to the intimidating conduct that is its factual predicate, is invalid on its face. An enactment may be attacked on its face as impermissibly vague if, inter alia, it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty. Ko lender v. Lawson, 461 U. S., at 358. The freedom to loiter for innocent purposes is part of such "liberty." See, e. g., Kent v. Dulles, 357 U. S. 116 , 126. The ordinance's vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379 , 395, and infringes on constitutionally protected rights, see id., at 391. Pp.51-56. 2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e. g., Coates v. Cincinnati, 402 U. S. 611 , 614. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term-"to remain in anyone place with no apparent purpose" -does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an "apparent purpose." This vagueness about what loitering is covered and what is not dooms the ordinance. The city's principal response to the adequate notice concern-that loiterers are not subject to criminal sanction until after they have disobeyed a dispersal orderis unpersuasive for at least two reasons. First, the fair notice requirement's purpose is to enable the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U. S. 451 , 453. A dispersal order, which is issued only after prohibited conduct has occurred, cannot retroactively provide adequate notice of the boundary between the permissible and the impermissible applications of the ordinance. Second, the dispersal order's terms compound the inadequacy of the notice afforded by the ordinance, which vaguely requires that the officer "order all such persons to disperse and remove themselves from the area," and thereby raises a host of questions as to the duration and distinguishing features of the loiterers' separation. Pp. 56-60. 43 JUSTICE O'CONNOR, joined by JUSTICE BREYER, concluded that, as construed by the Illinois Supreme Court, the Chicago ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers; in particular, it fails to provide any standard by which police can judge whether an individual has an "apparent purpose." This vagueness alone provides a sufficient ground for affirming the judgment below, and there is no need to consider the other issues briefed by the parties and addressed by the plurality. It is important to courts and legislatures alike to characterize more clearly the narrow scope of the Court's holding. Chicago still has reasonable alternatives to combat the very real threat posed by gang intimidation and violence, including, e. g., adoption of laws that directly prohibit the congregation of gang members to intimidate residents, or the enforcement of existing laws with that effect. Moreover, the ordinance could have been construed more narrowly to avoid the vagueness problem, by, e. g., adopting limitations that restrict the ordinance's criminal penalties to gang members or interpreting the term "apparent purpose" narrowly and in light of the Chicago City Council's findings. This Court, however, cannot impose a limiting construction that a state supreme court has declined to adopt. See, e. g., Kolender v. Lawson, 461 U. S. 352 , 355-356, n. 4. The Illinois Supreme Court misapplied this Court's precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 , to the extent it read them as requiring it to hold the ordinance vague in all of its applications. Pp. 64-69. JUSTICE KENNEDY concluded that, as interpreted by the Illinois Supreme Court, the Chicago ordinance unconstitutionally reaches a broad range of innocent conduct, and, therefore, is not necessarily saved by the requirement that the citizen disobey a dispersal order before there is a violation. Although it can be assumed that disobeying some police commands will subject a citizen to prosecution whether or not the citizen knows why the order is given, it does not follow that any unexplained police order must be obeyed without notice of its lawfulness. The predicate of a dispersal order is not sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to such an order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose. Pp. 69-70. JUSTICE BREYER concluded that the ordinance violates the Constitution because it delegates too much discretion to the police, and it is not saved by its limitations requiring that the police reasonably believe that the person ordered to disperse (or someone accompanying him) is a gang 44 Syllabus member, and that he remain in the public place "with no apparent purpose." Nor does it violate this Court's usual rules governing facial challenges to forbid the city to apply the unconstitutional ordinance in this case. There is no way to distinguish in the ordinance's terms between one application of unlimited police discretion and another. It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U. S. 451 , 453. Contrary to JUSTICE SCALIA'S suggestion, the ordinance does not escape facial invalidation simply because it may provide fair warning to some individual defendants that it prohibits the conduct in which they are engaged. This ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide sufficient minimal standards to guide the police. See Coates v. Cincinnati, 402 U. S. 611, 614. Pp. 70-73. STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which SOUTER and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined, post, p. 64. KENNEDY, J., post, p. 69, and BREYER, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed a dissenting opinion, post, p. 73. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 98. Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W Joranko, and Julian N. Henriques, Jr. Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro. * *Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, 45 JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which JUSTICE SOUTER and JUSTICE GINSBURG join. In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark Q Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry. Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the N ational Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc Q Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr. 46 members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. I Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.1 The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "'the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.'" 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "'establish control over identifiable areas ... by loitering in those areas and intimidating others from entering those areas; and ... [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present .... '" Ibid. It further found that "'loitering in public places by 1 The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in JUSTICE THOMAS' dissenting opinion. Post, at 100-101. 47 criminal street gang members creates a justifiable fear for the safety of persons and property in the area'" and that "'[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.'" Moreover, the council concluded that the city "'has an interest in discouraging all persons from loitering in public places with criminal gang members.'" Ibid. The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "'public place'" is a "'criminal street gang membe[r].'" Second, the persons must be "'loitering,'" which the ordinance defines as "'remain[ing] in anyone place with no apparent purpose.'" Third, the officer must then order "'all'" of the persons to disperse and remove themselves "'from the area.'" Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid. 2 2 The ordinance states in pertinent part: "(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section. "(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang. "(c) As used in this Section: "(1) 'Loiter' means to remain in anyone place with no apparent purpose. "(2) 'Criminal street gang' means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members 48 Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.3 That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,4 and establish detailed criteria for defining street gangs and membership in such gangs. I d., at 66a-67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the desig- individually or collectively engage in or have engaged in a pattern of criminal gang activity. "(5) 'Public place' means the public way and any other location open to the public, whether publicly or privately owned. "(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both. "In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4-120 of this Code." Chicago Municipal Code § 8-4-015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a-63a. 3 As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59. 4 Presumably, these officers would also be able to arrest all nongang members who violate the ordinance. 49 nated areas." Id., at 68a-69a. The city, however, does not release the locations of these "designated areas" to the public.5 II During the three years of its enforcement,6 the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.7 In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.8 In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct 5 Tr. of Oral Arg. 22-23. 6 The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43. 7 Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998). The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11 %. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among ... experts over the causes of the decline in crime in New York City and nationally"). 8 See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995). 50 is prohibited, and it encourages arbitrary and capricious enforcement by police." 9 The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,10 consolidated and affirmed other pending appeals in accordance with Youkhana,l1 and reversed the convictions of respondents Gutierrez, Morales, and others.12 The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.13 The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid. In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated 9 Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a. 10 Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). 11 Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a. 12 Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a. 13 Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42. 51 to cause harm.14 "Moreover, the definition of 'loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity." 15 We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague. III The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods." 16 The findings in the ordinance explain that it was motivated by these concerns. We have no doubt 14 "The ordinance defines 'loiter' to mean 'to remain in anyone place with no apparent purpose.' Chicago Municipal Code § 8-4-015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451452, 687 N. E. 2d, at 60-61. 15 It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64. 16 Brief for Petitioner 14. 52 Opinion of STEVENS, J. that a law that directly prohibited such intimidating conduct would be constitutional,17 but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague. We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.18 First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Okla homa, 413 U. S. 601 , 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352 , 358 (1983). While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct 17 In fact the city already has several laws that serve this purpose. See, e. g., Ill. Compo Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992). 18 Brief for Petitioner 17. 53 protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989). On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. 19 We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270 , 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156 , 164 (1972).20 19 See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both JUSTICE SCALIA, post, at 83-86 (dissenting opinion), and JUSTICE THOMAS, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra. 20 Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the" 'Slavery acts'" provided for a 2-year enslavement period 54 Opinion of STEVENS, J. Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116 , 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).21 for anyone who '''liveth idly and loiteringly, by the space of three days.''' Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "'any runaway, stubborn servant or child'" and "'a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.''' T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in JUSTICE THOMAS' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause. 21 The freewheeling and hypothetical character of JUSTICE SCALIA'S discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story. In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but 55 There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500 , 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 ,82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379 , 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.22 only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit. 22 The burden of the first portion of JUSTICE SCALIA'S dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739 , 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate. We need not, however, resolve the viability of Salerno's dictum, because this case comes to us from a state-not a federal-court. When asserting 56 Opinion of STEVENS, J. Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement. IV "It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits .... " Giaccio v. Pennsylvania, 382 U. S. 399 , 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance-"to remain in anyone place with no apparent purpose"-does not. It is difficult to imagine how a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947 , 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239 , 243 (1983) (internal quotation marks omitted). Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases-a proposition which is doubtful-state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605 , 618 (1989). JUSTICE SCALIA'S assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994). 57 any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose? 23 Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.24 Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.25 However, state 23 The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an 'apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13. 24177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the 'basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCr 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a-49a. 25 See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381,394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act). 58 Opinion of STEVENS, J. courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.26 The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do." 27 We find this response unpersuasive for at least two reasons. First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451 , 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.28 If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87 , 90 26 See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof"). 27 Brief for Petitioner 31. 28 In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104 , 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under ... Kentucky's statute if he fails to obey an order to move on." Ibid. 59 (1965).29 Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.30 Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395. Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance uncon- 29 "Literally read ... this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration." 382 U. S., at 90. 30 As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284 , 292 (1963). 60 stitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214 , 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611 , 614 (1971). v The broad sweep of the ordinance also violates "'the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy So sa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she mayindeed, she "shall" -order them to disperse. Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair no- 61 tice, see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in anyone place with no apparent purpose." As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.31 "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447 , 455 (1905). Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang. Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving-that is, to activity that would not constitute loitering under any possible definition of the term-does not even address the question of how much discretion the police enjoy in deciding which stationary per- 31 This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312 , 329-330 (1988). There, we noted that the text of the relevant statute, read literally, may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid. 62 sons to disperse under the ordinance.32 Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene. Presumably an officer would have discretion to treat some purposes-perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening-as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent. It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,33 or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.34 It applies to everyone in the city 32 It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances. 33JUSTICE THOMAS' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107. 34 Not all of the respondents in this case, for example, are gang members. The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted 63 who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member. Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose. Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566 ,575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city "that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58. 64 Opinion of O'CONNOR, J. safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be. VI In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."35 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets. Accordingly, the judgment of the Supreme Court of Illinois is Affirmed. JUSTICE O'CONNOR, with whom JUSTICE BREYER joins, concurring in part and concurring in the judgment. I agree with the Court that Chicago's Gang Congregation Ordinance, Chicago Municipal Code § 8-4-015 (1992) (gang loitering ordinance or ordinance) is unconstitutionally vague. A penal law is void for vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to 35 This conclusion makes it unnecessary to reach the question whether the Illinois Supreme Court correctly decided that the ordinance is invalid as a deprivation of substantive due process. For this reason, JUSTICE THOMAS, see post, at 102-106, and JUSTICE SCALIA, see post, at 85-86, are mistaken when they assert that our decision must be analyzed under the framework for substantive due process set out in Washington v. Glucks berg, 521 U. S. 702 (1997). 65 establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v. Lawson, 461 U. S. 352 , 357 (1983). Of these, "the more important aspect of the vagueness doctrine 'is ... the requirement that a legislature establish minimal guidelines to govern law enforcement.''' Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566 , 574-575 (1974)). I share JUSTICE THOMAS' concern about the consequences of gang violence, and I agree that some degree of police discretion is necessary to allow the police "to perform their peacekeeping responsibilities satisfactorily." Post, at 109 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "'a standardless sweep ... to pursue their personal predilections.''' Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575). The ordinance at issue provides: "Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." App. to Pet. for Cert. 61a. To "[l]oiter," in turn, is defined in the ordinance as "to remain in anyone place with no apparent purpose." Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court's construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1 , 4 (1949). As it has been construed by the Illinois court, Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforce- 66 Opinion of O'CONNOR, J. ment officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"-even if it is simply to stand-the ordinance permits police officers to choose which purposes are permissible. Under this construction the police do not have to decide that an individual is "threaten[ing] the public peace" to issue a dispersal order. See post, at 107 (THOMAS, J., dissenting). Any police officer in Chicago is free, under the Illinois Supreme Court's construction of the ordinance, to order at his whim any person standing in a public place with a suspected gang member to disperse. Further, as construed by the Illinois court, the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or "other location open to the public, whether publicly or privately owned." Chicago Municipal Code § 8-4-015(c)(5) (1992). To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place "with no apparent purpose," and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they "reasonably believ[e]" that a group of loiterers includes a gang member fails to cure the ordinance's vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62. This vagueness consideration alone provides a sufficient ground for affirming the Illinois court's decision, and I agree 67 with Part V of the Court's opinion, which discusses this consideration. See ante, at 62 ("[T]hat the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue"); ibid. ("It is true ... that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members"). Accordingly, there is no need to consider the other issues briefed by the parties and addressed by the plurality. I express no opinion about them. It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today's holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a "harmful purpose," see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that "directly prohibit[s]" the" 'presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,'" that" 'intimidates residents.'" Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that "enables police officers to fulfill ... their traditional functions," including "preserving the public peace." See post, at 106 (THOMAS, J., dissenting). Specifi- 68 Opinion of O'CONNOR, J. cally, Chicago's general disorderly conduct provision allows the police to arrest those who knowingly "provoke, make or aid in making a breach of peace." See Chicago Municipal Code § 8-4-010 (1992). In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in anyone place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a-61a. As noted above, so would limitations that restricted the ordinance's criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members. The Illinois Supreme Court did not choose to give a limiting construction to Chicago's ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that "'[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it'" (citations and internal quotation marks omitted)); New York 69 v. Ferber, 458 U. S. 747 , 769, n. 24 (1982) (noting that where the Court is "dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us"). Accordingly, I join Parts I, II, and V of the Court's opinion and concur in the judgment. JUSTICE KENNEDY, concurring in part and concurring in the judgment. I join Parts I, II, and V of the Court's opinion and concur in the judgment. I also share many of the concerns JUSTICE STEVENS expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation. We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is con- 70 Opinion of BREYER, J. gregating; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose. JUSTICE BREYER, concurring in part and concurring in the judgment. The ordinance before us creates more than a "minor limitation upon the free state of nature." Post, at 74 (SCALIA, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any "location open to the public, whether publicly or privately owned," Chicago Municipal Code § 8-4-015(c)(5) (1992), i. e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place "with no apparent purpose." § 8-4-015(c)(1). The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and JUSTICE O'CONNOR, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words "no apparent purpose" as meaning "no apparent purpose except for .... " And it is in the ordinance's delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a "minor," "limitation upon the free state of nature." 71 Nor does it violate "our rules governing facial challenges," post, at 74 (SCALIA, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance's terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451 , 453 (1939) ("If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it"). JUSTICE SCALIA'S examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law's constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733 , 756 (1974) ("[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. 72 Opinion of BREYER, J. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide "sufficient minimal standards to guide law enforcement officers." See ante, at 65-66 (O'CONNOR, J., concurring in part and concurring in judgment). I concede that this case is unlike those First Amendment "overbreadth" cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer's exercise of unchecked discretion, is more clearly their own. This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from "conduct[ing] themselves in a manner annoying to persons passing by." The Court explained: "It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited .... It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., at 614 (citation omitted). 73 The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably "annoying" or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 67-68 (O'CONNOR, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone. JUSTICE SCALIA, dissenting. The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the "freedom" of all citizens, but was not unconstitutional. Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the "freedom" of all citizens, but was not unconstitutional. Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose-to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated 74 in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their "turf." Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8-4-015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets. The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists. I Respondents' consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case. 75 That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society: "The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power. "Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule .... But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless .... The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice .... [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can 76 be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75-76 (R. Heffner ed. 1956). As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447 ,488 (1923): "We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right .... If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding." And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17 , 20-22 (1960): "The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them .... This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of 77 constitutional law broader than is required by the precise facts to which it is to be applied.' ... Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. ... The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined." It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion-which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even nonadvisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications? I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have-except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747 , 769-773 (1982)-required the facial challenge to be a go-forbroke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he estab- 78 lish that the statute was unconstitutional in all its applications. (I say that is an eminently reasonable requirement, not only because we should not be holding a statute void in all its applications unless it is unconstitutional in all its applications, but also because unless it is unconstitutional in all its applications we do not even know, without conducting an as-applied analysis, whether it is void with regard to the very litigant before us-whose case, after all, was the occasion for undertaking this inquiry in the first place.1) As we said in United States v. Salerno, 481 U. S. 739 , 745 (1987): "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum- 1 In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 495 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law"); Parker v. Levy, 417 U. S. 733 , 756 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court "entertained" a facial challenge even though "the defendants ... did not claim that the statute was unconstitutional as applied to them." Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be valid," 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies ("Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case," id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge-i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them. 79 stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." (Emphasis added.) 2 This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 796 (1984) (opinion for the Court by STEVENS, J.) (statute not implicating First Amendment rights is invalid on its face if "it is unconstitutional in every conceivable application"); Schall v. Martin, 467 U. S. 253 , 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29 , 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143 , 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 , 699 (1995) (opinion for the Court by STEVENS, J.) (facial challenge asserts that a challenged statute or regulation is invalid "in every circumstance"); Reno v. Flores, 507 U. S. 292 , 301 (1993); Rust v. Sullivan, 2 Salerno, a criminal case, repudiated the Court's statement in Kolender v. Lawson, 461 U. S. 352 , 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed "even when [the statute] could conceivably have had some valid application." Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601 , 612 (1973). 80 500 U. S. 173 , 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 , 514 (1990) (opinion of KENNEDY, J.); Webster v. Reproductive Health Servs., 492 U. S. 490 , 523-524 (1989) (O'CONNOR, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1 , 11-12 (1988).3 Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.4 3 The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application-and hard to resist mentioning more than one. The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable. 4 See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F.3d 18 , 20 (CA1 1996); Deshawn E. v. Safir, 156 F.3d 340 , 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F.3d 1235 , 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F.3d 254 , 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 , 1104 (CA5), cert. de- 81 I am aware, of course, that in some recent facial-challenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the "unconstitutional in every conceivable application" rule, when the statutes at issue concerned hot-button social issues on which "informed opinion" was zealously united. See Romer v. Evans, 517 U. S. 620, 643 (1996) (SCALIA, J., dissenting) (homosexual rights); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , 895 (1992) (abortion rights). But the present case does not even lend itself to such a "political correctness" exception-which, though illogical, is at least predictable. It is not it la mode to favor gang members and associated loiterers over the beleaguered law-abiding residents of the inner city. When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this: 5 Tony, a member of the Jets criminal street gang, is standing nied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F.3d 804 , 809 (CA6 1997); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F.2d 1267 , 1283 (CA7 1992), cert. denied, 506 U. S. 1053 (1993); Woodis v. Westark Community College, 160 F.3d 435 , 438-439 (CA8 1998); Roulette v. Seattle, 97 F.3d 300 , 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CAlO 1999); Dimmitt v. Clearwater, 985 F.2d 1565 , 15701571 (CAll 1993); Time Warner Entertainment Co. v. FCC, 93 F.3d 957 , 972 (CADC 1996). 5With apologies for taking creative license with the work of Messrs. Bernstein, Sondheim, and Laurents. West Side Story, copyright 1959. 82 alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement-not entirely coherent, but evidently intended to be rude-"Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness. Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For instance, respondent Jose Renteria-who admitted that he was a member of the Satan Disciples gang-was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others-who admitted they were members of the Vice Lords gang-were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using 83 the sidewalks. The arresting officer issued a dispersal order, issued another dispersal order later when the group did not move, and finally arrested the group when they were found loitering in the same place still later. Finally, respondent Gregorio Gutierrez-who had previously admitted to the arresting officer his membership in the Latin Kings gang-was observed loitering with two other men. The officer issued a dispersal order, drove around the block, and arrested the men after finding them in the same place upon his return. See Brief for Petitioner 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even on the majority's assumption that to avoid vagueness it must be clear to the object of the dispersal order ex ante that his conduct is covered by the ordinance, it seems most improbable that any of these as-applied challenges would be sustained. Much less is it possible to say that the ordinance is invalid in all its applications. II The plurality's explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: "[This] is a criminal law that contains no mens rea requirement ... and infringes on constitutionally protected rights .... When vagueness permeates the text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) + (infringement of constitutionally protected right) + (vagueness) = (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates. But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter-or, as the plurality more favorably describes 84 it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally unprotected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business behavior and contains a scienter requirement .... It is a criminal law that contains no mens rea requirement ... and infringes on constitutionally protected rights." Ante, at 55 (internal quotation marks omitted). (Poor Alexander Hamilton, who has seen his "commercial republic" devolve, in the eyes of the plurality, at least, into an "indolent republic," see The Federalist No.6, p. 56; No. 11, pp. 84-91 (C. Rossiter ed. 1961).) Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. 307 , 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities-such as political speech or religious worship-that cannot be forbidden even with rational basis. The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. JUSTICE THOMAS recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result. Its opinion blithely proclaims: "Neither this history nor the scholarly 85 compendia in JUSTICE THOMAS' dissent, [ibid.,] persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause." Ante, at 54, n. 20. The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of socalled "substantive due process") is in my view judicial usurpation. But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702 , 720-721 (1997), we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115 , 125-126 (1992); Michael H. v. Gerald D., 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. 494 , 502-503 (1977). The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive-due-process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition,6 and the (transparently erroneous) assertion that the city of Chicago appears to have conceded the 6 The plurality's explanation for ignoring these laws is that many of them carried severe penalties and, during the Reconstruction era, they had "harsh consequences on African-American women and children." Ante, at 54, n. 20. Those severe penalties and those harsh consequences are certainly regrettable, but they in no way lessen (indeed, the harshness of penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental liberty. 86 point.7 It is enough for the Members of the plurality that "history ... [fails to] persuad[e] us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause," ante, at 54, n. 20 (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.s It would be unfair, however, to criticize the plurality's failed attempt to establish that loitering is a constitutionally 7 Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner's brief which reads: "Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process .... We address that doctrine in Part II below." Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term "social gatherings" in this passage with "loitering," his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: "[A]s we explain below, substantive due process does not support the court's novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection." Id., at 39. 8 The plurality says, ante, at 64, n. 35, that since it decides the case on the basis of procedural due process rather than substantive due process, I am mistaken in analyzing its opinion "under the framework for substantive due process set out in Washington v. Glucksberg." Ibid. But I am not analyzing it under that framework. I am simply assuming that when the plurality says (as an essential part of its reasoning) that "the right to loiter for innocent purposes is ... a part of the liberty protected by the Due Process Clause" it does not believe that the same word ("liberty") means one thing for purposes of substantive due process and something else for purposes of procedural due process. There is no authority for that startling proposition. See Board of Regents of State Colleges v. Roth, 408 U. S. 564 , 572-575 (1972) (rejecting procedural-due-process claim for lack of "liberty" interest, and citing substantive-due-process cases). The plurality's opinion seeks to have it both ways, invoking the Fourteenth Amendment's august protection of "liberty" in defining the standard of certainty that it sets, but then, in identifying the conduct protected by that high standard, ignoring our extensive case law defining "liberty," and substituting, instead, all "harmless and innocent" conduct, ante, at 58. 87 protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad "vagueness invalidates" rule to a liberty interest. As far as appears from JUSTICE O'CONNOR'S and JUSTICE BREYER'S opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of "gang members") unless the standards for the issuance of that order are precise. No modern urban society-and probably none since London got big enough to have sewers-could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to "move on" -and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: "No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to uphold an "as-applied" challenge when a pedestrian disobeys such an order that is unreasonable-or even when a pedestrian asserting some true "liberty" interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders" is void in all its applications demands more than a safe and orderly society can reasonably deliver. JUSTICE KENNEDY apparently recognizes this, since he acknowledges that "some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given," including, for example, an order "tell[ing] a pedestrian not to enter a building" when the reason is "to avoid impeding a rescue team." Ante, at 69 (opinion concurring in part and concurring in judgment). 88 But his only explanation of why the present interference with the "right to loiter" does not fall within that permitted scope of action is as follows: "The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance." Ibid. I have not the slightest idea what this means. But I do understand that the followup explanatory sentence, showing how this principle invalidates the present ordinance, applies equally to the rescue-team example that JUSTICE KENNEDY thinks is constitutional-as is demonstrated by substituting for references to the facts of the present case (shown in italics) references to his rescue-team hypothetical (shown in brackets): "A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order [order not to enter a building] based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating [what is going on in the building]; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a rescue team]." Ante, at 69-70. III I turn next to that element of the plurality's facialchallenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65,66,68 (O'CONNOR, J., concurring in part and concurring in judgment); ante, at 69-70 (KENNEDY, J., concurring in part and concurring in judgment); ante, at 72-73 (BREYER, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The 89 only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i. e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order. The only act of a defendant that is made punishable by the ordinance-or, indeed, that is even mentioned by the ordinance-is his failure to "promptly obey" an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent-and of course it must. As the Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough. IV Finally, I address the last of the three factors in the plurality's facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz over- 90 breadth standard applied in Kolender v. Lawson, 461 U. S. 352 , 358, n. 8 (1983), which allows facial challenges if a law reaches "a substantial amount of constitutionally protected conduct," respondents' claim fails because the ordinance would not be vague in most or even a substantial number of applications. A law is unconstitutionally vague if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See, e. g., Grayned v. City of Rockford, 408 U. S. 104 , 108 (1972). The plurality relies primarily upon the first of these aspects. Since, it reasons, "the loitering is the conduct that the ordinance is designed to prohibit," and "an officer may issue an order only after prohibited conduct has already occurred," ante, at 58, 59, the order to disperse cannot itself serve "to apprise persons of ordinary intelligence of the prohibited conduct." What counts for purposes of vagueness analysis, however, is not what the ordinance is "designed to prohibit," but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality's suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.9 If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the Pres- 9 I call it a "suggestion" because the plurality says only that the terms of the dispersal order "compound the inadequacy of the notice," and acknowledges that they "might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear." Ante, at 59, 59-60. This notion that a prescription ("Disperse!") which is itself not unconstitutionally vague can somehow contribute to the unconstitutional vagueness of the entire scheme is full of mystery-suspending, as it does, the metaphysical principle that nothing can confer what it does not possess (nemo dat qui non habet). 91 ident, before using the militia or the Armed Forces for law enforcement, to issue a proclamation ordering the insurgents to disperse. See 10 U. S. C. § 334. President Eisenhower's proclamation relating to the obstruction of court-ordered enrollment of black students in public schools at Little Rock, Arkansas, read as follows: "I ... command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil rights march from Selma to Montgomery, Alabama, to "disperse ... forthwith"). See also Boos v. Barry, 485 U. S. 312 , 331 (1988) (rejecting overbreadth/vagueness challenge to a law allowing police officers to order congregations near foreign embassies to disperse); Cox v. Louisiana, 379 U. S. 536 , 551 (1965) (rejecting vagueness challenge to the dispersal-order prong of a breach-of-the-peace statute and describing that prong as "narrow and specific"). For its determination of unconstitutional vagueness, the Court relies secondarily-and JUSTICE O'CONNOR'S and JusTICE BREYER'S concurrences exclusively-upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O'CONNOR, J., concurring in part and concurring in judgment); ante, at 72 (BREYER, J., concurring in part and concurring in judgment). In discussing whether Chicago's ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois' statement that the "apparent purpose" standard "provides absolute discretion to police officers to decide what activities constitute loitering," 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State's highest court. Ante, at 92 61, 63 (majority opinion); ante, at 68 (O'CONNOR, J., concurring in part and concurring in judgment). The "absolute discretion" statement, however, is nothing more than the Illinois Supreme Court's characterization of what the language achieved-after that court refused (as I do) to read in any limitations that the words do not fairly contain. It is not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound). The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to "reasonably believ[e]" that one of the group to which the order is issued is a "criminal street gang member." This resembles a probable-cause standard, and the Chicago Police Department's General Order 92-4 (1992)-promulgated to govern enforcement of the ordinance-makes the probable-cause requirement explicit.10 Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer's "experience and knowledge of the alleged offenders" and by "specific, documented and reliable information" such as reliable witness testimony or an individual's admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a-69a, 71a-72a. Second, the ordinance requires that the group be "remain[ing] in anyone place with no apparent purpose." JUSTICE O'CONNOR'S assertion that this applies to "any person stand- 10 "Administrative interpretation and implementation of a regulation are ... highly relevant to our [vagueness] analysis, for '[i]n evaluating a facial challenge to a state law, a federal court must ... consider any limiting construction that a state court or enforcement agency has proffered.''' Ward v. Rock Against Racism, 491 U. S. 781 , 795-796 (1989) (emphasis added) (quoting Hoffman Estates, 455 U. S., at 494, n. 5). See also id., at 504 (administrative regulations "will often suffice to clarify a standard with an otherwise uncertain scope"). 93 ing in a public place," ante, at 66, is a distortion. The ordinance does not apply to "standing," but to "remain[ing]"a term which in this context obviously means "[to] endure or persist," see American Heritage Dictionary 1525 (1992). There may be some ambiguity at the margin, but "remain[ing] in one place" requires more than a temporary stop, and is clear in most of its applications, including all of those represented by the facts surrounding respondents' arrests described supra, at 82-83. As for the phrase "with no apparent purpose": JUSTICE O'CONNOR again distorts this adjectival phrase, by separating it from the word that it modifies. "[A]ny person standing on the street," her concurrence says, "has a general 'purpose'-even if it is simply to stand," and thus "the ordinance permits police officers to choose which purposes are permissible." Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who "remain in anyone place with no apparent purpose"-that is, who remain there without any apparent reason for remaining there. That is not difficult to perceiveY The Court's attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: "The 'no apparent purpose' standard for making [the decision to llJU8TICE BREYER asserts that "one always has some apparent purpose," so that the policeman must "interpret the words 'no apparent purpose' as meaning 'no apparent purpose except for ... .''' Ante, at 70. It is simply not true that "one always has some apparent purpose" -and especially not true that one always has some apparent purpose in remaining at rest, for the simple reason that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's normal state, unless he has a purpose which causes him to move. That is why one frequently reads of a person's "wandering aimlessly" (which is worthy of note) but not of a person's "sitting aimlessly" (which is not remarkable at all). And that is why a synonym for "purpose" is "motive": that which causes one to move. 94 issue an order to disperse] is inherently subjective because its application depends on whether some purpose is 'apparent' to the officer on the scene." Ante, at 62. In the Court's view, a person's lack of any purpose in staying in one location is presumably an objective factor, and what the ordinance requires as a condition of an order to dispersethe absence of any apparent purpose-is a subjective factor. This side of the looking glass, just the opposite is true. Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair: "In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy So sa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may-indeed, she 'shall'-order them to disperse." Ante, at 60. Quite so. And the fact that this clear instruction to the officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago-not us-to decide whether the tradeoff is worth it.12 12 The Court speculates that a police officer may exercise his discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is inapplicable-viz., where there is an apparent purpose, but it is an unlawful one. See ante, at 62. No one in his right mind 95 JUSTICE BREYER'S concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974), while at the same time asserting that a statute which "delegates too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion "wisely," ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes "too much discretion" to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well. Thus, what JUSTICE BREYER gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our case law, including Parker v. Levy, supra. 13 would read the phrase "without any apparent purpose" to mean anything other than "without any apparent lawful purpose." The implication that acts referred to approvingly in statutory language are "lawful" acts is routine. The Court asserts that the Illinois Supreme Court has forced it into this interpretive inanity because, since it "has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says .... " Ante, at 63. But the Illinois Supreme Court did not mention this particular interpretive issue, which has nothing to do with giving the ordinance a "limiting" interpretation, and everything to do with giving it its ordinary legal meaning. 13 The opinion that JUSTICE BREYER relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at 72-73, did not say that the ordinance there at issue gave adequate notice but did not provide adequate standards for the police. It invalidated that ordinance on both inadequatenotice and inadequate-enforcement-standard grounds, because First Amendment rights were implicated. It is common ground, however, that 96 v The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago's city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates. JUSTICE O'CONNOR'S concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that "directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of "a large collection of obviously brazen, insistent, and lawless gang members.") This prescription of the concurrence is largely a quotation from the plurality-which itself answers the concurrence's suggestion that such a law would be helpful by pointing out that the city already "has several laws that serve this purpose." Ante, at 52, n. 17 (plurality opinion) (citing extant laws against "intimidation," "streetgang criminal drug conspiracy," and "mob action"). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight. the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72 (BREYER, J., concurring in part and concurring in judgment). 97 JUSTICE O'CONNOR'S concurrence also proffers another cure: "If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom the order can be issued: persons remaining in one place with no apparent purpose in the company of a gang member. And if "remain[ing] in one place with no apparent purpose" is so vague as to give the police unbridled discretion in controlling the conduct of nongang members, it surpasses understanding how it ceases to be so vague when applied to gang members alone. Surely gang members cannot be decreed to be outlaws, subject to the merest whim of the police as the rest of us are not. *** The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority's real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As JUSTICE O'CONNOR'S concurrence says with disapprobation, "the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted). But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, 98 and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden-riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to "hang out" with a gang member is necessary to eliminate pervasive gang crime and intimidation-and that the elimination of the one is worth the deprivation of the other. This Court has no business second-guessing either the degree of necessity or the fairness of the trade. I dissent from the judgment of the Court. JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Kolender v. Lawson, 461 U. S. 352 , 370 (1983) (White, J., dissenting). Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 (plurality opinion), is in no way" 'deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702 , 721 (1997) (citation omitted). I dissent. I The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]ir- 99 tually overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small business owner who is literally crippled because he refuses to pay 'protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence ... is both physically and psychologically debilitating"). The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.1 Many 1 In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate 100 of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications (Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 (1997) ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts"). Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon explained that she struggled just to walk to work: "When I walk out my door, these guys are out there .... "They watch you .... They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me ... . " ... I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998). 101 Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript). Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore .... I am scared to go out in the daytime .... [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Id., at 93-95. Another long-time resident testified: "I have never had the terror that I feel everyday when I walk down the streets of Chicago .... "I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Id., at 124-125. Following these hearings, the council found that "criminal street gangs establish control over identifiable areas ... by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. 60a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." Ibid. It is the product of this democratic process-the council's attempt to address these social ills-that we are asked to pass judgment upon today. II As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police 102 have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasons-because it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree. A We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices ... provide the crucial 'guideposts for responsible decisionmaking' ... that direct and restrain our exposition of the Due Process Clause." Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494 , 503 (1977) (plurality opinion)). Only laws that infringe "those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition'" offend the Due Process Clause. Glucksberg, supra, at 720-721. The plurality asserts that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledges-as it must-that "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing 'undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless ... is not a part of the liberty protected by the Due Process Clause." Ante, at 54, 103 n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some anti vagrancy laws carried the penalty of slavery. Ibid. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months. The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jackson ville, 405 U. S. 156 , 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.2 Vagrancy laws 2 See, e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprinted in 2 First Laws of the State of North Carolina 508-509 (J. Cushing compo 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprinted in First Laws of the State of Connecticut 206-210 (J. Cushing compo 1982)); Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J. Cushing compo 1981)); Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) 104 were common in the decades preceding the ratification of the Fourteenth Amendment,3 and remained on the books long after.4 (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing compo 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing compo 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing compo 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing compo 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797). 3 See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky. Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N. Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII (1857). During the 19th century, this Court acknowledged the States' power to criminalize vagrancy on several occasions. See Mayor of New York V. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283,425 (1849) (opinion of Wayne, J.); Prigg V. Pennsylvania, 16 Pet. 539, 625 (1842). 4 See generally C. Tiedeman, Limitations of Police Power in the United States 116-117 (1886) ("The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated ... the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy"). See also R. 1. Gen. Stat., ch. 232, §24 (1872); Ill. Rev. Stat., ch. 38, §270 (1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch. 269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat., Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, § 1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky. Stat., ch. 132, §4758 (1894); Ill. Rev. Stat., ch. 38, §270 (1895); Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599 (1901); N. Y. Crim. Code §887 (1902); Pa. Stat. §§21409, 21410 (1920); Ky. Stat. §4758-1 (1922); Ala. Code, ch. 244, § 5571 (1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606 (1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code, Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, § 2032 (Pur- 105 Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one-decided more than 100 years after the ratification of the Fourteenth Amendmentactually addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to support the fundamental right that the plurality asserts.5 However, the Court in Papachristou did not undertake the now-accepted analysis applied in substantive due process cases-it did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter-a doubtful proposi- don 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim. Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal. Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953); Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437 (1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat. Ann. §21-2409 (1964). 5 The other cases upon which the plurality relies concern the entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270 ,274-275 (1900); Kent v. Dulles, 357 U. S. 116 (1958). The plurality claims that dicta in those cases articulating a right of free movement, see Williams, supra, at 274; Kent, supra, at 125, also supports an individual's right to "remain in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business of importing out-of-state labor impeded the freedom of transit, so the precise holding in that case does not support, but undermines, the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the Court held only that Congress had not authorized the Secretary of State to deny certain passports. Furthermore, the plurality's approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis. Michael H. v. Gerald D., 491 U. S. 110 , 127, n. 6 (1989) (plurality opinion). 106 tion-it does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution .... [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." Moore, 431 U. S., at 544 (White, J., dissenting). When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." Ibid. B The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts. 1 At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats-importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs 107 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.6 In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided: 6 See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp. 1997) ("The Department of Arkansas State Police shall be conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989) ("All police appointed under this section shall see that the peace and good order of the State ... be duly kept"); Ill. Compo Stat., ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities shall be conservators of the peace"); La. Rev. Stat. Ann. §40:1379 (West 1992) ("Police employees ... shall ... keep the peace and good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers are, by virtue of their appointment, constables and conservators of the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve the peace, to enforce the law and to prevent and detect crime"); 351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department ... shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto"); Tex. Code Crim. Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction"); Vt. Stat. Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police force ... is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances"). 108 "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby thereunto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, sidewalks, parks and places." Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added). See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.7 Even the ABA Standards for 7 For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order: Ala. Code § 13A-11-6 (1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West 1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit. 11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann., Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho Code § 18-6410 (1997); Ill. Compo Stat., ch. 720, § 5/25l(e) (1998); Ky. Rev. Stat. Ann. §§ 525.060,525.160 (Baldwin 1990); Me. Rev. Stat. Ann., Tit. 17A, §502 (1983); Mass. Gen. Laws, ch. 269, §2 (1992); Mich. Compo Laws § 750.523 (1991); Minn. Stat. § 609.715 (1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. § 574.060 (1994); Mont. Code Ann. §45-8-102 (1997); Nev. Rev. Stat. §203.020 (1995); N. H. Rev. Stat. Ann. §§644:1, 644:2(II)(e) (1996); N. J. Stat. Ann. §2C:33-1(b) (West 1995); N. Y. Penal Law §240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999); N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. § 2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore. Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502 (1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. § 16-7-1O(a) (1985); S. D. Codified Laws 109 Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to 'loiter' .... The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to 'move on.'" Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).8 In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" §22-10-11 (1998); Tenn. Code Ann. §39-17-305(2) (1997); Tex. Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104 (1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. § 18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev. Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. § 947.06(3) (1994). 8 See also Ind. Code § 36-8-3-10(a) (1993) ("The police department shall, within the city: (1) preserve peace; (2) prevent offenses; (3) detect and arrest criminals; (4) suppress riots, mobs, and insurrections; (5) disperse unlawful and dangerous assemblages and assemblages that obstruct the free passage of public streets, sidewalks, parks, and places ... "); Okla. Stat., Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff ... to keepand preserve the peace of their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections ... "). 110 and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U. S. 690 , 695, 700 (1996) ("Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act .... [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "'necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,'" ante, at 60, cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence. The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'CONNOR, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were lim- 111 ited to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current form-requiring the dispersal of groups that contain at least one gang member-actually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times. In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739 , 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid"). 112 The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at 60, is similarly untenable. There is nothing "vague" about an order to disperse.9 While "we can never expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104 , 110 (1972), it is safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a. Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611 , 614 (1971). I subscribe to the view of retired Justice White-"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted 9 The plurality suggests, ante, at 59, that dispersal orders are, by their nature, vague. The plurality purports to distinguish its sweeping condemnation of dispersal orders from Colten v. Kentucky, 407 U. S. 104 (1972), but I see no principled ground for doing so. The logical implication of the plurality's assertion is that the police can never issue dispersal orders. For example, in the plurality's view, it is apparently unconstitutional for a police officer to ask a group of gawkers to move along in order to secure a crime scene. 113 meaning of the word 'loiter.'" 177 Ill. 2d, at 451, 687 N. E. 2d, at 61. JUSTICE STEVENS' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct-there is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Es tates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.10 The plurality also concludes that the definition of the term loiter-"to remain in anyone place with no apparent pur- 10 For example, a 1764 Georgia law declared that "all able bodied persons ... who shall be found loitering ... , all other idle vagrants, or disorderly persons wandering abroad without betaking themselves to some lawful employment or honest labor, shall be deemed and adjudged vagabonds," and required the apprehension of "any such vagabond ... found within any county in this State, wandering, strolling, loitering about" (reprinted in First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing compo 1981)). See also, e. g., Digest of Laws of Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following described persons shall be liable to the penalties imposed by law upon vagrants .... All persons who shall ... be found loitering"); Ky. Rev. Stat., ch. Cry, § 1, p. 69 (1852) ("If any able bodied person be found loitering or rambling about, ... he shall be taken and adjudged to be a vagrant, and guilty of a high misdemeanor"). 114 pose," see 177 Ill. 2d, at 445, 687 N. E. 2d, at 58-fails to provide adequate noticeY "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public place ... would know if he or she had an 'apparent purpose.'" Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Smith v. Goguen, 415 U. S. 566 , 584 (1974) (White, J., concurring in judgment). Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, supra, at 497. The answer is unquestionably no. *** Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do sothe people who will have to live with the consequences of 11 The Court asserts that we cannot second-guess the Illinois Supreme Court's conclusion that the definition "'provides absolute discretion to police officers to decide what activities constitute loitering,'" ante, at 61 (quoting 177 Ill. 2d, at 457,687 N. E. 2d, at 63). While we are bound by a state court's construction of a statute, the Illinois court "did not, strictly speaking, construe the [ordinance] in the sense of defining the meaning of a particular statutory word or phase. Rather, it merely characterized [its] 'practical effect' .... This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476 , 484 (1993). 115 to day's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that JUSTICE STEVENS, ante, at 54, elevates above all else-the "'freedom of movement.'" And that is a shame. I respectfully dissent.

The Supreme Court affirmed the Illinois Supreme Court's ruling that Chicago's Gang Congregation Ordinance, which prohibited "criminal street gang members" from loitering in public places, was unconstitutional. The Court held that the ordinance violated due process as it was impermissibly vague and granted police officers absolute discretion to determine what activities constituted loitering.

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Citizens to Preserve Overton Park v. Volpe

https://supreme.justia.com/cases/federal/us/401/402/

U.S. Supreme Court Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) Citizens to Preserve Overton Park v. Volpe No. 1066 Argued January 11, 1971 Decided March 2, 1971 401 U.S. 402 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus Under § 4(f) of the Department of Transportation Act of 1966 and § 138 of the Federal-Aid Highway Act of 1968, the Secretary of Transportation may not authorize use of federal funds to finance construction of highways through public parks if a "feasible and prudent" alternative route exists. If no such route is available, he may approve construction only if there has been "all possible planning to minimize harm" to the park. Petitioners contend that the Secretary has violated these statutes by authorizing a six-lane interstate highway through a Memphis public park. In April, 1968, the Secretary announced that he agreed with the local officials that the highway go through the park; in September, 1969, the State acquired the right-of-way inside the park; and in November, 1969, the Secretary announced final approval, including the design, of the road. Neither announcement of the Secretary was accompanied by factual findings. Respondents introduced affidavits in the District Court, indicating that the Secretary had made the decision and that it was supportable. Petitioners filed counter affidavits and sought to take the deposition of a former federal highway administrator. The District Court and the Court of Appeals found that formal findings were not required, and refused to order the deposition of the former administrator. Both courts held that the affidavits afforded no basis for determining that the Secretary exceeded his authority. Held: 1. The Secretary's action is subject to judicial review pursuant to § 701 of the Administrative Procedure Act. Pp. 401 U. S. 413 . (a) There is no indication here that Congress sought to limit or prohibit judicial review. P. 401 U. S. 410 . (b) The exemption for action "committed to agency discretion" does not apply, as the Secretary does have "law to apply," rather than wide-ranging discretion. Pp. 401 U. S. 410 -413. 2. Although, under § 706 of the Act, de novo review is not required here, and the Secretary's approval of the route need not Page 401 U. S. 403 meet the substantial evidence test, the reviewing court must conduct a substantial inquiry and determine whether the Secretary acted within the scope of his authority, whether his decision was within the small range of available choices, and whether he could have reasonably believed that there were no feasible alternatives. The court must find that the actual choice was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and that the Secretary followed the necessary procedural requirements. Pp. 401 U. S. 413 -416. 3. Formal findings by the Secretary are not required in this case. Pp. 401 U. S. 417 -419. (a) The relevant statutes do not require formal findings, and there is no ambiguity in the Secretary's action. P. 401 U. S. 417 . (b) Although a regulation requiring formal findings was issued after the Secretary had approved the route, a remand to him is not necessary, as there is an administrative record facilitating full and prompt review of the Secretary's action. Pp. 401 U. S. 417 -419. 4. The case is remanded to the District Court for plenary review of the Secretary's decision. Pp. 401 U. S. 419 -420. (a) The lower courts' review was based on litigation affidavits, which are not the whole record, and are an inadequate basis for review. P. 401 U. S. 419 . (b) In view of the lack of formal findings, the court may require the administrative officials who participated in the decision to give testimony explaining their action or require the Secretary to make formal findings. P. 401 U. S. 420 . 432 F.2d 1307, reversed and remanded. MARSHALL, J., wrote the opinion of the Court, in which BURGER, C.J., and HARLAN, STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., filed a separate opinion, in which BRENNAN, J., joined, post, p. 401 U. S. 421 . BLACKMUN, J., filed a separate statement, post, p. 401 U. S. 422 . DOUGLAS, J., took no part in the consideration or decision of this case. Page 401 U. S. 404 Opinion of the Court by MR. JUSTICE MARSHALL, announced by MR. JUSTICE STEWART. The growing public concern about the quality of our natural environment has prompted Congress in recent years to enact legislation [ Footnote 1 ] designed to curb the accelerating destruction of our country's natural beauty. We are concerned in this case with § 4(f) of the Department of Transportation Act of 1966, as amended, [ Footnote 2 ] and § 18(a) of Page 401 U. S. 405 the Federal-Aid Highway Act of 1968, 82 Stat. 823, 23 U.S.C. § 138 (1964 ed., Supp. V) (hereafter § 138). [ Footnote 3 ] These statutes prohibit the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a "feasible and prudent" [ Footnote 4 ] alternative route exists. If no such route is available, the statutes allow him to approve construction through parks only if there has been "all possible planning to minimize harm" [ Footnote 5 ] to the park. Page 401 U. S. 406 Petitioners, private citizens as well as local and national conservation organizations, contend that the Secretary has violated these statutes by authorizing the expenditure of federal funds [ Footnote 6 ] for the construction of a six-lane interstate highway through a public park in Memphis, Tennessee. Their claim was rejected by the District Court, [ Footnote 7 ] which granted the Secretary's motion for summary judgment, and the Court of Appeals for the Sixth Circuit affirmed. [ Footnote 8 ] After oral argument, this Court granted a stay that halted construction and, treating the application for the stay as a petition for certiorari, granted review. [ Footnote 9 ] 400 U.S. 939. We now reverse the judgment below and remand for further proceedings in the District Court. Overton Park is a 342-acre city park located near the center of Memphis. The park contains a zoo, a nine-hole municipal golf course, an outdoor theater, nature trails, a bridle path, an art academy, picnic areas, and 170 acres of forest. The proposed highway, which is to be a six-lane, high-speed, expressway, [ Footnote 10 ] will sever the zoo from the rest of the park. Although the roadway will be depressed below ground level except where it crosses a small creek, 26 acres of the park will be destroyed. The highway is to be a segment of Interstate Highway I-40, part of the National System of Interstate and Page 401 U. S. 407 Defense Highways. [ Footnote 11 ] I-40 will provide Memphis with a major east-west expressway which will allow easier access to downtown Memphis from the residential areas on the eastern edge of the city. [ Footnote 12 ] Although the route through the park was approved by the Bureau of Public Roads in 1956 [ Footnote 13 ] and by the Federal Highway Administrator in 1966, the enactment of § 4(f) of the Department of Transportation Act prevented distribution of federal funds for the section of the highway designated to go through Overton Park until the Secretary of Transportation determined whether the requirements of § 4(f) had been met. Federal funding for the rest of the project was, however, available; and the state acquired a right-of-way on both sides of the park. [ Footnote 14 ] In April, 1968, the Secretary announced that he concurred in the judgment of local officials that I-40 should be built through the park. And in September, 1969, the State acquired the right-of-way inside Overton Park from the city. [ Footnote 15 ] Final approval for the project -- the route as well as the design -- was not announced until November, 1969, after Congress had reiterated in § 138 of the Federal-Aid Highway Act Page 401 U. S. 408 that highway construction through public parks was to be restricted. Neither announcement approving the route and design of I-40 was accompanied by a statement of the Secretary's factual findings. He did not indicate why he believed there were no feasible and prudent alternative routes, or why design changes could not be made to reduce the harm to the park. Petitioners contend that the Secretary's action is invalid without such formal findings, [ Footnote 16 ] and that the Secretary did not make an independent determination, but merely relied on the judgment of the Memphis City Council. [ Footnote 17 ] They also contend that it would be "feasible and prudent" to route I-40 around Overton Park either to the north or to the south. And they argue that, if these alternative routes are not "feasible and prudent," the present plan does not include "all possible" methods for reducing harm to the park. Petitioners claim that I-40 could be built under the park by using either of two possible tunneling methods, [ Footnote 18 ] and they claim that, at a Page 401 U. S. 409 minimum, by using advanced drainage techniques, [ Footnote 19 ] the expressway could be depressed below ground level along the entire route through the park, including the section that crosses the small creek. Respondents argue that it was unnecessary for the Secretary to make formal findings, and that he did, in fact, exercise his own independent judgment, which was supported by the facts. In the District Court, respondents introduced affidavits, prepared specifically for this litigation, which indicated that the Secretary had made the decision and that the decision was supportable. These affidavits were contradicted by affidavits introduced by petitioners, who also sought to take the deposition of a former Federal Highway Administrator [ Footnote 20 ] who had participated in the decision to route I-40 through Overton Park. The District Court and the Court of Appeals found that formal findings by the Secretary were not necessary, and refused to order the deposition of the former Federal Highway Administrator because those courts believed that probing of the mental processes of an administrative decisionmaker was prohibited. And, believing that the Secretary's authority was wide, and reviewing courts' authority narrow, in the approval of highway routes, the lower courts held that the affidavits contained no basis for a determination that the Secretary had exceeded his authority. We agree that formal findings were not required. But we do not believe that, in this case, judicial review based solely on litigation affidavits was adequate. Page 401 U. S. 410 A threshold question -- whether petitioners are entitled to any judicial review -- is easily answered. Section 701 of the Administrative Procedure Act, 5 U.S.C. § 701 (1964 ed., Supp. V), provides that the action of "each authority of the Government of the United States," which includes the Department of Transportation, [ Footnote 21 ] is subject to judicial review except where there is a statutory prohibition on review or where "agency action is committed to agency discretion by law." In this case, there is no indication that Congress sought to prohibit judicial review, and there is most certainly no "showing of clear and convincing evidence' of a . . . legislative intent" to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U. S. 136 , 387 U. S. 141 (1967). Brownell v. We Shung, 352 U. S. 180 , 352 U. S. 185 (1956). [ Footnote 22 ] Similarly, the Secretary's decision here does not fall within the exception for action "committed to agency discretion." This is a very narrow exception. [ Footnote 23 ] Berger, Administrative Arbitrariness and Judicial Review, 65 Col.L.Rev. 55 (1965). The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where "statutes are drawn in such broad terms that, in a given case, there is no law to apply." S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Page 401 U. S. 411 Section 4(f) of the Department of Transportation Act and § 138 of the Federal-Aid Highway Act are clear and specific directives. Both the Department of Transportation Act and the Federal-Aid Highway Act provide that the Secretary "shall not approve any program or project" that requires the use of any public park land "unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park. . . ." 23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. § 1653(f) (1964 ed., Supp. V). This language is a plain and explicit bar to the use of federal funds for construction of highways through parks -- only the most unusual situations are exempted. Despite the clarity of the statutory language, respondents argue that the Secretary has wide discretion. They recognize that the requirement that there be no "feasible" alternative route admits of little administrative discretion. For this exemption to apply, the Secretary must find that, as a matter of sound engineering, it would not be feasible to build the highway along any other route. [ Footnote 24 ] Respondents argue, however, that the requirement that there be no other "prudent" route requires the Secretary to engage in a wide-ranging balancing of competing interests. They contend that the Secretary should weigh the detriment resulting from the destruction of park land against the cost of other routes, safety considerations, and other factors, and determine on the basis of the importance that he attaches to these other factors whether, on balance, alternative feasible routes would be "prudent." But no such wide-ranging endeavor was intended. It is obvious that, in most cases, considerations of cost, directness of route, and community disruption will indicate that park land should be used for highway construction Page 401 U. S. 412 whenever possible. Although it may be necessary to transfer funds from one jurisdiction to another, [ Footnote 25 ] there will always be a smaller outlay required from the public purse [ Footnote 26 ] when park land is used, since the public already owns the land, and there will be no need to pay for right-of-way. And since people do not live or work in parks, if a highway is built on park land, no one will have to leave his home or give up his business. Such factors are common to substantially all highway construction. Thus, if Congress intended these factors to be on an equal footing with preservation of park land, there would have been no need for the statutes. Congress clearly did not intend that cost and disruption of the community were to be ignored [ Footnote 27 ] by the Secretary. [ Footnote 28 ] But the very existence of the statutes [ Footnote 29 ] indicates that protection of park land was to be given paramount Page 401 U. S. 413 importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of park land unless he finds that alternative routes present unique problems. Plainly, there is "law to apply," and thus the exemption for action "committed to agency discretion" is inapplicable. But the existence of judicial review is only the start: the standard for review must also be determined. For that, we must look to § 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1964 ed., Supp. V), which provides that a "reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found" not to meet six separate standards. [ Footnote 30 ] In all cases, Page 401 U. S. 414 agency action must be set aside if the action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or if the action failed to meet statutory, procedural, or constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B), (C), (D) (1964 ed., Supp. V). In certain narrow, specifically limited situations, the agency action is to be set aside if the action was not supported by "substantial evidence." And in other equally narrow circumstances, the reviewing court is to engage in a de novo review of the action and set it aside if it was "unwarranted by the facts." 5 U.S.C. §§ 706(2)(E), (F) (1964 ed., Supp. V). Petitioners argue that the Secretary's approval of the construction of I-40 through Overton Park is subject to one or the other of these latter two standards of limited applicability. First, they contend that the "substantial evidence" standard of § 706(2)(E) must be applied. In the alternative, they claim that § 706(2)(F) applies, and that there must be a de novo review to determine if the Secretary's action was "unwarranted by the facts." Neither of these standards is, however, applicable. Review under the substantial evidence test is authorized only when the agency action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, 5 U.S.C. § 553 (1964 ed., Supp. V), or when the agency action is based on a public adjudicatory hearing. See 5 U.S.C. §§ 556, 557 (1964 ed., Supp. V). The Secretary's decision to allow the expenditure of federal funds to build I-40 through Overton Park was plainly not an exercise of a rulemaking function. See 1 K. Davis, Administrative Law Treatise § 5.01 (1958). And the only hearing that is required by either the Administrative Procedure Act or the statutes regulating the distribution Page 401 U. S. 415 of federal funds for highway construction is a public hearing conducted by local officials for the purpose of informing the community about the proposed project and eliciting community views on the design and route. 23 U.S.C. § 128 (1964 ed., Supp. V). The hearing is nonadjudicatory, quasi -legislative in nature. It is not designed to produce a record that is to be the basis of agency action -- the basic requirement for substantial evidence review. See H.R.Rep. No.1980, 79th Cong., 2d Sess. Petitioners' alternative argument also fails. De novo review of whether the Secretary's decision was "unwarranted by the facts" is authorized by § 706(2)(F) in only two circumstances. First, such de novo review is authorized when the action is adjudicatory in nature and the agency factfinding procedures are inadequate. And there may be independent judicial factfinding when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. H.R.Rep. No.1980, 79th Cong., 2d Sess. Neither situation exists here. Even though there is no de novo review in this case and the Secretary's approval of the route of I-40 does not have ultimately to meet the substantial evidence test, the generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry. Certainly, the Secretary's decision is entitled to a presumption of regularity. See, e.g., Pacific States Box & Basket Co. v. White, 296 U. S. 176 , 296 U. S. 185 (1935); United States v. Chemical Foundation, 272 U. S. 1 , 272 U. S. 14 -15 (1926). But that presumption is not to shield his action from a thorough, probing, in-depth review. The court is first required to decide whether the Secretary acted within the scope of his authority. Schilling v. Rogers, 363 U. S. 666 , 363 U. S. 676 -677 (1960). This determination naturally begins with a delineation of the scope of Page 401 U. S. 416 the Secretary's authority and discretion. L. Jaffe, Judicial Control of Administrative Action 359 (1965). As has been shown, Congress has specified only a small range of choices that the Secretary can make. Also involved in this initial inquiry is a determination of whether, on the facts, the Secretary's decision can reasonably be said to be within that range. The reviewing court must consider whether the Secretary properly construed his authority to approve the use of park land as limited to situations where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems. And the reviewing court must be able to find that the Secretary could have reasonably believed that, in this case, there are no feasible alternatives, or that alternatives do involve unique problems. Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2)(A) requires a finding that the actual choice made was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V). To make this finding, the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA6 1961); In re Josephson, 218 F.2d 174, 182 (CA1 1954); Western Addition Community Organization v. Weaver, 294 F. Supp. 433 (ND Cal.1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F.2d 715, 719 (CA2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. Page 401 U. S. 417 The final inquiry is whether the Secretary's action followed the necessary procedural requirements. Here, the only procedural error alleged is the failure of the Secretary to make formal findings and state his reason for allowing the highway to be built through the park. Undoubtedly, review of the Secretary's action is hampered by his failure to make such findings, but the absence of formal findings does not necessarily require that the case be remanded to the Secretary. Neither the Department of Transportation Act nor the Federal-Aid Highway Act requires such formal findings. Moreover, the Administrative Procedure Act requirements that there be formal findings in certain rulemaking and adjudicatory proceedings do not apply to the Secretary's action here. See 5 U.S.C. §§ 553(a)(2), 554(a) (1964 ed., Supp. V). And, although formal findings may be required in some cases in the absence of statutory directives when the nature of the agency action is ambiguous, those situations are rare. See City of Yonkers v. United States, 320 U. S. 685 (1944); American Trucking Assns. v. United States, 344 U. S. 298 , 344 U. S. 320 (1953). Plainly, there is no ambiguity here; the Secretary has approved the construction of I-40 through Overton Park, and has approved a specific design for the project. Petitioners contend that, although there may not be a statutory requirement that the Secretary make formal findings, and even though this may not be a case for the reviewing court to impose a requirement that findings be made, Department of Transportation regulations require them. This argument is based on DOT Order 5610.1, [ Footnote 31 ] which requires the Secretary to make formal Page 401 U. S. 418 findings when he approves the use of park land for highway construction but which was issued after the route for I-40 was approved. [ Footnote 32 ] Petitioners argue that, even though the order was not in effect at the time approval was given to the Overton Park project, and even though the order was not intended to have retrospective effect the order represents the law at the time of this Court's decision and under Thorpe v. Housing Authority, 393 U. S. 268 , 393 U. S. 281 -282 (1969), should be applied to this case. The Thorpe litigation resulted from an attempt to evict a tenant from a federally funded housing project under circumstances that suggested that the eviction was prompted by the tenant's objections to the management of the project. Despite repeated requests, the Housing Authority would not give an explanation for its action. The tenant claimed that the eviction interfered with her exercise of First Amendment rights, and that the failure to state the reasons for the eviction and to afford her a hearing denied her due process. After denial of relief in the state courts, this Court granted certiorari to consider whether [the tenant] was denied due process by the Housing Authority's refusal to state the reasons for her eviction and to afford her a hearing at which she could contest the sufficiency of those reasons. 393 U.S. at 393 U. S. 272 . While the case was pending in this Court, the Department of Housing and Urban Development issued regulations requiring Housing Authority officials to inform tenants of the reasons for an eviction and to give a tenant the opportunity to reply. The case was then remanded to the state courts to determine if the HUD regulations were applicable to that case. The state court held them not to be applicable, and this Court reversed on the Page 401 U. S. 419 ground that the general rule is "that an appellate court must apply the law in effect at the time it renders its decision." 393 U.S. at 393 U. S. 281 . While we do not question that DOT Order 5610.1 constitutes the law in effect at the time of our decision, we do not believe that Thorpe compels us to remand for the Secretary to make formal findings. [ Footnote 33 ] Here, unlike the situation in Thorpe, there has been a change in circumstances -- additional right-of-way has been cleared and the 26-acre right-of-way inside Overton Park has been purchased by the State. Moreover, there is an administrative record that allows the full, prompt review of the Secretary's action that is sought without additional delay which would result from having a remand to the Secretary. That administrative record is not, however, before us. The lower courts based their review on the litigation affidavits that were presented. These affidavits were merely " post hoc " rationalizations, Burlington Truck Lines v. United States, 371 U. S. 156 , 371 U. S. 168 -169 (1962), which have traditionally been found to be an inadequate basis for review. Burlington Truck Lines v. United States, supra; SEC v. Chenery Corp., 318 U. S. 80 , 318 U. S. 87 (1943). And they clearly do not constitute the "whole record" compiled by the agency: the basis for review required by § 706 of the Administrative Procedure Act. See n 30, supra. Page 401 U. S. 420 Thus, it is necessary to remand this case to the District Court for plenary review of the Secretary's decision. That review is to be based on the full administrative record that was before the Secretary at the time he made his decision. [ Footnote 34 ] But since the bare record may not disclose the factors that were considered or the Secretary's construction of the evidence, it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary's action was justifiable under the applicable standard. The court may require the administrative officials who participated in the decision to give testimony explaining their action. Of course, such inquiry into the mental processes of administrative decisionmakers is usually to be avoided. United States v. Morgan, 313 U. S. 409 , 313 U. S. 422 (1941). And where there are administrative findings that were made at the same time as the decision, as was the case in Morgan, there must be a strong showing of bad faith or improper behavior before such inquiry may be made. But here there are no such formal findings, and it may be that the only way there can be effective judicial review is by examining the decisionmakers themselves. See Shaughnessy v. Accardi, 349 U. S. 280 (1955). The District Court is not, however, required to make such an inquiry. It may be that the Secretary can prepare formal findings including the information required by DOT Order 5610.1 that will provide an adequate explanation for his action. Such an explanation will, to some extent, be a " post hoc rationalization," and thus must be viewed critically. If the District Court decides Page 401 U. S. 421 that additional explanation is necessary, that court should consider which method will prove the most expeditious so that full review may be had as soon as possible. Reversed and remanded. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. [ Footnote 1 ] See, e.g., The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321 et seq. (1964 ed., Supp. V); Environmental Education Act, 84 Stat. 1312, 20 U.S.C. § 1531 et seq. (1970 ed.); Air Quality Act of 1967, 81 Stat. 485, 42 U.S.C. § 1857 et seq. (1964 ed., Supp. V); Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42 U.S.C. §§ 4371-4374 (1970 ed.). [ Footnote 2 ] "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use." 82 Stat. 824, 49 U.S.C. § 1653(f) (1964 ed., Supp. V). [ Footnote 3 ] "It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After the effective date of the Federal-Aid Highway Act of 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use." 23 U.S.C.§ 138 (1964 ed., Supp. V). [ Footnote 4 ] 49 U.S.C. § 1653(f) (1964 ed., Supp. V); 23 U.S.C. § 138 (1964 ed., Supp. V). [ Footnote 5 ] Ibid. [ Footnote 6 ] See 23 U.S.C. § 103 [ Footnote 7 ] The case originated in the United States District Court for the District of Columbia. On application of the Secretary of Transportation, it was transferred to the United States District Court for the Western District of Tennessee, which entered the summary judgment. [ Footnote 8 ] 432 F.2d 1307 (CA6 1970). [ Footnote 9 ] This Court ordered the case to be heard on an expedited schedule. [ Footnote 10 ] The proposed right-of-way will be 250 to 450 feet wide, and will follow the route of a presently existing, nonaccess bus route, which carries occasional bus traffic along a 40- to 50-foot right-of-way. [ Footnote 11 ] See 23 U.S.C. § 103(d) (1964 ed., Supp. V). [ Footnote 12 ] I-40 will also provide an express bypass for east-west traffic through Memphis. [ Footnote 13 ] At that time, the Bureau of Public Roads was a part of the Department of Commerce. The Department of Transportation Act, 49 U.S.C. § 1651 et seq. (1964 ed., Supp. V), which became effective on April 1, 1967, transferred the Bureau to the new Department of Transportation. [ Footnote 14 ] The Secretary approved these acquisitions in 1967 shortly after the effective date of § 4(f). [ Footnote 15 ] The State paid the City $2,000,000 for the 26-acre right-of-way and $206,000 to the Memphis Park Commission to replace park facilities that were to be destroyed by the highway. The city of Memphis has used $1,000,000 of these funds to pay for a new 160-acre park, and it is anticipated that additional park land will be acquired with the remaining money. [ Footnote 16 ] Respondents argue that the only issue raised by petitioners' pleadings is the failure of the Secretary to make formal findings. But when petitioners' complaint is read in the revealing light of Conley v. Gibson, 355 U. S. 41 (1957), it is clear that petitioners have also challenged the merits of the Secretary's decision. [ Footnote 17 ] Petitioners contend that former Federal Highway Administrator Bridwell's account of an April 3, 1968, meeting with the Memphis City Council given to the Senate Subcommittee on Roads of the Senate Committee on Public Works supports this charge. See Hearings on Urban Highway Planning, Location, and Design before the Subcommittee on Roads of the Senate Committee on Public Works, 90th Cong., 1st and 2d Sess., pt. 2, pp. 478-480 (1968). [ Footnote 18 ] Petitioners argue that either a bored tunnel or a cut-and-cover tunnel, which is a fully depressed route covered after construction, could be built. Respondents contend that the construction of a tunnel by either method would greatly increase the cost of the project, would create safety hazards, and, because of increases in air pollution, would not reduce harm to the park. [ Footnote 19 ] Petitioners contend that adequate drainage could be provided by using mechanical pumps or some form of inverted siphon. They claim that such devices are often used in expressway construction. [ Footnote 20 ] Petitioners wanted to question former Highway Administrator Bridwell. See n 17, supra. [ Footnote 21 ] In addition, the Department of Transportation Act makes the Administrative Procedure Act applicable to proceedings of the Department of Transportation. 49 U.S.C. § 1655(h) (1964 ed., Supp. V). [ Footnote 22 ] See also Rusk v. Cort, 369 U. S. 367 , 369 U. S. 379 -380 (1962). [ Footnote 23 ] The scope of this exception has been the subject of extensive commentary. See, e.g., Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969); Saferstein, Nonreviewability: A Functional Analysis of "Committed to Agency Discretion," 82 Harv.L.Rev. 367 (1968); Davis, Administrative Arbitrariness is Not Always Reviewable, 51 Minn.L.Rev. 643 (1967); Berger, Administrative Arbitrariness: A Sequel, 51 Minn.L.Rev. 601 (1967). [ Footnote 24 ] See 114 Cong.Rec.19915 (statement by Rep. Holifield). [ Footnote 25 ] See n 15, supra. [ Footnote 26 ] See 114 Cong.Rec. 24037 (statement by Sen. Yarborough). [ Footnote 27 ] See, e.g., S.Rep. No. 1340, 90th Cong., 2d Sess., 18-19; H.R.Rep. No. 1584, 90th Cong., 2d Sess., 12. [ Footnote 28 ] The legislative history indicates that the Secretary is not to limit his consideration to information supplied by state and local officials but is to go beyond this information and reach his own independent decision. 114 Cong.Rec. 24036-24037. [ Footnote 29 ] The legislative history of both § 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) (1964 ed., Supp. V), and § 138 of the Federal-Aid Highway Act, 23 U.S.C. § 138 (1964 ed., Supp. V), is ambiguous. The legislative committee reports tend to support respondents' view that the statutes are merely general directives to the Secretary requiring him to consider the importance of park land as well as cost, community disruption, and other factors. See, e.g., S.Rep. No. 1340, 90th Cong., 2d Sess., 19; H.R.Rep. No. 1584, 90th Cong., 2d Sess., 12. Statements by proponents of the statutes as well as the Senate committee report on § 4(f) indicate, however, that the Secretary was to have limited authority. See, e.g., 114 Cong.Rec. 24033-24037; S.Rep. No. 1659, 89th Cong., 2d Sess., 22. See also H.R.Conf.Rep. No. 2236, 89th Cong., 2d Sess., 25. Because of this ambiguity, it is clear that we must look primarily to the statutes themselves to find the legislative intent. [ Footnote 30 ] "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -- " "(1) compel agency action unlawfully withheld or unreasonably delayed; and" "(2) hold unlawful and set aside agency action, findings, and conclusions found to be -- " "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" "(B) contrary to constitutional right, power, privilege, or immunity;" "(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;" "(D) without observance of procedure required by law;" "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or" "(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court." "In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706 (1964 ed., Supp. V). [ Footnote 31 ] The regulation was promulgated pursuant to Executive Order 11514, dated March 5, 1970, 35 Fed.Reg. 4247, which instructed all federal agencies to initiate procedures needed to direct their policies and programs toward meeting national environmental goals. [ Footnote 32 ] DOT Order 5610.1 was issued on October 7, 1970. [ Footnote 33 ] Even if formal findings by the Secretary were mandatory, the proper course would be to remand the case to the District Court, directing that court to order the Secretary to make formal findings. See R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 446, p. 929 (R. Wolfson & P. Kurland ed.1951). of course, the District Court is not prohibited from remanding the case to the Secretary. See infra at 401 U. S. 420 . [ Footnote 34 ] The Solicitor General now urges that, in order to avoid additional delay, the proper course is to remand the case to the District Court for review of the full administrative record. Separate opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE BRENNAN joins. I agree with the Court that the judgment of the Court of Appeals is wrong, and that its action should be reversed. I do not agree that the whole matter should be remanded to the District Court. I think the case should be sent back to the Secretary of Transportation. It is apparent from the Court's opinion today that the Secretary of Transportation completely failed to comply with the duty imposed upon him by Congress not to permit a federally financed public highway to run through a public park "unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park. . . ." 23 U.S.C. § 138 (1964 ed., Supp. V); 49 U.S.C. § 1653(f) (1964 ed., Supp. V). That congressional command should not be taken lightly by the Secretary or by this Court. It represents a solemn determination of the highest lawmaking body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of a Cabinet officer -- the Secretary of Transportation. The Act of Congress, in connection with other federal highway aid legislation, [ Footnote 2/1 ] it seems to me, Page 401 U. S. 422 calls for hearings -- hearings that a court can review, hearings that demonstrate more than mere arbitrary defiance by the Secretary. Whether the findings growing out of such hearings are labeled "formal" or "informal" appears to me to be no more than an exercise in semantics. Whatever the hearing requirements might be, the Department of Transportation failed to meet them in this case. I regret that I am compelled to conclude for myself that, except for some too-late formulations, apparently coming from the Solicitor General's office, this record contains not one word to indicate that the Secretary raised even a finger to comply with the command of Congress. It is our duty, I believe, to remand this whole matter back to the Secretary of Transportation for him to give this matter the hearing it deserves in full good faith obedience to the Act of Congress. That Act was obviously passed to protect our public parks from forays by roadbuilders except in the most extraordinary and imperative circumstances. [ Footnote 2/2 ] This record does not demonstrate the existence of such circumstances. I dissent from the Court's failure to send the case back to the Secretary, whose duty has not yet been performed. [ Footnote 2/1 ] See 23 U.S.C. § 128 (1964 ed., Supp. V) and regulations promulgated thereunder, 34 Fed.Reg. 727-730 (1969). [ Footnote 2/2 ] See also Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department, 400 U. S. 968 , 972 (1970) (dissents from the denial of certiorari). MR. JUSTICE BLACKMUN. I fully join the Court in its opinion and in its judgment. I merely wish to state the obvious: (1) The case comes to this Court as the end product of more than a decade of endeavor to solve the interstate highway problem at Memphis. (2) The administrative decisions under attack here are not those of a single Secretary; some were made by the present Secretary's predecessor and, before him, by the Department of Commerce's Bureau of Public Page 401 U. S. 423 Roads. (3) The 1966 Act and the 1968 Act have cut across former methods, and here have imposed new standards and conditions upon a situation that already was largely developed. This undoubtedly is why the record is sketchy and less than one would expect if the project were one which had been instituted after the passage of the 1966 Act.

The Supreme Court ruled that the Secretary of Transportation's decision to approve the construction of a highway through a public park is subject to judicial review under the Administrative Procedure Act. The Court found that the Secretary's action was not exempt from review and that formal findings by the Secretary were not required in this case. The Court also set out the scope of judicial review, stating that the reviewing court must determine whether the Secretary acted within the scope of his authority and followed the necessary procedural requirements. The case was sent back to the lower courts for further review.

Government Agencies

Marchetti v. U.S.

https://supreme.justia.com/cases/federal/us/390/39/

U.S. Supreme Court Marchetti v. United States, 390 U.S. 39 (1968) Marchetti v. United States No. 2 Argued January 17-18, 1967 Reargued October 10, 1967 Decided January 29, 1968 390 U.S. 39 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Petitioner was convicted for conspiring to evade payment of the occupational tax relating to wagers imposed by 26 U.S.C. § 4411, for evading such payment, and for failing to comply with § 4412, which requires those liable for the occupational tax to register annually with the Internal Revenue Service and to supply detailed information for which a special form is prescribed. Under other provisions of the interrelated statutory system for taxing wagers, registrants must "conspicuously" post at their business places or keep on their persons stamps showing payment of the tax; maintain daily wagering records, and keep their books open for inspection. Payment of the occupational taxes is declared not to exempt persons from federal or state laws which broadly proscribe wagering, and federal tax authorities are required by § 6107 to furnish prosecuting officers lists of those who have paid the occupational tax. Petitioner, whose alleged wagering activities subjected him to possible state or federal prosecution, contended that the statutory requirements to register and to pay the occupational tax violated his privilege against self-incrimination. The Court of Appeals affirmed, relying on United States v. Kahriger, 345 U. S. 22 , and Lewis v. United States, 348 U. S. 419 , which held the privilege unavailable in a situation like the one here involved. Held: 1. The recognized principle that taxes may be imposed upon unlawful activities is not at issue here. P. 390 U. S. 44 . 2. Petitioner's assertion of his Fifth Amendment privilege against self-incrimination barred his prosecution for violating the federal wagering tax statutes. Pp. 390 U. S. 48 -61. (a) All the requirements for registration and payment of the occupational tax would have had the direct and unmistakable consequence of incriminating petitioner. Pp. 390 U. S. 48 -49. (b) Petitioner did not waive his constitutional privilege by failing to assert it when the tax payments were due. Pp. 50-51. (c) United States v. Kahriger, supra, Lewis v. United States, supra, both pro tanto overruled. Pp. 390 U. S. 50 -54. Page 390 U. S. 40 (d) The premises supporting Shapiro v. United States, 335 U. S. 1 ( viz., that the records be analogous to public documents and of a kind which the regulated party has customarily kept, and that the statutory requirements be essentially regulatory, rather than aimed at a particular group suspected of criminal activities), do not apply to the facts of this case, and therefore Shapiro's "required records" doctrine is not controlling. Pp. 390 U. S. 55 -57. (e) Permitting continued enforcement of the registration and occupational tax provisions by imposing restrictions against the use by prosecuting authorities of information obtained thereunder might improperly contravene Congress' purpose in adopting the wagering taxes and impede enforcement of state gambling laws. Pp. 390 U. S. 58 -60. 352 F.2d 848, reversed. MR. JUSTICE HARLAN delivered the opinion of the Court. Petitioner was convicted in the United States District Court for the District of Connecticut under two indictments which charged violations of the federal wagering tax statutes. The first indictment averred that petitioner and others conspired to evade payment of the annual occupational tax imposed by 26 U.S.C. § 4411. The second indictment included two counts: the first Page 390 U. S. 41 alleged a willful failure to pay the occupational tax, and the second a willful failure to register, as required by 26 U.S.C. § 4412, before engaging in the business of accepting wagers. After verdict, petitioner unsuccessfully sought to arrest judgment, in part on the basis that the statutory obligations to register and to pay the occupational tax violated his Fifth Amendment privilege against self-incrimination. The Court of Appeals for the Second Circuit affirmed, 352 F.2d 848, on the authority of United States v. Kahriger, 345 U. S. 22 , and Lewis v. United States, 348 U. S. 419 . We granted certiorari to reexamine the constitutionality under the Fifth Amendment of the pertinent provisions of the wagering tax statutes, and more particularly to consider whether Kahriger and Lewis still have vitality. [ Footnote 1 ] 383 U.S. 942. For reasons which follow, we have Page 390 U. S. 42 concluded that these provisions may not be employed to punish criminally those persons who have defended a failure to comply with their requirements with a proper assertion of the privilege against self-incrimination. The judgment below is accordingly reversed. I The provisions in issue here are part of an interrelated statutory system for taxing wagers. The system is broadly as follows. Section 4401 of Title 26 imposes upon those engaged in the business of accepting wagers an excise tax of 10% on the gross amount of all wagers they accept, including the value of chances purchased in lotteries conducted for profit. Parimutuel wagering enterprises, coin-operated devices, and state-conducted sweepstakes are expressly excluded from taxation. 26 U.S.C. § 4402 (1964 ed., Supp. II). Section 4411 imposes in addition an occupational tax of $50 annually, both upon those subject to taxation under § 4401 and upon those who receive wagers on their behalf. The taxes are supplemented by ancillary provisions calculated to assure their collection. In particular, § 4412 requires those liable for the occupational tax to register each year with the director of their local internal revenue district. The registrants must submit Internal Revenue Service Form 11-C, [ Footnote 2 ] and upon it must provide their residence and business addresses, must indicate whether they are engaged in the business of accepting wagers, and must list the names and addresses of their agents and employees. The statutory obligations to register Page 390 U. S. 43 and to pay the occupational tax are essentially inseparable elements of a single registration procedure; [ Footnote 3 ] Form 11-C thus constitutes both the application for registration and the return for the occupational tax. [ Footnote 4 ] In addition, registrants are obliged to post the revenue stamps which denote payment of the occupational tax "conspicuously" in their principal places of business, or, if they lack such places, to keep the stamps on their persons, and to exhibit them upon demand to any Treasury officer. 26 U.S.C. § 6806(c). They are required to preserve daily records indicating the gross amount of the wagers as to which they are liable for taxation, and to permit inspection of their books of account. 26 U.S.C. §§ 4403, 4423. Moreover, each principal internal revenue office is instructed to maintain for public inspection a listing of all who have paid the occupational tax, and to provide certified copies of the listing upon request to any state or local prosecuting officer. 26 U.S.C. Page 390 U. S. 44 § 6107. Finally, payment of the wagering taxes is declared not to "exempt any person from any penalty provided by a law of the United States or of any State for engaging" in any taxable activity. 26 U.S.C. § 4422. II The issue before us is not whether the United States may tax activities which a State or Congress has declared unlawful. The Court has repeatedly indicated that the unlawfulness of an activity does not prevent its taxation, and nothing that follows is intended to limit or diminish the vitality of those cases. See, e.g., 72 U. S. 5 Wall. 462. The issue is, instead, whether the methods employed by Congress in the federal wagering tax statutes are, in this situation, consistent with the limitations created by the privilege against self-incrimination guaranteed by the Fifth Amendment. We must for this purpose first examine the implications of these statutory provisions. Wagering and its ancillary activities are very widely prohibited under both federal and state law. Federal statutes impose criminal penalties upon the interstate transmission of wagering information, 18 U.S.C. § 1084; upon interstate and foreign travel or transportation in aid of racketeering enterprises, defined to include gambling, 18 U.S.C. § 1952; upon lotteries conducted through use of the mails or broadcasting, 18 U.S.C. § § 1301-1304, and upon the interstate transportation of wagering paraphernalia, 18 U.S.C. § 1953. State and local enactments are more comprehensive. The laws of every State, except Nevada, include broad prohibitions against gambling, wagering, and associated activities. [ Footnote 5 ] Every State forbids, with essentially minor Page 390 U. S. 45 and carefully circumscribed exceptions, lotteries. [ Footnote 6 ] Even Nevada, which permits many forms of gambling, retains criminal penalties upon lotteries and certain other wagering Page 390 U. S. 46 activities taxable under these statutes. Nev.Rev.Stat. §§ 293.603, 462.010 462.080, 465.010 (1957). Connecticut, in which petitioner allegedly conducted his activities, has adopted a variety of measures for the punishment of gambling and wagering. It punishes "[a]ny person, whether as principal, agent or servant, who owns, possesses, keeps, manages, maintains or occupies" premises employed for purposes of wagering or pool selling. Conn.Gen.Stat.Rev. § 5295 (1958). It imposes criminal penalties upon any person who possesses, keeps, or maintains premises in which policy playing occurs, or lotteries are conducted, and upon any Page 390 U. S. 47 person who becomes the custodian of books, property, appliances, or apparatus employed for wagering. Conn.Gen.Stat.Rev. § 53-298 (1958). See also §§ 53-273, 53-290, 53-293. It provides additional penalties for those who conspire to organize or conduct unlawful wagering activities. Conn.Gen.Stat.Rev. § 5197 (1958). Every aspect of petitioner's wagering activities thus subjected him to possible state or federal prosecution. By any standard, in Connecticut and throughout the United States, wagering is "an area permeated with criminal statutes," and those engaged in wagering are a group "inherently suspect of criminal activities." Albertson v. SACB, 382 U. S. 70 , 382 U. S. 79 . Information obtained as a consequence of the federal wagering tax laws is readily available to assist the efforts of state and federal authorities to enforce these penalties. Section 6107 of Title 26 requires the principal internal revenue offices to provide to prosecuting officers a listing of those who have paid the occupational tax. Section 6806(c) obliges taxpayers either to post the revenue stamp "conspicuously" in their principal places of business, or to keep it on their persons, and to produce it on the demand of Treasury officers. Evidence of the possession of a federal wagering tax stamp, or of payment of the wagering taxes, has often been admitted at trial in state and federal prosecutions for gambling offenses; [ Footnote 7 ] such evidence has doubtless proved useful even more frequently to lead prosecuting authorities to other evidence upon which convictions have subsequently Page 390 U. S. 48 been obtained. [ Footnote 8 ] Finally, we are obliged to notice that a former Commissioner of Internal Revenue has acknowledged that the Service "makes available" to law enforcement agencies the names and addresses of those who have paid the wagering taxes, and that it is in "full cooperation" with the efforts of the Attorney General of the United States to suppress organized gambling. Caplin, The Gambling Business and Federal Taxes, 8 Crime & Delin. 371, 372, 377. In these circumstances, it can scarcely be denied that the obligations to register and to pay the occupational tax created for petitioner "real and appreciable," and not merely "imaginary and unsubstantial," hazards of self-incrimination. Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U. S. 591 , 161 U. S. 599 -600; Rogers v. United States, 340 U. S. 367 , 340 U. S. 374 . Petitioner was confronted by a comprehensive system of federal and state prohibitions against wagering activities; he was required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant "link in a chain" [ Footnote 9 ] of evidence tending to establish his guilt. [ Footnote 10 ] Unlike the income tax return Page 390 U. S. 49 in question in United States v. Sullivan, 274 U. S. 259 , every portion of these requirements had the direct and unmistakable consequence of incriminating petitioner; the application of the constitutional privilege to the entire registration procedure was, in this instance, neither "extreme" nor "extravagant." See id. at 274 U. S. 263 . It would appear to follow that petitioner's assertion of the privilege as a defense to this prosecution was entirely proper, and accordingly should have sufficed to prevent his conviction. Nonetheless, this Court has twice concluded that the privilege against self-incrimination may not appropriately be asserted by those in petitioner's circumstances. United States v. Kahriger, supra; Lewis v. Unite State, supra. We must therefore consider whether those cases have continuing force in light of our more recent decisions. Moreover, we must also consider the relevance of certain collateral lines of authority; in particular, we must determine whether either the "required records" doctrine, Shapiro v. United States, 335 U. S. 1 , or restrictions placed upon the use by prosecuting authorities of information obtained as a consequence of the wagering taxes, cf. Murphy v. Waterfront Commission, 378 U. S. 52 , should be utilized to preclude assertion of the constitutional privilege in this situation. To these questions we turn. Page 390 U. S. 50 III The Court's opinion in Kahriger suggested that a defendant under indictment for willful failure to register under § 4412 cannot properly challenge the constitutionality under the Fifth Amendment of the registration requirement. For this point, the Court relied entirely upon Mr. Justice Holmes' opinion for the Court in United States v. Sullivan, supra. The taxpayer in Sullivan was convicted of willful failure to file an income tax return, despite his contention that the return would have obliged him to admit violations of the National Prohibition Act. The Court affirmed the conviction, and rejected the taxpayer's claim of the privilege. It concluded that most of the return's questions would not have compelled the taxpayer to make incriminating disclosures, and that it would have been "an extreme, if not an extravagant, application" of the privilege to permit him to draw within it the entire return. 274 U.S. at 274 U. S. 263 . The Court in Sullivan was evidently concerned, first, that the claim before it was an unwarranted extension of the scope of the privilege, and, second, that to accept a claim of privilege not asserted at the time the return was due would "make the taxpayer, rather than a tribunal the final arbiter of the merits of the claim." Albertson v. SACB, 382 U. S. 70 , 382 U. S. 79 . Neither reason suffices to prevent this petitioner's assertion of the privilege. The first is, as we have indicated, inapplicable, and we find the second unpersuasive in this situation. Every element of these requirements would have served to incriminate petitioner; to have required him to present his claim to Treasury officers would have obliged him "to prove guilt to avoid admitting it." United States v. Kahriger, supra, at 345 U. S. 34 (concurring opinion). I n these circumstances, we cannot conclude that his failure Page 390 U. S. 51 to assert the privilege to Treasury officials at the moment the tax payments were due irretrievably abandoned his constitutional protection. Petitioner is under sentence for violation of statutory requirements which he consistently asserted at and after trial to be unconstitutional; no more can here be required. The Court held in Lewis that the registration and occupational tax requirements do not infringe the constitutional privilege, because they do not compel self-incrimination, but merely impose on the gambler the initial choice of whether he wishes, at the cost of his constitutional privilege, to commence wagering activities. The Court reasoned that, even if the required disclosures might prove incriminating, the gambler need not register or pay the occupational tax if only he elects to cease, or never to begin, gambling. There is, the Court said, "no constitutional right to gamble." 348 U.S. at 348 U. S. 423 . We find this reasoning no longer persuasive. The question is not whether petitioner holds a "right" to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege's protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it. Such inferences, bottomed on what must ordinarily be a fiction, have precisely the infirmities which the Court has found in other circumstances in which implied or uninformed waivers of the privilege have been said to have occurred. See, e.g., Carnley v. Cochran, 369 U. S. 506 . Compare Johnson v. Zerbst, 304 U. S. 458 , and Glasser v. United States, 315 U. S. 60 . To give credence to such "waivers" without the most deliberate examination of the circumstances surrounding them Page 390 U. S. 52 would ultimately license widespread erosion of the privilege through "ingeniously drawn legislation." Morgan, The Privilege against Self-Incrimination, 34 Minn.L.Rev. 1, 37. We cannot agree that the constitutional privilege is meaningfully waived merely because those "inherently suspect of criminal activities" have been commanded either to cease wagering or to provide information incriminating to themselves, and have ultimately elected to do neither. The Court held in both Kahriger and Lewis that the registration and occupational tax requirements are entirely prospective in their application, and that the constitutional privilege, since it offers protection only as to past and present acts, is accordingly unavailable. This reasoning appears to us twice deficient: first, it overlooks the hazards here of incrimination as to past or present acts, and second, it is hinged upon an excessively narrow view of the scope of the constitutional privilege. Substantial hazards of incrimination as to past or present acts plainly may stem from the requirements to register and to pay the occupational tax. See generally McKee, The Fifth Amendment and the Federal Gambling Tax, 5 Duke B.J. 86. In the first place, satisfaction of those requirements increases the likelihood that any past or present gambling offenses will be discovered and successfully prosecuted. It both centers attention upon the registrant as a gambler and compels "injurious disclosure[s]" [ Footnote 11 ] which may provide or assist in the collection of evidence admissible in a prosecution for past or present offenses. These offenses need not include actual gambling; they might involve only the custody or transportation of gambling paraphernalia, or other preparations for future gambling. Further, the acquisition of a federal gambling tax stamp, Page 390 U. S. 53 requiring as it does the declaration of a present intent to commence gambling activities, obliges even a prospective gambler to accuse himself of conspiracy to violate either state gambling prohibitions or federal laws forbidding the use of interstate facilities for gambling purposes. See, e.g., Acklen v. State, 196 Tenn. 314, 267 S.W.2d 101 . There is a second, and more fundamental, deficiency in the reasoning of Kahriger and Lewis. Its linchpin is plainly the premise that the privilege is entirely inapplicable to prospective acts; for this the Court in Kahriger could vouch as authority only a generalization at 8 Wigmore, Evidence § 2259c (3d ed.1940). [ Footnote 12 ] We see no warrant for so rigorous a constraint upon the constitutional privilege. History, to be sure, offers no ready illustrations of the privilege's application to prospective acts, but the occasions on which such claims might appropriately have been made must necessarily have been very infrequent. We are, in any event, bid to view the constitutional commands as "organic living institutions," whose significance is "vital not formal." Gompers v. United States, 233 U. S. 604 , 233 U. S. 610 . The central standard for the privilege's application has been whether the claimant is confronted by substantial and "real," and not merely trifling or imaginary, hazards of incrimination. Rogers v. United States, 340 U. S. 367 , 340 U. S. 374 ; Brown v. Walker, 161 U. S. 591 , 161 U. S. 600 . This principle does not permit the rigid chronological distinction adopted in Kahriger and Lewis. We see Page 390 U. S. 54 no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence. Yet, if the factual situations in which the privilege may be claimed were inflexibly defined by a chronological formula, the policies which the constitutional privilege is intended to serve could easily be evaded. Moreover, although prospective acts will doubtless ordinarily involve only speculative and insubstantial risks of incrimination, this will scarcely always prove true. As we shall show, it is not true here. We conclude that it is not mere time to which the law must look, but the substantiality of the risks of incrimination. The hazards of incrimination created by §§ 4411 and 4412 as to future acts are not trifling or imaginary. Prospective registrants can reasonably expect that registration and payment of the occupational tax will significantly enhance the likelihood of their prosecution for future acts, and that it will readily provide evidence which will facilitate their convictions. Indeed, they can reasonably fear that registration, and acquisition of a wagering tax stamp, may serve as decisive evidence that they have, in fact, subsequently violated state gambling prohibitions. Compare Ala.Code, Tit. 14, §§ 302(8)-(10) (1958); Ga.Code Ann. § 26-6413 (Supp. 1967). Insubstantial claims of the privilege as to entirely prospective acts may certainly be asserted, but such claims are not here, and they need only be considered when a litigant has the temerity to pursue them. We conclude that nothing in the Court's opinions in Kahriger and Lewis now suffices to preclude petitioner's assertion of the constitutional privilege as a defense to the indictments under which he was convicted. To this extent, Kahriger and Lewis are overruled. Page 390 U. S. 55 IV We must next consider the relevance in this situation of the "required records" doctrine, Shapiro v. United States, 335 U. S. 1 . It is necessary first to summarize briefly the circumstances in Shapiro. Petitioner, a wholesaler of fruit and produce, was obliged by a regulation issued under the authority of the Emergency Price Control Act to keep and "preserve for examination" various records "of the same kind as he has customarily kept. . . ." Maximum Price Regulation 426, § 14, 8 Fed.Reg. 9546, 9548-9549 (1943). He was subsequently directed by an administrative subpoena to produce certain of these records before attorneys of the Office of Price Administration. Petitioner complied, but asserted his constitutional privilege. In a prosecution for violations of the Price Control Act, petitioner urged that the records had facilitated the collection of evidence against him, and claimed immunity from prosecution under § 202(g) of the Act, 56 Stat. 30. Petitioner was nonetheless convicted, and his conviction was affirmed. 159 F.2d 890. On certiorari, this Court held both that § 202(g) did not confer immunity upon petitioner and that he could not properly claim the protection of the privilege as to records which he was required by administrative regulation to preserve. On the second question, the Court relied upon the cases which have held that a custodian of public records may not assert the privilege as to those records, and reiterated a dictum in Wilson v. United States, 221 U. S. 361 , 221 U. S. 380 , suggesting that "the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.' [ Footnote 13 ] " Page 390 U. S. 56 335 U.S. at 335 U. S. 33 . The Court considered that "it cannot be doubted" that the records in question had "public aspects," and thus held that petitioner, as their custodian, could not properly assert the privilege as to them. Id. at 335 U. S. 34 . We think that neither Shapiro nor the cases upon which it relied are applicable here. [ Footnote 14 ] Compare generally Note, Required Information and the Privilege against Self-Incrimination, 65 Col.L.Rev. 681, and McKay, Self-Incrimination and the New Privacy, 167 Sup.Ct.Rev.193, 214-217. Moreover, we find it unnecessary for present purposes to pursue in detail the question, left unanswered in Shapiro, of what "limits . . . the Government cannot constitutionally exceed in requiring the keeping of records. . . ." 335 U.S. at 335 U. S. 32 . It is enough that there are significant points of difference between the situations here and in Shapiro which, in this instance, preclude, under any formulation, an appropriate application of the "required records" doctrine. Each of the three principal elements of the doctrine, as it is described in Shapiro, is absent from this situation. Page 390 U. S. 57 First, petitioner Marchetti was not, by the provisions now at issue, obliged to keep and preserve records "of the same kind as he has customarily kept"; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony. Compare McKay, supra, at 221. Second, whatever "public aspects" there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government's anxiety to obtain information known to a private individual does not, without more, render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the Government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in "an essentially noncriminal and regulatory area of inquiry," while those here are directed to a "selective group inherently suspect of criminal activities." Cf. Albertson v. SACB, 382 U. S. 70 , 382 U. S. 79 . The United States' principal interest is evidently the collection of revenue, and not the punishment of gamblers, see United States v. Calamaro, 354 U. S. 351 , 354 U. S. 358 ; but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro. There is no need to explore further the elements and limitations of Shapiro and the cases involving public papers; these points of difference in combination preclude any appropriate application of those cases to the present one. Page 390 U. S. 58 V Finally, we have been urged by the United States to permit continued enforcement of the registration and occupational tax provisions, despite the demands of the constitutional privilege, by shielding the privilege's claimants through the imposition of restrictions upon the use by federal and state authorities of information obtained as a consequence of compliance with the wagering tax requirements. It is suggested that these restrictions might be similar to those imposed by the Court in Murphy v. Waterfront Commission, 378 U. S. 52 . The Constitution, of course, obliges this Court to give full recognition to the taxing powers and to measures reasonably incidental to their exercise. But we are equally obliged to give full effect to the constitutional restrictions which attend the exercise of those powers. We do not, as we have said, doubt Congress' power to tax activities which are, wholly or in part, unlawful. Nor can it be doubted that the privilege against self-incrimination may not properly be asserted if other protection is granted which "is so broad as to have the same extent in scope and effect" as the privilege itself. Counselman v. Hitchcock, 142 U. S. 547 , 142 U. S. 585 . The Government's suggestion is thus, in principle, an attractive and apparently practical resolution of the difficult problem before us. Compare Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government's Need for Information, 1966 Sup.Ct.Rev. 103, 159, and McKay, supra, at 232. Nonetheless, we think that it would be entirely inappropriate in the circumstances here for the Court to impose such restrictions. The terms of the wagering tax system make quite plain that Congress intended information obtained as a consequence of registration and payment of the occupational Page 390 U. S. 59 tax to be provided to interested prosecuting authorities. See 26 U.S.C. § 6107. [ Footnote 15 ] This has evidently been the consistent practice of the Revenue Service. We must therefore assume that the imposition of use restrictions would directly preclude effectuation of a significant element of Congress' purposes in adopting the wagering taxes. [ Footnote 16 ] Moreover, the imposition of such restrictions would necessarily oblige state prosecuting authorities to establish in each case that their evidence was untainted by any connection with information obtained as a consequence of the wagering taxes; [ Footnote 17 ] the federal requirements would thus be protected only at the cost of hampering, perhaps seriously, enforcement of state prohibitions against gambling. We cannot know how Congress would assess the competing demands of the Page 390 U. S. 60 federal treasury and of state gambling prohibitions; we are, however, entirely certain that the Constitution has entrusted to Congress, and not to this Court, the task of striking an appropriate balance among such values. [ Footnote 18 ] We therefore must decide that it would be improper for the Court to impose restrictions of the kind urged by the United States. VI We are fully cognizant of the importance for the United States' various fiscal and regulatory functions of timely and accurate information, compare Mansfield, supra, and Meltzer, Required Records, the McCarran Act, and the Privilege against Self-Incrimination, 18 U.Chi.L.Rev. 687; but other methods, entirely consistent with constitutional limitations, exist by which Congress may obtain such information. See generally Counselman v. Hitchcock, supra, at 142 U. S. 585 ; compare Murphy v. Waterfront Commission, supra. Accordingly, nothing we do today will prevent either the taxation or the regulation by Congress of activities otherwise made unlawful by state or federal statutes. Nonetheless, we can only conclude, under the wagering tax system as presently written, that petitioner properly asserted the privilege against self-incrimination, and that his assertion should have provided a complete defense to this prosecution. This defense should have reached both Page 390 U. S. 61 the substantive counts for failure to register and to pay the occupational tax and the count for conspiracy to evade payment of the tax. We emphasize that we do not hold that these wagering tax provisions are as such constitutionally impermissible; we hold only that those who properly assert the constitutional privilege as to these provisions may not be criminally punished for failure to comply with their requirements. If, in different circumstances, a taxpayer is not confronted by substantial hazards of self-incrimination, or if he is otherwise outside the privilege's protection, nothing we decide today would shield him from the various penalties prescribed by the wagering tax statutes. The judgment of the Court of Appeals is Reversed. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. [For concurring opinion of MR. JUSTICE BRENNAN, see post, p. 390 U. S. 72 .] [For concurring opinion of MR. JUSTICE STEWART, see post, p. 390 U. S. 76 .] [For dissenting opinion of MR. CHIEF JUSTICE WARREN, see post, p. 390 U. S. 77 .] [ Footnote 1 ] Certiorari was originally granted in Costello v. United States, 383 U.S. 942, to consider these issues. Upon Costello's death, certiorari was granted in the present case. 385 U.S. 1000. Marchetti and Costello, with others, were convicted at the same trial of identical offenses, arising from the same series of transactions. Certiorari both here and in Costello was limited to the following questions: "Do not the federal wagering tax statutes here involved violate the petitioner's privilege against self-incrimination guaranteed by the Fifth Amendment? Should not this Court, especially in view of its recent decision in Albertson v. Subversive Activities Control Board, 382 U. S. 70 (1965), overrule United States v. Kahriger, 345 U. S. 22 (1953), and Lewis v. United States, 348 U. S. 419 (1955)?" After argument, the case was restored to the calendar and set for reargument at the 1967 Term. 388 U.S. 903. Counsel were asked to argue, in addition to the original questions, the following: "(1) What relevance, if any, has the required records doctrine, Shapiro v. United States, 335 U. S. 1 , to the validity under the Fifth Amendment of the registration and special occupational tax requirements of 26 U.S.C. §§ 4411, 4412? (2) Can an obligation to pay the special occupational tax required by 26 U.S.C. § 4411 be satisfied without filing the registration statement provided for by 26 U.S.C. § 4412?" [ Footnote 2 ] A July 1963 revision of Form 11-C modified the form of certain of its questions. The record does not indicate which version of the return was available to petitioner at the time of the omissions for which he was convicted. The minor verbal variations between the two do not affect the result which we reach today. [ Footnote 3 ] The Treasury Regulations provide that a stamp, evidencing payment of the occupational tax, may not be issued unless the taxpayer both submits Form 11-C and tenders the full amount of the tax. 26 CFR § 44.4901-1(c). Accordingly, the Revenue Service has refused to accept the $50 tax unless it is accompanied by the completed registration form, and it has consistently been upheld in that practice. See United States v. Whiting, 311 F.2d 191; United States v. Mungiole, 233 F.2d 204; Combs v. Snyder, 101 F. Supp. 531 , aff'd, 342 U.S. 939. The United States has, in this case, acknowledged that the registration and occupational tax provisions are not realistically severable. Brief on Reargument 37-41. [ Footnote 4 ] In his trial testimony in Grosso v. United States, decided herewith, post, p. 390 U. S. 62 , W. Dean Struble, technical advisor to the District Director of Internal Revenue, Pittsburgh, Pennsylvania, described Form 11-C as follows: "A Form 11-C serves two purposes. The first is an application for registry for a wagering tax stamp. After the application is properly filed and the tax paid, at that time, the Form 11-C becomes a special tax return." Transcript of Record 90. [ Footnote 5 ] The following illustrate the state gambling and wagering statutes under which one engaged in activities taxable under the federal provisions at issue here might incur criminal penalties.Ala.Code, Tit. 14, c. 46 (1958); Alaska Laws, Tit. 65, c. 13 (1949); Ariz.Rev.Stat.Ann. § 13-438 (1956); Ark.Stat.Ann., Tit. 41, c. 20 (1947); Cal.Pen.Code §§ 330-337a (1956); Colo.Rev.Stat.Ann., c. 40, Art. 10 (1963); Del.Code Ann., Tit. 11, §§ 665-669 (1953); D.C.Code Ann. §§ 22-1504 to 22-1511 (1967); Fla.Stat., c. 849 (1965); Ga.Code Ann., c. 26-64 (1953); Hawaii Rev.Laws, c. 288 (1955); Idaho Code Ann., Tit. 18, c. 38 (1948); Ill.Rev.Stat., c. 38, Art. 28 (1965); Ind.Ann.Stat., Tit. 10, c. 23 (1956); Iowa Code, c. 726 (1966); Kan.Stat.Ann., c. 21, Art. 15 (1964); Ky.Rev.Stat. § 436.200 (1962); La.Rev.Stat. § 14:90 (1950); Me.Rev.Stat.Ann., Tit. 17, c. 61 (1964); Md.Ann.Code, Art. 27, §§ 237-242 (1957); Mass.Gen.Laws Ann., c. 271 (1959); Mich.Stat.Ann. § 28.533 (1954); Minn.Stat. § 609.755 (1965); Miss.Code Ann. §§ 2190-2202 (1942); Mo.Rev.Stat. § 563.350 (1959); Mont.Rev.Codes Ann., Tit. 94, c. 24 (1947); Neb.Rev.Stat. § 28-941 (1943); Nev.Rev.Stat. §§ 293.603, 465.010 (1957); N.H.Rev.Stat.Ann., c. 577 (1955); N.J.Rev.Stat., Tit. 2A, c. 112 (1953); N.M.Stat.Ann., c. 40A, Art. 19 (1953); N.Y.Pen.Law, Art. 225 (1967); N.C.Gen.Stat. §§ 14-292 to 14-295 (1953); N.D.Cent.Code Ann., c. 12-23 (1959); Ohio Rev.Code Ann., c. 2915 (1953); Okla.Stat.Ann., Tit. 21, c. 38 (1958); Ore.Rev.Stat. § 167.505 (1965); Pa.Stat.Ann., Tit. 18, §§ 4603-4607 (1963); R.I.Gen.Laws Ann., Tit. 11, c.19 (1956); S.C.Code Ann., Tit. 16, c. 8, Art. 1 (1962); S.D.Code, Tit. 24, c. 24.01 (1939); Tenn.Code Ann., Tit. 39, c. 20 (1955); Tex.Pen.Code Ann., c. 6 (1952); Utah Code Ann., Tit. 76, c. 27 (1953); Vt.Stat.Ann., Tit. 13, c. 43, subch. 2 (1959); Va.Code Ann., Tit. 18.1, c. 7, Art. 2 (1950); Wash.Rev.Code, Tit. 9, c. 9.47 (1956); W.Va.Code Ann., c. 61, Art. 10 (1961); Wis.Stat., c. 945 (1965); Wyo.Stat.Ann., Tit. 6, c. 9, Art. 2 (1957). These statutes, of course, vary in their terms and scope, but these variations scarcely detract from the breadth or prevalence of the penalties which in combination they create. [ Footnote 6 ] New Hampshire conducts a state sweepstakes, but imposes broad criminal penalties upon privately operated lotteries. N.H.Rev.Stat.Ann., c. 577 (1955). The following illustrate the other state statutes which impose criminal penalties upon lottery activities which would be taxable under these federal statutes. Ala.Code, Tit. 14, c. 46 (1958); Alaska Laws § 65-13-1 (1949); Ariz.Rev.Stat.Ann. § 13-436 (1956); Ark.Stat.Ann. § 41-2024 (1947); Cal.Pen.Code §§ 319-326 (1956); Colo.Rev.Stat.Ann., c. 40, Art. 16 (1963); Del.Code Ann., Tit. 11, §§ 661-664 (1953); D.C.Code Ann. § 22-1501 (1967); Fla.Stat. § 849.09 (1965); Ga.Code Ann., c. 26-65 (1953); Hawaii Rev.Laws, c. 288 (1955); Idaho Code Ann., Tit. 18, c. 49 (1948); Ill.Rev.Stat., c. 38, Art. 28 (1965); Ind.Ann.Stat., Tit. 10, c. 23 (1956); Iowa Code § 726.8 (1966); Kan.Stat.Ann., c. 21, Art. 15 (1964); Ky.Rev.Stat. § 436.360 (1962); La.Rev.Stat. § 14:90 (1950); Me.Rev.Stat.Ann., Tit. 17, c. 81 (1964); Md.Ann.Code, Art. 27, § 356 (1957); Mass.Gen.Laws Ann., c. 271 (1959); Mich.Stat.Ann., §§ 28.604-28.608 (1954); Miss.Code Ann. §§ 2270-2279 (1942); Mo.Rev.Stat. § 563.430 (1959); Mont.Rev.Codes Ann., Tit. 94, c. 30 (1947); Neb.Rev.Stat. § 28-961 (1943); N.J.Rev.Stat., Tit. 2A, c. 121 (1953); N.M.Stat.Ann., c. 40A, Art. 19 (1953); N.Y.Pen.Law, Art. 225 (1967); N.C.Gen.Stat. §§ 14-289 to 14-291 (1953); N.D.Cent.Code Ann., c. 12-24 (1959); Ohio Rev.Code Ann., c. 2915 (1953); Okla.Stat.Ann., Tit. 21, c. 41 (1958); Ore.Rev.Stat. § 167.405 (1965); Pa.Stat.Ann., Tit. 18, §§ 4601-4602 (1963); R.I.Gen.Laws Ann., Tit. 11, c.19 (1956); S.C.Code Ann., Tit. 16, c. 8, Art. 1 (1962); S.D.Code, Tit. 24, c. 24.01 (1939); Tenn.Code Ann. § 39-2017 (1955); Tex.Pen.Code Ann., Art. 654 (1952); Utah Code Ann., Tit. 76, c. 27 (1953); Vt.Stat.Ann., Tit. 13, c. 43, subch. 1 (1959); Va.Code Ann., Tit. 18.1, c. 7, Art. 2 (1950); Wash.Rev.Code, Tit. 9, c. 9.59 (1956); W.Va.Code Ann., c. 61, Art. 10 (1961); Wis.Stat., c 945 (1965); Wyo.Stat.Ann., Tit. 6, c. 9, Art. 2 (1957). [ Footnote 7 ] See, e.g., Irvine v. California, 347 U. S. 128 ; United States v. Zizzo, 338 F.2d 577; Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119; State v. Curry, 92 Ohio App. 1, 109 N.E.2d 298; State v. Reinhardt, 229 La. 673, 86 So. 2d 530 ; Griggs v. State, 37 Ala.App. 605, 73 So. 2d 382; McClary v. State, 211 Tenn. 46, 362 S.W.2d 450 . See also State v. Baum, 230 La. 247, 88 So. 2d 209. [ Footnote 8 ] One State has gone a step further to facilitate the enforcement of its gambling prohibitions through the federal wagering tax. Illinois requires each holder of a wagering tax stamp to register with the clerk of the county in which he resides or conducts any business, and imposes fines and imprisonment upon those who do not. Ill.Rev.Stat., c. 38, § 28 (1965). [ Footnote 9 ] The metaphor is to be found in the opinions both of Lord Eldon in Paxton v. Douglas, 19 Ves.Jr. 225, 227, and of Chief Justice Marshall in United States v. Burr, In re Willie, 25 Fed.Cas. 38, 40 (No. 14,692e). [ Footnote 10 ] We must note that some States and municipalities have undertaken to punish compliance with the federal wagering tax statutes in an even more direct fashion. Alabama has created a statutory presumption that possessors of federal wagering tax stamps are in violation of state law.Ala.Code, Tit. 14, §§ 302(8)-(10) (1958). Florida adopted a similar statute, Fla.Laws 1953, c. 28057, but it was subsequently declared unconstitutional by the Florida Supreme Court. Jefferson v. Sweat, 76 So. 2d 494 . The Supreme Court of Tennessee has upheld an ordinance adopted by the City of Chattanooga which makes possession of a federal tax stamp a misdemeanor. Deitch v. City of Chattanooga, 195 Tenn. 245, 258 S.W.2d 776 . See, for a similar provision, Rev. Ord., Kansas City, Missouri, § 23.110 (1956), and Kansas City v. Lee, 414 S.W.2d 251. Georgia has recently provided by statute that the possession or purchase of a federal wagering tax stamp is " prima facie evidence of guilt" of professional gambling. Ga.Code Ann. § 26-6413 (Supp. 1967). See, for a similar rule, McClary v. State, supra, n 7. [ Footnote 11 ] Hoffman v. United States, 341 U. S. 479 , 341 U. S. 487 . [ Footnote 12 ] We presume that the Court referred to the following: "[T]here is no compulsory self-crimination in a rule of law which merely requires beforehand a future report on a class of future acts among which a particular one may or may not in future be criminal at the choice of the party reporting." 8 Wigmore, supra, at 349. But see Morgan, supra, at 37, and McKay, Self-Incrimination and the New Privacy, 1967 Sup.Ct.Rev.193, 221. [ Footnote 13 ] The Court, in fact, quoted from the reiteration of the Wilson dictum included in Davis v. United States, 328 U. S. 582 , 328 U. S. 590 . [ Footnote 14 ] The United States has urged that this case is not reached by Shapiro simply because petitioner was required to submit reports, and not to maintain records. Insofar as this is intended to suggest the the crucial issue respecting the applicability of Shapiro is the method by which information reaches the Government, we are unable to accept the distinction. We perceive no meaningful difference between an obligation to maintain records for inspection and such an obligation supplemented by a requirement that those records be filed periodically with officers of the United States. We believe, as the United States itself argued in Shapiro, that "[r]egulations permit records to be retained, rather than filed, largely for the convenience of the persons regulated." Brief for the United States in No. 49, October Term 1947, at 21, n. 7. [ Footnote 15 ] Section 6107 reads as follows: "In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged." The special taxes to which the section refers include the occupational tax imposed by 26 U.S.C. § 4411. [ Footnote 16 ] The requirement now embodied in § 6107 was adopted prior to the special occupational tax on wagering, but Congress plainly indicated when it adopted the latter that it understood, and wished, that state prosecuting authorities would be provided lists of those who had paid the wagering tax. See H.R.Rep. No. 586, 82d Cong., 1st Sess., 60; S.Rep. No. 781, 82d Cong., 1st Sess., 118. [ Footnote 17 ] The Court required such a showing as part of the restrictions imposed in Murphy, 378 U.S. at 378 U. S. 79 , n. 18. The United States has acknowledged that this would be no less imperative here. Brief for the United States 24-25. [ Footnote 18 ] It should be emphasized that it would not suffice here simply to sever § 6107. See 26 U.S.C. § 7852(a). Cf. Warren v. Mayor of Charlestown, 2 Gray 84, 99; Carter v. Carter Coal Co., 298 U. S. 238 , 298 U. S. 316 . We would be required not merely to strike out words, but to insert words that are not now in the statute. Here, as in the analogous circumstances of United States v. Reese, 92 U. S. 214 , "This would, to some extent, substitute the judicial for the legislative department of the government. . . . To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty." Id. at 92 U. S. 221 .

The Supreme Court case Marchetti v. United States (1968) dealt with the constitutionality of requiring people engaged in illegal wagering to register with the government and pay an occupational tax. The Court ruled that the Fifth Amendment privilege against self-incrimination barred prosecution for violating federal wagering tax statutes if doing so would incriminate the petitioner. This overruled previous cases, United States v. Kahriger and Lewis v. United States, which held the privilege against self-incrimination unavailable in similar situations. The Court emphasized the direct and unmistakable consequence of incriminating oneself by complying with the registration and tax payment requirements. The decision also addressed the "required records" doctrine from Shapiro v. United States, finding it inapplicable to the case.

Government Agencies

Abbott Laboratories v. Gardner

https://supreme.justia.com/cases/federal/us/387/136/

U.S. Supreme Court Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) Abbott Laboratories v. Gardner No. 39 Argued January 16, 1967 Decided May 22, 1967 387 U.S. 136 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus The Commissioner of Food and Drugs, exercising authority delegated to him by the Secretary of Health, Education, and Welfare, issued regulations requiring that labels and advertisements for prescription drugs which bear proprietary names for the drugs or the ingredients carry the corresponding "established name" (designated by the Secretary) every time the proprietary or trade name is used. These regulations were designed to implement the 1962 amendment to § 502(e)(1)(B) of the Federal Food, Drug, and Cosmetic Act. Petitioners, drug manufacturers and a manufacturers' association, challenged the regulations on the ground that the Commissioner exceeded his authority under the statute. The District Court granted the declaratory and injunctive relief sought, finding that the scope of the statute was not as broad as that of the regulations. The Court of Appeals reversed without reaching the merits, holding that pre-enforcement review of the regulations was unauthorized and beyond the jurisdiction of the District Court, and that no "actual case or controversy" existed. Held: 1. Preenforcement review of these regulations is not prohibited by the Federal Food, Drug, and Cosmetic Act. Pp. 387 U. S. 139 -148. (a) The courts should restrict access to judicial review only upon a showing of "clear and convincing evidence" of a contrary legislative intent. Rusk v. Cort, 369 U. S. 367 , 369 U. S. 379 -380. Pp. 387 U. S. 139 -141. (b) The statutory scheme in the food and drug area does not exclude pre-enforcement judicial review. Pp. 387 U. S. 141 -144. (c) The special review provisions of § 701(f) of the Act, applying to regulations embodying technical factual determinations, were simply intended to assure adequate judicial review of such agency decisions, and manifest no congressional purpose to eliminate review of other kinds of agency action. P. 387 U. S. 144 . Page 387 U. S. 137 (d) The saving clause of § 701(f)(6), which states that the "remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law," does not foreclose pre-enforcement judicial review, and should be read in harmony with the policy favoring judicial review expressed in the Administrative Procedure Act and court decisions. Pp. 387 U. S. 144 -146. (e) Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 , which did not concern the promulgation of a self-operative industry-wide regulation, distinguished. Pp. 387 U. S. 146 -148. 2. This case presents a controversy "ripe" for judicial resolution. Pp. 387 U. S. 148 -156. (a) The issue of statutory construction is purely legal, and the regulations are "final agency action" within § 10 of the Administrative Procedure Act. Columbia Broadcasting System v. United States, 316 U. S. 407 , and similar cases followed. Pp. 387 U. S. 149 -152. (b) The impact of the regulations upon petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. Pp. 387 U. S. 152 -154. (c) Here, the pre-enforcement challenge by nearly all prescription drug manufacturers is not calculated to delay or impede effective enforcement of the Federal Food, Drug, and Cosmetic Act. Pp. 387 U. S. 154 -155. 352 F.2d 286, reversed and remanded. MR. JUSTICE HARLAN delivered the opinion of the Court. In 1962, Congress amended the Federal Food, Drug, and Cosmetic Act (52 Stat. 1040, as amended by the Drug Amendments of 1962, 76 Stat. 780, 21 U.S.C. § 301 et seq. ), to require manufacturers of prescription drugs to print the "established name" of the drug "prominently Page 387 U. S. 138 and in type at least half as large as that used thereon for any proprietary name or designation for such drug," on labels and other printed material, § 502(e)(1)(B), 21 U.S.C. § 352(e)(1)(B). The "established name" is one designated by the Secretary of Health, Education, and Welfare pursuant to § 502(e)(2) of the Act, 21 U.S.C. § 352(e)(2); the "proprietary name" is usually a trade name under which a particular drug is marketed. The underlying purpose of the 1962 amendment was to bring to the attention of doctors and patients the fact that many of the drugs sold under familiar trade names are actually identical to drugs sold under their "established" or less familiar trade names at significantly lower prices. The Commissioner of Food and Drugs, exercising authority delegated to him by the Secretary, 22 Fed.Reg. 1051, 25 Fed.Reg. 8625, published proposed regulations designed to implement the statute, 28 Fed.Reg. 1448. After inviting and considering comments submitted by interested parties, the Commissioner promulgated the following regulation for the "efficient enforcement" of the Act, § 701(a), 21 U.S.C. § 371(a): "If the label or labeling of a prescription drug bears a proprietary name or designation for the drug or any ingredient thereof, the established name, if such there be, corresponding to such proprietary name or designation shall accompany each appearance of such proprietary name or designation." 21 CFR § 1.104(g)(1). A similar rule was made applicable to advertisements for prescription drugs, 21 CFR § 1.105(b)(1). The present action was brought by a group of 37 individual drug manufacturers and by the Pharmaceutical Manufacturers Association, of which all the petitioner companies are members, and which includes manufacturers of more than 90% of the Nation's supply of prescription Page 387 U. S. 139 drugs. They challenged the regulations on the ground that the Commissioner exceeded his authority under the statute by promulgating an order requiring labels, advertisements, and other printed matter relating to prescription drugs to designate the established name of the particular drug involved every time its trade name is used anywhere in such material. The District Court, on cross-motions for summary judgment, granted the declaratory and injunctive relief sought, finding that the statute did not sweep so broadly as to permit the Commissioner's "every time" interpretation. 228 F. Supp. 855 . The Court of Appeals for the Third Circuit reversed without reaching the merits of the case. 352 F.2d 286. It held first that, under the statutory scheme provided by the Federal Food, Drug, and Cosmetic Act, pre-enforcement [ Footnote 1 ] review of these regulations was unauthorized, and therefore beyond the jurisdiction of the District Court. Second, the Court of Appeals held that no "actual case or controversy" existed, and, for that reason, that no relief under the Administrative Procedure Act, 5 U.S.C. §§ 701-704 (1964 ed., Supp. II), or under the Declaratory Judgment Act, 28 U.S.C. § 2201, was, in any event, available. Because of the general importance of the question, and the apparent conflict with the decision of the Court of Appeals for the Second Circuit in Toilet Goods Assn. v. Gardner, 360 F.2d 677, which we also review today, post, p. 387 U. S. 158 , we granted certiorari. 383 U.S. 924. I The first question we consider is whether Congress, by the Federal Food, Drug, and Cosmetic Act, intended to forbid pre-enforcement review of this sort of regulation Page 387 U. S. 140 promulgated by the Commissioner. The question is phrased in terms of "prohibition", rather than "authorization," because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. Board of Governors v. Agnew, 329 U. S. 441 ; Heikkila v. Barber, 345 U. S. 229 ; Brownell v. Tom We Shung, 352 U. S. 180 ; Harmon v. Brucker, 355 U. S. 579 ; Leedom v. Kyne, 358 U. S. 184 ; Rusk v. Cort, 369 U. S. 367 . Early cases in which this type of judicial review was entertained, e.g., Shields v. Utah Idaho Central R. Co., 305 U. S. 177 ; Stark v. Wickard, 321 U. S. 288 , have been reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a). The Administrative Procedure Act provides specifically not only for review of "[a]gency action made reviewable by statute", but also for review of "final agency action for which there is no other adequate remedy in a court," 5 U.S.C. § 704. The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, [ Footnote 2 ] and this Court has echoed that theme by noting that the Administrative Page 387 U. S. 141 Procedure Act's "generous review provisions" must be given a "hospitable" interpretation. Shaughnessy v. Pedreiro, 349 U. S. 48 , 349 U. S. 51 ; see United States v. Interstate Commerce Comm'n, 337 U. S. 426 , 337 U. S. 433 -435; Brownell v. Tom We Shung, supra; Heikkila v. Barber, supra. Again in Rusk v. Cort, supra, at 369 U. S. 379 -380, the Court held that only upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review. See also Jaffe, Judicial Control of Administrative Action 336-359 (1965). Given this standard, we are wholly unpersuaded that the statutory scheme in the food and drug area excludes this type of action. The Government relies on no explicit statutory authority for its argument that pre-enforcement review is unavailable, but insists instead that, because the statute includes a specific procedure for such review of certain enumerated kinds of regulations, [ Footnote 3 ] not encompassing those of the kind involved here, other types were necessarily meant to be excluded from any pre-enforcement review. The issue, however, is not so readily resolved; we must go further and inquire whether, in the context of the entire legislative scheme the existence of that circumscribed remedy evinces a congressional purpose to bar agency action not within its purview from judicial review. As a leading authority in this field has noted, "The mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent." Jaffe, supra, at 357. Page 387 U. S. 142 In this case, the Government has not demonstrated such a purpose; indeed, a study of the legislative history shows rather conclusively that the specific review provisions were designed to give an additional remedy and not to cut down more traditional channels of review. At the time the Food, Drug, and Cosmetic Act was under consideration, in the late 1930's, the Administrative Procedure Act had not yet been enacted, [ Footnote 4 ] the Declaratory Judgment Act was in its infancy, [ Footnote 5 ] and the scope of judicial review of administrative decisions under the equity power was unclear. [ Footnote 6 ] It was these factors that led to the form the statute ultimately took. There is no evidence at all that members of Congress meant to preclude traditional avenues of judicial relief. Indeed, throughout the consideration of the various bills submitted to deal with this issue, it was recognized that "There is always an appropriate remedy in equity in cases where an administrative officer has exceeded his authority and there is no adequate remedy of law, . . . [and that] protection is given by the so-called Declaratory Judgments Act. . . ." H.R.Rep. No. 2755, 74th Cong., 2d Sess., 8. It was specifically brought to the attention of Congress that such methods had, in fact, been used in the food and drug area, [ Footnote 7 ] and the Department of Justice, in opposing the enactment of the special review procedures of § 701, submitted a memorandum which was read on the floor of the House Page 387 U. S. 143 stating: "As a matter of fact, the entire subsection is really unnecessary, because even without any express provision in the bill for court review, any citizen aggrieved by any order of the Secretary, who contends that the order is invalid, may test the legality of the order by bringing an injunction suit against the Secretary, or the head of the Bureau, under the general equity powers of the court." 83 Cong.Rec. 7892 (1938). The main issue in contention was whether these methods of review were satisfactory. Compare the majority and minority reports on the review provisions, H.R.Rep. No. 2139, 75th Cong., 3d Sess. (1938), both of which acknowledged that traditional judicial remedies were available, but disagreed as to the need for additional procedures. The provisions now embodied in a modified form in § 701(f) were supported by those who feared the life-and-death power given by the Act to the executive officials, a fear voiced by many members of Congress. The supporters of the special review section sought to include it in the Act primarily as a method of reviewing agency factual determinations. For example, it was argued that the level of tolerance for poisonous sprays on apple crops, which the Secretary of Agriculture had recently set, was a factual matter, not reviewable in equity in the absence of a special statutory review procedure. [ Footnote 8 ] Some congressmen urged that challenge to this type of determination should be in the form of a de novo hearing in a district court, but the Act as it was finally passed compromised the matter by allowing an appeal on a record with a "substantial evidence" test, affording a considerably more generous judicial review than the "arbitrary and capricious" test available in the traditional injunctive suit. [ Footnote 9 ] Page 387 U. S. 144 A second reason for the special procedure was to provide broader venue to litigants challenging such technical agency determinations. At that time, a suit against the Secretary was proper only in the District of Columbia, an advantage that the Government sought to preserve. The House bill, however, originally authorized review in any district court, but, in the face of a Senate bill allowing review only in the District of Columbia, the Conference Committee reached the compromise preserved in the present statute authorizing review of such agency actions by the courts of appeals. [ Footnote 10 ] Against this background, we think it quite apparent that the special review procedures provided in § 701(f), applying to regulations embodying technical factual determinations, [ Footnote 11 ] were simply intended to assure adequate judicial review of such agency decisions, and that their enactment does not manifest a congressional purpose to eliminate judicial review of other kinds of agency action. This conclusion is strongly buttressed by the fact that the Act itself, in § 701(f)(6), states, "The remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law." This saving clause was passed over by the Court of Appeals without discussion. In our view, however, it bears heavily on the issue, for, if taken at face value, it would foreclose the Government's main argument in this case. The Government deals with the clause by arguing that it should be read as applying only to review of Page 387 U. S. 145 regulations under the sections specifically enumerated in 701(e). This is a conceivable reading, but it requires a considerable straining both of language and of common understanding. The saving clause itself contains no limitations, and it requires an artificial statutory construction to read a general grant of a right to judicial review begrudgingly, so as to cut out agency actions that a literal reading would cover. There is no support in the legislative background for such a reading of the clause. It was included in the House bill, whose report states that the provision ". . . saved as a method to review a regulation placed in effect by the Secretary whatever rights exist to initiate a historical proceeding in equity to enjoin the enforcement of the regulation, and whatever rights exist to initiate a declaratory judgment proceeding." H.R.Rep. No. 2139, 75th Cong., 3d Sess, 11. The Senate conferees accepted the provision. [ Footnote 12 ] The Government argues that the clause is included as a part of § 701(f), and therefore should be read to apply only to those sections to which the § 701(f) special review procedure applies. But it is difficult to think of a more appropriate place to put a general saving clause than where Congress placed it -- at the conclusion of the section setting out a special procedure for use in certain specified instances. Furthermore, the Government's reading would result in an anomaly. The §§ 701(e)-(f) procedure was included in the Act in order to deal with the problem of technical determinations for which the normal equity power was deemed insufficient. See, supra, pp. 142-144. There would seem little reason for Congress to have enacted § 701(f), and at the same time to have included a clause aimed only at preserving for such determinations the Page 387 U. S. 146 other types of review whose supposed inadequacy was the very reason for the special review provisions. Under the Government's view, indeed, it is difficult to ascertain when the saving clause would even come into play: when the special provisions apply, presumably they must be used and a court would not grant injunctive or declaratory judgment relief unless the appropriate administrative procedure is exhausted. [ Footnote 13 ] When the special procedure does not apply, the Government deems the saving clause likewise inapplicable. The Government, to be sure, does present a rather far-fetched example of what it considers a possible application of the relief saved by § 701(f)(6), but merely to state it reveals the weakness of the Government's position. [ Footnote 14 ] We prefer to take the saving clause at its face value, and to read it in harmony with the policy favoring judicial review expressed in the Administrative Procedure Act and this Court's decisions. The only other argument of the Government requiring attention on the preclusive effect of the statute is that Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 , counsels a restrictive view of judicial review in the food and drug area. In that case, the Food and Drug Administrator found that there was probable cause that a drug was "adulterated" because it was misbranded in such a way as to be "fraudulent" or "misleading to Page 387 U. S. 147 the injury or damage of the purchaser or consumer." § 304(a), 21 U.S.C. § 334(a). Multiple seizures were ordered through libel actions. The manufacturer of the drug brought an action to challenge directly the Administrator's finding of probable cause. This Court held that the owner could raise his constitutional, statutory, and factual claims in the libel actions themselves, and that the mere finding of probable cause by the Administrator could not be challenged in a separate action. That decision was quite clearly correct, but nothing in its reasoning or holding has any bearing on this declaratory judgment action challenging a promulgated regulation. The Court in Ewing first noted that the "administrative finding of probable cause required by § 304(a) is merely the statutory prerequisite to the bringing of the lawsuit," at which the issues are aired. 339 U.S. at 339 U. S. 598 . Such a situation bears no analogy to the promulgation, after formal procedures, of a rule that must be followed by an entire industry. To equate a finding of probable cause for proceeding against a particular drug manufacturer with the promulgation of a self-operative industry-wide regulation, such as we have here, would immunize nearly all agency rulemaking activities from the coverage of the Administrative Procedure Act. Second, the determination of probable cause in Ewing has "no effect in and of itself," 339 U.S. at 339 U. S. 598 ; only some action consequent upon such a finding could give it legal life. As the Court there noted, like a determination by a grand jury that there is probable cause to proceed against an accused, it is a finding which only has vitality once a proceeding is commenced, at which time appropriate challenges can be made. The Court also noted that the unique type of relief sought by the drug manufacturer was inconsistent with the policy of the Act favoring speedy action against goods in circulation that are believed on probable cause to be adulterated. Page 387 U. S. 148 Also, such relief was not specifically granted by the Act, which did provide another type of relief in the form of a consolidation of multiple libel actions in a convenient venue. 339 U.S. at 339 U. S. 602 . The drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act. That the Court refused to permit such an action is hardly authority for cutting off the well established jurisdiction of the federal courts to hear, in appropriate cases, suits under the Declaratory Judgment Act and the Administrative Procedure Act challenging final agency action of the kind present here. We conclude that nothing in the Food, Drug, and Cosmetic Act itself precludes this action. II A further inquiry must, however, be made. The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy "ripe" for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine [ Footnote 15 ] it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging Page 387 U. S. 149 parties. The problem is best seen in a two-fold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. As to the former factor, we believe the issues presented are appropriate for judicial resolution at this time. First, all parties agree that the issue tendered is a purely legal one: whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed. [ Footnote 16 ] Both sides moved for summary judgment in the District Court, and no claim is made here that further administrative proceedings are contemplated. It is suggested that the justification for this rule might vary with different circumstances, and that the expertise of the Commissioner is relevant to passing upon the validity of the regulation. This, of course, is true, but the suggestion overlooks the fact that both sides have approached this case as one purely of congressional intent, and that the Government made no effort to justify the regulation in factual terms. Second, the regulations in issue we find to be "final agency action" within the meaning of § 10 of the Administrative Procedure Act, 5 U.S.C. § 704, as construed in judicial decisions. An "agency action" includes any "rule," defined by the Act as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy," §§ 2(c), 2(g), 5 U.S.C. §§ 551(4), 551(13). The cases dealing with judicial review of administrative actions have interpreted the "finality" element in a pragmatic way. Thus, in Columbia Broadcasting System Page 387 U. S. 150 v. United States, 316 U. S. 407 , a suit under the Urgent Deficiencies Act, 38 Stat. 219, this Court held reviewable a regulation of the Federal Communications Commission setting forth certain proscribed contractual arrangements between chain broadcasters and local stations. The FCC did not have direct authority to regulate these contracts, and its rule asserted only that it would not license stations which maintained such contracts with the networks. Although no license had, in fact, been denied or revoked, and the FCC regulation could properly be characterized as a statement only of its intentions, the Court held that "Such regulations have the force of law before their sanctions are invoked as well as after. When, as here, they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack. . . ." 316 U.S. at 316 U. S. 418 -419. Two more recent cases have taken a similarly flexible view of finality. In Frozen Food Express v. United States, 351 U. S. 40 , at issue was an Interstate Commerce Commission order specifying commodities that were deemed to fall within the statutory class of "agricultural commodities." Vehicles carrying such commodities were exempt from ICC supervision. An action was brought by a carrier that claimed to be transporting exempt commodities, but which the ICC order had not included in its terms. Although the dissenting opinion noted that this ICC order had no authority except to give notice of how the Commission interpreted the Act, and would have effect only if and when a particular action was brought against a particular carrier, and argued that "judicial intervention [should] be withheld until administrative action has reached its complete development," 351 U.S. at 351 U. S. 45 , the Court held the order reviewable. Page 387 U. S. 151 Again, in United States v. Storer Broadcasting Co., 351 U. S. 192 , the Court held to be a final agency action within the meaning of the Administrative Procedure Act an FCC regulation announcing a Commission policy that it would not issue a television license to an applicant already owning five such licenses, even though no specific application was before the Commission. The Court stated: "The process of rulemaking was complete. It was final agency action . . . by which Storer claimed to be aggrieved.'" 351 U.S. at 351 U. S. 198 . We find decision in the present case following a fortiori from these precedents. The regulation challenged here, promulgated in a formal manner after announcement in the Federal Register and consideration of comments by interested parties [ Footnote 17 ] is quite clearly definitive. There is no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, or only the ruling of a subordinate official, see Swift & Co. v. Wickham, 230 F. Supp. 398 , 409, aff'd, 364 F.2d 241, or tentative. It was made effective upon publication, and the Assistant General Counsel for Food and Drugs stated in the District Court that compliance was expected. The Government argues, however, that the present case can be distinguished from cases like Frozen Food Express on the ground that, in those instances, the agency involved could implement its policy directly, while here, the Attorney General must authorize criminal and seizure actions for violations of the statute. In the context of this case, we do not find this argument persuasive. These regulations are not meant to advise the Attorney General, but purport to be directly authorized by the statute. Thus, if within the Commissioner's authority, Page 387 U. S. 152 they have the status of law and violations of them carry heavy criminal and civil sanctions. Also, there is no representation that the Attorney General and the Commissioner disagree in this area; the Justice Department is defending this very suit. It would be adherence to a mere technicality to give any credence to this contention. Moreover, the agency does have direct authority to enforce this regulation in the context of passing upon applications for clearance of new drugs, § 505, 21 U.S.C. § 355, or certification of certain antibiotics, § 507, 21 U.S.C. § 357. This is also a case in which the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. These regulations purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of all prescription drug companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate. [ Footnote 18 ] As the District Court found on the basis of uncontested allegations, "Either they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution." 228 F. Supp. 855 , 861. The regulations are clear-cut, and were made effective immediately upon publication; as noted earlier the agency's counsel represented to the District Court that immediate compliance with their terms was expected. If petitioners wish to comply they must change all their labels, advertisements, and promotional materials; they must destroy stocks of printed matter, and they must invest heavily in new printing type and new supplies. Page 387 U. S. 153 The alternative to compliance -- continued use of material which they believe in good faith meets the statutory requirements, but which clearly does not meet the regulation of the Commissioner -- may be even more costly. That course would risk serious criminal and civil penalties for the unlawful distribution of "misbranded" drugs. [ Footnote 19 ] It is relevant at this juncture to recognize that petitioners deal in a sensitive industry, in which public confidence in their drug products is especially important. To require them to challenge these regulations only as a defense to an action brought by the Government might harm them severely and unnecessarily. Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance, neither of which appears here. The Government does not dispute the very real dilemma in which petitioners are placed by the regulation, but contends that "mere financial expense" is not a justification for pre-enforcement judicial review. It is, of course, true that cases in this Court dealing with the standing of particular parties to bring an action have held that a possible financial loss is not, by itself, a sufficient interest to sustain a judicial challenge to governmental action. Frothingham v. Mellon, 262 U. S. 447 ; Perkins v. Lukens Page 387 U. S. 154 Steel Co., 310 U. S. 113 . But there is no question in the present case that petitioners have sufficient standing as plaintiffs: the regulation is directed at them in particular; it requires them to make significant changes in their everyday business practices; if they fail to observe the Commissioner's rule, they are quite clearly exposed to the imposition of strong sanctions. Compare Columbia Broadcasting System v. United States, 316 U. S. 407 ; 3 Davis, Administrative Law Treatise, c. 21 (1958). This case is, therefore, remote from the Mellon and Perkins cases. The Government further contends that the threat of criminal sanctions for noncompliance with a judicially untested regulation is unrealistic; the Solicitor General has represented that, if court enforcement becomes necessary, "the Department of Justice will proceed only civilly for an injunction . . . or by condemnation." We cannot accept this argument as a sufficient answer to petitioners' petition. This action at its inception was properly brought and this subsequent representation of the Department of Justice should not suffice to defeat it. Finally, the Government urges that to permit resort to the courts in this type of case may delay or impede effective enforcement of the Act. We fully recognize the important public interest served by assuring prompt and unimpeded administration of the Pure Food, Drug, and Cosmetic Act, but we do not find the Government's argument convincing. First, in this particular case, a pre-enforcement challenge by nearly all prescription drug manufacturers is calculated to speed enforcement. If the Government prevails, a large part of the industry is bound by the decree; if the Government loses, it can more quickly revise its regulation. The Government contends, however, that, if the Court allows this consolidated suit, then nothing will prevent a multiplicity of suits in various jurisdictions challenging other regulations. The short answer to this contention Page 387 U. S. 155 is that the courts are well equipped to deal with such eventualities. The venue transfer provision, 28 U.S.C. § 1404(a), may be invoked by the Government to consolidate separate actions. Or actions in all but one jurisdiction might be stayed pending the conclusion of one proceeding. See American Life Ins. Co. v. Stewart, 300 U. S. 203 , 300 U. S. 215 -216. A court may even, in its discretion, dismiss a declaratory judgment or injunctive suit if the same issue is pending in litigation elsewhere. Maryland Cas. Co. v. Consumers Finance Service, 101 F.2d 514; Carbide & Carbon C. Corp. v. United States I. Chemicals, 140 F.2d 47; Note, Availability of a Declaratory Judgment When Another Suit Is Pending, 51 Yale L.J. 511 (1942). In at least one suit for a declaratory judgment, relief was denied with the suggestion that the plaintiff intervene in a pending action elsewhere. Automotive Equip., Inc. v. Trico Prods. Corp., 11 F. Supp. 292 ; see Allstate Ins. Co. v. Thompson, 121 F. Supp. 696 . Further, the declaratory judgment and injunctive remedies are equitable in nature, and other equitable defenses may be interposed. If a multiplicity of suits are undertaken in order to harass the Government or to delay enforcement, relief can be denied on this ground alone. Truly v. Wanzer , 5 How. 141, 46 U. S. 142 ; cf. Brillhart v. Excess Ins. Co., 316 U. S. 491 , 316 U. S. 495 . The defense of laches could be asserted if the Government is prejudiced by a delay, Southern Pac. Co. v. Bogert, 250 U. S. 483 , 250 U. S. 488 -490; 2 Pomeroy's Equity Jurisprudence §§ 419c-d (5th ed. Symons, 1941). And courts may even refuse declaratory relief for the nonjoinder of interested parties who are not, technically speaking, indispensable. Cf. Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703; 6A Moore, Federal Practice � 57.25 (2d ed.1966). In addition to all these safeguards against what the Government fears, it is important to note that the institution of this type of action does not, by itself, stay the effectiveness of the challenged regulation. There is Page 387 U. S. 156 nothing in the record to indicate that petitioners have sought to stay enforcement of the "every time" regulation pending judicial review. See 5 U.S.C. § 705. If the agency believes that a suit of this type will significantly impede enforcement or will harm the public interest, it need not postpone enforcement of the regulation, and may oppose any motion for a judicial stay on the part of those challenging the regulation. Ibid. It is scarcely to be doubted that a court would refuse to postpone the effective date of an agency action if the Government could show, as it made no effort to do here, that delay would be detrimental to the public health or safety. See Associated Securities Corp. v. SEC, 283 F.2d 773, 775, where a stay was denied because "the petitioners . . . [had] not sustained the burden of establishing that the requested stays will not be harmful to the public interest . . . "; see Eastern Air Lines v. CAB, 261 F.2d 830; cf. Scripps-Howard Radio v. FCC, 316 U. S. 4 , 316 U. S. 10 -11; 5 U.S.C. § 705. Lastly, although the Government presses us to reach the merits of the challenge to the regulation in the event we find the District Court properly entertained this action, we believe the better practice is to remand the case to the Court of Appeals for the Third Circuit to review the District Court's decision that the regulation was beyond the power of the Commissioner. [ Footnote 20 ] Reversed and remanded. MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. [For dissenting opinions of MR. JUSTICE FORTAS and MR. JUSTICE CLARK, see post pp. 387 U. S. 174 and 387 U. S. 201 , respectively.] [ Footnote 1 ] That is, a suit brought by one before any attempted enforcement of the statute or regulation against him. [ Footnote 2 ] See H.R.Rep. No.1980, 79th Cong., 2d Sess., 41 (1946): "To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review." See also S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). [ Footnote 3 ] Embodied in §§ 701(e), (f), 21 U.S.C. §§ 371(e), (f), and discussed hereafter. Section 701(e) provides a procedure for the issuance of regulations under certain specifically enumerated statutory sections. Section 701(f) establishes a procedure for direct review by a court of appeals of a regulation promulgated under § 701(e). [ Footnote 4 ] The Administrative Procedure Act was enacted in 1946, 60 Stat. 237. [ Footnote 5 ] The Declaratory Judgment Act was enacted in 1934, 48 Stat. 955. [ Footnote 6 ] See, e.g., the discussion of judicial review under the equity power in the House of Representatives during the debate on these provisions. 83 Cong.Rec. 7891-7896 (1938). [ Footnote 7 ] See, e.g., 83 Cong.Rec. 7783 (remarks of Representative Leavy) (1938); Statement of Professor David F. Cavers before a Subcommittee of the Senate Committee on Commerce on S.1944, 73d Cong., 2d Sess. (1933), reprinted in Dunn, Federal Food, Drug, and Cosmetic Act, A Statement of Its Legislative Record 1110 (1938). [ Footnote 8 ] See, e.g., 83 Cong.Rec. 7772-7773, 7781-7784, 7893-7899 (1938). [ Footnote 9 ] See, e.g., the discussion of the conference report, 83 Cong.Rec. 9096-9098 (1938). [ Footnote 10 ] See, e.g., 83 Cong.Rec. 7772, 7892, 9092-9093 (1938). [ Footnote 11 ] See Toilet Goods Assn. v. Gardner, 360 F.2d 677, 683, where the court noted that "The agency determinations specifically reviewable under § 701(e) relate to such technical subjects as chemical properties of particular products and the formulation and application of safety standards for protecting public health; Congress naturally did not wish courts to consider such matters without the benefit of the agency's views after an evidentiary hearing before it." [ Footnote 12 ] H.R.Conf.Rep. No. 2716, 75th Cong., 3d Sess., 25 (1938); 83 Cong.Rec. 8731-8738 (1938) (Senate agreement to the conference report). [ Footnote 13 ] See Notes of the Advisory Committee on Federal Rule of Civil Procedure 57, reprinted in 28 U.S.C.App. at 6136: "A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case. . . ." See also 6A Moore, Federal Practice § 57.08[3] (2d ed.1966). [ Footnote 14 ] The Government apparently views the clause as applying only when regulations falling within the special review procedure are promulgated without affording the required public notice and opportunity to file objections and to request a public hearing. In such a case alone, the Government asserts, "an equity proceeding or a declaratory judgment action . . . might be entertained on the ground that the statutory procedures had not been followed." Brief, p. 28. [ Footnote 15 ] See 3 Davis, Administrative Law Treatise, c. 21 (1958); Jaffe Judicial Control of Administrative Action, c. 10 (1965). [ Footnote 16 ] While the "every time" issue has been framed by the parties in terms of statutory compulsion, we think that its essentially legal character would not be different had it been framed in terms of statutory authorization for the requirement. [ Footnote 17 ] Compare similar procedures followed in Frozen Food Express, supra, at 351 U. S. 41 -42, and Storer, supra, at 193-194. The procedure conformed with that prescribed in § 4 of the Administrative Procedure Act, 5 U.S.C. § 1003. [ Footnote 18 ] See S.Rep. No. 1005, 73d Cong., 2d Sess., 2-3 (1934); Borchard, Challenging "Penal" Statutes by Declaratory Action, 52 Yale L.J. 445, 454 (1943). [ Footnote 19 ] Section 502(e)(1)(B) declares a drug not complying with this labeling requirement to be "misbranded." Section 301, 21 U.S.C. § 331, designates as "prohibited acts" the misbranding of drugs in interstate commerce. Such prohibited acts are subject to injunction, § 302, 21 U.S.C. § 332, criminal penalties, § 303, 21 U.S.C. § 333, and seizure, § 304(a), 21 U.S.C. § 334(a). [ Footnote 20 ] A totally separate issue raised in the petition for certiorari and argued by the parties in their briefs concerns the dismissal of the complaint as to certain of the plaintiffs on the ground that venue was improper as to them. All the petitioners asserted that venue was proper in Delaware not only because some of them are incorporated there, but also under 28 U.S.C. § 1381(e)(4), allowing an action against a government official in any judicial district in which "the plaintiff resides. . . ." It is contended that § 1391(e)(4) must be read to incorporate the definition of "residence" set out in 28 U.S.C. § 1391(c): "A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." The issue of construction is whether § 1391(c) should be read as defining corporate venue only when the corporation is a defendant, or whether it should either (1) be adopted for corporate residence in all cases when a corporation is a plaintiff, or (2) at least as the definition of "resides" as used in § 1391(e)(4). This question is a difficult one, with far-reaching effects, and we think it is appropriate to dismiss our writ of certiorari as to this question for the following two reasons. First, the Court of Appeals, in affirming the District Court on this issue, did not explicitly endorse the lower court's ruling, but held only: "We find no prejudicial error in the dismissal of the complaint as to these plaintiffs. . . ." 352 F.2d 524, 525. Review of an issue of this importance is best left to a case where it has been fully dealt with by a court of appeals. Second, one of the plaintiffs whose complaint was not dismissed is the Pharmaceutical Manufacturers Association, of which all the corporate petitioners are members, and we think it should be considered that they are adequately protected in this suit by its participation, as well as by the participation of the remaining drug companies whose interests are identical to those of the petitioners whose complaints were dismissed. Cf. Mishkin v. New York, 383 U. S. 502 , 383 U. S. 512 -514. Moreover, in the further course of this litigation, it will be open to the dismissed plaintiffs to seek amicus curiae status.

Abbott Laboratories v. Gardner (1967): The Supreme Court held that pre-enforcement judicial review of agency regulations is not prohibited by the Federal Food, Drug, and Cosmetic Act, and that the case presented a "ripe" controversy for judicial resolution. The Court interpreted the statute's saving clause as not foreclosing pre-enforcement review and found the issue of statutory construction purely legal and the regulations final. The case concerned a challenge by drug manufacturers to FDA regulations requiring labels and advertisements for prescription drugs to include the corresponding "established name." The Court also addressed a separate issue of venue regarding certain plaintiffs, but dismissed the writ of certiorari on that matter.

Government Agencies

U.S. v. Florida East Coast Railway Co.

https://supreme.justia.com/cases/federal/us/410/224/

U.S. Supreme Court United States v. Florida East Coast Ry. Co., 410 U.S. 224 (1973) United States v. Florida East Coast Railway Co. No. 70-279 Argued December 7, 1972 Decided January 22, 1973 410 U.S. 224 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA Syllabus The District Court ruled that appellee railroads were prejudiced by failure of the Interstate Commerce Commission (ICC) to hold oral hearings as required by §§ 556 and 557 of the Administrative Procedure Act (APA) before establishing industry-wide per diem rates for freight-car use. The ICC did receive written submissions from appellees, but refused to conduct the hearings requested by appellees prior to completion of its rulemaking. Held: The language of § 1(14)(a) of the Interstate Commerce Act that "[t]he Commission may, after hearing . . . establish reasonable rules . . ." did not trigger §§ 556 and 557 of the APA requiring a trial-type hearing and the presentation of oral argument by the affected parties; and the ICC's proceeding was governed only b § 553 of the APA requiring notice prior to rulemaking. United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 . Nor does the "after hearing" language of § 1(14)(a) of the Interstate Commerce Act by itself confer upon interested parties either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency's decisionmaker. Pp. 410 U. S. 234 -246. 322 F. Supp. 725 , reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 410 U. S. 246 . POWELL, J., took no part in the consideration or decision of the case. Page 410 U. S. 225 MR. JUSTICE REHNQUIST delivered the opinion of the Court. Appellees, two railroad companies, brought this action in the District Court for the Middle District of Florida to set aside the incentive per diem rates established by appellant Interstate Commerce Commission in a rulemaking proceeding. Incentive Per Diem Charges -- 1968, Ex parte No. 252 (Sub-No. 1), 337 I.C.C. 217 (1970). They challenged the order of the Commission on both substantive and procedural grounds. The District Court sustained appellees' position that the Commission had failed to comply with the applicable provisions of the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and therefore set aside the order without dealing with the railroads' other contentions. The District Court held that the language of § 1(14)(a) [ Footnote 1 ] of the Interstate Commerce Page 410 U. S. 226 Act, 24 Stat. 379, as amended, 49 U.S.C. § 1(14)(a), required the Commission in a proceeding such as this to act in accordance with the Administrative Procedure Act, 5 U.S. C § 556(d), and that the Commission's determination to receive submissions from the appellees only in written form was a violation of that section because the appellees were "prejudiced" by that determination within the meaning of that section. Following our decision last Term in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 (1972), we noted probable jurisdiction, 407 U.S. 908 (1972), and requested the parties to brief the question of whether the Commission's proceeding was governed by 5 U.S.C. § 553, [ Footnote 2 ] Page 410 U. S. 227 or by §§ 556 [ Footnote 3 ] and 557, [ Footnote 4 ] of the Administrative Procedure Act. We here decide that the Commission's proceeding was governed only by § 553 of that Act, Page 410 U. S. 228 and that appellees received the "hearing" required by § 1 (14)(a) of the Interstate Commerce Act. We, therefore, reverse the judgment of the District Court and Page 410 U. S. 229 remand the case to that court for further consideration of appellees' other contentions that were raised there, but which we do not decide. Page 410 U. S. 230 I . BACKGROUND OF CHRONIC FREIGHT CAR SHORTAGES This case arises from the factual background of a chronic freight-car shortage on the Nation's railroads, which we described in United States v. Allegheny-Ludlum Steel Corp., supra. Judge Simpson, writing for the District Court in this case, noted that "[f]or a number of years portions of the nation have been plagued with seasonal shortages of freight cars in which to ship goods." 322 F. Supp. 725 , 726 (MD Fla.1971). Judge Friendly, writing for a three-judge District Court in the Eastern District of New York in the related case of Long Island R. Co. v. United States, 318 F. Supp. 490 , 491 (EDNY 1970), described the Commission's order as "the latest chapter in a long history of freight car shortages in certain regions and seasons and of attempts to ease them." Congressional concern for the problem was manifested in the enactment in 1966 of an amendment to § 1(14)(a) of the Interstate Commerce Act, enlarging the Commission's authority to prescribe per diem charges for the use by one railroad of freight cars owned by another. Pub.L. 89-430, 80 Stat. 168. The Senate Page 410 U. S. 231 Committee on Commerce stated in its report accompanying this legislation: "Car shortages, which once were confined to the Midwest during harvest seasons, have become increasingly more frequent, more severe, and nationwide in scope as the national freight car supply has plummeted." S.Rep. No. 386, 89th Cong., 1st Sess., 1-2. The Commission, in 1966, commenced an investigation, Ex parte No. 252, Incentive Per Diem Charges, "to determine whether information presently available warranted the establishment of an incentive element increase, on an interim basis, to apply pending further study and investigation." 332 I.C.C. 11, 12 (1967). Statements of position were received from the Commission staff and a number of railroads. Hearings were conducted at which witnesses were examined. In October, 1967, the Commission rendered a decision discontinuing the earlier proceeding, but announcing a program of further investigation into the general subject. In December, 1967, the Commission initiated the rulemaking procedure giving rise to the order that appellees here challenge. It directed Class I and Class II linehaul railroads to compile and report detailed information with respect to freight car demand and supply at numerous sample stations for selected days of the week during 12 four-week periods, beginning January 29, 1968. Some of the affected railroads voiced questions about the proposed study or requested modification in the study procedures outlined by the Commission in its notice of proposed rulemaking. In response to petitions setting forth these carriers' views, the Commission staff held an informal conference in April, 1968, at which the objections and proposed modifications were discussed. Page 410 U. S. 232 Twenty railroads, including appellee Seaboard, were represented at this conference, at which the Commission's staff sought to answer questions about reporting methods to accommodate individual circumstances of particular railroads. The conference adjourned on a note that undoubtedly left the impression that hearings would be held at some future date. A detailed report of the conference was sent to all parties to the proceeding before the Commission. The results of the information thus collected were analyzed and presented to Congress by the Commission during a hearing before the Subcommittee on Surface Transportation of the Senate Committee on Commerce in May, 1969. Members of the Subcommittee expressed dissatisfaction with the Commission's slow pace in exercising the authority that had been conferred upon it by the 1966 Amendments to the Interstate Commerce Act. Judge Simpson, in his opinion for the District Court, said: "Members of the Senate Subcommittee on Surface Transportation expressed considerable dissatisfaction with the Commission's apparent inability to take effective steps toward eliminating the national shortage of freight cars. Comments were general that the Commission was conducting too many hearings and taking too little action. Senators pressed for more action and less talk, but Commission counsel expressed doubt respecting the Commission's statutory power to act without additional hearings." 322 F. Supp. at 727. Judge Friendly, describing the same event in Long Island R. Co. v. United States, supra, said: "To say that the presentation was not received with enthusiasm would be a considerable understatement. Senators voiced displeasure at the Commission's Page 410 U. S. 233 long delay at taking action under the 1966 amendment, engaged in some merriment over what was regarded as an unintelligible discussion of methodology . . . and expressed doubt about the need for a hearing. . . . But the Commission's general counsel insisted that a hearing was needed . . . and the Chairman of the Commission agreed. . . ." 318 F. Supp. at 494. The Commission, now apparently imbued with a new sense of mission, issued in December, 1969, an interim report announcing its tentative decision to adopt incentive per diem charges on standard boxcars based on the information compiled by the railroads. The substantive decision reached by the Commission was that so-called "incentive" per diem charges should be paid by any railroad using on its lines a standard boxcar owned by another railroad. Before the enactment of the 1966 amendment to the Interstate Commerce Act, it was generally thought that the Commission's authority to fix per diem payments for freight car use was limited to setting an amount that reflected fair return on investment for the owning railroad, without any regard being had for the desirability of prompt return to the owning line or for the encouragement of additional purchases of freight cars by the railroads as a method of investing capital. The Commission concluded, however, that, in view of the 1966 amendment, it could impose additional "incentive" per diem charges to spur prompt return of existing cars and to make acquisition of new cars financially attractive to the railroads. It did so by means of a proposed schedule that established such charges on an across-the-board basis for all common carriers by railroads subject to the Interstate Commerce Act. Embodied in the report was a proposed rule adopting the Commission's tentative conclusions and a notice Page 410 U. S. 234 to the railroads to file statements of position within 60 days, couched in the following language: "That verified statements of facts, briefs, and statements of position respecting the tentative conclusions reached in the said interim report, the rules and regulations proposed in the appendix to this order, and any other pertinent matter, are hereby invited to be submitted pursuant to the filing schedule set forth below by an interested person whether or not such person is already a party to this proceeding." " * * * *" "That any party requesting oral hearing shall set forth with specificity the need therefor and the evidence to be adduced." 337 I.C.C. 183, 213. Both appellee railroads filed statements objecting to the Commission's proposal and requesting an oral hearing, as did numerous other railroads. In April, 1970, the Commission, without having held further "hearings," issued a supplemental report making some modifications in the tentative conclusions earlier reached, but overruling in toto the requests of appellees. The District Court held that, in so doing, the Commission violated § 556(d) of the Administrative Procedure Act, and it was on this basis that it set aside the order of the Commission. II . APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT In United States v. Allegheny-Ludlum Steel Corp., supra, we held that the language of § 1(14)(a) of the Interstate Commerce Act authorizing the Commission to act "after hearing" was not the equivalent of a requirement that a rule be made "on the record after opportunity for an agency hearing" as the latter term is used in § 53(c) of the Administrative Procedure Act. Since the 1966 amendment to § 1(14)(a), under which Page 410 U. S. 235 the Commission was here proceeding, does not, by its terms, add to the hearing requirement contained in the earlier language, the same result should obtain here unless that amendment contains language that is tantamount to such a requirement. Appellees contend that such language is found in the provisions of that Act requiring that: "[T]he Commission shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply, and shall, on the basis of such consideration, determine whether compensation should be computed. . . ." While this language is undoubtedly a mandate to the Commission to consider the factors there set forth in reaching any conclusion as to imposition of per diem incentive charges, it adds to the hearing requirements of the section neither expressly nor by implication. We know of no reason to think that an administrative agency, in reaching a decision, cannot accord consideration to factors such as those set forth in the 1966 amendment by means other than a trial-type hearing or the presentation of oral argument by the affected parties. Congress by that amendment specified necessary components of the ultimate decision, but it did not specify the method by which the Commission should acquire information about those components. [ Footnote 5 ] Page 410 U. S. 236 Both of the district courts that reviewed this order of the Commission concluded that its proceedings were governed by the stricter requirement of §§ 556 and 557 of the Administrative Procedure Act, rather than by the provisions of § 553 alone. [ Footnote 6 ] The conclusion of the District Court for the Middle District of Florida, which we here review, was based on the assumption that the language in § 1(14)(a) of the Interstate Commerce Act requiring rulemaking under that section to be done "after hearing" was the equivalent of a statutory requirement that the rule "be made on the record after opportunity for an agency hearing." Such an assumption Page 410 U. S. 237 is inconsistent with our decision in Allegheny-Ludlum, supra. The District Court for the Eastern District of New York reached the same conclusion by a somewhat different line of reasoning. That court felt that, because § 1(14)(a) of the Interstate Commerce Act had required a "hearing," and because that section was originally enacted in 1917, Congress was probably thinking in terms of a "hearing" such as that described in the opinion of this Court in the roughly contemporaneous case of ICC v. Louisville & Nashville R. Co., 227 U. S. 88 , 227 U. S. 93 (1913). The ingredients of the "hearing" were there said to be that "[a]ll parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal." Combining this view of congressional understanding of the term "hearing" with comments by the Chairman of the Commission at the time of the adoption of the 1966 legislation regarding the necessity for "hearings," that court concluded that Congress had, in effect, required that these proceedings be "on the record after opportunity for an agency hearing" within the meaning of § 553(c) of the Administrative Procedure Act. Insofar as this conclusion is grounded on the belief that the language "after hearing" of § 1(14)(a), without more, would trigger the applicability of §§ 556 and 557, it, too, is contrary to our decision in Allegheny-Ludlum, supra. The District Court observed that it was "rather hard to believe that the last sentence of § 553(c) was directed only to the few legislative sports where the words 'on the record' or their equivalent had found their way into the statute book." 318 F. Supp. at 496. This is, however, the language which Congress used, and since there are statutes on the books that do use these Page 410 U. S. 238 very words, see, e.g., the Fulbright Amendment to the Walsh-Healey Act, 41 U.S.C. § 43a, and 21 U.S.C. § 371(e)(3), the regulations provision of the Food and Drug Act, adherence to that language cannot be said to render the provision nugatory or ineffectual. We recognized in Allegheny-Ludlum that the actual words "on the record" and "after . . . hearing" used in § 553 were not words of art, and that other statutory language having the same meaning could trigger the provisions of §§ 556 and 557 in rulemaking proceedings. But we adhere to our conclusion, expressed in that case, that the phrase "after hearing" in § 1(14)(a) of the Interstate Commerce Act does not have such an effect. III . "HEARING" REQUIREMENT OF § 1(14)(a) OF THE INTERSTATE COMMERCE ACT Inextricably intertwined with the hearing requirement of the Administrative Procedure Act in this case is the meaning to be given to the language "after hearing" in § 1(14)(a) of the Interstate Commerce Act. Appellees, both here and in the court below, contend that the Commission procedure here fell short of that mandated by the "hearing" requirement of § 1(14)(a), even though it may have satisfied § 553 of the Administrative Procedure Act. The Administrative Procedure Act states that none of its provisions "limit or repeal additional requirements imposed by statute or otherwise recognized by law." 5 U.S.C. § 559. Thus, even though the Commission was not required to comply with §§ 556 and 557 of that Act, it was required to accord the "hearing" specified in § 1(14)(a) of the Interstate Commerce Act. Though the District Court did not pass on this contention, it is so closely related to the claim based on the Administrative Procedure Act that we proceed to decide it now. Page 410 U. S. 239 If we were to agree with the reasoning of the District Court for the Eastern District of New York with respect to the type of hearing required by the Interstate Commerce Act, the Commission's action might well violate those requirements, even though it was consistent with the requirements of the Administrative Procedure Act. The term "hearing" in its legal context undoubtedly has a host of meanings. [ Footnote 7 ] Its meaning undoubtedly will vary, depending on whether it is used in the context of a rulemaking-type proceeding or in the context of a proceeding devoted to the adjudication of particular disputed facts. It is by no means apparent what the drafters of the Esch Car Service Act of 1917, 40 Stat. 101, which became the first part of § 1(14)(a) of the Interstate Commerce Act, meant by the term. Such an intent would surely be an ephemeral one if, indeed, Congress in 1917 had in mind anything more specific than the language it actually used, for none of the parties refer to any legislative history that would shed light on the intended meaning of the words "after hearing." What is apparent, though, is that the term was used in granting authority to the Commission to make rules and regulations of a prospective nature. Appellees refer us to testimony of the Chairman of the Commission to the effect that, if the added authority ultimately contained in the 1966 amendment were enacted, the Commission would proceed with "great caution" in imposing incentive per diem rates, and to statements of both Commission personnel and Members of Congress as to the necessity for a "hearing" before Commission action. Certainly, the lapse of time of more than three years between the enactment of the 1966 amendment and the Commission's issuance of its tentative Page 410 U. S. 240 conclusions cannot be said to evidence any lack of caution on the part of that body. Nor do generalized references to the necessity for a hearing advance our inquiry, since the statute, by its terms, requires a "hearing"; the more precise inquiry of whether the hearing requirements necessarily include submission of oral testimony, cross-examination, or oral arguments is not resolved by such comments as these. Under these circumstances, confronted with a grant of substantive authority made after the Administrative Procedure Act was enacted, [ Footnote 8 ] we think that reference to that Act, in which Congress devoted itself exclusively to questions such as the nature and scope of hearings, is a satisfactory basis for determining what is meant by the term "hearing" used in another statute. Turning to that Act, we are convinced that the term "hearing," as used therein, does not necessarily embrace either the right to present evidence orally and to cross-examine opposing witnesses, or the right to present oral argument to the agency's decisionmaker. Section 553 excepts from its requirements rulemaking devoted to "interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice," and rulemaking "when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." This exception does not apply, however, "when notice or hearing is required by statute"; in those cases. even though interpretative rulemaking be involved, the requirements of § 553 apply. But since these requirements Page 410 U. S. 241 themselves do not mandate any oral presentation, see Allegheny-Ludlum, supra, it cannot be doubted that a statute that requires a "hearing" prior to rulemaking may in some circumstances be satisfied by procedures that meet only the standards of § 553. The Court's opinion in FPC v. Texaco Inc., 377 U. S. 33 (1964), supports such a broad definition of the term "hearing." Similarly, even where the statute requires that the rulemaking procedure take place "on the record after opportunity for an agency hearing," thus triggering the applicability of § 656, subsection (d) provides that the agency may proceed by the submission of all or part of the evidence in written form if a party will not be "prejudiced thereby." Again, the Act makes it plain that a specific statutory mandate that the proceedings take place on the record after hearing may be satisfied in some circumstances by evidentiary submission in written form only. We think this treatment of the term "hearing" in the Administrative Procedure Act affords a sufficient basis for concluding that the requirement of a "hearing" contained in § 1(14)(a), in a situation where the Commission was acting under the 1966 statutory rulemaking authority that Congress had conferred upon it, did not by its own force require the Commission either to hear oral testimony, to permit cross-examination of Commission witnesses, or to hear oral argument. Here, the Commission promulgated a tentative draft of an order, and accorded all interested parties 60 days in which to file statements of position, submissions of evidence, and other relevant observations. The parties had fair notice of exactly what the Commission proposed to do, and were given an opportunity to comment, to object, or to make some other form of written submission. The final order of the Commission indicates that it gave consideration to the statements of the two appellees here. Page 410 U. S. 242 Given the "open-ended" nature of the proceedings, and the Commission's announced willingness to consider proposals for modification after operating experience had been acquired, we think the hearing requirement of § 1(14)(a) of the Act was met. Appellee railroads cite a number of our previous decisions dealing in some manner with the right to a hearing in an administrative proceeding. Although appellees have asserted no claim of constitutional deprivation in this proceeding, some of the cases they rely upon expressly speak in constitutional terms, while others are less than clear as to whether they depend upon the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution, or upon generalized principles of administrative law formulated prior to the adoption of the Administrative Procedure Act. Morgan v. United States, 304 U. S. 1 (1938), is cited in support of appellees' contention that the Commission's proceedings were fatally deficient. That opinion describes the proceedings there involved as " quasi -judicial," id. at 304 U. S. 14 , and thus presumably distinct from a rulemaking proceeding such as that engaged in by the Commission here. But since the order of the Secretary of Agriculture there challenged did involve a form of ratemaking, the case bears enough resemblance to the facts of this case to warrant further examination of appellees' contention. The administrative procedure in Morgan was held to be defective primarily because the persons who were to be affected by the Secretary's order were found not to have been adequately apprised of what the Secretary proposed to do prior to the time that he actually did it. Illustrative of the Court's reasoning is the following passage from the opinion: "The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party Page 410 U. S. 243 and to meet them. The right to submit argument implies that opportunity; otherwise the right may be but a barren one. Those who are brought into contest with the Government in a quasi -judicial proceeding aimed at the control of their activities are entitled to be fairly advised of what the Government proposes and to be heard upon its proposals before it issues its final command." Id. at 304 U. S. 18 -19. [ Footnote 9 ] The proceedings before the Secretary of Agriculture had been initiated by a notice of inquiry into the reasonableness of the rates in question, and the individuals being regulated suffered throughout the proceeding from its essential formlessness. The Court concluded that this formlessness denied the individuals subject to regulation the "full hearing" that the statute had provided. Assuming, arguendo, that the statutory term "full hearing" does not differ significantly from the hearing requirement of § 1(14)(a), we do not believe that the proceedings of the Interstate Commerce Commission before us suffer from the defect found to be fatal in Morgan. Though the initial notice of the proceeding by no means set out in detail what the Commission proposed to do, its tentative conclusions and order of December 1969, could scarcely have been more explicit or detailed. All interested parties were given 60 days following the issuance of these tentative findings and order in which to make appropriate objections. Appellees were "fairly advised" of exactly what the Commission proposed to do sufficiently in advance of the entry of the final order to give them adequate time to Page 410 U. S. 244 formulate and to present objections to the Commission's proposal. Morgan, therefore, does not aid appellees. ICC v. Louisville & Nashville R. Co., 227 U. S. 88 (1913), involved what the Court there described as a " quasi -judicial" proceeding of a quite different nature from the one we review here. The provisions of the Interstate Commerce Act, 24 Stat. 379, as amended, and of the Hepburn Act, 34 Stat. 584, in effect at the time that case was decided, left to the railroad carriers the "primary right to make rates," 227 U.S. at 227 U. S. 92 , but granted to the Commission the authority to set them aside if, after hearing, they were shown to be unreasonable. The proceeding before the Commission in that case had been instituted by the New Orleans Board of Trade complaint that certain class and commodity rates charged by the Louisville & Nashville Railroad from New Orleans to other points were unfair, unreasonable, and discriminatory. 227 U.S. at 227 U. S. 90 . The type of proceeding there, in which the Commission adjudicated a complaint by a shipper that specified rates set by a carrier were unreasonable, was sufficiently different from the nationwide incentive payments ordered to be made by all railroads in this proceeding so as to make the Louisville & Nashville opinion inapplicable in the case presently before us. The basic distinction between rulemaking and adjudication is illustrated by this Court's treatment of two related cases under the Due Process Clause of the Fourteenth Amendment. In Londoner v. Denver, cited in oral argument by appellees, 210 U. S. 373 (1908), the Court held that due process had not been accorded a landowner who objected to the amount assessed against his land as its share of the benefit resulting from the paving of a street. Local procedure had accorded him the right to file a written complaint and objection, but not to be heard orally. This Court held that due process Page 410 U. S. 245 of law required that he "have the right to support his allegations by argument however brief, and, if need be, by proof, however informal." Id. at 210 U. S. 386 . But in the later case of Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441 (1915), the Court held that no hearing at all was constitutionally required prior to a decision by state tax officers in Colorado to increase the valuation of all taxable property in Denver by a substantial percentage. The Court distinguished Londoner by stating that there, a small number of persons "were exceptionally affected, in each case upon individual grounds." Id. at 239 U. S. 446 . Later decisions have continued to observe the distinction adverted to in Bi-Metallic Investment Co., supra. In Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292 , 301 U. S. 304 -305 (1937), the Court noted the fact that the administrative proceeding there involved was designed to require the utility to refund previously collected rate charges. The Court held that, in such a proceeding, the agency could not, consistently with due process, act on the basis of undisclosed evidence that was never made a part of the record before the agency. The case is thus more akin to Louisville & Nashville R. Co., supra, than it is to this case. FCC v. WJR, 337 U. S. 265 (1949), established that there was no across-the-board constitutional right to oral argument in every administrative proceeding, regardless of its nature. While the line dividing them may not always be a bright one, these decisions represent a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases, on the other. Here, the incentive payments proposed by the Commission in its tentative order, and later adopted in its Page 410 U. S. 246 final order, were applicable across the board to all of the common carriers by railroad subject to the Interstate Commerce Act. No effort was made to single out any particular railroad for special consideration based on its own peculiar circumstances. Indeed, one of the objections of appellee Florida East Coast was that it and other terminating carriers should have been treated differently from the generality of the railroads. But the fact that the order may, in its effects, have been thought more disadvantageous by some railroads than by others does not change its generalized nature. Though the Commission obviously relied on factual inferences as a basis for its order, the source of these factual inferences was apparent to anyone who read the order of December, 1969. The factual inferences were used in the formulation of a basically legislative-type judgment, for prospective application only, rather than in adjudicating a particular set of disputed facts. The Commission's procedure satisfied both the provisions of § 1(14)(a) of the Interstate Commerce Act and of the Administrative Procedure Act, and were not inconsistent with prior decisions of this Court. We, therefore, reverse the judgment of the District Court, and remand the case so that it may consider those contentions of the parties that are not disposed of by this opinion. It is so ordered. MR. JUSTICE POWELL took no part in the consideration or decision of this case. [ Footnote 1 ] Section 1(14)(a) provides: "The Commission may, after hearing, on a complaint or upon its own initiative without complaint, establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter, including the compensation to be paid and other terms of any contract, agreement, or arrangement for the use of any locomotive, var, or other vehicle not owned by the carrier using it (and whether or not owned by another carrier), and the penalties or other sanctions for nonobservance of such rules, regulations, or practices. In fixing such compensation to be paid for the use of any type of freight car, the Commission shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply, and shall, on the basis of such consideration, determine whether compensation should be computed solely on the basis of elements of ownership expense involved in owning and maintaining such type of freight car, including a fair return on value, or whether such compensation should be increased by such incentive element or elements of compensation as in the Commission's judgment will provide just and reasonable compensation to freight car owners, contribute to sound car service practices (including efficient utilization and distribution of cars), and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and the national defense. The Commission shall not make any incentive element applicable to any type of freight car the supply of which the Commission finds to be adequate, and may exempt from the compensation to be paid by any group of carriers such incentive element or elements if the Commission finds it to be in the national interest." [ Footnote 2 ] "§ 553. Rule making." "(a) This section applies, according to the provisions thereof, except to the extent that there is involved -- " "(1) a military or foreign affairs function of the United States, or" "(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts." "(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include -- " "(1) a statement of the time, place, and nature of public rule making proceedings;" "(2) reference to the legal authority under which the rule is proposed; and" "(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." "Except when notice or hearing is required by statute, this subsection does not apply --" "(a) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or" "(b) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." "(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection." "(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except --" "(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;" "(2) interpretative rules and statements of policy; or" "(3) as otherwise provided by the agency for good cause found and published with the rule." "(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." [ Footnote 3 ] "§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision." "(a) This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section." "(b) There shall preside at the taking of evidence --" "(1) the agency;" "(2) one or more members of the body which comprises the agency; or" "(3) one or more hearing examiners appointed under section 3105 of this title." "This subchapter does not supersede the conduct of specified classes of proceedings, in whole or in part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case." "(c) Subject to published rules of the agency and within its powers, employees presiding at hearings may -- " "(1) administer oaths and affirmations;" "(2) issue subpoenas authorized by law;" "(3) rule on offers of proof and receive relevant evidence;" "(4) take depositions or have depositions taken when the ends of justice would be served;" "(5) regulate the course of the hearing;" "(6) hold conferences for the settlement or simplification of the issue by consent of the parties;" "(7) dispose of procedural requests or similar matters;" "(8) make or recommend decisions in accordance with section 557 of this title; and" "(9) take other action authorized by agency rule consistent with this subchapter." "(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof. Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form." "(e) The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title and, on payment of lawfully prescribed costs, shall be made available to the parties. When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary." [ Footnote 4 ] "§ 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record." "(a) This section applies, according to the provisions thereof, when a hearing is required to be conducted in accordance with section 556 of this title." "(b) When the agency did not preside at the reception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hearings pursuant to section 556 of this title, shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, except that in rule making or determining applications for initial licenses --" "(1) instead thereof the agency may issue a tentative decision or one of its responsible employees may recommend a decision; or" "(2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions imperatively and unavoidably so requires." "(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions -- " "(1) proposed findings and conclusions; or" "(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and" "(3) supporting reasons for the exceptions or proposed findings or conclusions." "The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of --" "(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and" "(b) the appropriate rule, order, sanction, relief, or denial thereof." [ Footnote 5 ] The Court of Appeals for the Ninth Circuit reached a result similar to that which we reach, in Pacific Coast European Conference v. United States, 350 F.2d 197 (1965). Construing the authority of the Federal Maritime Commission under § 14b of the Shipping Act, 1916, as amended, 46 U.S.C. § 813a, that court observed that "[t]he authority of the Commission to permit such contracts was limited by requiring that the contracts in eight specified respects meet the congressional judgment as to what they should include." 350 F.2d at 201. Notwithstanding these explicit directions that particular factors be considered by the Commission in reaching its decision, the court held that the statute's requirements of "notice and hearing" were not sufficient to bring into play the provisions of §§ 556 and 557 of the Administrative Procedure Act. [ Footnote 6 ] Both district court opinions were handed down before our decision in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 (1972), and it appears from the record before us that the Government in those courts did not really contest the proposition that the Commission's proceedings were governed by the stricter standards of §§ 556 and 557. The dissenting opinion of MR. JUSTICE DOUGLAS relies in part on indications by the Commission that it proposed to apply the more stringent standards of §§ 556 and 557 of the Administrative Procedure Act to these proceedings. This Act is not legislation that the Interstate Commerce Commission, or any other single agency, has primary responsibility for administering. An agency interpretation involving, at least in part, the provisions of that Act does not carry the weight, in ascertaining the intent of Congress, that an interpretation by an agency "charged with the responsibility" of administering a particular statute does. See United States v. American Trucking Assns., 310 U. S. 534 (1940); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 (1933). Moreover, since any agency is free under the Act to accord litigants appearing before it more procedural rights than the Act requires, the fact that an agency may choose to proceed under §§ 556 and 557 does not carry the necessary implication that the agency felt it was required to do so. [ Footnote 7 ] See 1 K. Davis, Administrative Law Treatise, § 6.05 (1958). [ Footnote 8 ] The Interstate Commerce Act was amended in May, 1966; the 1946 Administrative Procedure Act was repealed by Act of Sept. 6, 1966, 80 Stat. 378, which revised, codified, and enacted Title 5 of the United States Code, but the section detailing the procedures to be used in rulemaking is substantially similar to the original provision in the 1946 Administrative Procedure Act. See § 4(b), 60 Stat. 238. [ Footnote 9 ] This same language was cited with approval by the Court in Willner v. Committee on Character, 373 U. S. 96 , 373 U. S. 105 (1963), in which it was held that an applicant for admission to the bar could not be denied such admission on the basis of ex parte statements of others whom he had not been afforded an opportunity to cross-examine. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE STEWART concurs, dissenting. The present decision makes a sharp break with traditional concepts of procedural due process. The Commission order under attack is tantamount to a rate order. Charges are fixed that nonowning railroads must pay Page 410 U. S. 247 owning railroads for boxcars of the latter that are on the tracks of the former. These charges are effective only during the months of September through February, the period of greatest boxcar use. For example, the charge for a boxcar that costs from $15,000 to $17,000 and that is five years of age or younger amounts to $5.19 a day. Boxcars costing between $39,000 and $41,000 and that are five years of age or younger cost the nonowning railroad $12.98 a day. The fees or rates charged decrease as the ages of the boxcars lengthen. 49 CFR § 1036.2. This is the imposition on carriers by administrative fiat of a new financial liability. I do not believe it is within our traditional concepts of due process to allow an administrative agency to saddle anyone with a new rate, charge, or fee without a full hearing that includes the right to present oral testimony, cross-examine witnesses, and present oral argument. That is required by the Administrative Procedure Act, 5 U.S.C. § 556(d); § 556(a) states that § 556 applies to hearings required by § 553. Section 553(c) provides that § 556 applies "[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing." A hearing under § 1(14)(a) of the Interstate Commerce Act fixing rates, charges, or fees is certainly adjudicatory, not legislative in the customary sense. The question is whether the Interstate Commerce Commission procedures used in this rate case "for the submission of . . . evidence in written form" avoided prejudice to the appellees so as to comport with the requirements of the Administrative Procedure Act. [ Footnote 2/1 ] The Government appeals from the District Court's order Page 410 U. S. 248 remanding this case to the Commission for further proceedings on the incentive per diem rates to be paid by the appellee railroads for the standard boxcars they use. In 1966, Congress amended § 1(14)(a) of the Interstate Commerce Act to require that the Commission investigate the use of methods of incentive compensation to alleviate any shortage of freight cars "and encourage the acquisition and maintenance of a car supply adequate to meet the needs of commerce and the national defense." 49 U.S.C. § 1(14)(a). While the Commission was given the discretion to exempt carriers from incentive payments "in the national interest," it was denied the power to "make any incentive element applicable to any type of freight car the supply of which the Commission finds to be adequate. . . ." Ibid. The Commission's initial investigation under this authority (31 Fed.Reg. 9240) was terminated without action because it "produced no reliable information respecting the quantum of interim incentive charge necessary to meet the statutory standards." 332 I.C.C. 11, 16. A subsequent study of boxcar supply and demand conditions (32 Fed.Reg. 20987) yielded data that were compiled in an interim report containing tentative charges and that were submitted to the railroads for comment. 337 I.C.C. 183. Although the Commission was admittedly uncertain whether its proposed charges would accomplish the statutory objective, id. at 191, and even though "the opportunity to present evidence and arguments" was contemplated, id. at 183, congressional impatience militated against further delay in implementing § 1(14)(a). [ Footnote 2/2 ] Consequently, the Commission rejected the requests of the appellees and other railroads for further hearings and promulgated an incentive Page 410 U. S. 249 per diem rate schedule for standard boxcars. 337 I.C.C. 217. Appellees then brought this action in the District Court alleging that they were "prejudiced" within the meaning of the Administrative Procedure Act by the Commission's failure to afford them a proper hearing. 322 F. Supp. 725 (MD Fla.1971). Seaboard argued that it had been damaged by what it alleged to be the Commission's sudden change in emphasis from specialty to unequipped boxcars, and that it would lose some $1.8 million as the result of the Commission's allegedly hasty and experimental action. Florida East Coast raised significant challenges to the statistical validity of the Commission's data, [ Footnote 2/3 ] and also contended that its status as a terminating railroad left it with a surfeit of standard boxcars which should exempt it from the requirement to pay incentive charges. Appellees, in other words, argue that the inadequacy of the supply of standard boxcars was not sufficiently established by the Commission's procedures. Seaboard contends that specialty freight cars have supplanted standard boxcars and Florida East Coast challenges the accuracy of the Commission's findings. In its interim report, the Commission indicated that there would be an opportunity to present evidence and arguments. See 337 I.C.C. 183, 187. The appellees could reasonably have expected that the later hearings would give them the opportunity to substantiate and elaborate the criticisms they set forth in their Page 410 U. S. 250 initial objections to the interim report. That alone would not necessarily support the claim of "prejudice." But I believe that "prejudice" was shown when it was claimed that the very basis on which the Commission rested its finding was vulnerable because it lacked statistical validity or other reasoned basis. At least in that narrow group of cases, prejudice for lack of a proper hearing has been shown. Both Long Island R. Co. v. United States, 318 F. Supp. 490 (EDNY 1970), and the present case involve challenges to the Commission's procedures establishing incentive per diem rates. In Long Island, however, the railroad pointed to no specific challenges to the Commission's findings ( id. at 499), and the trial was conducted on stipulated issues involving the right to an oral hearing. Id. at 491 n. 2. Since Long Island presented no information which might have caused the Commission to reach a different result, [ Footnote 2/4 ] there was no showing of prejudice, and a fortiori no right to an oral hearing. In the Page 410 U. S. 251 present case, by contrast, there are specific factual disputes, and the issue is the narrow one of whether written submission of evidence without oral argument was prejudicial. The more exacting hearing provisions of the Administrative Procedure Act, 5 U.S.C. §§ 556-557, are only applicable, of course, if the "rules are required by statute to be made on the record after opportunity for an agency hearing." Id. § 553(c). United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 , was concerned strictly with a rulemaking proceeding of the Commission for the promulgation of "car service rules" that in general required freight cars, after being unloaded, to be returned "in the direction of the lines of the road owning the cars." Id. at 406 U. S. 743 . We sustained the Commission's power with respect to these two rules on the narrow ground that they were wholly legislative. We held that § 1(14)(a) of the Interstate Commerce Act, requiring, by its terms, a "hearing," "does not require that such rules be made on the record'" within the meaning of § 553(c). Id. at 406 U. S. 757 . We recognized, however, that the precise words "on the record" are not talismanic, but that the crucial question is whether the proceedings under review are "an exercise of legislative rulemaking" or "adjudicatory hearings." Ibid. The "hearing" requirement of § 1(14)(a) cannot be given a fixed and immutable meaning to be applied in each and every case without regard to the nature of the proceedings. The rules in question here established "incentive" per diem charges to spur the prompt return of existing cars and to make the acquisition of new cars financially attractive to the railroads. [ Footnote 2/5 ] Unlike those we considered in Page 410 U. S. 252 Allegheny-Ludlum, these rules involve the creation of a new financial liability. Although quasi -legislative, they are also adjudicatory in the sense that they determine the measure of the financial responsibility of one road for its use of the rolling stock of another road. The Commission's power to promulgate these rules pursuant to § 1(14)(a) is conditioned on the preliminary finding that the supply of freight cars to which the rules apply is inadequate. Moreover, in fixing incentive compensation once this threshold finding has been made, the Commission "shall give consideration to the national level of ownership of such type of freight car and to other factors affecting the adequacy of the national freight car supply. . . . [ Footnote 2/6 ] Page 410 U. S. 253 " The majority finds ICC v. Louisville & Nashville R. Co., 227 U. S. 88 , "sufficiently different" as to make the opinion in that case inapplicable to the case now before us. I would read the case differently, finding a clear mandate that, where, as here, ratemaking must be Page 410 U. S. 254 based on evidential facts, § 1(14)(a) requires that full hearing which due process normally entails. There we considered Commission procedures for setting aside as unreasonable, after a hearing, carrier-made rates. The Government maintained that the Commission, invested with legislative ratemaking power, but required by the Commerce Act to obtain necessary information, could act on such information as the Congress might. The Government urged that we presume that the Commission's findings were supported by such information, "even though not formally proved at the hearing." Id. at 227 U. S. 93 . We rejected the contention, holding that the right to a hearing included "an opportunity to test, explain, or refute. . . . All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal." Ibid. I would agree with the District Court in Long Island R. Co., supra, at 497, that Congress was fully cognizant of our decision in Louisville & Nashville R. Co. when it first adopted the hearing requirement of § 1 (14)(a) in 1917. And when Congress debated the 1966 amendment that empowered the Commission to adopt incentive per diem rates, it had not lost sight of the importance of hearings. Questioned about the effect that incentive compensation might have on terminating lines, Mr. Staggers, Chairman of the House Committee on Interstate and Foreign Commerce and floor manager of the bill, responded: "I might say to the gentleman that this will not be put into practice until there have been full hearings before the Commission and all sides have had an opportunity to argue and present their facts on the question." 112 Cong.Rec. 10443 (emphasis added). Nor should we overlook the Commission's own interpretation of the hearing requirement in § 1(14)(a) as it applies to this case. The Commission's order initiating Page 410 U. S. 255 the rulemaking proceeding notified the parties that it was acting "under authority of Part I of the Interstate Commerce Act (49 U.S.C. § 1, et seq. ); more particularly, section 1(14)(a) and the Administrative Procedure Act (5 U.S.C. §§ 53, 556, and 557)." Clearly, the Commission believed that it was required to hold a hearing on the record. [ Footnote 2/7 ] This interpretation, not of the Administrative Procedure Act, but of § 1(14)(a) of the Commission's own Act, is "entitled to great weight." United States v. American Trucking Assns., 310 U. S. 534 , 310 U. S. 549 ; Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 , 288 U. S. 315 . The majority, at one point, distinguishes Morgan v. United States, 304 U. S. 1 ( Morgan II ), on the ground that the proceedings there involved were " quasi -judicial," "and thus presumably distinct from a rulemaking proceeding such as that engaged in by the Commission here." It is this easy categorization and pigeonholing that leads the majority to find Allegheny-Ludlum of controlling significance in this case. Morgan II dealt with the "full hearing" requirement of § 310 of the Packers and Stockyards Act, 42 Stat. 166, as it related to ratemaking for the purchase and sale of livestock. [ Footnote 2/8 ] It is true that the Court characterized the proceedings as " quasi- Page 410 U. S. 256 judicial." But, the first time the case was before the Court, Morgan v. United States, 298 U. S. 468 , Mr. Chief Justice Hughes noted that the "distinctive character" of the proceeding was legislative: "It is proceeding looking to legislative action in the fixing of rates of market agencies." Id. at 298 U. S. 479 . Nevertheless, the Secretary of Agriculture was required to establish rates in accordance with the standards and under the limitations prescribed by Congress. The Court concluded: "A proceeding of this sort requiring the taking and weighing of evidence, determinations of fact based upon the consideration of the evidence, and the making of an order supported by such findings, has a quality resembling that of a judicial proceeding. Hence, it is frequently described as a proceeding of quasi-judicial character. The requirement of a 'full hearing' has obvious reference to the tradition of judicial proceedings. . . ." Id. at 298 U. S. 480 . Section 1(14)(a) of the Interstate Commerce Act bestows upon the Commission broad discretionary power to determine incentive rates. These rates may have devastating effects on a particular line. According to the brief of one of the appellees, the amount of incentive compensation paid by debtor lines amounts to millions of dollars each six-month period. Nevertheless, the courts must defer to the Commission as long as its findings are supported by substantial evidence and it has not abused its discretion. "All the more insistent is the need, when power has been bestowed so freely, that the 'inexorable safeguard' . . . of a fair and open hearing be maintained in its integrity." Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292 , 301 U. S. 304 . Accordingly, I would hold that appellees were not afforded the hearing guaranteed by § 1(14)(a) of the Interstate Commerce Act and 5 U.S.C. §§ 553, 556, and 557, and would affirm the decision of the District Court. [ Footnote 2/1 ] 5 U.S.C. § 556(d) provides that a "sanction may not be imposed" without a full hearing, including cross-examination. But 556(d) makes an exception, which I submit is not relevant here. It provides: "In rule making . . . an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form." (Emphasis added.) [ Footnote 2/2 ] See Hearing before the Subcommittee on Surface Transportation of the Senate Committee on Commerce, 91st Cong., 1st Sess. (1969). [ Footnote 2/3 ] Florida East Coast argues, for example, that the Commission's finding of a boxcar shortage may be attributable to a variety of sampling or definitional errors, asserting that it is unrealistic to define boxcar deficiencies in such a manner as "to show as a deficiency' the failure to supply a car on the day requested by the shipper no matter when the request was received." The Government's contention that a 24-hour standard was not used seems unresponsive to this argument. See 337 I.C.C. 217, 221. [ Footnote 2/4 ] In the Long Island case, the court, speaking through Judge Friendly, said: "Whether there was to be an oral hearing or not, the Long Island's first job was to examine the basic data and find this out. Nothing stood in its way. . . . If, on examining the data, the Long Island had pointed to specifies on which it needed to cross-examine or present live rebuttal testimony and the Commission had declined to grant an oral hearing, we would have a different case. Instead, the Long Island's request for an oral hearing was silent as to any respect in which the Commission's disclosure of greater detail or cross-examination of the Commission's staff was needed to enable it to mount a more effective argument against the Commission's proposal. The last sentence of § 556(d) would be deprived of all meaning if this were held sufficient to put the agency on notice that 'prejudice' would result from the denial of an oral hearing. Even taking into account the further representations that have been made to us, we fail to see that prejudice has been established." 318 F. Supp. 490 , 499. [ Footnote 2/5 ] Title 49 CFR § 1036.1 provides: " Application. -- Each common carrier by railroad subject to the Interstate Commerce Act shall pay to the owning railroads, including the owning railroads of Canada, the additional per diem charges set forth in § 1036.2 on all boxcars shown below, . . . while in the possession of nonowning railroads and subject to per diem rules. These charges are in addition to all other per diem charges currently in effect or prescribed. Mexican-owned cars are exempt from the operation of these rules. The rules of this part shall apply regardless of whether the foregoing boxcars are in intrastate, interstate, or foreign commerce." As I have noted, § 1036.2 contains a schedule of per diem rates or fees for the use of another's boxcars which have been shunted onto its tracks, the rates or fees being definite or precise and controlled by two variables: the cost of the boxcars and the ages of the boxcars. These rates or fees, according to the record, amount to millions of dollars a year. [ Footnote 2/6 ] The Commission discusses the critical factual issues to be resolved in fixing incentive compensation rates under § 1(14)(a) in Incentive Per Diem Charges, 332 I.C.C. 11, 14-15: "Before an incentive element, either interim or long-term, can be added to the per diem charge for the use of any particular type of freight car, we are required to give consideration to the national level of ownership of that type of car and to other factors affecting the adequacy of the national freight car supply. We have observed that the adequacy of the national freight car fleet depends upon the interplay of a number of factors, none of which can be said to be of superior importance. Further, since the effect of an incentive charge must be produced over a future period, consideration must be given to possible changes in these factors. In recent years many innovations and improvements have taken place in car design and operation. In the transportation of many commodities the standard boxcar has been replaced by cars capable of transporting greater loads with substantially less damage. In the transportation of grains, railroads are converting more and more to the use of large covered hopper cars. Shippers of lumber and plywood have found modern cars designed to facilitate transportation of their products increasingly desirable. At the same time, many of these cars are adaptable to the transportation of other commodities when not needed in the particular trade for which they were designed. In large part, the special service boxcars, covered hoppers and flatcars of various types handle traffic which formerly moved in general service boxcars. The same is true to some extent with respect to refrigerator cars. Their larger size and, with respect to the flatcars in trailer-on-flatcar (TOFC) service, their more rapid turnaround, enables them to provide service which would require many more of the general service boxcars which they replaced." "Valid conclusions as to the types of cars, the construction of which for future use is to be encouraged by application of either an interim or long-range incentive charge, and which must be found to be in inadequate supply pursuant to the statutory requirement, necessarily require consideration of the extent to which the transportation service they perform is or can also be provided by cars of other types. Such consideration requires a thorough analysis of the services currently desired by the shipping public and those reasonably to be anticipated in the future. An overall, nationwide review of traffic and service demands and trends must precede any valid determination of the existing or prospective national requirements for freight cars of particular types. It is quite obvious that application of an incentive charge which served to encourage the acquisition of cars not adaptable to efficient provision of needed service over their normal lifetime would not be in the national interest. Shipper need, demand and acceptance with respect to future equipment is a significant factor." [ Footnote 2/7 ] In its final report, the Commission apparently still believed that its proceedings had to comply with the provisions of § 556 of the Administrative Procedure Act. The report stated that the parties had been granted a hearing in accordance with those provisions. 337 I.C.C. at 219. [ Footnote 2/8 ] Morgan II considered in some depth the parameters of a "full hearing." The majority takes the position that the case is inapposite because the hearings provided in this case do not "suffer from the defect found to be fatal in Morgan " -- i.e., the parties were "fairly advised" of the scope and substance of the Commission proceedings. In Morgan II, however, there was no question that a "full hearing" included the right to present oral testimony and argument. 304 U. S. 1 , 304 U. S. 18 -20.

The U.S. Supreme Court case, United States v. Florida East Coast Railway Co., concerned the Interstate Commerce Commission's (ICC) establishment of industry-wide per diem rates for freight-car use. The appellee railroads argued that the ICC failed to hold oral hearings as required by the Administrative Procedure Act (APA). The Court held that the Interstate Commerce Act did not require trial-type hearings or oral arguments by affected parties, and that the ICC's proceeding was governed only by the APA's notice requirement for rulemaking. This case affirmed that agencies have discretion in choosing procedures for rulemaking as long as they adhere to statutory requirements.

Government Agencies

U.S. v. Allegheny-Ludlum Steel Corp.

https://supreme.justia.com/cases/federal/us/406/742/

U.S. Supreme Court United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972) United States v. Allegheny-Ludlum Steel Corp. No. 71-227 Argued March 27, 1972 Decided June 7, 1972 406 U.S. 742 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Syllabus 1. Two "car service rues" promulgated by the Interstate Commerce Commission (ICC), requiring generally that unloaded freight cars be returned in the direction of the owning railroad, are "reasonable" under the Esch Car Service Act of 1917 in view of the ICC's finding, for which there is substantial record support, of a national freight car shortage, and its conclusion that the shortage could be alleviated by mandatory observance of the rule, which would give the railroads greater use of their cars and provide an incentive for the purchase of new equipment. Pp. 744-755. 2. The ICC proceeding in this case was governed by, and fully complied with, § 553 of the Administrative Procedure Act. Pp. 756758. 325 F. Supp. 352, reversed. REHNQUIST, J., delivered the opinion for a unanimous Court. MR. JUSTICE REHNQUIST delivered the opinion of the Court. In 1969, the Interstate Commerce Commission promulgated two "car service rules" that would have the Page 406 U. S. 743 general effect of requiring that freight cars, after being unloaded, be returned in the direction of the lines of the road owning the cars. Several railroads and shippers instituted two separate suits under 28 U.S.C. §§ 2321-2325 to enjoin enforcement of these rules. In Florida East Coast R. Co. v. United States, 327 F. Supp. 1076 (MD Fla.1971), the action of the Commission was sustained by a three-judge court, but, in the case now before us, a similar court for the Western District of Pennsylvania held the Commission's order invalid. 325 F. Supp. 352 (WD Pa.1971). We noted probable jurisdiction, 404 U.S. 937, and, for the reasons hereinafter stated, we conclude that the Commission's action here challenged was within the scope of the authority conferred upon it by Congress and conformed to procedural requirements. The country's railroads long ago abandoned the custom of shifting freight between the cars of connecting roads, and adopted the practice of shipping the same loaded car over connecting lines to its ultimate destination. The freight cars of the Nation thus became, in essence, a single common pool, used by all roads. This practice necessarily required some arrangements for eventual return of a freight car to the lines of the road which owned it, and, in 1902, the railroads, through their trade association, dealt with this and related problems in a code of car service rules with which the roads agreed among themselves to comply. The effect of the Commission's order now under review is to promulgate two of these rules [ Footnote 1 ] as the Commission's own, with the result that sanctions attach to their violation by the railroads. Page 406 U. S. 744 Because of critical freight-car shortages experienced during World War I, Congress enacted the Esch Car Service Act of 1917, which empowered the Commission to establish reasonable rules and practices with respect to car service by railroads. 40 Stat. 101, 49 U.S.C. § 1(14)(a). The pertinent language of that Act provides: "The Commission may . . . establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter . . ." No party to this proceeding has questioned that the rules promulgated by the Commission are "rules, regulations, and practices with respect to car service," and therefore the issue before us is whether these rules are "reasonable" as that term is used in the Esch Act. The court below concluded, and the appellees here contend, that, for a number of reasons, the rules in question do not meet the statutory requirement of reasonableness. Appellees also contend that the findings of the Commission Page 406 U. S. 745 are insufficient under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. The record of proceedings before the Commission establishes that the Commission has been increasingly concerned with recurring shortages of freight cars available to serve the Nation's shippers. It found that shortages of varying duration and severity occur both as an annual phenomenon at peak loading periods and also during times of national emergency. The result of these shortages has been that roads were unable to promptly supply freight cars to shippers who had need of them. Underlying these chronic shortages of available freight cars, the Commission found, was an inadequate supply of freight cars owned by the Nation's railroads. The Commission concluded that one of the principal factors causing this inadequate supply of freight cars was the operation of the national car-pool system. In practice, this system resulted in freight cars' being on lines other than those of the owning road for long periods of time, since the rules providing for the return of unloaded freight cars in the direction of the lines of the owning road were observed, more often than not, in the breach. Since the owning road was deprived of the use of its own freight cars for extended periods of time, the Commission found, there was very little incentive for it to acquire new freight cars. In addition, since a road which owned a supply of freight cars inadequate to serve its own on-line shippers could generally, by hook or by crook, arrange to utilize cars owned by other roads, the national car-pool system significantly reduced the normal incentive for a railroad to acquire sufficient equipment to serve its customers. The rules promulgated by the Commission are intended to make those railroads whose undersupply of freight cars contributes to the national shortage more directly feel the Page 406 U. S. 746 pinch resulting from the shortage that they have helped to cause. By thus requiring each road to face up to any inadequacies in its ownership of freight cars, the rules are intended, in the long run, to correct the nationwide short supply of freight cars that the Commission has found to exist. Central to the justification for the Commission's promulgation of these rules is its finding that there was a nationwide shortage of freight car ownership. The court below assumed the correctness of that finding, and we conclude that it was supported by substantial evidence. Shortly after the Second World War, the Commission conducted an investigation into the adequacy of freight car supply and utilization by the Nation's railroads. The Commission in that proceeding concluded that there was "an inadequacy in freight car ownership by rail carriers as a group." Recognizing that this inadequacy was caused at least in part by the inability of the railroads to acquire new equipment, first during an era of wartime demand and then during an era of post-war boom, the Commission at that time imposed no obligation on the railroads except to require them to file with it their rules and regulations with respect to car service. In 1963, the Commission began this investigation into the adequacy of car ownership, distribution, and utilization. At the conclusion of the investigatory phase of the proceeding in 1964, the Commission determined that there was a shortage of freight cars in general service. 323 I.C.C. 48 (1964). Formal notification of proposed rulemaking was then issued, and a questionnaire was submitted to the various railroads for the purpose of compiling data on car ownership and use. After these data were gathered, railroads, shippers, and other interested parties were permitted to file verified statements providing further factual material and to adduce Page 406 U. S. 747 legal arguments. The Commission, through its Bureau of Operations, presented to the Hearing Examiner tabular collations of the freight car ownership and use data, and suggested a formula by which a railroad might compute the sufficiency of its freight car ownership. The Bureau also proposed that the entire Code of Car Service Rules adopted by the Association of American Railroads be promulgated by the Commission for mandatory observance. Many railroads and shippers opposed mandatory enforcement of the rules. Some roads and shippers appeared in favor of at least some mandatory enforcement of the rules, arguing that, unless some compulsion were used in enforcing them, cars purchased by a railroad for use by its shippers would continue to be detained for inordinately long periods of time by other roads. After 50 days of hearings, the Trial Examiner issued his report, recommending against mandatory enforcement of the car service rules. Although the Commission, prior to referring the matter to him, had previously made a definitive finding that a shortage of freight cars existed, the Examiner's report stated that there was no competent evidence in the record developed before him upon which such a determination could be made. The Examiner assigned several reasons for recommending against mandatory enforcement of the rules. The Commission issued a comprehensive opinion disagreeing with the trial examiner in many respects, and ordering that two of the car service rules be promulgated as rules of the Commission with sanctions attaching to noncompliance. Finding that "[t]he continuing relocation of cars on owner's lines is of major importance to the maintenance of an adequate car supply," [ Footnote 2 ] the Commission Page 406 U. S. 748 concluded that the inconveniences feared by the shippers were outweighed by the long-term benefit that would accrue from the mandatory enforcement of the two car service rules. After its first order adopting the two rules was issued, the Commission considered claims that there was need for some procedure for exceptions to the mandatory enforcement of the rules. A supplemental order that established another rule that permitted the railroads to seek exception from the Commission's Bureau of Operations, in order to alleviate inequities and hardships. [ Footnote 3 ] The court below held that the rules were not "reasonable," as that term is used in the Esch Act, for three reasons. First, although there was a general finding of a nationwide freight car shortage, the court said that a specific shortage on owner lines should have been found in order to justify the promulgation of these rules. Second, it said there should have been a finding as to the financial effects upon the railroads and shippers who would be affected by the rules. Finally, it supported its conclusion that the rules were not "reasonable" by the fact that, even though violation of the rules could be enforced by monetary penalties, the Commission nonetheless conceded that obtaining complete compliance with them would be impossible. The standard of judicial review for actions of the Interstate Commerce Commission in general, Western Chemical Co. v. United States, 271 U. S. 268 (1926), Page 406 U. S. 749 and for actions taken by the Commission under the authority of the Esch Act in particular, Assigned Car Cases, 274 U. S. 564 (1927), is well established by prior decisions of this Court. We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. In judicially reviewing these particular rules promulgated by the Commission, we must be alert to the differing standard governing review of the Commission's exercise of its rulemaking authority, on the one hand, and that governing its adjudicatory function, on the other: "In the cases cited, the Commission was determining the relative rights of the several carriers in a joint rate. It was making a partition, and it performed a function quasi -judicial in its nature. In the case at bar, the function exercised by the Commission is wholly legislative. Its authority to legislate is limited to establishing a reasonable rule. But, in establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection, the Commission, like other legislators, may reason from the particular to the general." Assigned Car Cases, supra, at 274 U. S. 583 . The finding of the Commission as to a nationwide shortage of freight cars was based primarily on data submitted by the railroads themselves covering the years 1955 through 1964. Over this 10-year period, total freight car ownership of Class I railroads dropped 12.4%, and aggregate carrying capacity of those railroads dropped 5%. Over the same period, revenue tons originated Page 406 U. S. 750 dropped 2.9%. The decline in ownership of plain boxcars, as opposed to more sophisticated types of cars, was even more dramatic; ownership of cars over the 10-year period in question dropped 22.1%, while aggregate carrying capacity of such cars dropped 18.9%. Testimony of witnesses for the National Industrial Traffic League, the Western Wood Products Association, the American Plywood Association, and the Vulcan Materials Association also supported the finding of a car shortage. These statistics, taken together with the Commission's post-war determination of a car shortage, portray a gradually worsening ratio of carrying capacity to revenue tons originated. The Commission further found that freight car shortages, in the sense that a particular road was unable to promptly supply freight cars to particular shippers who needed them, have occurred chronically, both during peak loading seasons each year and during times of national emergency. It is quite true, as appellees suggest, that inability of the roads to supply cars to shippers at particular times is not conclusive evidence that there is a national shortage of freight car ownership. Conceivably, freight car ownership could be adequate, yet poor utilization of the supply could result in shortages. Nonetheless, the Commission may fairly rely on these chronic shortages in availability of freight cars as one factor upon which to base its conclusion that there was an overall shortage of ownership of freight cars. The Commission also found that a surprisingly low percentage of freight cars was actually on the tracks of the roads owning the cars at any given time, and that this percentage had been decreasing during the period in question. In March, 1966, less than 30% of the railroads' plain boxcars were on the line of their owner, and, during the preceding year, that percentage Page 406 U. S. 751 remained mostly in the low thirties. The Commission summarized the factual situation it found in these words: "From the evidence adduced and the data collected, it is obvious that an adequate freight car supply is as much a problem today as it was during the period considered in our last proceeding in 1947. Car service which involves a shortage of approximately one out of every ten cars ordered or even one out of every fifteen cars ordered demands that every available means be marshalled to eliminate such deficiencies." 335 I.C.C. at 285. One of the means marshaled by the Commission to eliminate such deficiencies was the promulgation of the two rules under attack here. The thrust of these rules is to require that freight cars, after unloading, be dispatched in the direction of the lines of the owning road. Thus, the Commission concluded after investigation that the railroads were frequently unable to supply shippers with freight cars. It reasoned from this fact, and from statistics showing a significantly more rapid decline in aggregate carrying capacity than in revenue tons originated, that an underlying and important cause of the unavailability of boxcars to shippers was that the Nation's railroads simply did not jointly own a sufficient number of freight cars to adequately serve shippers of goods over their lines. Because of the existence of the national pool of freight cars, whereby roads may service on-line shippers with foreign cars, it was difficult, if not impossible, to relate inadequate ownership statistically to any particular road or roads. The Commission therefore chose to make mandatory two of the car service rules that would have the effect of aligning more closely than at present the ownership of freight cars on the part of the road with the availability of those freight cars to the owning Page 406 U. S. 752 road for use of its on-line shippers. The result of these rules, over the long-term, the Commission reasoned, would be to bring home to those roads which themselves had an inadequate supply of cars to serve their on-line shippers that fact, and also, without doubt, to supply incentive to such roads to augment their supply of freight cars in order to adequately serve their on-line shippers. The national supply of freight cars would thereby be augmented, and the railroads, as a result, would be better able to supply the needs of shippers. Appellees' fundamental substantive contention is that the short-term consequences of the enforcement of these rules will so seriously disrupt established industry practices as to outweigh any possible long-term benefits in service that might accrue from them, and that, therefore, the rules are not "reasonable" as that term is used in the Esch Act. [ Footnote 4 ] While, of course, conceding that the railroads themselves originally promulgated the rules for voluntary compliance, appellees argue that, because the rules have been observed largely in the breach, usages and practices have grown up that permit far more efficient utilization of the existing fleet of freight cars than would be permitted if the two rules in question were enforced by the Commission. Appellees state that, in reliance on the existence of a national pool of freight cars, and on the consequent availability to shippers of cars not owned by the line originating the shipment, manufacturing plants have been located and enlarged. Page 406 U. S. 753 They claim that enforcement of the rules now would seriously hamper the movement of freight traffic from these and other shipping points. It may be conceded that the immediate effect of the Commission's order will be to disrupt some established practices with respect to the handling and routing of freight cars, and, on occasion, to cause serious inconvenience to shippers and railroads alike. If the Commission were thrusting these regulations upon an admittedly smoothly functioning transportation industry, well supplied with necessary rolling stock and adequately serving all shippers, the rationality of its action might well be open to question. But such is not the case. The Commission's finding that there are recurring periods of significant length when there is not an adequate freight car supply to service shippers is supported by substantial evidence. While the flexible system of routing freight cars presently in existence may well have short-term advantages both for some shippers and some roads, the Commission could quite reasonably conclude that it has long-term drawbacks as well. The otherwise adverse effect on a road's ability to serve shippers that would result from its owning too few cars is cushioned; the beneficial effect on a road's ability to serve shippers that would result from its owning a sufficient supply of cars is dissipated. The Commission undoubtedly felt that rules designed only to most efficiently utilize the existing inadequate fleet of freight cars would have little or no effect on the nationwide shortage of such cars. Indeed, the appellees stress the concession by the Commission that these rules "are not designed to improve the utilization of freight cars, except insofar as return loading is compatible with the primary objective of increasing availability of cars to the owner." 335 I.C.C. at 294. But only if we were to hold that Congress, in enacting Page 406 U. S. 754 the Esch Car Service Act, intended that the only criterion that the Commission might consider in establishing "reasonable rules, regulations, and practices with respect to car service" was the optimum utilization of an existing fleet of freight cars, however numerically inadequate that fleet might be, could this argument be sustained. Neither the language that Congress used nor the legislative history of the Act supports such a narrow reading of its grant of authority to the Commission. On the record before it, the Commission was justified in deciding that the railroads and the shippers were afflicted with an economic illness that might have to get worse before it got better. Existing practices respecting car service tended to destroy any incentive on the part of railroads to acquire new cars, and the resulting failure to acquire new equipment contributed to an overall nationwide shortage of freight cars that prevented the railroad industry from adequately serving shippers. Car service rules that would tend to restore incentive to the various roads to augment their supply of freight cars, even at the temporary expense of optimum utilization of the existing fleet of freight cars, conform under these circumstances to the statutory requirement of reasonableness. Appellees support their claim that the Commission's promulgation of these rules is not "reasonable" under the Esch Act on two grounds not directly related to the rules' claimed adverse effect on the ability of the roads to serve shippers. They attack the absence of a Commission finding as to the financial ability of roads inadequately supplied with freight cars to purchase new ones, and they cite the conceded impossibility of obtaining complete compliance with the rules as additional evidence of their unreasonableness. The Commission's order does not require any road to purchase any freight cars. It abridges to some extent Page 406 U. S. 755 the existing practice among railroads of treating the freight cars that they own as a pool, and, for that reason, may ultimately cause roads that do not have an adequate supply of freight cars to serve on-line shippers to be less able to serve such shippers than they are now. If, as a result of this fact, such roads are placed under economic and competitive pressure to acquire additional freight cars, there is certainly no principle of law we know of that would require the Commission to permit them to avoid this economic pressure by continuing to borrow freight cars acquired and owned by other lines. The Commission, acceding to the arguments of shippers and railroads on rehearing, agreed that mandatory total compliance with the rules promulgated would be impossible in view of the tremendous number of units involved, and, accordingly a procedure by which exceptions might be applied for was established. How the provision for exceptions will be administered in practice is a matter about which we could only speculate at present. It is well established that an agency's authority to proceed in a complex area such as car service regulation by means of rules of general application entails a concomitant authority to provide exemption procedures in order to allow for special circumstances. Permian Basin Area Rate Cases, 390 U. S. 747 , 390 U. S. 784 -786 (1968). What bearing any of these factors might have on an action under the provisions of 49 U.S.C. § 1(17) for the collection of penalties for a violation of the rules in question is a question best decided in such a proceeding. The fact that violation of a rule promulgated under the Esch Car Service Act may be the basis for a proceeding to collect a penalty does not either expand or contract the statutory definition of "reasonable" found in that Act. What we have said thus far is enough to indicate our view that there is sufficient relationship between the Page 406 U. S. 756 Commission's conclusions and the factual bases in the record upon which it relied to substantively support this exercise of its authority under the Esch Act. Appellees press on us an additional claim that the Commission failed to comply with the provisions of the Administrative Procedure Act, S U.S.C. § 551 et seq., citing Burlington Truck Lines v. United States, 371 U. S. 156 (1962), and Secretary of Agriculture v. United States, 347 U. S. 645 (1954). Burlington Truck Lines is clearly inapposite, however, since, in that case, the Court was dealing with adjudication, not rulemaking. In criticizing the Commission's action there, the Court said that "the Administrative Procedure Act will not permit us to accept such adjudicatory practice," 371 U.S. at 371 U. S. 167 . In Secretary of Agriculture v. United States, supra, the Court reviewed the Commission's action not under the Administrative Procedure Act, but on the basis of its prior cases establishing the standard for judicial review of agency action. Commenting that, "[i]n dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions," the Court went on to conclude that the Commission "has not adequately explained its departure from prior norms, and has not sufficiently spelled out the legal basis of its decision." 347 U.S. at 347 U. S. 652 -653. For the reasons previously stated, we find no such infirmities here. This Court has held that the Administrative Procedure Act applies to proceedings before the Interstate Commerce Commission. Minneapolis & St. Louis R. Co. v. United States, 361 U. S. 173 , 361 U. S. 192 (1959). Appellees claim that the Commission's procedure here departed from the provisions of 5 U.S.C. §§ 556 and 557 of the Act. Those sections, however, govern a rulemaking proceeding only when 5 U.S.C. § 553 so requires. The latter section, dealing generally with rulemaking, Page 406 U. S. 757 makes applicable the provisions of §§ 556 and 557 only "[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing. . . ." The Esch Act, authorizing the Commission "after hearing, on a complaint or upon its own initiative without complaint, [to] establish reasonable rules, regulations, and practices with respect to car service . . . ," 49 U.S.C. § 1(14)(a), does not require that such rules "be made on the record." 5 U.S.C. § 553. That distinction is determinative for this case. "A good deal of significance lies in the fact that some statutes do expressly require determinations on the record." 2 K. Davis, Administrative Law Treatise § 13.08, p. 225 (1958). Sections 556 and 557 need be applied "only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be on the record.'" Siegel v. Atomic Energy Comm'n, 130 U.S.App.D.C. 307, 314, 400 F.2d 778, 785 (1968); Joseph E. Seagram & Sons Inc. v. Dillon, 120 U.S.App.D.C. 112, 115 n. 9, 344 F.2d 497, 500 n. 9 (1965). Cf. First National Bank v. First Federal Savings & Loan Assn., 96 U.S.App.D.C.194, 225 F.2d 33 (1955). We do not suggest that only the precise words "on the record" in the applicable statute will suffice to make §§ 556 and 557 applicable to rulemaking proceedings, but we do hold that the language of the Esch Car Service Act is insufficient to invoke these sections. Because the proceedings under review were an exercise of legislative rulemaking power, rather than adjudicatory hearings, as in Wong Yang Sun v. McGrath, 339 U. S. 33 (1950), and Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292 (1937), and because 49 U.S.C. § 1(14)(a) does not require a determination "on the record," the provisions of 5 U.S.C. §§ 556 and 557 were inapplicable. Page 406 U. S. 758 This proceeding, therefore, was governed by the provisions of 5 U.S.C. § 553 of the Administrative Procedure Act, requiring basically that notice of proposed rulemaking shall be published in the Federal Register, that, after notice, the agency give interested persons an opportunity to participate in the rulemaking through appropriate submissions, and that, after consideration of the record so made, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. [ Footnote 5 ] The "Findings" and "Conclusions" embodied in the Commission's report fully comply with these requirements, and nothing more was required by the Administrative Procedure Act. We conclude that the Commission's action in promulgating these rules was substantively authorized by the Esch Act and procedurally acceptable under the Administrative Procedure Act. The judgment of the District Court must therefore be Reversed. [ Footnote 1 ] "Rule 1. Foreign cars, empty at a junction with the home road, must be: " "(a) Loaded at that junction to or via home rails, or," "(b) Delivered empty at that junction to home road, except in instances where Rule 6 has been invoked, or unless otherwise agreed by roads involved." "Rule 2. Foreign empty cars other than those covered in Rule 1 shall be: " "(a) Loaded to or via owner's rails." "(b) Loaded to a destination closer to owner's rails than is the loading station or delivered empty to a short line or switch loading road for such loading. (Car Selection Chart is designed to aid in so selecting cars for loading.)" "(c) Delivered empty to the home road at any junction subject to Rule 6." "(d) Delivered empty to the road from which originally received under load, at the junction where received, except that, when handled in road haul service, cars of direct connection ownership may not be delivered empty to a road which does not have a direct connection with the car owner." "(e) Returned empty to the delivering road when handled only in switching service." Jurisdictional Statement 64. [ Footnote 2 ] 335 I.C.C. 264, 293 (1969). [ Footnote 3 ] "Rule 19 -- Exceptions" "Exceptions to the rules (prescribed by the Interstate Commerce Commission for mandatory observance) for the purpose of further improving car supply and utilization, increasing availability of cars to their owners, improving the efficiency of railroad operation, or alleviating inequities or hardships, may be authorized by the Director or Assistant Director of the Bureau of Operations, Interstate Commerce Commission, Washington, D.C." Jurisdictional Statement 172. [ Footnote 4 ] Three separate briefs have been filed here in support of appellees, each of which understandably presents the case for affirmance in slightly differing form, and no one of which completely adopts the reasoning of the District Court. We have not found it necessary in deciding the case to deal with each separate argument in support of affirmance, since we believe all of them to be generally subsumed under those claims with which we deal. [ Footnote 5 ] 49 U.S.C. § 1(14)(a) likewise requires the Commission to conduct a hearing before promulgating rules.

The Supreme Court ruled that the Interstate Commerce Commission's (ICC) "car service rules," which required unloaded freight cars to be returned to the owning railroad, were reasonable under the Esch Car Service Act of 1917 due to the national freight car shortage. The Court also found that the ICC's proceeding complied with the Administrative Procedure Act. The judgment of the District Court was reversed.

Government Agencies

Heckler v. Chaney

https://supreme.justia.com/cases/federal/us/470/821/

U.S. Supreme Court Heckler v. Chaney, 470 U.S. 821 (1985) Heckler v. Chaney No. 83-1878 Argued December 3, 1984 Decided March 20, 1985 470 U.S. 821 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Respondent prison inmates were convicted of capital offenses and sentenced to death by lethal injection of drugs. They petitioned the Food and Drug Administration (FDA), alleging that use of the drugs for such a purpose violated the Federal Food, Drug, and Cosmetic Act (FDCA), and requesting that the FDA take various enforcement actions to prevent those violations. The FDA refused the request. Respondents then brought an action in Federal District Court against petitioner Secretary of Health and Human Services, making the same claim and seeking the same enforcement actions. The District Court granted summary judgment for petitioner, holding that nothing in the FDCA indicated an intent to circumscribe the FDA's enforcement discretion or to make it reviewable. The Court of Appeals reversed. Noting that the Administrative Procedure Act (APA) only precludes judicial review of federal agency action when it is precluded by statute, 5 U.S.C. § 701(a)(1), or "committed to agency discretion by law," § 701(a)(2), the court held that § 701(a)(2)'s exception applies only where the substantive statute leaves the courts with "no law to apply," that here there was "law to apply," that therefore the FDA's refusal to take enforcement action was reviewable, and that, moreover, such refusal was an abuse of discretion. Held: The FDA's decision not to take the enforcement actions requested by respondents was not subject to review under the APA. Pp. 470 U. S. 827 -838. (a) Under § 701(a)(2), judicial review of an administrative agency's decision is not to be had if the statute in question is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute ("law") can be taken to have "committed" the decisionmaking to the agency's judgment absolutely. An agency's decision not to take enforcement action is presumed immune from judicial review under § 701(a)(2). Such a decision has traditionally been "committed to agency discretion," and it does not appear that Congress, in enacting the APA, intended to alter that tradition. Accordingly, such a decision is unreviewable unless Congress has indicated an intent to circumscribe agency enforcement Page 470 U. S. 822 discretion, and has provided meaningful standards for defining the limits of that discretion. Pp. 827- 470 U. S. 835 . (b) The presumption that agency decisions not to institute enforcement proceedings are unreviewable under § 701(a)(2) is not overcome by the enforcement provisions of the FDCA. Those provisions commit complete discretion to the Secretary to decide how and when they should be exercised. The FDCA's prohibition of "misbranding" of drugs and introduction of "new drugs," absent agency approval, does not supply this Court with "law to apply." Nor can the FDA's "policy statement" indicating that the agency considered itself "obligated" to take certain investigative actions be plausibly read to override the agency's rule expressly stating that the FDA Commissioner shall object to judicial review of a decision to recommend or not to recommend civil or criminal enforcement action. And the section of the FDCA providing that the Secretary need not report for prosecution minor violations of the Act does not give rise to the negative implication that the Secretary is required to investigate purported, "major" violations of the Act. Pp. 470 U. S. 835 -837. 231 U.S.App.D.C. 136, 718 F.2d 1174, reversed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., filed a concurring opinion, post, p. 470 U. S. 838 . MARSHALL, J., filed an opinion concurring in the judgment, post, p. 470 U. S. 840 . Page 470 U. S. 823 JUSTICE REHNQUIST delivered the opinion of the Court. This case presents the question of the extent to which a decision of an administrative agency to exercise its "discretion" not to undertake certain enforcement actions is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 501 et seq. (APA). Respondents are several prison inmates convicted of capital offenses and sentenced to death by lethal injection of drugs. They petitioned the Food and Drug Administration (FDA), alleging that, under the circumstances, the use of these drugs for capital punishment violated the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. (FDCA), and requesting that the FDA take various enforcement actions to prevent these violations. The FDA refused their request. We review here a decision of the Court of Appeals for the District of Columbia Circuit, which held the FDA's refusal to take enforcement actions both reviewable and an abuse of discretion, and remanded the case with directions that the agency be required "to fulfill its statutory function." 231 U.S.App.D.C. 136, 153, 718 F.2d 1174, 1191 (1983). I Respondents have been sentenced to death by lethal injection of drugs under the laws of the States of Oklahoma and Texas. Those States, and several others, have recently adopted this method for carrying out the capital sentence. Respondents first petitioned the FDA, claiming that the drugs used by the States for this purpose, although approved by the FDA for the medical purposes stated on their labels, were not approved for use in human executions. They alleged that the drugs had not been tested for the purpose for which they were to be used, and that, given that the drugs would likely be administered by untrained personnel, it was also likely that the drugs would not induce the quick and painless death intended. They urged that use of these drugs for human execution was the "unapproved use of an approved drug," and Page 470 U. S. 824 constituted a violation of the Act's prohibitions against "misbranding." [ Footnote 1 ] They also suggested that the FDCA's requirements for approval of "new drugs" applied, since these drugs were now being used for a new purpose. Accordingly, respondents claimed that the FDA was required to approve the drugs as "safe and effective" for human execution before they could be distributed in interstate commerce. See 21 U.S.C. § 355. They therefore requested the FDA to take various investigatory and enforcement actions to prevent these perceived violations; they requested the FDA to affix warnings to the labels of all the drugs stating that they were unapproved and unsafe for human execution, to send statements to the drug manufacturers and prison administrators stating that the drugs should not be so used, and to adopt procedures for seizing the drugs from state prisons and to recommend the prosecution of all those in the chain of distribution who knowingly distribute or purchase the drugs with intent to use them for human execution. The FDA Commissioner responded, refusing to take the requested actions. The Commissioner first detailed his disagreement with respondents' understanding of the scope of FDA jurisdiction over the unapproved use of approved drugs for human execution, concluding that FDA jurisdiction in the area was generally unclear, but in any event should not be exercised to interfere with this particular aspect of state criminal justice systems. He went on to state: "Were FDA clearly to have jurisdiction in the area, moreover, we believe we would be authorized to decline to exercise it under our inherent discretion to decline to pursue certain enforcement matters. The unapproved use of approved drugs is an area in which the case law is far from uniform. Generally, enforcement proceedings in this area are initiated only when there is a serious Page 470 U. S. 825 danger to the public health or a blatant scheme to defraud. We cannot conclude that those dangers are present under State lethal injection laws, which are duly authorized statutory enactments in furtherance of proper State functions. . . ." Respondents then filed the instant suit in the United States District Court for the District of Columbia, claiming the same violations of the FDCA and asking that the FDA be required to take the same enforcement actions requested in the prior petition. [ Footnote 2 ] Jurisdiction was grounded in the general federal question jurisdiction statute, 28 U.S.C. § 1331, and review of the agency action was sought under the judicial review provisions of the APA, 5 U.S.C. §§ 701706. The District Court granted summary judgment for petitioner. It began with the proposition that "decisions of executive departments and agencies to refrain from instituting investigative and enforcement proceedings are essentially unreviewable by the courts." Chaney v. Schweiker, Civ. No. 81-2265 (DC, Aug. 30, 1982), App. to Pet. for Cert. 74a (emphasis in original). The court then cited case law stating that nothing in the FDCA indicated an intent to circumscribe the FDA's enforcement discretion or to make it reviewable. A divided panel of the Court of Appeals for the District of Columbia Circuit reversed. The majority began by discussing the FDA's jurisdiction over the unapproved use of approved drugs for human execution, and concluded that the FDA did have jurisdiction over such a use. The court then addressed the Government's assertion of unreviewable discretion Page 470 U. S. 826 to refuse enforcement action. It first discussed this Court's opinions which have held that there is a general presumption that all agency decisions are reviewable under the APA, at least to assess whether the actions were "arbitrary, capricious, or an abuse of discretion." See Abbott Laboratories v. Gardner, 387 U. S. 136 , 387 U. S. 139 -141 (1967); 5 U.S.C. § 706(2)(A). It noted that the APA, 5 U.S.C. § 701, only precludes judicial review of final agency action -- including refusals to act, see 5 U.S.C. § 551(13) -- when review is precluded by statute, or "committed to agency discretion by law." Citing this Court's opinions in Dunlop v. Bachowski, 421 U. S. 560 (1975), and Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971), for the view that these exceptions should be narrowly construed, the court held that the "committed to agency discretion by law" exception of § 701(a)(2) should be invoked only where the substantive statute left the courts with "no law to apply." 231 U.S.App.D.C. at 146, 718 F.2d at 1184 (citing Citizens to Preserve Overton Park, supra, at 401 U. S. 410 ). The court cited Dunlop as holding that this presumption "applies with no less force to review of . . . agency decisions to refrain from enforcement action." 231 U.S.App.D.C. at 146, 718 F.2d at 1184. The court found "law to apply" in the form of a FDA policy statement which indicated that the agency was "obligated" to investigate the unapproved use of an approved drug when such use became "widespread" or"endanger[ed] the public health." Id. at 148, 718 F.2d at 1186 (citing 37 Fed.Reg. 16504 (1972)). The court held that this policy statement constituted a "rule," and was considered binding by the FDA. Given the policy statement indicating that the FDA should take enforcement action in this area, and the strong presumption that all agency action is subject to judicial review, the court concluded that review of the agency's refusal was not foreclosed. It then proceeded to assess whether the agency's decision not to act was "arbitrary, capricious, or an abuse of discretion." Citing evidence that the FDA assumed Page 470 U. S. 827 jurisdiction over drugs used to put animals to sleep [ Footnote 3 ] and the unapproved uses of drugs on prisoners in clinical experiments, the court found that the FDA's refusal, for the reasons given, was irrational, and that respondents' evidence that use of the drugs could lead to a cruel and protracted death was entitled to more searching consideration. The court therefore remanded the case to the District Court, to order the FDA "to fulfill its statutory function." The dissenting judge expressed the view that an agency's decision not to institute enforcement action generally is unreviewable, and that such exercises of "prosecutorial discretion" presumptively fall within the APA's exception for agency actions "committed to agency discretion by law." He noted that traditionally courts have been wary of second-guessing agency decisions not to enforce, given the agency's expertise and better understanding of its enforcement policies and available resources. He likewise concluded that nothing in the FDCA or FDA regulations would provide a basis for a court's review of this agency decision. A divided Court of Appeals denied the petition for rehearing. 233 U.S.App.D.C. 146, 724 F.2d 1030 (1984). We granted certiorari to review the implausible result that the FDA is required to exercise its enforcement power to ensure that States only use drugs that are "safe and effective" for human execution. 467 U.S. 1251 (1984). We reverse. II The Court of Appeals' decision addressed three questions: (1) whether the FDA had jurisdiction to undertake the enforcement actions requested, (2) whether if it did have jurisdiction Page 470 U. S. 828 its refusal to take those actions was subject to judicial review, and (3) whether, if reviewable, its refusal was arbitrary, capricious, or an abuse of discretion. In reaching our conclusion that the Court of Appeals was wrong, however, we need not and do not address the thorny question of the FDA's jurisdiction. For us, this case turns on the important question of the extent to which determinations by the FDA not to exercise its enforcement authority over the use of drugs in interstate commerce may be judicially reviewed. That decision in turn involves the construction of two separate but necessarily interrelated statutes, the APA and the FDCA. The APA's comprehensive provisions for judicial review of "agency actions" are contained in 5 U.S.C. §§ 701-706. Any person "adversely affected or aggrieved" by agency action, see § 702, including a "failure to act," is entitled to "judicial review thereof," as long as the action is a "final agency action for which there is no other adequate remedy in a court," see § 704. The standards to be applied on review are governed by the provisions of § 706. But before any review at all may be had, a party must first clear the hurdle of § 701(a). That section provides that the chapter on judicial review "applies, according to the provisions thereof, except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." Petitioner urges that the decision of the FDA to refuse enforcement is an action "committed to agency discretion by law" under § 701(a)(2). This Court has not had occasion to interpret this second exception in § 701(a) in any great detail. On its face, the section does not obviously lend itself to any particular construction; indeed, one might wonder what difference exists between § (a)(1) and § (a)(2). The former section seems easy in application; it requires construction of the substantive statute involved to determine whether Congress intended to preclude judicial review of certain decisions. That is the approach taken with respect to § (a)(1) in cases such as Southern Page 470 U. S. 829 R. Co. v. Seaboard Allied Milling Corp, 442 U. S. 444 (1979), and Dunlop v. Bachowski, 421 U.S. at 421 U. S. 567 . But one could read the language "committed to agency discretion by law " in § (a)(2) to require a similar inquiry. In addition, commentators have pointed out that construction of § (a)(2) is further complicated by the tension between a literal reading of § (a)(2), which exempts from judicial review those decisions committed to agency "discretion," and the primary scope of review prescribed by § 706(2)(A) -- whether the agency's action was "arbitrary, capricious, or an abuse of discretion. " How is it, they ask, that an action committed to agency discretion can be unreviewable and yet courts still can review agency actions for abuse of that discretion? See 5 K. Davis, Administrative Law § 28:6 (1984) (hereafter Davis); Berger, Administrative Arbitrariness and Judicial Review, 65 Colum.L.Rev. 55, 58 (1965). The APA's legislative history provides little help on this score. Mindful, however, of the common-sense principle of statutory construction that sections of a statute generally should be read "to give effect, if possible, to every clause . . . ," see United States v. Menasche, 348 U. S. 528 , 348 U. S. 538 -539 (1955), we think there is a proper construction of §(a)(2) which satisfies each of these concerns. This Court first discussed § (a)(2) in Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971). That case dealt with the Secretary of Transportation's approval of the building of an interstate highway through a park in Memphis, Tennessee. The relevant federal statute provided that the Secretary "shall not approve" any program or project using public parkland unless the Secretary first determined that no feasible alternatives were available. Id. at 401 U. S. 411 . Interested citizens challenged the Secretary's approval under the APA, arguing that he had not satisfied the substantive statute's requirements. This Court first addressed the "threshold question" of whether the agency's action was at all reviewable. After setting out the language of § 701(a), the Court stated: Page 470 U. S. 830 "In this case, there is no indication that Congress sought to prohibit judicial review, and there is most certainly no "showing of clear and convincing evidence' of a . . . legislative intent" to restrict access to judicial review. Abbott Laboratories v. Gardner, 387 U. S. 136 , 387 U. S. 141 (1967). . . ." "Similarly, the Secretary's decision here does not fall within the exception for action 'committed to agency discretion.' This is a very narrow exception. . . . The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)." Overton Park, supra, at 401 U. S. 410 (footnote omitted). The above quote answers several of the questions raised by the language of § 701(a), although it raises others. First, it clearly separates the exception provided by § (a)(1) from the § (a)(2) exception. The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute ("law") can be taken to have "committed" the decisionmaking to the agency's judgment absolutely. This construction avoids conflict with the "abuse of discretion" standard of review in § 706 -- if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for "abuse of discretion." In addition, this construction satisfies the principle of statutory construction mentioned earlier, by identifying a separate class of cases to which § 701(a)(2) applies. To this point, our analysis does not differ significantly from that of the Court of Appeals. That court purported to apply Page 470 U. S. 831 the "no law to apply" standard of Overton Park. We disagree, however, with that court's insistence that the "narrow construction" of § (a)(2) required application of a presumption of reviewability even to an agency's decision not to undertake certain enforcement actions. Here we think the Court of Appeals broke with tradition, case law, and sound reasoning. Overton Park did not involve an agency's refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve precisely the opposite situation, and, in that situation, we think the presumption is that judicial review is not available. This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. See United States v. Batchelder, 442 U. S. 114 , 442 U. S. 123 -124 (1979); United States v. Nixon, 418 U. S. 683 , 418 U. S. 693 (1974); Vaca v. Sipes, 386 U. S. 171 , 386 U. S. 182 (1967); Confiscation Cases , 7 Wall. 454 (1869). This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement. The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved Page 470 U. S. 832 in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency's construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 , 435 U. S. 543 (1978); Train v. Natural Resources Defense Council, Inc., 421 U. S. 60 , 421 U. S. 87 (1975). In addition to these administrative concerns, we note that, when an agency refuses to act, it generally does not exercise its coercive power over an individual's liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers. See, e.g., FTC v. Klesner, 280 U. S. 19 (1929). Finally, we recognize that an agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict -- a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to "take Care that the Laws be faithfully executed." U.S.Const., Art. II, § 3. We of course only list the above concerns to facilitate understanding of our conclusion that an agency's decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2). For good reasons, such a decision has traditionally been "committed to agency discretion," and we believe that the Congress enacting the APA did not intend to alter that tradition. Cf. 5 Davis § 28:5 (APA did not significantly alter the "common law" of judicial review of agency action). In so stating, we emphasize that the decision is only presumptively unreviewable; the presumption Page 470 U. S. 833 may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. [ Footnote 4 ] Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency's exercise of enforcement power if it wishes, either by setting substantive priorities or by otherwise circumscribing an agency's power to discriminate among issues or cases it will pursue. How to determine when Congress has done so is the question left open by Overton Park. Dunlop v. Bachowski, 421 U. S. 560 (1975), relied upon heavily by respondents and the majority in the Court of Appeals, presents an example of statutory language which supplied sufficient standards to rebut the presumption of unreviewability. Dunlop involved a suit by a union employee, under the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 481 et seq. (LMRDA), asking the Secretary of Labor to investigate and file suit to set aside a union election. Section 482 provided that, upon filing of a complaint by a union member, "[t]he Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation . . . has occurred . . . he shall . . . bring a civil action. . . ." After investigating the plaintiff's claims, the Secretary of Labor declined to file suit, and the plaintiff sought judicial review under the APA. This Court held that Page 470 U. S. 834 review was available. It rejected the Secretary's argument that the statute precluded judicial review, and, in a footnote, it stated its agreement with the conclusion of the Court of Appeals that the decision was not "an unreviewable exercise of prosecutorial discretion." 421 U.S. at 421 U. S. 567 , n. 7. Our textual references to the "strong presumption" of reviewability in Dunlop were addressed only to the § (a)(1) exception; we were content to rely on the Court of Appeals' opinion to hold that the § (a)(2) exception did not apply. The Court of Appeals, in turn, had found the "principle of absolute prosecutorial discretion" inapplicable, because the language of the LMRDA indicated that the Secretary was required to file suit if certain "clearly defined" factors were present. The decision therefore was not " beyond the judicial capacity to supervise.'" Bachowski v. Brennan, 502 F.2d 79, 87-88 (CA3 1974) (quoting Davis § 28.16, p. 984 (1970 Supp.)). Dunlop is thus consistent with a general presumption of unreviewability of decisions not to enforce. The statute being administered quite clearly withdrew discretion from the agency and provided guidelines for exercise of its enforcement power. Our decision that review was available was not based on "pragmatic considerations," such as those cited by the Court of Appeals, see 231 U.S.App.D.C. at 147, 718 F.2d at 1185, that amount to an assessment of whether the interests at stake are important enough to justify intervention in the agencies' decisionmaking. The danger that agencies may not carry out their delegated powers with sufficient vigor does not necessarily lead to the conclusion that courts are the most appropriate body to police this aspect of their performance. That decision is in the first instance for Congress, and we therefore turn to the FDCA to determine whether in this case Congress has provided us with "law to apply." If it has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion, there is "law to apply" under § 701(a)(2), and courts Page 470 U. S. 835 may require that the agency follow that law; if it has not, then an agency refusal to institute proceedings is a decision "committed to agency discretion by law" within the meaning of that section. III To enforce the various substantive prohibitions contained in the FDCA, the Act provides for injunctions, 21 U.S.C. § 332, criminal sanctions, §§ 333 and 335, and seizure of any offending food, drug, or cosmetic article, § 334. The Act's general provision for enforcement, § 372, provides only that "[t]he Secretary is authorized to conduct examinations and investigations . . ." (emphasis added). Unlike the statute at issue in Dunlop, § 332 gives no indication of when an injunction should be sought, and § 334, providing for seizures, is framed in the permissive -- the offending food, drug, or cosmetic "shall be liable to be proceeded against." The section on criminal sanctions states baldly that any person who violates the Act's substantive prohibitions "shall be imprisoned . . . or fined." Respondents argue that this statement mandates criminal prosecution of every violator of the Act, but they adduce no indication in case law or legislative history that such was Congress' intention in using this language, which is commonly found in the criminal provisions of Title 18 of the United States Code. See, e.g., 18 U.S.C. § 471 (counterfeiting); 18 U.S.C. § 1001 (false statements to Government officials); 18 U.S.C. § 1341 (mail fraud). We are unwilling to attribute such a sweeping meaning to this language, particularly since the Act charges the Secretary only with recommending prosecution; any criminal prosecutions must be instituted by the Attorney General. The Act's enforcement provisions thus commit complete discretion to the Secretary to decide how and when they should be exercised. Respondents nevertheless present three separate authorities that they claim provide the courts with sufficient indicia of an intent to circumscribe enforcement discretion. Two of these may be dealt with summarily. First, we reject Page 470 U. S. 836 respondents' argument that the Act's substantive prohibitions of "misbranding" and the introduction of "new drugs" absent agency approval, see 21 U.S.C. §§ 352(f)(1), 355, supply us with "law to apply." These provisions are simply irrelevant to the agency's discretion to refuse to initiate proceedings. We also find singularly unhelpful the agency "policy statement" on which the Court of Appeals placed great reliance. We would have difficulty with this statement's vague language even if it were a properly adopted agency rule. Although the statement indicates that the agency considered itself "obligated" to take certain investigative actions, that language did not arise in the course of discussing the agency's discretion to exercise its enforcement power, but rather in the context of describing agency policy with respect to unapproved uses of approved drugs by physicians. In addition, if read to circumscribe agency enforcement discretion, the statement conflicts with the agency rule on judicial review, 21 CFR § 10.45(d)(2) (1984), which states that "[t]he Commissioner shall object to judicial review . . . if (i) [t]he matter is committed by law to the discretion of the Commissioner, e.g., a decision to recommend or not to recommend civil or criminal enforcement action. . . ." But in any event, the policy statement was attached to a rule that was never adopted. Whatever force such a statement might have, and leaving to one side the problem of whether an agency's rules might under certain circumstances provide courts with adequate guidelines for informed judicial review of decisions not to enforce, we do not think the language of the agency's "policy statement" can plausibly be read to override the agency's express assertion of unreviewable discretion contained in the above rule. [ Footnote 5 ] Page 470 U. S. 837 Respondents' third argument, based upon § 306 of the FDCA, merits only slightly more consideration. That section provides: "Nothing in this chapter shall be construed as requiring the Secretary to report for prosecution, or for the institution of libel or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice or ruling." 21 U.S.C. § 336. Respondents seek to draw from this section the negative implication that the Secretary is required to report for prosecution all "major" violations of the Act, however those might be defined, and that it therefore supplies the needed indication of an intent to limit agency enforcement discretion. We think that this section simply does not give rise to the negative implication which respondents seek to draw from it. The section is not addressed to agency proceedings designed to discover the existence of violations, but applies only to a situation where a violation has already been established to the satisfaction of the agency. We do not believe the section speaks to the criteria which shall be used by the agency for investigating possible violations of the Act. IV We therefore conclude that the presumption that agency decisions not to institute proceedings are unreviewable under 5 U.S.C. § 701(a)(2) is not overcome by the enforcement provisions of the FDCA. The FDA's decision not to take the Page 470 U. S. 838 enforcement actions requested by respondents is therefore not subject to judicial review under the APA. The general exception to reviewability provided by § 701(a)(2) for action "committed to agency discretion" remains a narrow one, see Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971), but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise. In so holding, we essentially leave to Congress, and not to the courts, the decision as to whether an agency's refusal to institute proceedings should be judicially reviewable. No colorable claim is made in this case that the agency's refusal to institute proceedings violated any constitutional rights of respondents, and we do not address the issue that would be raised in such a case. Cf. Johnson v. Robison, 415 U. S. 361 , 415 U. S. 366 (1974); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 372 -374 (1886). The fact that the drugs involved in this case are ultimately to be used in imposing the death penalty must not lead this Court or other courts to import profound differences of opinion over the meaning of the Eighth Amendment to the United States Constitution into the domain of administrative law. The judgment of the Court of Appeals is Reversed. [ Footnote 1 ] See 21 U.S.C. § 352(f): "A drug or device shall be deemed to be misbranded . . . [u]nless its labeling bears (1) adequate directions for use. . . ." [ Footnote 2 ] Although respondents also requested an evidentiary hearing, the District Court regarded this hearing as having "no purpose apart from serving as a prelude to the pursuit of the very enforcement steps that plaintiffs demanded in their administrative petition." Chaney v. Schweiker, Civ. No. 81-2265 (DC, Aug. 30, 1982), App. to Pet. for Cert. 77a, n. 15. Respondents have not challenged the statement that all they sought were certain enforcement actions, and this case therefore does not involve the question of agency discretion not to invoke rulemaking proceedings. [ Footnote 3 ] In response to respondents' petition, the Commissioner had explained that the FDA had assumed jurisdiction in these cases because, unlike the drugs used for human execution, these drugs were "new drugs" intended by the manufacturer to be used for this purpose, and thus fell squarely within the FDA's approval jurisdiction. The Court of Appeals did not explain why this distinction was not "rational." [ Footnote 4 ] We do not have in this case a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction. Nor do we have a situation where it could justifiably be found that the agency has "consciously and expressly adopted a general policy" that is so extreme as to amount to an abdication of its statutory responsibilities. See, e.g., Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (197) (en banc). Although we express no opinion on whether such decisions would be unreviewable under § 701(a)(2), we note that, in those situations, the statute conferring authority on the agency might indicate that such decisions were not "committed to agency discretion." [ Footnote 5 ] Respondents also urge, as did the Court of Appeals, that a statement by the FDA's lawyers in a footnote to to their "memorandum in support of dismissal" in the District Court indicates that the agency considers the "policy statement" "binding." The footnote said that the "Federal Register notice . . . sets forth the agency's current position o[n] the legal status of approved labeling for prescription drugs." The statement from the memorandum cites no authority, is taken out of context, and, on its face, does not indicate that the agency considered this position "binding" in any sense of the word. Moreover, we find it difficult to believe that statements of agency counsel in litigation against private individuals can be taken to establish "rules" that bind an entire agency prospectively. Such would turn orderly process on its head. JUSTICE BRENNAN, concurring. Today the Court holds that individual decisions of the Food and Drug Administration not to take enforcement action in response to citizen requests are presumptively not reviewable under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. I concur in this decision. This general presumption is based on the view that, in the normal course of events, Congress intends to allow broad discretion for its administrative agencies to make particular enforcement decisions, and there often may not exist readily discernible "law to apply" for courts to conduct judicial review of nonenforcement decisions. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 , 401 U. S. 410 (1971). Page 470 U. S. 839 I also agree that, despite this general presumption, "Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers." Ante at 470 U. S. 833 . Thus, the Court properly does not decide today that nonenforcement decisions are unreviewable in cases where (1) an agency flatly claims that it has no statutory jurisdiction to reach certain conduct, ante at 470 U. S. 833 , n. 4; (2) an agency engages in a pattern of nonenforcement of clear statutory language, as in Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973) (en banc), ante at 470 U. S. 833 , n. 4; (3) an agency has refused to enforce a regulation lawfully promulgated and still in effect, ante at 470 U. S. 836 ; [ Footnote 2/1 ] or (4) a nonenforcement decision violates constitutional rights, ante at 470 U. S. 838 . It is possible to imagine other nonenforcement decisions made for entirely illegitimate reasons, for example, nonenforcement in return for a bribe, judicial review of which would not be foreclosed by the nonreviewability presumption. It may be presumed that Congress does not intend administrative agencies, agents of Congress' own creation, to ignore clear jurisdictional, regulatory, statutory, or constitutional commands, and in some circumstances, including those listed above, the statutes or regulations at issue may well provide "law to apply" under 5 U.S.C. § 701(a)(2). Individual, isolated nonenforcement decisions, however, must be made by hundreds of agencies each day. It is entirely permissible to presume that Congress has not intended courts to review such mundane matters, absent either some indication of congressional intent to the contrary or proof of circumstances such as those set out above. On this understanding of the scope of today's decision, I join the Court's opinion. [ Footnote 2/2 ] Page 470 U. S. 840 [ Footnote 2/1 ] Cf. Motor Vehicle Manufacturers Assn. v. State Farm Mutual Ins. Co., 463 U. S. 29 , 463 U. S. 40 -44 (1983) (failure to revoke lawfully a previously promulgated rule is reviewable under the APA). [ Footnote 2/2 ] I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153 , 428 U. S. 227 (1976) (BRENNAN, J., dissenting). My concurrence here should not be misread as an expression of approval for the use of lethal injections to effect capital punishment as an independent matter. The Court is correct, however, that "profound differences of opinion over the meaning of the Eighth Amendment" should not influence our consideration of a question purely of statutory administrative law. Ante at 470 U. S. 838 . JUSTICE MARSHALL, concurring in the judgment. Easy cases at times produce bad law, for in the rush to reach a clearly ordained result, courts may offer up principles, doctrines, and statements that calmer reflection, and a fuller understanding of their implications in concrete settings, would eschew. In my view, the "presumption of unreviewability" announced today is a product of that lack of discipline that easy cases make all too easy. The majority, eager to reverse what it goes out of its way to label as an "implausible result," ante at 470 U. S. 827 , not only does reverse, as I agree it should, but along the way creates out of whole cloth the notion that agency decisions not to take "enforcement action" are unreviewable unless Congress has rather specifically indicated otherwise. Because this "presumption of unreviewability" is fundamentally at odds with rule-of-law principles firmly embedded in our jurisprudence, because it seeks to truncate an emerging line of judicial authority subjecting enforcement discretion to rational and principled constraint, and because, in the end, the presumption may well be indecipherable, one can only hope that it will come to be understood as a relic of a particular factual setting in which the full implications of such a presumption were neither confronted nor understood. I write separately to argue for a different basis of decision: that refusals to enforce, like other agency actions, are reviewable in the absence of a "clear and convincing" congressional intent to the contrary, but that such refusals warrant deference when, as in this case, there is nothing to suggest Page 470 U. S. 841 that an agency with enforcement discretion has abused that discretion. I In response to respondents' petition, the FDA Commissioner stated that the FDA would not pursue the complaint "under our inherent discretion to decline to pursue certain enforcement matters. The unapproved use of approved drugs is an area in which the case law is far from uniform. Generally, enforcement proceedings in this area are initiated only when there is a serious danger to the public health or a blatant scheme to defraud. We cannot conclude that those dangers are present under State lethal injection laws. . . . [W]e decline, as a matter of enforcement discretion, to pursue supplies of drugs under State control that will be used for execution by lethal injection." The FDA may well have been legally required to provide this statement of basis and purpose for its decision not to take the action requested. Under the Administrative Procedure Act, such a statement is required when an agency denies a "written application, petition, or other request of an interested person made in connection with any agency proceedings." [ Footnote 3/1 ] 5 U.S.C. § 555(e). Whether this written explanation was legally required or not, however, it does provide a sufficient Page 470 U. S. 842 basis for holding, on the merits, that the FDA's refusal to grant the relief requested was within its discretion. First, respondents on summary judgment neither offered nor attempted to offer any evidence that the reasons for the FDA's refusal to act were other than the reasons stated by the agency. Second, as the Court correctly concludes, the FDCA is not a mandatory statute that requires the FDA to prosecute all violations of the Act. Thus, the FDA clearly has significant discretion to choose which alleged violations of the Act to prosecute. Third, the basis on which the agency chose to exercise this discretion -- that other problems were viewed as more pressing -- generally will be enough to pass muster. Certainly it is enough to do so here, where the number of people currently affected by the alleged misbranding is around 200, and where the drugs are integral elements in a regulatory scheme over which the States exercise pervasive and direct control. When a statute does not mandate full enforcement, I agree with the Court that an agency is generally "far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities." Ante at 470 U. S. 831 -832. As long as the agency is choosing how to allocate finite enforcement resources, the agency's choice will be entitled to substantial deference, for the choice among valid alternative enforcement policies is precisely the sort of choice over which agencies generally have been left substantial discretion by their enabling statutes. On the merits, then, a decision not to enforce that is based on valid resource allocation decisions will generally not be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A). The decision in this case is no exception to this principle. The Court, however, is not content to rest on this ground. Instead, the Court transforms the arguments for deferential review on the merits into the wholly different notion that "enforcement" decisions are presumptively unreviewable Page 470 U. S. 843 altogether -- unreviewable whether the resource allocation rationale is a sham, unreviewable whether enforcement is declined out of vindictive or personal motives, and unreviewable whether the agency has simply ignored the request for enforcement. But cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982) (due process and equal protection may prevent agency from ignoring complaint). But surely it is a far cry from asserting that agencies must be given substantial leeway in allocating enforcement resources among valid alternatives to suggesting that agency enforcement decisions are presumptively unreviewable no matter what factor caused the agency to stay its hand. This "presumption of unreviewability" is also a far cry from prior understandings of the Administrative Procedure Act. As the Court acknowledges, the APA presumptively entitles any person "adversely affected or aggrieved by agency action," 5 U.S.C. § 702 -- which is defined to include the "failure to act," 5 U.S.C. § 551(13) -- to judicial review of that action. That presumption can be defeated if the substantive statute precludes review, § 701(a)(1), or if the action is committed to agency discretion by law, § 701(a)(2), but, as Justice Harlan's opinion in Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), made clear in interpreting the APA's judicial review provisions: "The legislative material elucidating [the APA] manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act's 'generous review provisions' must be given a 'hospitable' interpretation. . . . [O]nly upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Id. at 387 U. S. 140 -141 (citations omitted; footnote omitted). See generally H.R.Rep. No.1980, 79th Cong., 2d Sess., 41 (1946) (to preclude APA review, a statute "must, upon its face, Page 470 U. S. 844 give clear and convincing evidence of an intent to withhold it"); cf. Moog Industries, Inc. v. FTC, 355 U. S. 411 , 355 U. S. 414 (1958) (Federal Trade Commission decisions to prosecute are reviewable and can be overturned when "patent abuse of discretion" demonstrated). [ Footnote 3/2 ] Rather than confront Abbott Laboratories, perhaps the seminal case on judicial review under the APA, the Court chooses simply to ignore it. [ Footnote 3/3 ] Instead, to support its new-found "presumption of unreviewability," the Court resorts to completely undefined and unsubstantiated references to "tradition," see ante at 470 U. S. 831 , and to citation of four cases. See United States v. Batchelder, 442 U. S. 114 (1979); United States v. Nixon, 418 U. S. 683 (1974); Vaca v. Sipes, 386 U. S. 171 (1967); Confiscation Cases , 7 Wall. 454 (1869). [ Footnote 3/4 ] Because the Court's "tradition" rationale, which flies in the face of Abbott Laboratories, stands as a flat, unsupported ipse dixit, these four cases form the only doctrinal foundation for the majority's presumption of unreviewability. Page 470 U. S. 845 Yet these cases hardly support such a broad presumption with respect to agency refusal to take enforcement action. The only one of these cases to involve administrative action, Vaca v. Sipes, suggests, in dictum, that the General Counsel of the National Labor Relations Board has unreviewable discretion to refuse to initiate an unfair labor practice complaint. To the extent this dictum is sound, later cases indicate that unreviewability results from the particular structure of the National Labor Relations Act and the explicit statutory intent to withdraw review found in 29 U.S.C. § 153(d), rather than from some general "presumption of unreviewability" of enforcement decisions. See NLRB v. Sears, Roebuck & Co., 421 U. S. 132 , 421 U. S. 138 (1975). [ Footnote 3/5 ] Neither Vaca nor Sears, Roebuck discusses the APA. The other three cases -- Batchelder, Nixon, and the Confiscation Cases -- all involve prosecutorial discretion to enforce the criminal law. Batchelder does not maintain that such discretion is unreviewable, but only that the mere existence of prosecutorial discretion does not violate the Constitution. The Confiscation Cases, involving suits to confiscate property used in aid of rebellion, hold that, where the United States brings a criminal action that is "wholly for the benefit of the United States," 7 Wall. at 74 U. S. 455 , a person who provides information leading to the action has no "vested" or absolute right to demand, "so far as the interests of the United States are concerned," id. at 74 U. S. 458 , that the action be maintained. The half-sentence cited from Nixon, which states that the Executive has "absolute discretion to decide whether to prosecute a case," 418 U.S. at 418 U. S. 693 , is the only apparent support the Court actually offers for even the limited notion that prosecutorial discretion in the criminal area is unreviewable. But that half-sentence is, of course, misleading, for Nixon held it an abuse of that discretion Page 470 U. S. 846 to attempt to exercise it contrary to validly promulgated regulations. Thus, Nixon actually stands for a very different proposition than the one for which the Court cites it: faced with a specific claim of abuse of prosecutorial discretion, Nixon makes clear that courts are not powerless to intervene. And none of the other prosecutorial discretion cases upon which the Court rests involved a claim that discretion had been abused in some specific way. Moreover, for at least two reasons, it is inappropriate to rely on notions of prosecutorial discretion to hold agency inaction unreviewable. First, since the dictum in Nixon, the Court has made clear that prosecutorial discretion is not as unfettered or unreviewable as the half-sentence in Nixon suggests. As one of the leading commentators in this area has noted, "the case law since 1974 is strongly on the side of reviewability." 2 K. Davis, Administrative Law § 9:6, p. 240 (1979). In Blackledge v. Perry, 417 U. S. 21 , 417 U. S. 28 (1974), instead of invoking notions of "absolute" prosecutorial discretion, we held that certain potentially vindictive exercises of prosecutorial discretion were both reviewable and impermissible. The "retaliatory use" of prosecutorial power is no longer tolerated. Thigpen v. Roberts, 468 U. S. 27 , 468 U. S. 30 (1984). Nor do prosecutors have the discretion to induce guilty pleas through promises that are not kept. Blackledge v. Allison, 431 U. S. 63 (1977); Santobello v. New York, 404 U. S. 257 , 404 U. S. 262 (1971). And in rejecting on the merits a claim of improper prosecutorial conduct in Bordenkircher v. Hayes, 434 U. S. 357 (1978), we clearly laid to rest any notion that prosecutorial discretion is unreviewable no matter what the basis is upon which it is exercised: "There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may Page 470 U. S. 847 be, there are undoubtedly constitutional limits upon its exercise." Id. at 434 U. S. 365 . See also Wayte v. United States, ante at 470 U. S. 608 . Thus, even in the area of criminal prosecutions, prosecutorial discretion is not subject to a "presumption of unreviewability." See generally Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv.L.Rev. 1521, 1537-1543 (1981). If a plaintiff makes a sufficient threshold showing that a prosecutor's discretion has been exercised for impermissible reasons, judicial review is available. Second, arguments about prosecutorial discretion do not necessarily translate into the context of agency refusals to act. "In appropriate circumstances, the Court has made clear that traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which the enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law." Marshall v. Jerrico, Inc., 446 U. S. 238 , 446 U. S. 249 (1980) (citations omitted). Criminal prosecutorial decisions vindicate only intangible interests, common to society as a whole, in the enforcement of the criminal law. The conduct at issue has already occurred; all that remains is society's general interest in assuring that the guilty are punished. See Linda R. S. v. Richard D., 410 U. S. 614 , 410 U. S. 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"). In contrast, requests for administrative enforcement typically seek to prevent concrete and future injuries that Congress has made cognizable -- injuries that result, for example, from misbranded drugs, such as alleged in this case, or unsafe nuclear powerplants, see, e.g., Florida Power & Light Co. v. Lorion, ante p. 470 U. S. 729 -- or to obtain palpable benefits that Congress has intended to bestow -- such as labor union elections free of corruption, see Dunlop v. Bachowski, 421 U. S. 560 (1975). Entitlements to receive these benefits or to be free of these injuries often run to specific classes of individuals Page 470 U. S. 848 whom Congress has singled out as statutory beneficiaries. The interests at stake in review of administrative enforcement decisions are thus more focused, and in many circumstances more pressing, than those at stake in criminal prosecutorial decisions. A request that a nuclear plant be operated safely or that protection be provided against unsafe drugs is quite different from a request that an individual be put in jail or his property confiscated as punishment for past violations of the criminal law. Unlike traditional exercises of prosecutorial discretion, "the decision to enforce -- or not to enforce -- may itself result in significant burdens on a . . . statutory beneficiary." Marshall v. Jerrico, Inc., supra, at 446 U. S. 249 . Perhaps most important, the sine qua non of the APA was to alter inherited judicial reluctance to constrain the exercise of discretionary administrative power -- to rationalize and make fairer the exercise of such discretion. Since passage of the APA, the sustained effort of administrative law has been to "continuously narro[w] the category of actions considered to be so discretionary as to be exempted from review." Shapiro, Administrative Discretion: The Next Stage, 92 Yale L.J. 1487, 1489, n. 11 (1983). Discretion may well be necessary to carry out a variety of important administrative functions, but discretion can be a veil for laziness, corruption, incompetency, lack of will, or other motives, and for that reason, " the presence of discretion should not bar a court from considering a claim of illegal or arbitrary use of discretion. " L. Jaffe, Judicial Control of Administrative Action 375 (1965). Judicial review is available under the APA in the absence of a clear and convincing demonstration that Congress intended to preclude it precisely so that agencies, whether in rulemaking, adjudicating, acting or failing to act, do not become stagnant backwaters of caprice and lawlessness. "Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat." United States v. Wunderlich, 342 U. S. 98 , 342 U. S. 101 (1951). Page 470 U. S. 849 For these and other reasons, [ Footnote 3/6 ] reliance on prosecutorial discretion, itself a fading talisman, to justify the unreviewabilty of agency inaction is inappropriate. See generally Stewart & Sunstein, Public Programs and Private Rights, 95 Harv.L.Rev. 1195, 1285-1286, n. 386 (1982) (discussing differences between agency inaction and prosecutorial discretion); Note, Judicial Review of Administrative Inaction, 83 Colum.L.Rev. 627, 658-661 (1983) (same). To the extent arguments about traditional notions of prosecutorial discretion have any force at all in this context, they ought to apply only Page 470 U. S. 850 to an agency's decision to decline to seek penalties against an individual for past conduct, not to a decision to refuse to investigate or take action on a public health, safety, or welfare problem. II The "tradition" of unreviewability upon which the majority relies is refuted most powerfully by a firmly entrenched body of lower court case law that holds reviewable various agency refusals to act. [ Footnote 3/7 ] This case law recognizes that attempting to Page 470 U. S. 851 draw a line for purposes of judicial review between affirmative exercises of coercive agency power and negative agency refusals to act, see ante at 470 U. S. 832 , is simply untenable; one of the very purposes fueling the birth of administrative agencies was the reality that governmental refusal to act could have just as devastating an effect upon life, liberty, and the pursuit of happiness as coercive governmental action. As Justice Frankfurter, a careful and experienced student of administrative law, wrote for this Court, "any distinction, as such, between 'negative' and 'affirmative' orders, as a touchstone of jurisdiction to review [agency action] serves no useful purpose." Rochester Telephone Corp. v. United States, 307 U. S. 125 , 307 U. S. 143 (1939). [ Footnote 3/8 ] The lower courts, facing Page 470 U. S. 852 the problem of agency inaction and its concrete effects more regularly than do we, have responded with a variety of solutions to assure administrative fidelity to congressional objectives: a demand that an agency explain its refusal to act, a demand that explanations given be further elaborated, and injunctions that action "unlawfully withheld or unreasonably delayed," 5 U.S.C. § 706, be taken. See generally Stewart & Sunstein, 95 Harv.L.Rev. at 1279. Whatever the merits of any particular solution, one would have hoped the Court would have acted with greater respect for these efforts by responding with a scalpel, rather than a blunderbuss. To be sure, the Court no doubt takes solace in the view that it has created only a "presumption" of unreviewability, and that this "presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Ante at 470 U. S. 832 -833. But this statement implies far too narrow a reliance on positive law, either statutory or constitutional, see ibid., as the sole source of limitations on agency discretion not to enforce. In my view, enforcement discretion is also channelled by traditional background understandings against which the APA was enacted and which Congress hardly could be thought to have intended to displace in the APA. [ Footnote 3/9 ] For example, a refusal to enforce that stems from a conflict of interest, that is the result of a bribe, vindictiveness or retaliation, or that traces to personal or other corrupt motives ought to be judicially remediable. [ Footnote 3/10 ] Even in the absence Page 470 U. S. 853 of statutory "guidelines" precluding such factors as bases of decision, Congress should not be presumed to have departed from principles of rationality and fair process in enacting the APA. [ Footnote 3/11 ] Moreover, the agency may well narrow its own enforcement discretion through historical practice, from which it should arguably not depart in the absence of explanation, or through regulations and informal action. Traditional principles of rationality and fair process do offer "meaningful standards" and "law to apply" to an agency's decision not to act, and no presumption of unreviewability should be allowed to trump these principles. Perhaps the Court's reference to guidance from the "substantive statute" is meant to encompass such concerns, and to allow the "common law" of judicial review of agency action to provide standards by which inaction can be reviewed. But in that case, I cannot fathom what content the Court's "presumption of unreviewability" might have. If inaction can be reviewed to assure that it does not result from improper abnegation of jurisdiction, from complete abdication of statutory responsibilities, from violation of constitutional rights, or from factors that offend principles of rational and fair administrative process, it would seem that a court must always inquire into the reasons for the agency's action before deciding whether the presumption applies. [ Footnote 3/12 ] As Judge Friendly said many years ago, review of even a decision over which substantial administrative discretion exists would then be available to determine whether that discretion had been Page 470 U. S. 854 abused because the decision was "made without a rational explanation, inexplicably departed from established policies, or rested . . . on other considerations that Congress could not have intended to make relevant." Wong Wing Hang v. INS, 360 F.2d 715, 719 (CA2 1966). In that event, we would not be finding enforcement decisions unreviewable, but rather would be reviewing them on the merits, albeit with due deference, to assure that such decisions did not result from an abuse of discretion. That is the basis upon which I would decide this case. Under § 706(A)(2) and Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), agency action, including the failure to act, is reviewable to assure that it is not "arbitrary, capricious, or an abuse of discretion," unless Congress has manifested a clear and convincing intent to preclude review. Review of enforcement decisions must be suitably deferential in light of the necessary flexibility the agencies must have in this area, but at least when "enforcement" inaction allegedly deprives citizens of statutory benefits or exposes them to harms against which Congress has sought to provide protection, review must be on the merits to ensure that the agency is exercising its discretion within permissible bounds. See Berger, Administrative Arbitrariness: A Synthesis, 78 Yale L.J. 965 (1969); L. Jaffe, Judicial Control of Administrative Action 375 (1965). III The problem of agency refusal to act is one of the pressing problems of the modern administrative state, given the enormous powers, for both good and ill, that agency inaction, like agency action, holds over citizens. As Dunlop v. Bachowski, 421 U. S. 560 (1975), recognized, the problems and dangers of agency inaction are too important, too prevalent, and too multifaceted to admit of a single facile solution under which "enforcement" decisions are "presumptively unreviewable." Over time, I believe the approach announced today will come to be understood, not as mandating that courts Page 470 U. S. 855 cover their eyes and their reasoning power when asked to review an agency's failure to act, but as recognizing that courts must approach the substantive task of reviewing such failures with appropriate deference to an agency's legitimate need to set policy through the allocation of scarce budgetary and enforcement resources. Because the Court's approach, if taken literally, would take the courts out of the role of reviewing agency inaction in far too many cases, I join only the judgment today. [ Footnote 3/1 ] All Members of the Court in Dunlop v. Bachowski, 421 U. S. 560 (1975), agreed that a statement of basis and purpose was required for the denial of the enforcement request at issue there. See id. at 421 U. S. 571 -575; id. at 421 U. S. 594 (REHNQUIST, J., concurring in result in part and dissenting in part). Given the revisionist view the Court takes today of Dunlop, perhaps these statements too are to be limited to the specific facts out of which they emerged. Yet the Court's suggestion that review is proper when the agency asserts a lack of jurisdiction to act, see ante at 470 U. S. 833 , n. 4, or some other basis inconsistent with congressional intent, would seem to presuppose the existence of a statement of basis and purpose explaining the basis for denial of enforcement action. [ Footnote 3/2 ] The Senate Committee Report accompanying the APA stated: "The mere filing of a petition does not require an agency to grant it, or to hold a hearing, or engage in any other public rule making proceedings. The refusal of an agency to grant the petition or to hold rule making proceedings, therefore, would not per se be subject to judicial reversal." S. Doc. No. 248, 79th Cong., 2d Sess., 201 (1946). As Judge McGowan has observed, "this language implies that judicial review would sometimes be available in the circumstances mentioned" in the Report. Natural Resources Defense Council, Inc. v. SEC, 196 U.S.App.D.C. 124, 136, n. 14, 606 F.2d 1031, 1043, n. 14 (1979). [ Footnote 3/3 ] The Court did not ignore Abbott Laboratories in Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444 , 442 U. S. 454 , 442 U. S. 462 -463 (1979), a denial of enforcement case that required "clear and convincing evidence" of congressional intent to preclude review of the failure to investigate a complaint. [ Footnote 3/4 ] It is ironic that Vaca v. Sipes and the Confiscation Cases were cited by the Government in its brief in Dunlop when it unsuccessfully pressed the very proposition accepted today: that agency enforcement decisions are presumptively unreviewable. See Brief for Petitioner in Dunlop v. Bachowski, O.T. 1974, No. 74-466, pp. 25-31. [ Footnote 3/5 ] Cf. Southern R. Co. v. Seaboard Allied Milling Corp., supra, (concluding, after extensive examination of history and structure of Act, that agency decisions not to investigate under § 15(8)(a) of the Interstate Commerce Act are unreviewable). [ Footnote 3/6 ] Legal historians have suggested that the notion of prosecutorial discretion developed in England and America largely because private prosecutions were simultaneously available at the time. See Langbein, Controlling Prosecutorial Discretion in Germany, 41 U.Chi.L.Rev. 439, 443-446 (1974). Private enforcement of regulatory statutes, such as the FDCA, is of course largely unavailable. In addition, scholars have noted that the tradition of unreviewability of prosecutor's decisions developed at a time when virtually all executive action was considered unreviewable. In asking what accounts for this "tradition," one scholar offered the following rhetorical questions: "Is it because the tradition became settled during the nineteenth century when courts were generally assuming that judicial intrusion into any administration would be unfortunate? Is it because the tradition became settled while the Supreme Court was actuated by its 1840 remark that" "The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief. [citing Decatur v. Paulding , 14 Pet. 497, 39 U. S. 516 (1840)]." "Is it because the tradition became settled before the courts made the twentieth-century discovery that the courts can interfere with executive action to protect against abuses, but at the same time can avoid taking over the executive function? Is it because the tradition became settled before the successes of the modern system of limited judicial review became fully recognized?" "On the basis of what the courts know today about leaving administration to administrators, but at the same time providing an effective check to protect against abuses, should the courts not take a fresh look at the tradition that prevents them from reviewing the prosecuting function?" K. Davis, Discretionary Justice 211 (1969) (footnote omitted). [ Footnote 3/7 ] See, e.g., Bargmann v. Helms, 230 U.S.App.D.C. 164, 715 F.2d 638 (1983); Natural Resources Defense Council, Inc. v. EPA, 683 F.2d 752, 753, 767-768 (CA3 1982); WWHT, Inc. v. FCC, 211 U.S.App.D.C. 218, 656 F.2d 807 (1981); Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656 F.2d 564 (CA10 1981); Natural Resources Defense Council, Inc. v. SEC, 196 U.S.App.D.C. 124, 606 F.2d 1031 (1979); British Airways Board v. Port Authority of New York, 564 F.2d 1002, 1012-1013 (CA2 1977); Pennsylvania v. National Assn. of Flood Insurers, 520 F.2d 11 (CA3 1975); REA Express, Inc. v. CAB, 507 F.2d 42 (CA2 1974); Davis v. Romney, 490 F.2d 1360 (CA3 1974); Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973) (en banc); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973); Rockbridge v. Lincoln, 449 F.2d 567 (CA9 1971); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971); Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970); Medical Committee for Human Rights v. SEC, 139 U.S.App.D.C. 226, 432 F.2d 659 (1970), vacated as moot, 404 U. S. 403 (1972); Trailways of New England, Inc. v. CAB, 412 F.2d 926 (CA1 1969); International Union, United Auto., Aero. & Agric. Implement Workers v. NLRB, 427 F.2d 1330 (CA6 1970); Public Citizen Health Research Group v. Auchter, 554 F. Supp. 242 (DC 1983), rev'd in part, 226 U.S.App.D.C. 413, 702 F.2d 1150 (1983); Sierra Club v. Gorsuch, 551 F. Supp. 785 (ND Cal.1982); Hoffmann-LaRoche, Inc. v. Weinberger, 425 F. Supp. 890 (DC 1975); NAACP v. Levi, 418 F. Supp. 1109 (DC 1976); Guerrero v. Garza, 418 F. Supp. 182 (WD Wis.1976); Souder v. Brennan, 367 F. Supp. 808 , 811 (DC 1973); City-Wide Coalition Against Childhood Lead Paint Poisoning v. Philadelphia Housing Auth., 356 F. Supp. 123 (ED Pa.1973); American Public Health Assn. v. Veneman, 349 F. Supp. 1311 (DC 1972). To be sure, some of these cases involved the refusal to initiate rulemaking proceedings, and the majority expressly disavows any claim that its presumption of unreviewability applies to such refusals. See ante at 470 U. S. 825 , n. 2. But the majority offers no explanation of how an enforcement request that seeks protection of the public or statutory beneficiaries from present and future concrete harms, or from loss of deserved benefits, implicates considerations substantially different from those at stake in judicial review of the refusal to initiate rulemaking proceedings. [ Footnote 3/8 ] Justice Frankfurter went to some length in Rochester Telephone to expose the fallacy of any purported distinction between agency action and inaction: "'[N]egative order' and 'affirmative order' are not appropriate terms of art. . . . 'Negative' has really been an obfuscating adjective, in that it implied a search for a distinction -- non-action as against action -- which does not involve the real considerations on which rest, as we have seen, the reviewability of Commission orders within the framework of its discretionary authority and within the general criteria of justiciability. 'Negative' and 'affirmative,' in the context of these problems, is as unilluminating and mischief-making a distinction as the outmoded line between 'nonfeasance' and 'misfeasance.'" ". . . An order of the Commission dismissing a complaint on the merits and maintaining the status quo is an exercise of administrative function, no more and no less than an order directing some change in status. . . . In the application of relevant canons of judicial review an order of the Commission directing the adoption of a practice might raise considerations absent from a situation where the Commission merely allowed such a practice to continue. But this bears on the disposition of a case, and should not control jurisdiction. " 307 U.S. at 307 U. S. 140 -142 (emphasis added; footnotes omitted). [ Footnote 3/9 ] The Court cites 5 K. Davis, Administrative Law § 28:5 (1984), for the proposition that the APA did not alter the "common law" of judicial review of agency action; Davis' correct statement ought to make clear that traditional principles of fair and rational decisionmaking were incorporated into, rather than obliterated by, the APA, and that judicial review is available to assure that agency action, including inaction, is consistent with these principles. See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 378 (1982) ("[W]e must examine Congress' perception of the law that it was shaping or reshaping"). [ Footnote 3/10 ] "A scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions." Marshall v. Jerrico, Inc., 446 U. S. 238 , 446 U. S. 249 -250 (1980). [ Footnote 3/11 ] Indeed, "[t]he more general and powerful the background understanding, the less likely it is to have been stated explicitly by the legislature, even if the legislature in fact shares that understanding." Stewart & Sunstein, Public Programs and Private Rights, 95 Harv.L.Rev. 1195, 1231 (1982). [ Footnote 3/12 ] When an agency asserts that a refusal to enforce is based on enforcement priorities, it may be that, to survive summary judgment, a plaintiff must be able to offer some basis for calling this assertion into question or for justifying his inability to do so.

The Supreme Court ruled that the Food and Drug Administration's (FDA) decision not to take enforcement action against the use of certain drugs for lethal injection in capital punishment cases is not subject to judicial review under the Administrative Procedure Act (APA). The Court found that agency decisions not to enforce are presumed immune from judicial review and that the Federal Food, Drug, and Cosmetic Act (FDCA) does not provide meaningful standards for defining the limits of the FDA's discretion in this case.

Government Agencies

Block v. Community Nutrition Institute

https://supreme.justia.com/cases/federal/us/467/340/

U.S. Supreme Court Block v. Commun. Nutrition Inst., 467 U.S. 340 (1984) Block v. Community Nutrition Institute No. 83-458 Argued April 24, 1984 Decided June 4, 1984 467 U.S. 340 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus To bring destabilizing competition among dairy farmers under control, the Agricultural Marketing Agreement Act of 1937 (Act) authorizes the Secretary of Agriculture (Secretary) to issue milk market orders setting the minimum prices that handlers (those who process dairy products) must pay to producers (dairy farmers) for their milk products. Pursuant to this authority, the Secretary issued market orders under which handlers are required to pay for "reconstituted milk" (milk manufactured by mixing milk powder with water) the minimum price for Class II milk (raw milk used to produce such products as dry milk powder), rather than the higher price covering Class I milk (raw milk processed and bottled for fluid consumption). The orders assume that handlers will use the reconstituted milk to manufacture surplus milk products, but for any portion of reconstituted milk not so used, handlers must make a "compensatory payment" equal to the difference between Class I and Class II milk product prices. Respondents -- three individual consumers of fluid dairy products, a handler regulated by the market orders, and a nonprofit organization -- brought suit in Federal District Court, contending that the compensatory payment requirement makes reconstituted milk uneconomical for handlers to process. The District Court held, inter alia, that the consumers had no standing to challenge the orders. The Court of Appeals disagreed, holding that the consumers had suffered injury-in-fact, their injuries were redressable, and they were within the zone of interests protected by the Act, and that the Act's structure and purposes did not reveal the type of "clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review." Held: The individual consumers may not obtain judicial review of the milk market orders in question. Pp. 467 U. S. 345 -353. (a) It is clear from the structure of the Act that Congress intended that judicial review of market orders ordinarily be confined to suits by handlers in accordance with the provisions of the Act expressly entitling them to such review in a federal district court after exhausting their administrative remedies. Allowing consumers to sue the Secretary would severely disrupt the Act's complex and delicate administrative scheme. Pp. 467 U. S. 345 -348. Page 467 U. S. 341 (b) The presumption favoring judicial review of administrative action does not control in cases such as this one, where the congressional intent to preclude consumer suits is "fairly discernible" in the detail of the legislative scheme. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under that scheme. Stark v. Wickard, 321 U. S. 288 , distinguished. Pp. 467 U. S. 348 -352. 225 U.S.App.D.C. 387, 698 F.2d 1239, reversed. O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except STEVENS, J., who took no part in the decision of the case. JUSTICE O'CONNOR delivered the opinion of the Court. This case presents the question whether ultimate consumers of dairy products may obtain judicial review of milk market orders issued by the Secretary of Agriculture (Secretary) under the authority of the Agricultural Marketing Agreement Act of 1937 (Act), ch. 296, 50 Stat. 246, as amended, 7 U.S.C. § 601 et seq. We conclude that consumers may not obtain judicial review of such orders. I A In the early 1900's, dairy farmers engaged in intense competition in the production of fluid milk products. See Zuber v. Allen, 396 U. S. 168 , 396 U. S. 172 -176 (1969). To bring this destabilizing competition under control, the 1937 Act authorizes the Secretary to issue milk market orders setting the minimum prices that handlers (those who process dairy products) Page 467 U. S. 342 must pay to producers (dairy farmers) for their milk products. 7 U.S.C. § 608c. The "essential purpose [of this milk market order scheme is] to raise producer prices," S.Rep. No. 1011, 74th Cong., 1st Sess., 3 (1935), and thereby to ensure that the benefits and burdens of the milk market are fairly and proportionately shared by all dairy farmers. See Nebba v. New York, 291 U. S. 502 , 291 U. S. 517 -518 (1934). Under the scheme established by Congress, the Secretary must conduct an appropriate rulemaking proceeding before issuing a milk market order. The public must be notified of these proceedings and provided an opportunity for public hearing and comment. See 7 U.S.C. § 608c(3). An order may be issued only if the evidence adduced at the hearing shows "that [it] will tend to effectuate the declared policy of this chapter with respect to such commodity." 7 U.S.C. § 608c(4). Moreover, before any market order may become effective, it must be approved by the handlers of at least 50% of the volume of milk covered by the proposed order and at least two-thirds of the affected dairy producers in the region. 7 U.S.C. §§ 608c(8), 608c(5)(B)(i). If the handlers withhold their consent, the Secretary may nevertheless impose the order. But the Secretary's power to do so is conditioned upon at least two-thirds of the producers consenting to its promulgation and upon his making an administrative determination that the order is "the only practical means of advancing the interests of the producers." 7 U.S.C. § 608c(9)(B). The Secretary currently has some 45 milk market orders in effect. See 7 CFR pts. 1001-1139 (1984). Each order covers a different region of the country, and collectively they cover most, though not all, of the United States. The orders divide dairy products into separately priced classes based on the uses to which raw milk is put. See 44 Fed.Reg. 65990 (1979). Raw milk that is processed and bottled for fluid consumption is termed "Class I" milk. Raw milk that is used to Page 467 U. S. 343 produce milk products such as butter, cheese, or dry milk powder is termed "Class II" milk. [ Footnote 1 ] For a variety of economic reasons, fluid milk products would command a higher price than surplus milk products in a perfectly functioning market. Accordingly, the Secretary's milk market orders require handlers to pay a higher order price for Class I products than for Class II products. To discourage destabilizing competition among producers for the more desirable fluid milk sales, the orders also require handlers to submit their payments for either class of milk to a regional pool. Administrators of these regional pools are then charged with distributing to dairy farmers a weighted average price for each milk product they have produced, irrespective of its use. See 7 U.S.C. § 608c(5)(B)(ii). In particular, the Secretary has regulated the price of "reconstituted milk" -- that is, milk manufactured by mixing milk powder with water -- since 1964. See 29 Fed.Reg. 9002, 9010 (1964); see also 34 Fed.Reg. 16548, 16551 (1969). The Secretary's orders assume that handlers will use reconstituted milk to manufacture surplus milk products. Handlers are therefore required to pay only the lower Class II minimum price. See 44 Fed.Reg. 65989, 65990 (1979). However, handlers are required to make a "compensatory payment" on any portion of the reconstituted milk that their records show has not been used to manufacture surplus milk products. 7 CFR §§ 1012.44(a)(5)(i), 1012.60(e) (1984). The compensatory payment is equal to the difference between the Class I and Class II milk product prices. Handlers make these payments to the regional pool, from which moneys are then distributed to producers of fresh fluid milk in the region where the reconstituted milk was manufactured and sold. § 1012.71(a)(1). Page 467 U. S. 344 B In December, 1980, respondents brought suit in District Court, contending that the compensatory payment requirement makes reconstituted milk uneconomical for handlers to process. [ Footnote 2 ] Respondents, as plaintiffs in the District Court, included three individual consumers of fluid dairy products, a handler regulated by the market orders, and a nonprofit organization. The District Court concluded that the consumers and the nonprofit organization did not have standing to challenge the market orders. In addition, it found that Congress had intended by the Act to preclude such persons from obtaining judicial review. The District Court dismissed the milk handler's complaint because he had failed to exhaust his administrative remedies. The Court of Appeals affirmed in part and reversed in part, and remanded the case for a decision on the merits. 225 U.S.App.D.C. 387, 698 F.2d 1239 (1983). The Court of Appeals agreed that the milk handler and the nonprofit organization had been properly dismissed by the District Court. But the court concluded that the individual consumers had standing: they had suffered an injury-in-fact, Page 467 U. S. 345 their injuries were redressable, and they were within the zone of interests arguably protected by the Act. The Court also concluded that the statutory structure and purposes of the Act did not reveal "the type of clear and convincing evidence of congressional intent needed to overcome the presumption in favor of judicial review." Id. at 400, and n. 75, 698 F.2d at 1252, and n. 75. The Court of Appeals expressly refused to follow the decision of the Ninth Circuit in Rasmussen v. Hardin, 461 F.2d 595, cert. denied sub nom. Rasmussen v. Butz, 409 U.S. 933 (1972), which had held consumers precluded by statute from seeking judicial review. We granted certiorari to resolve the conflict in the Circuits. 464 U.S. 991 (1983). We now reverse the judgment of the Court of Appeals in this case. II Respondents filed this suit under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. The APA confers a general cause of action upon persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, but withdraws that cause of action to the extent the relevant statute "preclude[s] judicial review," 5 U.S.C. § 701(a)(1). Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. See Southern R. Co. v. Seaboard Allied Mining Corp., 442 U. S. 444 , 442 U. S. 454 -463 (1979); Morris v. Gressette, 432 U. S. 491 , 432 U. S. 499 -507 (1977); see generally Note, Statutory Preclusion of Judicial Review Under the Administrative Procedure Act, 1976 Duke L.J. 431, 442-449. Therefore, we must examine this statutory scheme "to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the [respondents] Page 467 U. S. 346 belon[g]." Barlow v. Collins, 397 U. S. 159 , 397 U. S. 173 (1970) (opinion of BRENNAN, J.,); see also Data Processing Service v. Camp, 397 U. S. 150 , 397 U. S. 156 (1970). It is clear that Congress did not intend to strip the judiciary of all authority to review the Secretary's milk market orders. The Act's predecessor, the Agricultural Adjustment Act of 1933, 48 Stat. 31, contained no provision relating to administrative or judicial review. In 1935, however, Congress added a mechanism by which dairy handlers could obtain review of the Secretary's market orders. 49 Stat. 760. That mechanism was retained in the 1937 legislation, and remains in the Act as § 608c(15) today. Section 608c(15) requires handlers first to exhaust the administrative remedies made available by the Secretary. 7 U.S.C. § 608c(15)(A); see 7 CFR §§ 900.50-900.71 (1984). After these formal administrative remedies have been exhausted, handlers may obtain judicial review of the Secretary's ruling in the federal district court in any district "in which [they are] inhabitant[s], or ha[ve their] principal place[s] of business." 7 U.S.C. § 608c(15)(B). These provisions for handler-initiated review make evident Congress' desire that some persons be able to obtain judicial review of the Secretary's market orders. The remainder of the statutory scheme, however, makes equally clear Congress' intention to limit the classes entitled to participate in the development of market orders. The Act contemplates a cooperative venture among the Secretary, handlers, and producers the principal purposes of which are to raise the price of agricultural products and to establish an orderly system for marketing them. Handlers and producers -- but not consumers -- are entitled to participate in the adoption and retention of market orders. 7 U.S.C. §§ 608c(8), (9), (16)(B). The Act provides for agreements among the Secretary, producers, and handlers, 7 U.S.C. § 608(2), for hearings among them, §§ 608(5), 608c(3), and for votes by producers and handlers, §§ 608c(8)(A), (9)(B), (12), Page 467 U. S. 347 608c(19). Nowhere in the Act, however, is there an express provision for participation by consumers in any proceeding. In a complex scheme of this type, the omission of such a provision is sufficient reason to believe that Congress intended to foreclose consumer participation in the regulatory process. See Switchmen v. National Mediation Board, 320 U. S. 297 305-306 (1943); cf. United States v. Erika, Inc., 456 U. S. 201 , 456 U. S. 208 (1982). To be sure, the general purpose sections of the Act allude to general consumer interests. See 7 U.S.C. §§ 602(2), (4). But the preclusion issue does not only turn on whether the interests of a particular class like consumers are implicated. Rather, the preclusion issue turns ultimately on whether Congress intended for that class to be relied upon to challenge agency disregard of the law. See Barlow v. Collins, supra, at 397 U. S. 167 . The structure of this Act indicates that Congress intended only producers and handlers, and not consumers, to ensure that the statutory objectives would be realized. Respondents would have us believe that, while Congress unequivocally directed handlers first to complain to the Secretary that the prices set by milk market orders are too high, it was nevertheless the legislative judgment that the same challenge, if advanced by consumers, does not require initial administrative scrutiny. There is no basis for attributing to Congress the intent to draw such a distinction. The regulation of agricultural products is a complex, technical undertaking. Congress channeled disputes concerning marketing orders to the Secretary in the first instance, because it believed that only he has the expertise necessary to illuminate and resolve questions about them. Had Congress intended to allow consumers to attack provisions of marketing orders, it surely would have required them to pursue the administrative remedies provided in § 608c(15)(A) as well. The restriction of the administrative remedy to handlers strongly suggests that Congress intended a similar restriction of judicial review of market orders. Page 467 U. S. 348 Allowing consumers to sue the Secretary would severely disrupt this complex and delicate administrative scheme. It would provide handlers with a convenient device for evading the statutory requirement that they first exhaust their administrative remedies. A handler may also be a consumer and, as such, could sue in that capacity. Alternatively, a handler would need only to find a consumer who is willing to join in or initiate an action in the district court. The consumer or consumer-handler could then raise precisely the same exceptions that the handler must raise administratively. Consumers or consumer-handlers could seek injunctions against the operation of market orders that "impede, hinder, or delay" enforcement actions, even though such injunctions are expressly prohibited in proceedings properly instituted under 7 U.S.C. § 608c(15). Suits of this type would effectively nullify Congress' intent to establish an "equitable and expeditious procedure for testing the validity of orders, without hampering the Government's power to enforce compliance with their terms." S.Rep. No. 1011, 74th Cong., 1st Sess., 14 (1935); see also United States v. Ruzicka, 329 U. S. 287 , 329 U. S. 293 -294, and n. 3 (1946). For these reasons, we think it clear that Congress intended that judicial review of market orders issued under the Act ordinarily be confined to suits brought by handlers in accordance with 7 U.S.C. § 608c(15). III The Court of Appeals viewed the preclusion issue from a somewhat different perspective. First, it recited the presumption in favor of judicial review of administrative action that this Court usually employs. It then noted that the Act has been interpreted to authorize producer challenges to the administration of market order settlement funds, see Stark v. Wickard, 321 U. S. 288 (1944), and that no legislative history or statutory language directly and specifically supported the preclusion of consumer suits. In these circumstances, the Court of Appeals reasoned that the Act could not fairly be Page 467 U. S. 349 interpreted to overcome the presumption favoring judicial review and to leave consumers without a judicial remedy. See 225 U.S.App.D.C. at 400, and n. 75, 698 F.2d at 1252, and n. 75. We disagree with the Court of Appeals' analysis. The presumption favoring judicial review of administrative action is just that -- a presumption. This presumption, like all presumptions used in interpreting statutes, may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent. See, e.g., Southern R. Co. v. Seaboard Allied Milling Corp., 442 U.S. at 442 U. S. 454 -463; Schilling v. Rogers, 363 U. S. 666 , 363 U. S. 670 -677 (1960). The congressional intent necessary to overcome the presumption may also be inferred from contemporaneous judicial construction barring review and the congressional acquiescence in it, see, e.g., Ludecke v. Watkins, 335 U. S. 160 (1948), or from the collective import of legislative and judicial history behind a particular statute, see, e.g., Heikkila v. Barber, 345 U. S. 229 (1953). More important for purposes of this case, the presumption favoring judicial review of administrative action may be overcome by inferences of intent drawn from the statutory scheme as a whole. See, e.g., Morris v. Gressette, 432 U. S. 491 (1977); Switchmen v. National Mediation Board, 320 U. S. 297 (1943). In particular, at least when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded. See Barlow v. Collins, 397 U.S. at 397 U. S. 168 , and n. 2, 175, and n. 9 (opinion of BRENNAN, J.); Switchmen v. National Mediation Board, supra, at 320 U. S. 300 -301; cf. Associated General Contractors of California, Inc. v. Carpenters, 459 U. S. 519 , 459 U. S. 542 (1983). A case that best illustrates the relevance of a statute's structure to the Court's preclusion analysis is Morris v. Gressette, supra. In that case, the Court held that the Attorney General's failure to object to a change in voting Page 467 U. S. 350 procedures was an unreviewable administrative determination under the Voting Rights Act of 1965. Neither the Voting Rights Act nor its legislative history said anything about judicial review. Nevertheless, the Morris Court concluded that the "nature of the [statutory] remedy . . . strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review." Id. at 432 U. S. 501 . The Court reasoned that Congress had intended the approval procedure to be expeditious, and that reviewability would unnecessarily extend the period the State must wait for effecting its change. Id. at 432 U. S. 504 -505. The Court also found relevant the existence of other remedies to ensure the realization of the Voting Rights Act's objectives. Id. at 432 U. S. 505 -507. In these circumstances, even though proof of specific congressional intent was not "clear and convincing" in the traditional evidentiary sense, the Court unremarkably found the intent to preclude judicial review implicit in the statutory scheme. In this case, the Court of Appeals did not take the balanced approach to statutory construction reflected in the Morris opinion. Rather, it recited this Court's oft-quoted statement that "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Abbott Laboratories v. Gardner, 387 U. S. 136 , 387 U. S. 141 (1967). See also Southern R. Co. v. Seaboard Allied Milling Corp., supra, at 442 U. S. 462 ; Dunlop v. Bachowski, 421 U. S. 560 , 421 U. S. 568 (1975). According to the Court of Appeals, the "clear and convincing evidence" standard required it to find unambiguous proof, in the traditional evidentiary sense, of a congressional intent to preclude judicial review at the consumers' behest. Since direct statutory language or legislative history on this issue could not be found, the Court of Appeals found the presumption favoring judicial review to be controlling. This Court has, however, never applied the "clear and convincing evidence" standard in the strict evidentiary sense the Page 467 U. S. 351 Court of Appeals thought necessary in this case. Rather, the Court has found the standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is "fairly discernible in the statutory scheme." Data Processing Service v. Camp, 397 U.S. at 397 U. S. 157 . In the context of preclusion analysis, the "clear and convincing evidence" standard is not a rigid evidentiary test, but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling. That presumption does not control in cases such as this one, however, since the congressional intent to preclude judicial review is "fairly discernible" in the detail of the legislative scheme. Congress simply did not intend for consumers to be relied upon to challenge agency disregard of the law. It is true, as the Court of Appeals also noted, that this Court determined, in Stark v. Wickard, 321 U. S. 288 (1944), that dairy producers could challenge certain administrative actions even though the Act did not expressly provide them a right to judicial review. The producers challenged certain deductions the Secretary had made from the "producer settlement fund" established in connection with the milk market order in effect at the time. "[T]he challenged deduction[s] reduce[d] pro tanto the amount actually received by the producers for their milk." Id. at 321 U. S. 302 . These deductions injured what the producers alleged were "definite personal rights" that were "not possessed by the people generally," id. at 321 U. S. 304 , 321 U. S. 309 , and gave the producers standing to object to the administration of the settlement fund. See id. at 321 U. S. 306 . Though the producers' standing could not, by itself, ensure judicial review of the Secretary's action at their behest, see ibid., the statutory scheme as a whole, the Court concluded, implicitly authorized producers' suits concerning settlement fund administration. See id. at 321 U. S. 309 -310. "[H]andlers [could not] question the use of the fund, because handlers had Page 467 U. S. 352 no financial interest in the fund or its use." Id. at 321 U. S. 308 . Thus, there was "no forum" in which this aspect of the Secretary's actions could or would be challenged. Judicial review of the producers' complaint was therefore necessary to ensure achievement of the Act's most fundamental objectives -- to-wit, the protection of the producers of milk and milk products. By contrast, preclusion of consumer suits will not threaten realization of the fundamental objectives of the statute. Handlers have interests similar to those of consumers. Handlers, like consumers, are interested in obtaining reliable supplies of milk at the cheapest possible prices. See Zuber v. Allen, 396 U.S. at 396 U. S. 190 . Handlers can therefore be expected to challenge unlawful agency action, and to ensure that the statute's objectives will not be frustrated. [ Footnote 3 ] Indeed, as noted above, consumer suits might themselves frustrate achievement of the statutory purposes. The Act contemplates a cooperative venture among the Secretary, producers, and handlers; consumer participation is not provided for or desired under the complex scheme enacted by Congress. Consumer suits would undermine the congressional preference for administrative remedies, and provide a mechanism for disrupting administration of the congressional scheme. Thus, preclusion of consumer suits is perfectly consistent with the Court's contrary conclusion concerning producer challenges in Stark v. Wickard and its analogous conclusion concerning voter challenges in Morris v. Gressette. IV The structure of this Act implies that Congress intended to preclude consumer challenges to the Secretary's market orders. Preclusion of such suits does not pose any threat to Page 467 U. S. 353 realization of the statutory objectives; it means only that those objectives must be realized through the specific remedies provided by Congress and at the behest of the parties directly affected by the statutory scheme. [ Footnote 4 ] Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE STEVENS took no part in the decision of this case. [ Footnote 1 ] Under many orders, milk is divided into three classes. For purposes of this case, however, all milk other than milk used for fluid purposes is referred to as Class II milk. [ Footnote 2 ] Prior to filing suit, respondents petitioned the Secretary to hold a rulemaking hearing to amend the market orders so that reconstituted milk would no longer be subject to the compensatory payment rule. See 44 Fed.Reg. 65989 (1979). The Secretary published a Notice of Request and asked for comments. Ibid. Subsequently, the Secretary published a preliminary impact analysis of the proposal and invited comments. See 45 Fed.Reg. 75956 (1980). In April 1981, after respondents had filed suit in the District Court, the Secretary determined not to hold a rulemaking hearing, because respondents' proposal would not further the purposes of the Act. See App. 57-63. The portion of respondents' complaint challenging the Secretary's inaction on their rulemaking request was held moot by the Court of Appeals. 225 U.S.App.D.C. 387, 403, and n. 93, 698 F.2d 1239, 1255, and n. 93 (1983). Respondents did not cross-petition for certiorari review of this issue, and we therefore have no occasion to consider it. [ Footnote 3 ] Whether handlers would pass on to consumers any savings they might secure through a successful challenge to the market order provisions is irrelevant. Consumers' interest in market orders is limited to lowering the prices charged to handlers in the hope that consumers will then reap some benefit at the retail level. [ Footnote 4 ] The conclusion that Congress intended to preclude consumers from seeking judicial review of the Secretary's market orders avoids any pronouncement on the merits of respondents' substantive claims. Since congressional preclusion of judicial review is in effect jurisdictional, we need not address the standing issues decided by the Court of Appeals in this case. See National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453 , 414 U. S. 456 (1974); see also id. at 414 U. S. 465 , and n. 13.

In Block v. Community Nutrition Institute, the US Supreme Court ruled that individual consumers cannot legally challenge milk market orders, which set minimum prices for dairy products, and are meant to control competition among dairy farmers. The Court found that only handlers (processors) of dairy products could bring suit, as the law intends to create a cooperative system between the Secretary of Agriculture, producers, and handlers. Consumers are not a part of this system and are therefore precluded from challenging the orders.

Government Agencies

Chevron U.S.A., Inc. v. NRDC

https://supreme.justia.com/cases/federal/us/467/837/

U.S. Supreme Court Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. No. 82-1005 Argued February 29, 1984 Decided June 25, 1984 467 U.S. 837 ast|>* 467 U.S. 837 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus The Clean Air Act Amendments of 1977 impose certain requirements on States that have not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation, including the requirement that such "nonattainment" States establish a permit program regulating "new or modified major stationary sources" of air pollution. Generally, a permit may not be issued for such sources unless stringent conditions are met. EPA regulations promulgated in 1981 to implement the permit requirement allow a State to adopt a plantwide definition of the term "stationary source," under which an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant, thus allowing a State to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble." Respondents filed a petition for review in the Court of Appeals, which set aside the regulations embodying the "bubble concept" as contrary to law. Although recognizing that the amended Clean Air Act does not explicitly define what Congress envisioned as a "stationary source" to which the permit program should apply, and that the issue was not squarely addressed in the legislative history, the court concluded that, in view of the purpose of the nonattainment program to improve, rather than merely maintain, air quality, a plantwide definition was "inappropriate," while stating it was mandatory in programs designed to maintain existing air quality. Held: The EPA's plantwide definition is a permissible construction of the statutory term "stationary source." Pp. 467 U. S. 842 -866. (a) With regard to judicial review of an agency's construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the Page 467 U. S. 838 agency's answer is based on a permissible construction of the statute. Pp. 467 U. S. 842 -845. (b) Examination of the legislation and its history supports the Court of Appeals' conclusion that Congress did not have a specific intention as to the applicability of the "bubble concept" in these cases. Pp. 467 U. S. 845 -851. (c) The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas plainly discloses that, in the permit program, Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Pp. 467 U. S. 851 -853. (d) Prior to the 1977 Amendments, the EPA had used a plantwide definition of the term "source," but in 1980, the EPA ultimately adopted a regulation that, in essence, applied the basic reasoning of the Court of Appeals here, precluding use of the "bubble concept" in nonattainment States' programs designed to enhance air quality. However, when a new administration took office in 1981, the EPA, in promulgating the regulations involved here, reevaluated the various arguments that had been advanced in connection with the proper definition of the term "source" and concluded that the term should be given the plantwide definition in nonattainment areas. Pp. 467 U. S. 853 -859. (e) Parsing the general terms in the text of the amended Clean Air Act -- particularly the provisions of §§ 302(j) and 111(a)(3) pertaining to the definition of "source" -- does not reveal any actual intent of Congress as to the issue in these cases. To the extent any congressional "intent" can be discerned from the statutory language, it would appear that the listing of overlapping, illustrative terms was intended to enlarge, rather than to confine, the scope of the EPA's power to regulate particular sources in order to effectuate the policies of the Clean Air Act. Similarly, the legislative history is consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments. The plantwide definition is fully consistent with the policy of allowing reasonable economic growth, and the EPA has advanced a reasonable explanation for its conclusion that the regulations serve environmental objectives as well. The fact that the EPA has from time to time changed its interpretation of the term "source" does not lead to the conclusion that no deference should be accorded the EPA's interpretation of the statute. An agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis. Policy arguments concerning the "bubble concept" should be addressed to legislators or administrators, not to judges. The EPA's interpretation of the statute here represents a reasonable accommodation of manifestly competing interests, and is entitled to deference. Pp. 467 U. S. 859 -866. 222 U.S.App.D.C. 268, 685 F.2d 718, reversed. Page 467 U. S. 839 STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL and REHNQUIST, JJ., who took no part in the consideration or decision of the cases, and O'CONNOR, J., who took no part in the decision of the cases. JUSTICE STEVENS delivered the opinion of the Court. In the Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 685, Congress enacted certain requirements applicable Page 467 U. S. 840 to States that had not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation. The amended Clean Air Act required these "nonattainment" States to establish a permit program regulating "new or modified major stationary sources" of air pollution. Generally, a permit may not be issued for a new or modified major stationary source unless several stringent conditions are met. [ Footnote 1 ] The EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of the term "stationary source." [ Footnote 2 ] Under this definition, an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant. The question presented by these cases is whether EPA's decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble" is based on a reasonable construction of the statutory term "stationary source." I The EPA regulations containing the plantwide definition of the term stationary source were promulgated on October Page 467 U. S. 841 14, 1981. 46 Fed.Reg. 50766. Respondents [ Footnote 3 ] filed a timely petition for review in the United States Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. § 7607(b)(1). [ Footnote 4 ] The Court of Appeals set aside the regulations. Natural Resources Defense Council, Inc. v. Gorsuch, 222 U.S.App.D.C. 268, 685 F.2d 718 (1982). The court observed that the relevant part of the amended Clean Air Act "does not explicitly define what Congress envisioned as a stationary source, to which the permit program . . . should apply," and further stated that the precise issue was not "squarely addressed in the legislative history." Id. at 273, 685 F.2d at 723. In light of its conclusion that the legislative history bearing on the question was "at best contradictory," it reasoned that "the purposes of the nonattainment program should guide our decision here." Id. at 276, n. 39, 685 F.2d at 726, n. 39. [ Footnote 5 ] Based on two of its precedents concerning the applicability of the bubble concept to certain Clean Air Act programs, [ Footnote 6 ] the court stated that the bubble concept was "mandatory" in programs designed merely to maintain existing air quality, but held that it was "inappropriate" in programs enacted to improve air quality. Id. at 276, 685 F.2d at 726. Since the purpose of the permit Page 467 U. S. 842 program its " raison d'etre, " in the court's view -- was to improve air quality, the court held that the bubble concept was inapplicable in these cases under its prior precedents. Ibid. It therefore set aside the regulations embodying the bubble concept as contrary to law. We granted certiorari to review that judgment, 461 U.S. 956 (1983), and we now reverse. The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term "stationary source" when it had decided that Congress itself had not commanded that definition. Respondents do not defend the legal reasoning of the Court of Appeals. [ Footnote 7 ] Nevertheless, since this Court reviews judgments, not opinions, [ Footnote 8 ] we must determine whether the Court of Appeals' legal error resulted in an erroneous judgment on the validity of the regulations. II When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, Page 467 U. S. 843 as well as the agency, must give effect to the unambiguously expressed intent of Congress. [ Footnote 9 ] If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, [ Footnote 10 ] as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. [ Footnote 11 ] "The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton v. Ruiz, 415 U. S. 199 , 415 U. S. 231 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation Page 467 U. S. 844 of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. [ Footnote 12 ] Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. [ Footnote 13 ] We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, [ Footnote 14 ] and the principle of deference to administrative interpretations "has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e.g., National Broadcasting Co. v. United States, 319 U. S. 190 ; Labor Board v. Hearst Publications, Inc., 322 U. S. 111 ; Republic Aviation Corp. v. Page 467 U. S. 845 Labor Board, 324 U. S. 793 ; Securities & Exchange Comm'n v. Chenery Corp., 332 U. S. 194 ; Labor Board v. Seven-Up Bottling Co., 344 U. S. 344 ." ". . . If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." United States v. Shimer, 367 U. S. 374 , 367 U. S. 382 , 383 (1961). Accord, Capital Cities Cable, Inc. v. Crisp, ante at 467 U. S. 699 -700. In light of these well-settled principles, it is clear that the Court of Appeals misconceived the nature of its role in reviewing the regulations at issue. Once it determined, after its own examination of the legislation, that Congress did not actually have an intent regarding the applicability of the bubble concept to the permit program, the question before it was not whether, in its view, the concept is "inappropriate" in the general context of a program designed to improve air quality, but whether the Administrator's view that it is appropriate in the context of this particular program is a reasonable one. Based on the examination of the legislation and its history which follows, we agree with the Court of Appeals that Congress did not have a specific intention on the applicability of the bubble concept in these cases, and conclude that the EPA's use of that concept here is a reasonable policy choice for the agency to make. III In the 1950's and the 1960's, Congress enacted a series of statutes designed to encourage and to assist the States in curtailing air pollution. See generally Train v. Natural Resources Defense Council, Inc., 421 U. S. 60 , 421 U. S. 63 -64 (1975). The Clean Air Amendments of 1970, Pub.L. 91-604, 84 Stat. 1676, "sharply increased federal authority and responsibility Page 467 U. S. 846 in the continuing effort to combat air pollution," 421 U.S. at 421 U. S. 64 , but continued to assign "primary responsibility for assuring air quality" to the several States, 84 Stat. 1678. Section 109 of the 1970 Amendments directed the EPA to promulgate National Ambient Air Quality Standards (NAAQS's) [ Footnote 15 ] and § 110 directed the States to develop plans (SIP's) to implement the standards within specified deadlines. In addition, § 111 provided that major new sources of pollution would be required to conform to technology-based performance standards; the EPA was directed to publish a list of categories of sources of pollution and to establish new source performance standards (NSPS) for each. Section 111(e) prohibited the operation of any new source in violation of a performance standard. Section 111(a) defined the terms that are to be used in setting and enforcing standards of performance for new stationary sources. It provided: "For purposes of this section:" " * * * *" "(3) The term 'stationary source' means any building, structure, facility, or installation which emits or may emit any air pollutant." 84 Stat. 1683. In the 1970 Amendments, that definition was not only applicable to the NSPS program required by § 111, but also was made applicable to a requirement of § 110 that each state implementation plan contain a procedure for reviewing the location of any proposed new source and preventing its construction if it would preclude the attainment or maintenance of national air quality standards. [ Footnote 16 ] In due course, the EPA promulgated NAAQS's, approved SIP's, and adopted detailed regulations governing NSPS's Page 467 U. S. 847 for various categories of equipment. In one of its programs, the EPA used a plantwide definition of the term "stationary source." In 1974, it issued NSPS's for the nonferrous smelting industry that provided that the standards would not apply to the modification of major smelting units if their increased emissions were offset by reductions in other portions of the same plant. [ Footnote 17 ] Nonattainment The 1970 legislation provided for the attainment of primary NAAQS's by 1975. In many areas of the country, particularly the most industrialized States, the statutory goals were not attained. [ Footnote 18 ] In 1976, the 94th Congress was confronted with this fundamental problem, as well as many others respecting pollution control. As always in this area, the legislative struggle was basically between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes would retard industrial development with attendant social costs. The 94th Congress, confronting these competing interests, was unable to agree on what response was in the public interest: legislative proposals to deal with nonattainment failed to command the necessary consensus. [ Footnote 19 ] In light of this situation, the EPA published an Emissions Offset Interpretative Ruling in December, 1976, see 41 Fed.Reg. 55524, to "fill the gap," as respondents put it, until Congress acted. The Ruling stated that it was intended to Page 467 U. S. 848 address "the issue of whether and to what extent national air quality standards established under the Clean Air Act may restrict or prohibit growth of major new or expanded stationary air pollution sources." Id. at 55524-55525. In general, the Ruling provided that "a major new source may locate in an area with air quality worse than a national standard only if stringent conditions can be met." Id. at 55525. The Ruling gave primary emphasis to the rapid attainment of the statute's environmental goals. [ Footnote 20 ] Consistent with that emphasis, the construction of every new source in nonattainment areas had to meet the "lowest achievable emission rate" under the current state of the art for that type of facility. See Ibid. The 1976 Ruling did not, however, explicitly adopt or reject the "bubble concept." [ Footnote 21 ] IV The Clean Air Act Amendments of 1977 are a lengthy, detailed, technical, complex, and comprehensive response to a major social issue. A small portion of the statute -- 91 Stat. Page 467 U. S. 849 745-751 (Part D of Title I of the amended Act, 42 U.S.C. §§ 7501-7508) -- expressly deals with nonattainment areas. The focal point of this controversy is one phrase in that portion of the Amendments. [ Footnote 22 ] Basically, the statute required each State in a nonattainment area to prepare and obtain approval of a new SIP by July 1, 1979. In the interim, those States were required to comply with the EPA's interpretative Ruling of December 21, 1976. 91 Stat. 745. The deadline for attainment of the primary NAAQS's was extended until December 31, 1982, and in some cases until December 31, 1987, but the SIP's were required to contain a number of provisions designed to achieve the goals as expeditiously as possible. [ Footnote 23 ] Page 467 U. S. 850 Most significantly for our purposes, the statute provided that each plan shall "(6) require permits for the construction and operation of new or modified major stationary sources in accordance with section 173. . . ." Id. at 747. Before issuing a permit, § 173 requires (1) the state agency to determine that there will be sufficient emissions reductions in the region to offset the emissions from the new source and also to allow for reasonable further progress toward attainment, or that the increased emissions will not exceed an allowance for growth established pursuant to § 172(b)(5); (2) the applicant to certify that his other sources in the State are in compliance with the SIP, (3) the agency to determine that the applicable SIP is otherwise being implemented, and (4) the proposed source to comply with the lowest achievable emission rate (LAER). [ Footnote 24 ] Page 467 U. S. 851 The 1977 Amendments contain no specific reference to the "bubble concept." Nor do they contain a specific definition of the term "stationary source," though they did not disturb the definition of "stationary source" contained in § 111(a)(3), applicable by the terms of the Act to the NSPS program. Section 302(j), however, defines the term "major stationary source" as follows: "(j) Except as otherwise expressly provided, the terms 'major stationary source' and 'major emitting facility' mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator)." 91 Stat. 770. V The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas does not contain any specific comment on the "bubble concept" or the question whether a plantwide definition of a stationary source is permissible under the permit program. It does, however, plainly disclose that in the permit program Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Indeed, the House Committee Report identified the economic interest as one of the "two main purposes" of this section of the bill. It stated: "Section 117 of the bill, adopted during full committee markup establishes a new section 127 of the Clean Air Act. The section has two main purposes: (1) to allow reasonable economic growth to continue in an area while making reasonable further progress to assure attainment of the standards by a fixed date; and (2) to allow Page 467 U. S. 852 States greater flexibility for the former purpose than EPA's present interpretative regulations afford." "The new provision allows States with nonattainment areas to pursue one of two options. First, the State may proceed under EPA's present 'tradeoff' or 'offset' ruling. The Administrator is authorized, moreover, to modify or amend that ruling in accordance with the intent and purposes of this section." "The State's second option would be to revise its implementation plan in accordance with this new provision." H.R.Rep. No. 95-294, p. 211 (1977). [ Footnote 25 ] The portion of the Senate Committee Report dealing with nonattainment areas states generally that it was intended to "supersede the EPA administrative approach," and that expansion should be permitted if a State could "demonstrate that these facilities can be accommodated within its overall plan to provide for attainment of air quality standards." S.Rep. No. 95-127, p. 55 (1977). The Senate Report notes the value of "case-by-case review of each new or modified major source of pollution that seeks to locate in a region exceeding an ambient standard," explaining that such a review "requires matching reductions from existing sources against Page 467 U. S. 853 emissions expected from the new source in order to assure that introduction of the new source will not prevent attainment of the applicable standard by the statutory deadline." Ibid. This description of a case-by-case approach to plant additions, which emphasizes the net consequences of the construction or modification of a new source as well as its impact on the overall achievement of the national standards, was not, however, addressed to the precise issue raised by these cases. Senator Muskie made the following remarks: "I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation [the Offset Ruling] -- and to the permit requirements of the revised implementation plans under the conference bill -- is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for that pollutant -- or precursor. Thus, a new source is still subject to such requirements as 'lowest achievable emission rate' even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels." "A source -- including an existing facility ordered to convert to coal -- is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for which the standards in the area are exceeded." 123 Cong.Rec. 26847 (1977). VI As previously noted, prior to the 1977 Amendments, the EPA had adhered to a plantwide definition of the term "source" under a NSPS program. After adoption of the 1977 Amendments, proposals for a plantwide definition were considered in at least three formal proceedings. In January, 1979, the EPA considered the question whether the same restriction on new construction in nonattainment areas that had been included in its December, 1976, Ruling Page 467 U. S. 854 should be required in the revised SIP's that were scheduled to go into effect in July, 1979. After noting that the 1976 Ruling was ambiguous on the question "whether a plant with a number of different processes and emission points would be considered a single source," 44 Fed.Reg. 3276 (1979), the EPA, in effect, provided a bifurcated answer to that question. In those areas that did not have a revised SIP in effect by July, 1979, the EPA rejected the plantwide definition; on the other hand, it expressly concluded that the plantwide approach would be permissible in certain circumstances if authorized by an approved SIP. It stated: "Where a state implementation plan is revised and implemented to satisfy the requirements of Part D, including the reasonable further progress requirement, the plan requirements for major modifications may exempt modifications of existing facilities that are accompanied by intrasource offsets, so that there is no net increase in emissions. The agency endorses such exemptions, which would provide greater flexibility to sources to effectively manage their air emissions at least cost." Ibid. [ Footnote 26 ] Page 467 U. S. 855 In April, and again in September, 1979, the EPA published additional comments in which it indicated that revised SIP's could adopt the plantwide definition of source in nonattainment areas in certain circumstances. See id. at 20372, 20379, 51924, 51951, 51958. On the latter occasion, the EPA made a formal rulemaking proposal that would have permitted the use of the "bubble concept" for new installations within a plant as well as for modifications of existing units. It explained: "'Bubble' Exemption: The use of offsets inside the same source is called the 'bubble.' EPA proposes use of the definition of 'source' (see above) to limit the use of the bubble under nonattainment requirements in the following respects:" "i. Part D SIPs that include all requirements needed to assure reasonable further progress and attainment by the deadline under section 172 and that are being carried out need not restrict the use of a plantwide bubble, the same as under the PSD proposal." "ii. Part D SIPs that do not meet the requirements specified must limit use of the bubble by including a definition of 'installation' as an identifiable piece of process equipment. [ Footnote 27 ] " Page 467 U. S. 856 Significantly, the EPA expressly noted that the word "source" might be given a plantwide definition for some purposes and a narrower definition for other purposes. It wrote: "Source means any building structure, facility, or installation which emits or may emit any regulated pollutant. 'Building, structure, facility or installation' means plant in PSD areas and in nonattainment areas except where the growth prohibitions would apply or where no adequate SIP exists or is being carried out." Id. at 51925. [ Footnote 28 ] The EPA's summary of its proposed Ruling discloses a flexible, rather than rigid, definition of the term "source" to implement various policies and programs: "In summary, EPA is proposing two different ways to define source for different kinds of NSR programs:" "(1) For PSD and complete Part D SIPs, review would apply only to plants, with an unrestricted plantwide bubble." "(2) For the offset ruling, restrictions on construction, and incomplete Part D SIPs, review would apply to both plants and individual pieces of process equipment, causing the plant-wide bubble not to apply for new and modified major pieces of equipment." "In addition, for the restrictions on construction, EPA is proposing to define 'major modification' so as to prohibit the bubble entirely. Finally, an alternative discussed but not favored is to have only pieces of process equipment reviewed, resulting in no plant-wide bubble and allowing minor pieces of equipment to escape NSR Page 467 U. S. 857 regardless of whether they are within a major plant." Id. at 51934. In August, 1980, however, the EPA adopted a regulation that, in essence, applied the basic reasoning of the Court of Appeals in these cases. The EPA took particular note of the two then-recent Court of Appeals decisions, which had created the bright-line rule that the "bubble concept" should be employed in a program designed to maintain air quality, but not in one designed to enhance air quality. Relying heavily on those cases, [ Footnote 29 ] EPA adopted a dual definition of "source" for nonattainment areas that required a permit whenever a change in either the entire plant, or one of its components, would result in a significant increase in emissions even if the increase was completely offset by reductions elsewhere in the plant. The EPA expressed the opinion that this interpretation was "more consistent with congressional intent" than the plantwide definition because it "would bring in more sources or modifications for review," 45 Fed.Reg. 52697 (1980), but its primary legal analysis was predicated on the two Court of Appeals decisions. In 1981, a new administration took office and initiated a "Government-wide reexamination of regulatory burdens and complexities." 46 Fed.Reg. 16281. In the context of that Page 467 U. S. 858 review, the EPA reevaluated the various arguments that had been advanced in connection with the proper definition of the term "source" and concluded that the term should be given the same definition in both nonattainment areas and PSD areas. In explaining its conclusion, the EPA first noted that the definitional issue was not squarely addressed in either the statute or its legislative history, and therefore that the issue involved an agency "judgment as how to best carry out the Act." Ibid. It then set forth several reasons for concluding that the plantwide definition was more appropriate. It pointed out that the dual definition "can act as a disincentive to new investment and modernization by discouraging modifications to existing facilities" and "can actually retard progress in air pollution control by discouraging replacement of older, dirtier processes or pieces of equipment with new, cleaner ones." Ibid. Moreover, the new definition "would simplify EPA's rules by using the same definition of 'source' for PSD, nonattainment new source review, and the construction moratorium. This reduces confusion and inconsistency." Ibid. Finally, the agency explained that additional requirements that remained in place would accomplish the fundamental purposes of achieving attainment with NAAQS's as expeditiously as possible. [ Footnote 30 ] These conclusions were expressed Page 467 U. S. 859 in a proposed rulemaking in August, 1981, that was formally promulgated in October. See id. at 50766. VII In this Court, respondents expressly reject the basic rationale of the Court of Appeals' decision. That court viewed the statutory definition of the term "source" as sufficiently flexible to cover either a plantwide definition, a narrower definition covering each unit within a plant, or a dual definition that could apply to both the entire "bubble" and its components. It interpreted the policies of the statute, however, to mandate the plantwide definition in programs designed to maintain clean air and to forbid it in programs designed to improve air quality. Respondents place a fundamentally different construction on the statute. They contend that the text of the Act requires the EPA to use a dual definition -- if either a component of a plant, or the plant as a whole, emits over 100 tons of pollutant, it is a major stationary source. They thus contend that the EPA rules adopted in 1980, insofar as they apply to the maintenance of the quality of clean air, as well as the 1981 rules which apply to nonattainment areas, violate the statute. [ Footnote 31 ] Statutory Language The definition of the term "stationary source" in § 111(a)(3) refers to "any building, structure, facility, or installation" which emits air pollution. See supra at 467 U. S. 846 . This definition is applicable only to the NSPS program by the express terms of the statute; the text of the statute does not make this definition Page 467 U. S. 860 applicable to the permit program. Petitioners therefore maintain that there is no statutory language even relevant to ascertaining the meaning of stationary source in the permit program aside from § 302(j), which defines the term "major stationary source." See supra at 467 U. S. 851 . We disagree with petitioners on this point. The definition in § 302(j) tells us what the word "major" means -- a source must emit at least 100 tons of pollution to qualify -- but it sheds virtually no light on the meaning of the term "stationary source." It does equate a source with a facility -- a "major emitting facility" and a "major stationary source" are synonymous under § 302(j). The ordinary meaning of the term "facility" is some collection of integrated elements which has been designed and constructed to achieve some purpose. Moreover, it is certainly no affront to common English usage to take a reference to a major facility or a major source to connote an entire plant, as opposed to its constituent parts. Basically, however, the language of § 302(j) simply does not compel any given interpretation of the term "source." Respondents recognize that, and hence point to § 111(a)(3). Although the definition in that section is not literally applicable to the permit program, it sheds as much light on the meaning of the word "source" as anything in the statute. [ Footnote 32 ] As respondents point out, use of the words "building, structure, facility, or installation," as the definition of source, could be read to impose the permit conditions on an individual building that is a part of a plant. [ Footnote 33 ] A "word may have a character of its own not to be submerged by its association." Russell Motor Car Co. v. United States, 261 U. S. 514 , 261 U. S. 519 Page 467 U. S. 861 (1923). On the other hand, the meaning of a word must be ascertained in the context of achieving particular objectives, and the words associated with it may indicate that the true meaning of the series is to convey a common idea. The language may reasonably be interpreted to impose the requirement on any discrete, but integrated, operation which pollutes. This gives meaning to all of the terms -- a single building, not part of a larger operation, would be covered if it emits more than 100 tons of pollution, as would any facility, structure, or installation. Indeed, the language itself implies a "bubble concept" of sorts: each enumerated item would seem to be treated as if it were encased in a bubble. While respondents insist that each of these terms must be given a discrete meaning, they also argue that § 111(a)(3) defines "source" as that term is used in § 302(j). The latter section, however, equates a source with a facility, whereas the former defines "source" as a facility, among other items. We are not persuaded that parsing of general terms in the text of the statute will reveal an actual intent of Congress. [ Footnote 34 ] Page 467 U. S. 862 We know full well that this language is not dispositive; the terms are overlapping, and the language is not precisely directed to the question of the applicability of a given term in the context of a larger operation. To the extent any congressional "intent" can be discerned from this language, it would appear that the listing of overlapping, illustrative terms was intended to enlarge, rather than to confine, the scope of the agency's power to regulate particular sources in order to effectuate the policies of the Act. Legislative History In addition, respondents argue that the legislative history and policies of the Act foreclose the plantwide definition, and that the EPA's interpretation is not entitled to deference, because it represents a sharp break with prior interpretations of the Act. Based on our examination of the legislative history, we agree with the Court of Appeals that it is unilluminating. The general remarks pointed to by respondents "were obviously not made with this narrow issue in mind, and they cannot be said to demonstrate a Congressional desire. . . ." Jewell Ridge Coal Corp. v. Mine Workers, 325 U. S. 161 , 325 U. S. 168 -169 (1945). Respondents' argument based on the legislative history relies heavily on Senator Muskie's observation that a new source is subject to the LAER requirement. [ Footnote 35 ] But the full statement is ambiguous, and, like the text of § 173 itself, this comment does not tell us what a new source is, much less that it is to have an inflexible definition. We find that the legislative history as a whole is silent on the precise issue before us. It is, however, consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments. Page 467 U. S. 863 More importantly, that history plainly identifies the policy concerns that motivated the enactment; the plantwide definition is fully consistent with one of those concerns -- the allowance of reasonable economic growth -- and, whether or not we believe it most effectively implements the other, we must recognize that the EPA has advanced a reasonable explanation for its conclusion that the regulations serve the environmental objectives as well. See supra at 467 U. S. 857 -859, and n. 29; see also supra at 467 U. S. 855 , n. 27. Indeed, its reasoning is supported by the public record developed in the rulemaking process, [ Footnote 36 ] as well as by certain private studies. [ Footnote 37 ] Our review of the EPA's varying interpretations of the word "source" -- both before and after the 1977 Amendments -- convinces us that the agency primarily responsible for administering this important legislation has consistently interpreted it flexibly -- not in a sterile textual vacuum, but in the context of implementing policy decisions in a technical and complex arena. The fact that the agency has from time to time changed its interpretation of the term "source" does not, as respondents argue, lead us to conclude that no deference should be accorded the agency's interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations Page 467 U. S. 864 and the wisdom of its policy on a continuing basis. Moreover, the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute. Significantly, it was not the agency in 1980, but rather the Court of Appeals that read the statute inflexibly to command a plantwide definition for programs designed to maintain clean air and to forbid such a definition for programs designed to improve air quality. The distinction the court drew may well be a sensible one, but our labored review of the problem has surely disclosed that it is not a distinction that Congress ever articulated itself, or one that the EPA found in the statute before the courts began to review the legislative work product. We conclude that it was the Court of Appeals, rather than Congress or any of the decisionmakers who are authorized by Congress to administer this legislation, that was primarily responsible for the 1980 position taken by the agency. Policy The arguments over policy that are advanced in the parties' briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the "bubble concept," but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges. [ Footnote 38 ] Page 467 U. S. 865 In these cases, the Administrator's interpretation represents a reasonable accommodation of manifestly competing interests, and is entitled to deference: the regulatory scheme is technical and complex, [ Footnote 39 ] the agency considered the matter in a detailed and reasoned fashion, [ Footnote 40 ] and the decision involves reconciling conflicting policies. [ Footnote 41 ] Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred. Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the Page 467 U. S. 866 agency charged with the administration of the statute in light of everyday realities. When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges -- who have no constituency -- have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." TVA v. Hill, 437 U. S. 153 , 437 U. S. 195 (1978). We hold that the EPA's definition of the term "source" is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth. "The Regulations which the Administrator has adopted provide what the agency could allowably view as . . . [an] effective reconciliation of these twofold ends. . . ." United States v. Shimer, 367 U.S. at 367 U. S. 383 . The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE MARSHALL and JUSTICE REHNQUIST took no part in the consideration or decision of these cases. JUSTICE O'CONNOR took no part in the decision of these cases. * Together with No. 82-1247, American Iron & Steel Institute et al. v. Natural Resources Defense Council, Inc., et al.; and No. 82-1591, Ruckelshaus, Administrator, Environmental Protection. Agency v. Natural Resources Defense Council, Inc., et al., also on certiorari to the same court. [ Footnote 1 ] Section 172(b)(6), 42 U.S.C. § 7502(b)(6), provides: "The plan provisions required by subsection (a) shall -- " " * * * *" "(6) require permits for the construction and operation of new or modified major stationary sources in accordance with section 173 (relating to permit requirements)." 91 Stat. 747. [ Footnote 2 ] "(i) 'Stationary source' means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act." "(ii) 'Building, structure, facility, or installation' means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel." 40 CFR §§ 51.18(j)(1)(i) and (ii) (1983). [ Footnote 3 ] National Resources Defense Council, Inc., Citizens for a Better Environment, Inc., and North Western Ohio Lung Association, Inc. [ Footnote 4 ] Petitioners, Chevron U.S.A. Inc., American Iron and Steel Institute, American Petroleum Institute, Chemical Manufacturers Association, Inc., General Motors Corp., and Rubber Manufacturers Association were granted leave to intervene and argue in support of the regulation. [ Footnote 5 ] The court remarked in this regard: "We regret, of course, that Congress did not advert specifically to the bubble concept's application to various Clean Air Act programs, and note that a further clarifying statutory directive would facilitate the work of the agency and of the court in their endeavors to serve the legislators' will." 222 U.S.App.D.C. at 276, n. 39, 685 F.2d at 726, n. 39. [ Footnote 6 ] Alabama Power Co. v. Costle, 204 U.S.App.D.C. 51, 636 F.2d 323 (1979); ASARCO Inc. v. EPA, 188 U.S.App.D.C. 77, 578 F.2d 319 (1978). [ Footnote 7 ] Respondents argued below that EPA's plantwide definition of "stationary source" is contrary to the terms, legislative history, and purposes of the amended Clear Air Act. The court below rejected respondents' arguments based on the language and legislative history of the Act. It did agree with respondents contention that the regulations were inconsistent with the purposes of the Act, but did not adopt the construction of the statute advanced by respondents here. Respondents rely on the arguments rejected by the Court of Appeals in support of the judgment, and may rely on any ground that finds support in the record. See Ryerson v. United States, 312 U. S. 405 , 312 U. S. 408 (1941); LeTulle v. Scofield, 308 U. S. 415 , 308 U. S. 421 (1940); Langnes v. Green, 282 U. S. 531 , 282 U. S. 533 -539 (1931). [ Footnote 8 ] E.g., Black v. Cutter Laboratories, 351 U. S. 292 , 351 U. S. 297 (1956); J. E. Riley Investment Co. v. Commissioner, 311 U. S. 55 , 311 U. S. 59 (1940); Williams v. Norris , 12 Wheat. 117, 25 U. S. 120 (1827); McClung v. Silliman , 6 Wheat. 598, 19 U. S. 603 (1821). [ Footnote 9 ] The judiciary is the final authority on issues of statutory construction, and must reject administrative constructions which are contrary to clear congressional intent. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27 , 454 U. S. 32 (1981); SEC v. Sloan, 436 U. S. 103 , 436 U. S. 117 -118 (1978); FMC v. Seatrain Lines, Inc., 411 U. S. 726 , 411 U. S. 745 -746 (1973); Volkswagenwerk v. FMC, 390 U. S. 261 , 390 U. S. 272 (1968); NLRB v. Brown, 380 U. S. 278 , 380 U. S. 291 (1965); FTC v. Colgate-Palmolive Co., 380 U. S. 374 , 380 U. S. 385 (1965); Social Security Board v. Nierotko, 327 U. S. 358 , 327 U. S. 369 (1946); Burnet v. Chicago Portrait Co., 285 U. S. 1 , 285 U. S. 16 (1932); Webster v. Luther, 163 U. S. 331 , 163 U. S. 342 (1896). If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law, and must be given effect. [ Footnote 10 ] See generally R. Pound, The Spirit of the Common Law 174-175 (1921). [ Footnote 11 ] The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. FEC v. Democratic Senatorial Campaign Committee, 454 U.S. at 454 U. S. 39 ; Zenith Radio Corp. v. United States, 437 U. S. 443 , 437 U. S. 450 (1978); Train v. Natural Resources Defense Council, Inc., 421 U. S. 60 , 421 U. S. 75 (1975); Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 (1965); Unemployment Compensation Comm'n v. Aragon, 329 U. S. 143 , 329 U. S. 153 (1946); McLaren v. Fleischer, 256 U. S. 477 , 256 U. S. 480 -481 (1921). [ Footnote 12 ] See, e.g., United States v. Morton, ante at 467 U. S. 834 ; Schweiker v. Gray Panthers, 453 U. S. 34 , 453 U. S. 44 (1981); Batterton v. Francis, 432 U. S. 416 , 432 U. S. 424 -426 (1977); American Telephone & Telegraph Co. v. United States, 299 U. S. 232 , 299 U. S. 235 -237(1936). [ Footnote 13 ] E.g., INS v. Jong Ha Wang, 450 U. S. 139 , 450 U. S. 144 (1981); Train v. Natural Resources Defense Council, Inc., 421 U.S. at 421 U. S. 87 . [ Footnote 14 ] Aluminum Co. of America v. Central Lincoln Peoples' Util. Dist., ante at 467 U. S. 389 ; Blum. v. Bacon, 457 U. S. 132 , 457 U. S. 141 (1982); Union Electric Co. v. EPA, 427 U. S. 246 , 427 U. S. 256 (1976); Investment Company Institute v. Camp, 401 U. S. 617 , 401 U. S. 626 -627 (1971); Unemployment Compensation Comm'n v. Aragon, 329 U.S. at 329 U. S. 153 -154; NLRB v. Hearst Publications, Inc., 322 U. S. 111 , 322 U. S. 131 (1944); McLaren v. Fleischer, 256 U.S. at 256 U. S. 480 -481; Webster v. Luther, 163 U.S. at 163 U. S. 342 ; Brown v. United States, 113 U. S. 568 , 113 U. S. 570 -571 (1885); United States v. Moore, 95 U. S. 760 , 95 U. S. 763 (1878); Edwards' Lessee v. Darby , 12 Wheat. 206, 25 U. S. 210 (1827). [ Footnote 15 ] Primary standards were defined as those whose attainment and maintenance were necessary to protect the public health, and secondary standards were intended to specify a level of air quality that would protect the public welfare. [ Footnote 16 ] See §§ 110(a)(2)(D) and 110(a)(4). [ Footnote 17 ] The Court of Appeals ultimately held that this plantwide approach was prohibited by the 1970 Act, see ASARCO Inc., 188 U.S.App.D.C. at 83-84, 578 F.2d at 325-327. This decision was rendered after enactment of the 1977 Amendments, and hence the standard was in effect when Congress enacted the 1977 Amendments. [ Footnote 18 ] See Report of the National Commission on Air Quality, To Breathe Clean Air, 3.3-20 through 3.3-33 (1981). [ Footnote 19 ] Comprehensive bills did pass both Chambers of Congress; the Conference Report was rejected in the Senate. 122 Cong.Rec. 34375-34403, 34405-34418 (1976). [ Footnote 20 ] For example, it stated: "Particularly with regard to the primary NAAQS's, Congress and the Courts have made clear that economic considerations must be subordinated to NAAQS achievement and maintenance. While the ruling allows for some growth in areas violating a NAAQS if the net effect is to insure further progress toward NAAQS achievement, the Act does not allow economic growth to be accommodated at the expense of the public health." 41 Fed.Reg. 55527 (1976). [ Footnote 21 ] In January, 1979, the EPA noted that the 1976 Ruling was ambiguous concerning this issue: "A number of commenters indicated the need for a more explicit definition of 'source.' Some readers found that it was unclear under the 1976 Ruling whether a plant with a number of different processes and emission points would be considered a single source. The changes set forth below define a source as" "any structure, building, facility, equipment, installation, or operation (or combination thereof) which is located on one or more contiguous or adjacent properties and which is owned or operated by the same person (or by persons under common control)." "This definition precludes a large plant from being separated into individual production lines for purposes of determining applicability of the offset requirements." 44 Fed.Reg. 3276. [ Footnote 22 ] Specifically, the controversy in these cases involves the meaning of the term "major stationary sources" in § 172(b)(6) of the Act, 42 U.S.C. § 752(b)(6). The meaning of the term "proposed source" in § 173(2) of the Act, 42 U.S.C. § 7503(2), is not at issue. [ Footnote 23 ] Thus, among other requirements, § 172(b) provided that the SIP's shall -- "(3) require, in the interim, reasonable further progress (as defined in section 171(1)) including such reduction in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology;" "(4) include a comprehensive, accurate, current inventory of actual emissions from all sources (as provided by rule of the Administrator) of each such pollutant for each such area which is revised and resubmitted as frequently as may be necessary to assure that the requirements of paragraph (3) are met and to assess the need for additional reductions to assure attainment of each standard by the date required under paragraph (1);" "(5) expressly identify and quantify the emissions, if any, of any such pollutant which will be allowed to result from the construction and operation of major new or modified stationary sources for each such area, . . ." " * * * *" "(8) contain emission limitations, schedules of compliance and such other measures as may be necessary to meet the requirements of this section." 91 Stat. 747. Section 171(1) provided: "(1) The term 'reasonable further progress' means annual incremental reductions in emissions of the applicable air pollutant (including substantial reductions in the early years following approval or promulgation of plan provisions under this part and section 110(a)(2)(1) and regular reductions thereafter) which are sufficient in the judgment of the Administrator, to provide for attainment of the applicable national ambient air quality standard by the date required in section 172(a)." Id. at 746. [ Footnote 24 ] Section 171(3) provides: "(3) The term 'lowest achievable emission rate' means for any source, that rate of emissions which reflects -- " "(A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not achievable, or" "(B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is more stringent." "In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of the amount allowable under applicable new source standards of performance." The LAER requirement is defined in terms that make it even more stringent than the applicable new source performance standard developed under § 111 of the Act, as amended by the 1970 statute. [ Footnote 25 ] During the floor debates, Congressman Waxman remarked that the legislation struck "a proper balance between environmental controls and economic growth in the dirty air areas of America. . . . There is no other single issue which more clearly poses the conflict between pollution control and new jobs. We have determined that neither need be compromised. . . ." "This is a fair and balanced approach, which will not undermine our economic vitality, or impede achievement of our ultimate environmental objectives." 123 Cong.Rec. 27076 (1977). The second "main purpose" of the provision -- allowing the States "greater flexibility" than the EPA's interpretative Ruling -- as well as the reference to the EPA's authority to amend its Ruling in accordance with the intent of the section, is entirely consistent with the view that Congress did not intend to freeze the definition of "source" contained in the existing regulation into a rigid statutory requirement. [ Footnote 26 ] In the same Ruling, the EPA added: "The above exemption is permitted under the SIP because, to be approved under Part D, plan revisions due by January, 1979, must contain adopted measures assuring that reasonable further progress will be made. Furthermore, in most circumstances, the measures adopted by January, 1979, must be sufficient to actually provide for attainment of the standards by the dates required under the Act, and in all circumstances measures adopted by 1982 must provide for attainment. See Section 172 of the Act and 43 F R 21673-21677 (May 19, 1978). Also, Congress intended under Section 173 of the Act that States would have some latitude to depart from the strict requirements of this Ruling when the State plan is revised and is being carried out in accordance with Part D. Under a Part D plan, therefore, there is less need to subject a modification of an existing facility to LAER and other stringent requirements if the modification is accompanied by sufficient intrasource offsets so that there is no net increase in emissions." 44 Fed.Reg. 3277 (1979). [ Footnote 27 ] Id. at 51926. Later in that Ruling, the EPA added: "However, EPA believes that complete Part D SIPs, which contain adopted and enforceable requirements sufficient to assure attainment, may apply the approach proposed above for PSD, with plant-wide review but no review of individual pieces of equipment. Use of only a plant-wide definition of source will permit plant-wide offsets for avoiding NSR of new or modified pieces of equipment. However, this is only appropriate once a SIP is adopted that will assure the reductions in existing emissions necessary for attainment. See 44 FR 3276 col. 3 (January 16, 1979). If the level of emissions allowed in the SIP is low enough to assure reasonable further progress and attainment, new construction or modifications with enough offset credit to prevent an emission increase should not jeopardize attainment." Id. at 51933. [ Footnote 28 ] In its explanation of why the use of the "bubble concept" was especially appropriate in preventing significant deterioration (PSD) in clean air areas, the EPA stated: "In addition, application of the bubble on a plant-wide basis encourages voluntary upgrading of equipment, and growth in productive capacity." Id. at 51932. [ Footnote 29 ] "The dual definition also is consistent with Alabama Power and ASARCO. Alabama Power held that EPA had broad discretion to define the constituent terms of 'source' so as best to effectuate the purposes of the statute. Different definitions of 'source' can therefore be used for different sections of the statute. . . ." "Moreover, Alabama Power and ASARCO, taken together, suggest that there is a distinction between Clean Air Act programs designed to enhance air quality and those designed only to maintain air quality. . . ." " * * * *" "Promulgation of the dual definition follows the mandate of Alabama Power, which held that, while EPA could not define 'source' as a combination of sources, EPA had broad discretion to define 'building,' 'structure,' 'facility,' and 'installation' so as to best accomplish the purposes of the Act." 45 Fed.Reg. 52697 (1980). [ Footnote 30 ] It stated: "5. States will remain subject to the requirement that for all nonattainment areas they demonstrate attainment of NAAQS as expeditiously as practicable and show reasonable further progress toward such attainment. Thus, the proposed change in the mandatory scope of nonattainment new source review should not interfere with the fundamental purpose of Part D of the Act." "6. New Source Performance Standards (NSPS) will continue to apply to many new or modified facilities and will assure use of the most up-to-date pollution control techniques regardless of the applicability of nonattainment area new source review." "7. In order to avoid nonattainment area new source review, a major plant undergoing modification must show that it will not experience a significant net increase in emissions. Where overall emissions increase significantly, review will continue to be required." 46 Fed.Reg. 16281 (1981). [ Footnote 31 ] "What EPA may not do, however, is define all four terms to mean only plants. In the 1980 PSD rules, EPA did just that. EPA compounded the mistake in the 1981 rules here under review, in which it abandoned the dual definition." Brief for Respondents 29, n. 56. [ Footnote 32 ] We note that the EPA in fact adopted the language of that definition in its regulations under the permit program. 40 CFR §§ 51.18(j)(1)(i), (ii) (1983). [ Footnote 33 ] Since the regulations give the States the option to define an individual unit as a source, see 40 CFR § 51.18(j)(1) (1983), petitioners do not dispute that the terms can be read as respondents suggest. [ Footnote 34 ] The argument based on the text of § 173, which defines the permit requirements for nonattainment areas, is a classic example of circular reasoning. One of the permit requirements is that "the proposed source is required to comply with the lowest achievable emission rate" (LAER). Although a State may submit a revised SIP that provides for the waiver of another requirement -- the "offset condition" -- the SIP may not provide for a waiver of the LAER condition for any proposed source. Respondents argue that the plantwide definition of the term "source" makes it unnecessary for newly constructed units within the plant to satisfy the LAER requirement if their emissions are offset by the reductions achieved by the retirement of older equipment. Thus, according to respondents, the plantwide definition allows what the statute explicitly prohibits -- the waiver of the LAER requirement for the newly constructed units. But this argument proves nothing, because the statute does not prohibit the waiver unless the proposed new unit is indeed subject to the permit program. If it is not, the statute does not impose the LAER requirement at all, and there is no need to reach any waiver question. In other words, § 173 of the statute merely deals with the consequences of the definition of the term "source," and does not define the term. [ Footnote 35 ] See supra at 467 U. S. 853 . We note that Senator Muskie as not critical of the EPA's use of the "bubble concept" in one NSPS program prior to the 1977 amendments. See ibid. [ Footnote 36 ] See, for example, the statement of the New York State Department of Environmental Conservation, pointing out that denying a source owner flexibility in selecting options made it "simpler and cheaper to operate old, more polluting sources than to trade up. . . ." App. 128-129. [ Footnote 37 ] "Economists have proposed that economic incentives be substituted for the cumbersome administrative-legal framework. The objective is to make the profit and cost incentives that work so well in the marketplace work for pollution control. . . . [The 'bubble' or 'netting' concept] is a first attempt in this direction. By giving a plant manager flexibility to find the places and processes within a plant that control emissions most cheaply, pollution control can be achieved more quickly and cheaply." L. Lave & G. Omenn, Cleaning the Air: Reforming the Clean Air Act 28 (1981) (footnote omitted). [ Footnote 38 ] Respondents point out if a brand new factory that will emit over 100 tons of pollutants is constructed in a nonattainment area, that plant must obtain a permit pursuant to § 172(b)(6), and, in order to do so, it must satisfy the § 173 conditions, including the LAER requirement. Respondents argue if an old plant containing several large emitting units is to be modernized by the replacement of one or more units emitting over 100 tons of pollutant with a new unit emitting less -- but still more than 100 tons -- the result should be no different simply because "it happens to be built not at a new site, but within a preexisting plant. " Brief for Respondents 4. [ Footnote 39 ] See, e.g., Aluminum Co. of America v. Central Lincoln Peoples' Util. Dist., ante at 467 U. S. 390 . [ Footnote 40 ] See SEC v. Sloan, 436 U.S. at 436 U. S. 117 ; Adamo Wrecking Co. v. United States, 434 U. S. 275 , 434 U. S. 287 , n. 5 (1978); Skidmore v. Swift & Co., 323 U. S. 134 , 323 U. S. 140 (1944). [ Footnote 41 ] See Capital Cities Cable, Inc. v. Crisp, ante at 467 U. S. 699 -700; United States v. Shimer, 367 U. S. 374 , 367 U. S. 382 (1961).

Here is a summary of the Supreme Court case Chevron U.S.A., Inc. v. NRDC (1984): The case centers around the Clean Air Act Amendments of 1977 and the Environmental Protection Agency's (EPA) implementation of these amendments. The specific issue is the definition of the term "stationary source" in the context of air pollution permits for "new or modified major stationary sources" of air pollution in states that have not met national air quality standards ("nonattainment" states). The Supreme Court upheld the EPA's plantwide definition of "stationary source," which allowed existing plants to modify or install one piece of equipment without meeting permit conditions as long as total emissions from the plant did not increase. The Court's decision rested on the principle that when Congress has not directly addressed an issue in a statute, the responsibility falls to the administrative agency (in this case, the EPA) to fill in the statutory gap with a reasonable interpretation. The Court found that Congress had not specifically addressed the "bubble concept" (the idea of treating all pollution-emitting devices within an industrial grouping as a single source) in the Clean Air Act Amendments. Therefore, the EPA's plantwide definition was a permissible construction of the statute. This case established the "Chevron deference," a two-step framework for judicial review of agency interpretations of statutes, which gives significant discretion to administrative agencies in interpreting ambiguous statutes.

Government Agencies

NLRB v. Bell Aerospace Co.

https://supreme.justia.com/cases/federal/us/416/267/

U.S. Supreme Court NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) National Labor Relations Board v. Bell Aerospace Company No. 72-1598 Argued January 14, 1974 Decided April 23, 1974 416 U.S. 267 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus On a petition by a labor union for a representation election, the National Labor Relations Board (NLRB) held that the buyers employed by respondent company constituted an appropriate collective bargaining unit and directed an election. The NLRB stated that, even though the buyers might be "managerial employees," they were nevertheless covered by the National Labor Relations Act (NLRA) in the absence of any showing that union organization of the buyers would create a conflict of interest in labor relations. Subsequently, the buyers voted for the union, and the NLRB certified it as their exclusive bargaining representative. The company refused to bargain, however, and was found guilty of an unfair labor practice and ordered to bargain. The Court of Appeals denied enforcement on the grounds that (1) it was not certain that the NLRB's decision rested on a factual determination that the buyers were not true "managerial employees", rather than on a new, and, in the court's view, erroneous, holding that the NLRB was free to regard all managerial employees as covered by the Act unless their duties met the conflict of interest touchstone, and (2) in view of its previous contrary decisions, the NLRB was required to proceed by rulemaking, rather than by adjudication in determining whether buyers are "managerial employees." Held: 1. Congress intended to exclude from the protections of the NLRA all employees properly classified as "managerial," not just those in positions susceptible to conflicts of interest in labor relations. This is unmistakably indicated by the NLRB's early decisions, the purpose and legislative history of the Taft-Hartley amendments to the NLRA in 1947, the NLRB's subsequent construction of the Act for more than two decades, and the decisions of the courts of appeals. Pp. 416 U. S. 274 -290. 2. The NLRB is not required to proceed by rulemaking, rather Page 416 U. S. 268 than by adjudication, in determining whether buyers or some types of buyers are "managerial employees." Pp. 416 U. S. 290 -295. (a) The NLRB is not precluded from announcing new principles in an adjudicative proceeding, and the choice between rulemaking and adjudication initially lies within the NLRB's discretion. SEC v. Chenery Corp., 332 U. S. 194 ; NLRB v. Wyman-Gordon Co., 394 U. S. 759 . P. 416 U. S. 294 . (b) In view of the large number of buyers employed in manufacturing, wholesale, and retail units, and the wide variety of buyers' duties, depending on the company or industry, any generalized standard would have no more than marginal utility, and the NLRB thus has reason to proceed with caution, and develop its standards in a case-by-case manner with attention to the specific character of the buyers' authority and duties in each company. P. 416 U. S. 294 . 475 F.2d 485, affirmed in part, reversed in part, and remanded. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion dissenting in part, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 416 U. S. 295 . MR. JUSTICE POWELL delivered the opinion of the Court. This case presents two questions: first, whether the National Labor Relations Board properly determined Page 416 U. S. 269 that all "managerial employees," except those whose participation in a labor organization would create a conflict of interest with their job responsibilities, are covered by the National Labor Relations Act; [ Footnote 1 ] and second, whether the Board must proceed by rulemaking, rather than by adjudication, in determining whether certain buyers are "managerial employees." We answer both questions in the negative. I Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) for a representation election to determine whether the union would be certified as the bargaining representative of the 25 buyers in the purchasing and procurement department at the company's plant. The company opposed the petition on the ground that the buyers were "managerial employees," and thus were not covered by the Act. The relevant facts adduced at the representation hearing are as follows. The purchasing and procurement department receives requisition orders from other departments at the plant, and is responsible for purchasing all of the company's needs from outside suppliers. Some items are standardized, and may be purchased "off the shelf" from various distributors and suppliers. Other items must be made to the company's specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and, in some instances, the Page 416 U. S. 270 buyer must obtain approval before selecting a different one. Where no vendor is specified, the buyer is free to choose one. Absent specific instructions to the contrary, buyers have full discretion, without any dollar limit, to select prospective vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000. They may place or cancel orders of less than $5,000 on their own signature. On commitments in excess of $5,000, buyers must obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company's sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman, and signs the purchase order, but a representative from the pricing and negotiation department participates in working out the terms. After the representation hearing, the Regional Director transferred the case to the Board. On May 20, 1971, the Board issued its decision, holding that the company's buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N.L.R.B. 431. Relying on its recent decision in North Arkansas Electric Cooperative, Inc., 185 N.L.R.B. 550 (1970), the Board first stated that, even though the company's buyers might be "managerial employees," [ Footnote 2 ] they Page 416 U. S. 271 were nevertheless covered by the Act and entitled to its protections. The Board then rejected the company's alternative contention that representation should be denied because the buyers' authority to commit the company's credit, select vendors, and negotiate purchase prices would create a potential conflict of interest between the buyers, as union members, and the company. In essence, the company argued that buyers would be more receptive to bids from union contractors, and would also influence "make or buy" decisions in favor of "make," thus creating additional work for sister unions in the plant. The Board thought, however, that any possible conflict was "unsupported conjecture," since the buyers' "discretion and latitude for independent action must take place within the confines of the general directions which the Employer has established," and that "any possible temptation to allow sympathy for sister unions to influence such decisions could effectively be controlled by the Employer." 190 N.L.R.B. at 431. On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Board certified the union as the exclusive bargaining representative for the company's buyers. That same day, however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F.2d 602, and held that "managerial employees" were not covered by the Act, and were therefore not entitled to its protections. [ Footnote 3 ] Id. at 610. Encouraged by the Eighth Circuit's decision, the company moved the Board for reconsideration of its earlier Page 416 U. S. 272 order. The Board denied the motion, 196 N.L.R.B. 827 (1972), stating that it disagreed with the Eighth Circuit, and would adhere to its own decision in North Arkansas. In the Board's view, Congress intended to exclude from the Act only those "managerial employees" associated with the "formulation and implementation of labor relations policies." Id. at 828. In each case, the "fundamental touchstone" was "whether the duties and responsibilities of any managerial employee or group of managerial employees do or do not include determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization." Ibid. Turning to the present case, the Board reiterated its prior finding that the company had not shown that union organization of its buyers would create a conflict of interest in labor relations. The company stood by its contention that the buyers, as "managerial employees," were not covered by the Act, and refused to bargain with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated §§ 8(a)(5) and (1) of the Act, 29 U.S.C. §§ 158(a)(5) and (1), and an order compelling the company to bargain with the union. 197 N.L.R.B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second Circuit for review of the order and the Board cross-petitioned for enforcement. The Court of Appeals denied enforcement. 475 F.2d 485 (1973). After reviewing the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and the Board's decisions in this area, the court concluded that Congress had intended to exclude all true "managerial employees" from the protection of the Act. It explained Page 416 U. S. 273 that this "exclusion embraced not only an employee 'so closely related to or aligned with management as to place the employee in a position of conflict of interest between his employer on the one hand and his fellow workers on the other,' but also one who is 'formulating, determining and effectuating his employer's policies or has discretion, independent of an employer's established policy, in the performance of his duties,' Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (7 Cir.1969)." 475 F.2d at 494. The court added, however, that "the Board would [not] be precluded, on proper proceedings, from determining that buyers, or some types of buyers, are not true 'managerial employees,' and consequently come within the protection of § 8(a)(5) and (1)." Ibid. Turning to the merits of the present case, the court acknowledged that there was substantial evidence that the company's buyers were not sufficiently high in the managerial hierarchy to constitute true "managerial employees." Nevertheless, the court denied enforcement for two reasons. First, it was not certain that the Board's decision rested on a factual determination that these buyers were not true "managerial employees", rather than on "its new, and, in our view, erroneous holding that it was free to regard all managerial employees as covered by the Act unless their duties met" the conflict of interest touchstone. Id. at 494-495. Second, although the Board was not precluded from holding that buyers, or some types of buyers, were not "managerial employees," the court thought that, in view of the Board's long line of cases holding the contrary, it could not accomplish this change of position by adjudication. Rather, the Board should conduct a rulemaking proceeding in conformity with § 6 of the Act, 29 U.S.C. § 156. The court therefore remanded the case to the Board for such a proceeding. Page 416 U. S. 274 We granted the Board's petition for certiorari. 414 U.S. 816. II We begin with the question whether all "managerial employees," rather than just those in positions susceptible to conflicts of interest in labor relations, are excluded from the protections of the Act. [ Footnote 4 ] The Board's early decisions, the legislative history of the Taft-Hartley Act of 1947, 61 Stat. 136, and subsequent Board and court decisions provide the necessary guidance for our inquiry. In examining these authorities, we draw on several established principles of statutory construction. In addition to the importance of legislative history, a court may Page 416 U. S. 275 accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. [ Footnote 5 ] This is especially so where Congress has reenacted the statute without pertinent change. [ Footnote 6 ] In these circumstances, congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress. [ Footnote 7 ] We have also recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight. [ Footnote 8 ] Application of these principles leads us to conclude, as did the Court of Appeals, that Congress intended to exclude from the protections of the Act all employees properly classified as "managerial." A The Wagner Act, 49 Stat. 449, did not expressly mention the term "managerial employee." After the Act's passage, however, the Board developed the concept of "managerial employee" in a series of cases involving the appropriateness of bargaining units. The first cases established that "managerial employees" were not to be included in a unit with rank-and-file employees. In Page 416 U. S. 276 Freiz & Sons, 47 N.L.R.B. 43, 47 (1943), for example, the Board excluded expediters from a proposed unit of production and maintenance workers because they were "closely related to the management." Similarly, in Spicer Mfg. Corp., 55 N.L.R.B. 1491, 1498 (1944), expediters were again excluded from a unit containing office, technical, clerical, and professional employees because "the authority possessed by [the expediters] to exercise their discretion in making commitments on behalf of the Company stamps them as managerial." This rationale was soon applied to buyers. See, e.g., Hudson Motor Car Co., 55 N.L.R.B. 509, 512 (1944); Vulcan Corp., 58 N.L.R.B. 733, 736 (1944); Barrett Division, Allied Chem. & Dye Corp., 65 N.L.R.B. 903, 905 (1946); Electric Controller & Mfg. Co., 69 N.L.R.B. 1242, 1245-1246 (1946). The Board summarized its policy on "managerial employees" in Ford Motor Co., 66 N.L.R.B. 1317, 1322 (1946): "We have customarily excluded from bargaining units of rank and file workers executive employees who are in a position to formulate, determine and effectuate management policies. These employees we have considered and still deem to be 'managerial,' in that they express and make operative the decisions of management." Whether the Board regarded all "managerial employees" as entirely outside the protection of the Act, as well as inappropriate for inclusion in a rank-and-file bargaining unit, is less certain. To be sure, at no time did the Board certify even a separate unit of "managerial employees" or state that such was possible. The Board was cautious, however, in determining which employees were "managerial." For example, in Dravo Corp., 54 N.L.R.B. 1174, 1177 (1944), the Board excluded buyers and expediters from a unit of office and clerical employees, Page 416 U. S. 277 but reserved the question whether all such employees were to be considered "managerial": "This is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act. The precise relationship of the buyers and expediters to management here is not now being determined by us." During this period, the Board's policy with respect to the related but narrower category of "supervisory employees" manifested a progressive uncertainty. The Board first excluded supervisors from units of rank-and-file employees, e.g., Mueller Brass Co., 39 N.L.R.B. 167, 171 (1942), but, in Union Collieries Coal Co., 41 N.L.R.B. 961, supplemental decision, 44 N.L.R.B. 165 (1942), it certified a separate unit composed of supervisors who were to be represented by an independent union. Shortly thereafter, in Godchaux Sugars, Inc., 44 N.L.R.B. 874 (1942), the Board approved a unit of supervisors whose union was affiliated with a union of rank-and-file employees. This trend was soon halted, however, by Maryland Drydock Co., 49 N.L.R.B. 733 (1943), where the Board held that supervisors, although literally "employees" under the Act, could not be organized in any unit. And in Yale & Towne Mfg. Co., 60 N.L.R.B. 626, 628-629 (1945), the Board further held that time-study men, whose " interests and functions'" were "`sufficiently akin to those of management,'" should neither be included in a unit with other employees nor be established as a separate unit. Maryland Drydock, supra, was subsequently overruled in Packard Motor Car Co., 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), where the Board held that foremen could constitute an appropriate unit for collective bargaining. The Board's position was upheld 5-4 by this Court in Page 416 U. S. 278 Packard Co. v. NLRB, 330 U. S. 485 (1947). In view of the subsequent legislative reversal of the Packard decision, the dissenting opinion of MR. JUSTICE DOUGLAS is especially pertinent. Id. at 330 U. S. 493 . He stated: "The present decision . . . tends to obliterate the line between management and labor. It lends the sanctions of federal law to unionization at all levels of the industrial hierarchy. It tends to emphasize that the basic opposing forces in industry are not management and labor, but the operating group, on the one hand, and the stockholder and bondholder group, on the other. The industrial problem as so defined comes down to a contest over a fair division of the gross receipts of industry between these two groups. The struggle for control or power between management and labor becomes secondary to a growing unity in their common demands on ownership." "I do not believe this is an exaggerated statement of the basic policy questions which underlie the present decision. For if foremen are 'employees' within the meaning of the National Labor Relations Act, so are vice-presidents, managers, assistant managers, superintendents, assistant superintendents -- indeed, all who are on the payroll of the company, including the president; all who are commonly referred to as the management, with the exception of the directors. If a union of vice-presidents applied for recognition as a collective bargaining agency, I do not see how we could deny it and yet allow the present application. But once vice-presidents, managers, superintendents, foremen all are unionized, management and labor will become more of a solid phalanx than separate factions in warring camps." " * * * *" "[I]f Congress, when it enacted the National Labor Page 416 U. S. 279 Relations Act, had in mind such a basic change in industrial philosophy, it would have left some clear and unmistakable trace of that purpose. But I find none." Id. at 330 U. S. 494 -495. MR. JUSTICE DOUGLAS also noted that the Wagner Act was intended to protect "laborers" and "workers" whose right to organize and bargain collectively had not been recognized by industry, resulting in strikes, strife, and unrest. By contrast, there was no similar history with respect to foremen, managers, superintendents, or vice-presidents. Id. at 330 U. S. 496 -497. Furthermore, other legislation indicated that, where Congress desired to include managerial or supervisory personnel in the category of employees, it did so expressly. See, e.g., Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. § 151; Merchant Marine Act, 1936, as amended, 52 Stat. 953, 46 U.S.C. § 1101 et seq.; Social Security Act, § 1101, 49 Stat. 647. B The Packard decision was a major factor in bringing about the Taft-Hartley Act of 1947, 61 Stat. 136. The House bill, H.R. 3020, 80th Cong., 1st Sess. (1947), [ Footnote 9 ] provided for the exclusion of Page 416 U. S. 280 "supervisors," a category broadly defined to include any individual who had authority to hire, transfer, promote, discharge, reward, or discipline other employees or effectively to recommend such action. It also excluded (i) those who had authority to determine or effectively recommend the amount of wages earned by other employees; (ii) those employed in labor relations, personnel, and employment departments, as well as police and time-study personnel; and (iii) confidential employees. The Senate version of the bill, S. 1126, 80th Cong., 1st Sess. (1947), [ Footnote 10 ] also excluded supervisors, but defined that category more narrowly than the House version, distinguishing between "straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management Page 416 U. S. 281 prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action." S.Rep. No. 105, 80th Cong. 1st Sess., 4 (1947). It was the Senate's view that employees such as "straw bosses," who had only minor supervisory duties, should be included within the Act's protections. Significantly, both the House Report and the Senate Report voiced concern over the Board's broad reading of the term "employee" to include those clearly within the managerial hierarchy. Focusing on MR. JUSTICE DOUGLAS' dissent in Packard, the Senate Report specifically mentioned that even vice-presidents might be unionized under the Board's decision. Ibid. It also noted that unionization of supervisors had hurt productivity, increased the accident rate, upset the balance of power in collective bargaining, and tended to blur the line between management and labor. Id. at 5. The House Report echoed the concern for reduction of industrial output, and noted that unionization of supervisors had deprived employers of the loyal representations to which they were entitled. [ Footnote 11 ] And in criticizing the Page 416 U. S. 282 Board's expansive reading of the Act's definition of the term "employees," the House Report noted that, "[w]hen Congress passed the Labor Act, we were concerned, as we said in its preamble, with the welfare of 'workers' and 'wage earners,' not of the boss." H.R.Rep. No. 245, 80th Cong., 1st Sess., 13 (1947). The Conference Committee adopted the Senate version of the bill. H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35 (1947). The House Managers' statement in explanation of the Conference Committee Report stated: "The conference agreement, in the definition of 'supervisor,' limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential secretaries as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, the special provisions of the Senate amendment . . . applicable with respect to professional employees will cover many of this category. In the case of guards, the conference agreement does not permit the Page 416 U. S. 283 certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards. Id. at 35-36." The legislative history of the Taft-Hartley Act of 1947 may be summarized as follows. The House wanted to include certain persons within the definition of "supervisors," such as straw bosses, whom the Senate believed should be protected by the Act. As to these persons, the Senate's view prevailed. There were other persons, however, who both the House and the Senate believed were plainly outside the Act. The House wanted to make the exclusion of certain of these persons explicit. In the conference agreement, representatives from both the House and the Senate agreed that a specific provision was unnecessary, since the Board had long regarded such persons as outside the Act. Among those mentioned as impliedly excluded were persons working in "labor relations, personnel and employment departments," and "confidential employees." But assuredly this did not exhaust the universe of such excluded persons. The legislative history strongly suggests that there also were other employees, much higher in the managerial structure, who were likewise regarded as so clearly outside the Act that no specific exclusionary provision was thought necessary. For example, in its discussion of confidential employees, the House Report noted that "[m]ost of the people who would qualify as confidential' employees are executives and are excluded from the act in any event. " H.R.Rep. No. 245, p. 23 (emphasis added). [ Footnote 12 ] We think Page 416 U. S. 284 the inference is plain that "managerial employees" were paramount among this impliedly excluded group. The Court of Appeals in the instant case put the issue well: "Congress recognized there were other persons so much more clearly 'managerial' that it was inconceivable that the Board would treat them as employees. Surely Congress could not have supposed that, while 'confidential secretaries' could not be organized, their bosses could be. In other words, Congress failed to enact the portion of MR. JUSTICE DOUGLAS' Packard dissent relating to the organization of executives not because it disagreed, but because it deemed this unnecessary." 475 F.2d at 491-492. [ Footnote 13 ] (Footnote omitted.) Page 416 U. S. 285 C Following the passage of the Taft-Hartley Act, the Board itself adhered to the view that "managerial employees" were outside the Act. In Denver Dry Goods, 74 N.L.R.B. 1167, 1175 (1947), assistant buyers, who Page 416 U. S. 286 were required to set good sales records as examples to sales employees, to assist buyers in the selection of merchandise, and to assume the buyer's duties when the latter was not present, were excluded by the Board on the ground that "the interests of these employees are more closely identified with those of management." The Board reiterated this reading of the Act in Palace Laundry Dry Cleaning, 75 N.L.R.B. 320, 323 n. 4 (1947): "The determination of 'managerial,' like the determination of 'supervisory,' is to some extent necessarily a matter of the degree of authority exercised. We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as 'managerial' employees, executives who formulate and effectuate management policies by expressing and making operative decisions of their employer, and have excluded such managerial employees from bargaining units. We believe that the Act, as amended, contemplates the continuance of this practice." (Citations omitted.) Buyers and assistant buyers were again excluded in Denton's, Inc., 83 N.L.R.B. 35, 37 (1949), because their "interests . . . are more closely identified with management. . . ." And in American Locomotive Co., 92 N.L.R.B. 115, 116-117 (1950), the Board held that buyers could neither be included in a unit of office and clerical employees nor placed in a separate unit, stating: "The Employer maintains that the buyers are representatives of management. As it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they are representatives of management, and as such may not be accorded bargaining rights under the Act." Buyers, who were authorized to bind the employer without prior approval, were also excluded from a unit in Page 416 U. S. 287 Curtiss-Wright Corp., 103 N.L.R.B. 458, 464 (1953), because "they are representatives of management, and, as such, may not be accorded bargaining rights under the Act." Finally, in Swift & Co., 115 N.L.R.B. 752- 753-754 (1956), the Board reaffirmed its long-held understanding of the scope of the Act. In refusing to approve a unit of procurement drivers who were found to be representative of management, the Board declared: "It was the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management. Such individuals cannot be deemed to be employees for the purposes of the Act. Accordingly, we reaffirm the Board's position that representatives of management may not be accorded bargaining rights under the Act. . . ." (Footnotes omitted.) Until its decision in North Arkansas in 1970, the Board consistently followed this reading of the Act. [ Footnote 14 ] It never Page 416 U. S. 288 certified any unit of "managerial employees," separate or otherwise, and repeatedly stated that it was Congress' intent that such employees not be accorded bargaining rights under the Act. And it was this reading which was permitted to stand when Congress again amended the Act in 1959. 73 Stat. 519. The Board's exclusion of "managerial employees," defined as those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer," [ Footnote 15 ] has also been approved by courts without exception. See, e.g., Westinghouse Electric Corp. v. NLRB, 424 F.2d 1151, 1158 (CA7), cert. denied, 400 U.S. 831 (1970); Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (CA7 1969); Continental Insurance Co. v. NLRB, 409 F.2d 727, 730 (CA2), cert. denied, 396 U.S. 902 (1969); Retail Clerks International Assn. v. NLRB, 125 U.S.App.D.C. 63, 65-66, 366 F.2d 642, 644-645 (1966) (Burger, J.), cert. denied, 386 U.S. 1017 (1967); [ Footnote 16 ] International Ladies' Page 416 U. S. 289 Garment Workers' Union v. NLRB, 339 F.2d 116, 123 (CA2 1964) (Marshall, J.). [ Footnote 17 ] And in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F.2d 602 (1971), the Eighth Circuit reviewed the history of the Act and specifically disapproved the Board's departure from its earlier position. D In sum, the Board's early decisions, the purpose and legislative history of the Taft-Hartley Act of 1947, the Board's subsequent and consistent construction of the Act for more than two decades, and the decisions of the courts of appeals all point unmistakably to the conclusion that "managerial employees" are not covered by the Act. [ Footnote 18 ] We agree with the Court of Appeals below that the Board "is not now free" to read a new and more restrictive meaning into the Act. 475 F.2d at 494. In view of our conclusion, the case must be remanded to permit the Board to apply the proper legal standard Page 416 U. S. 290 in determining the status of these buyers. [ Footnote 19 ] SEC v. Chenery Corp., 318 U. S. 80 , 318 U. S. 85 (1943); FTC v. Sperry & Hutchinson Co., 405 U. S. 233 , 405 U. S. 249 (1972). We express no opinion as to whether these buyers fall within the category of "managerial employees." [ Footnote 20 ] III The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not "managerial employees," it could do so only by invoking its rulemaking procedures under § 6 of the Act, 29 U.S.C. § 156. [ Footnote 21 ] We disagree. Page 416 U. S. 291 At the outset, the precise nature of the present issue must be noted. The question is not whether the Board should have resorted to rulemaking, or, in fact, improperly promulgated a "rule," when, in the context of the prior representation proceeding, it held that the Act covers all "managerial employees" except those meeting the new "conflict of interest in labor relations" touchstone. Our conclusion that the Board applied the wrong legal standard makes consideration of that issue unnecessary. Rather, the present question is whether, on remand, the Board must invoke its rulemaking procedures if it determines, Page 416 U. S. 292 in light of our opinion, that these buyers are not "managerial employees" under the Act. The Court of Appeals thought that rulemaking was required because any Board finding that the company's buyers are not "managerial" would be contrary to its prior decisions, [ Footnote 22 ] and would presumably be in the nature of a general rule designed "to fit all cases at all times." A similar issue was presented to this Court in its second decision in SEC v. Chenery Corp., 332 U. S. 194 (1947) ( Chenery II ). [ Footnote 23 ] There, the respondent corporation argued that, in an adjudicative proceeding, the Commission could not apply a general standard that it had formulated for the first time in that proceeding. Rather, the Commission was required to resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court first noted that the Commission had a statutory duty to decide the issue at hand in light of the proper standards, and that this duty remained "regardless of whether those standards previously had been spelled out in a general rule or regulation." Id. at 332 U. S. 201 . The Court continued: "The function of filling in the interstices of the [Securities] Act should be performed, as much as possible, through this quasi -legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which Page 416 U. S. 293 arise. . . . Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity. " "In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule. Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule. Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule. In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective. There is thus a very definite place for the case-by-case evolution of statutory standards." Id. at 332 U. S. 202 -203. (Emphasis added.) The Court concluded that "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency." Id. at 332 U. S. 203 . And in NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), the Court upheld a Board order enforcing an election list requirement first promulgated in an earlier adjudicative proceeding in Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966). The plurality opinion of Mr. Page 416 U. S. 294 Justice Fortas, joined by The Chief Justice, MR. JUSTICE STEWART, and MR. JUSTICE WHITE, recognized that "[a]djudicated cases may and do . . . serve as vehicles for the formulation of agency policies, which are applied and announced therein," and that such cases "generally provide a guide to action that the agency may be expected to take in future cases." NLRB v. Wyman-Gordon Co., supra, at 394 U. S. 765 -766. The concurring opinion of Mr. Justice Black, joined by MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, also noted that the Board had both adjudicative and rulemaking powers, and that the choice between the two was "within its informed discretion." Id. at 394 U. S. 772 . The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding, and that the choice between rulemaking and adjudication lies in the first instance within the Board's discretion. Although there may be situations where the Board's reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion. Indeed, there is ample indication that adjudication is especially appropriate in the instant context. As the Court of Appeals noted, "[t]here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter." 475 F.2d at 496. Moreover, duties of buyers vary widely depending on the company or industry. It is doubtful whether any generalized standard could be framed which would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific character of the buyers' authority and duties in each company. The Board's judgment that adjudication best serves this purpose is entitled to great weight. Page 416 U. S. 295 The possible reliance of industry on the Board's past decisions with respect to buyers does not require a different result. It has not been shown that the adverse consequences ensuing from such reliance are so substantial that the Board should be precluded from reconsidering the issue in an adjudicative proceeding. Furthermore, this is not a case in which some new liability is sought to be imposed on individuals for past actions which were taken in good faith reliance on Board pronouncements. Nor are fines or damages involved here. In any event, concern about such consequences is largely speculative, for the Board has not yet finally determined whether these buyers are "managerial." It is true, of course, that rulemaking would provide the Board with a forum for soliciting the informed views of those affected in industry and labor before embarking on a new course. But surely the Board has discretion to decide that the adjudicative procedures in this case may also produce the relevant information necessary to mature and fair consideration of the issues. Those most immediately affected, the buyers and the company in the particular case, are accorded a full opportunity to be heard before the Board makes its determination. The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the cause remanded to that court with directions to remand to the Board for further proceedings in conformity with this opinion. It is so ordered. [ Footnote 1 ] As amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. [ Footnote 2 ] The opinion revealed that Board Member Jenkins did not view the company's buyers as exercising managerial functions, and therefore considered them "employees" under the Act to the same extent as production and maintenance employees. 190 N.L.R.B. at 431 n. 2. A majority of the Board, however, apparently accepted the company's contention that the buyers were managerial employees. Id. at 432 n. 3. [ Footnote 3 ] As mentioned, the Board had relied on its North Arkansas decision in the present case. The Eighth Circuit's earlier opinion concerning a related issue in the same case is reported at 412 F.2d 324 (1969). [ Footnote 4 ] Section 2(3) of the Act defines the term "employee" as follows: "The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined." 29 U.S.C. § 152(3). Supervisory employees are expressly excluded from the protections of the Act. That term is defined in § 2(11): "The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment." 29 U.S.C. § 152(11). [ Footnote 5 ] Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 381 (1969); Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12 (1965); Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 -18 (1965); Norwegian Nitrogen Co. v. United States, 288 U. S. 294 , 315 (1933). [ Footnote 6 ] Zemel v. Rusk, supra, at 381 U. S. 11 -12; Commissioner v. Noel Estate, 380 U. S. 678 , 380 U. S. 682 (1965); NLRB v. Gullett Gin Co., 340 U. S. 361 , 340 U. S. 365 -366 (1951); Helvering v. R. J. Reynolds Tobacco Co., 306 U. S. 110 , 306 U. S. 114 -115 (1939); Norwegian Nitrogen Co. v. United States, supra, at 288 U. S. 313 . [ Footnote 7 ] Zemel v. Rusk, supra, at 381 U. S. 11 -12; Costanzo v. Tillinghast, 287 U. S. 341 , 287 U. S. 345 (1932); United States v. Midwest Oil Co., 236 U. S. 459 , 236 U. S. 472 -473 (1915). [ Footnote 8 ] Red Lion Broadcasting Co. v. FCC, supra, at 395 U. S. 380 -381; FHA v. Darlington, Inc., 358 U. S. 84 , 358 U. S. 90 (1958). [ Footnote 9 ] Section 2(12) of the House bill defined the term "supervisor" as follows: "The term 'supervisor' means any individual -- " "(A) who has authority, in the interest of the employer --" "(i) to hire, transfer, suspend, lay off, recall, promote, demote, discharge, assign, reward, or discipline any individuals employed by the employer, or to adjust their grievances, or to effectively recommend any such action; or" "(ii) to determine, or make effective recommendations with respect to, the amount of wages earned by any individuals employed by the employer, or to apply, or to make effective recommendations with respect to the application of, the factors upon the basis of which the wages of any individuals employed by the employer are determined, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the exercise of independent judgment;" "(B) who is employed in labor relations, personnel, employment, police, or time-study matters or in connection with claims matters of employees against employers, or who is employed to act in other respects for the employer in dealing with other individuals employed by the employer, or who is employed to secure and furnish to the employer information to be used by the employer in connection with any of the foregoing; or" "(C) who by the nature of his duties is given by the employer information that is of a confidential nature, and that is not available to the public, to competitors, or to employees generally, for use in the interest of the employer." [ Footnote 10 ] Section 2(11) of the Senate bill contained the following definition of the term "supervisor": "The term 'supervisor' means any individual having authority, in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or to adjust their grievances, or effectively to recommend such action if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." [ Footnote 11 ] The Report also makes evident that Congress was concerned with more than just the possibility of a conflict of interest in labor relations if supervisors were unionized: "Supervisors are management people. They have distinguished themselves in their work. They have demonstrated their ability to take care of themselves without depending upon the pressure of collective action. No one forced them to become supervisors. They abandoned the 'collective security' of the rank and file voluntarily, because they believed the opportunities thus opened to them to be more valuable to them than such 'security.' It seems wrong, and it is wrong, to subject people of this kind, who have demonstrated their initiative, their ambition and their ability to get ahead, to the leveling processes of seniority, uniformity and standardization that the Supreme Court recognizes as being fundamental principles of unionism. ( J. I. Case Co. v. National Labor Relations Board, 321 U. S. 332 (1944).) It is wrong for the foremen, for it discourages the things in them that made them foremen in the first place. For the same reason, that it discourages those best qualified to get ahead, it is wrong for industry, and particularly for the future strength and productivity of our country." H.R.Rep. No. 245, 80th Cong., 1st Sess., 117 (1947). [ Footnote 12 ] The Report stated in reference to "confidential employees": "These are people who receive from their employers information that not only is confidential, but also that is not available to the public, or to competitors, or to employees generally. Most of the people who would qualify as 'confidential' employees are executives and are excluded from the act in any event. " "The Board, itself, normally excludes from bargaining units confidential clerks and secretaries to such people as these." Ibid. (Emphasis added.) In 1946, in Ford Motor Co., 66 N.L.R.B. 1317, 1322, the Board had narrowed its definition of "confidential employees" to embrace only those who exercised " managerial' functions in the field of labor relations." The discussion of "confidential employees" in both the House and Conference Committee Reports, however, unmistakably refers to that term as defined in the House bill, which was not limited just to those in "labor relations." Thus, although Congress may have misconstrued recent Board practice, it clearly thought that the Act did not cover "confidential employees" even under a broad definition of that term. [ Footnote 13 ] The dissenting opinion first asserts that the Act is "very plain on its face," and covers all employees except those expressly excluded, post at 416 U. S. 297 , but later concedes that the "Conference Committee implied that certain groups of employees were to be excluded." Post at 416 U. S. 305 . The dissent then argues that "managerial employees" were not among those impliedly excluded because "no such explicit direction was set forth." Ibid. This overlooks the fact that, as in the case of "confidential employees" and those working in "labor relations, personnel and employment departments," no explicit exclusionary provision was necessary in 1947, because the Board had never approved the organization of "managerial employees" in either a separate unit or as part of a rank-and-file unit. Indeed, every prior Board decision had resulted in the exclusion of such employees as "managerial." Moreover, it cannot be denied that Congress thought that "executives" were excluded from the Act, for the House Report so stated in express terms. See n 12, supra. And the congressional debates, along with the Senate Report, evinced a concern over the possible extension of the Act to cover corporate vice-presidents and other executives who were part of management. See, e.g., 93 Cong.Rec. 3443, 4136, 5014. In addition, the dissent completely ignores the fundamental change in industrial philosophy which would be accomplished through unionization of "managerial employees." As MR. JUSTICE DOUGLAS explained in his Packard dissent, the Wagner Act was designed to protect "laborers" and "workers," not vice-presidents and others clearly within the managerial hierarchy. Extension of the Act to cover true "managerial employees" would indeed be revolutionary, for it would eviscerate the traditional distinction between labor and management. If Congress intended a result so drastic, it is not unreasonable to expect that it would have said so expressly. The dissent also relies upon the specific inclusion of "professional employees" within the Act to support its assertion that "managerial employees" were to be similarly treated. Post at 416 U. S. 297 -298. See 29 U.S.C. § 152(12). "Professional employees," however, are plainly not the same as "managerial employees." As the Conference Committee Report explained, the term "professional employees" refers to "such persons as legal, engineering, scientific and medical personnel, together with their junior professional assistants." H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 36. In contrast to "managerial employees," they are not defined in terms of their authority "to formulate, determine and effectuate management policies." Ford Motor Co., 66 N.L.R.B. at 1322. [ Footnote 14 ] see, e.g., Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 571 (1963); AFL-CIO, 120 N.L.R.B. 969, 973 (1958); General Tel. Co. of Ohio, 112 N.L.R.B. 1225, 1229 (1955). The cases excluding buyers or those exercising buyers' functions from other units are legion. See, e.g., Ed's Foodland of Springfield, Inc., 159 U.S. 1256, 1260 (1966); Albuquerque Div., ACF Ind., Inc., 145 N.L.R.B. 403, 414-415 (1963); Weaver Motors, 123 N.L.R.B. 209, 215-216 (1959); Kearney & Trecker Corp., 121 N.L.R.B. 817, 822 (1958); Temco Aircraft Corp., 121 N.L.R.B. 1085, 1089 (1958); Federal Tel. & Radio Co., 120 N.L.R.B. 1652, 1653-1654 (1958). Surprisingly, the dissent maintains that the Board "actually held only twice" that "managerial employees" were not covered by the Act. Post at 416 U. S. 309 . This is difficult to reconcile with the undisputed fact that, until its decision in North Arkansas, the Board had never even certified a separate unit of "managerial employees," and had stated in case after case that managerial employees were not to be accorded bargaining rights under the Act. E.g., Palace Laundry Dry Cleaning, 75 N.L.R.B. 320 (1947); American Locomotive Co., 92 N.L.R.B. 15 (1950); Curtiss-Wright Corp., 103 N.L.R.B. 458 (1953); Swift & Co., 115 N.L.R.B. 752 (1956), and cases cited above. [ Footnote 15 ] Palace Laundry Dry Cleaning, supra, at 323 n. 4. See Ford Motor Co., 66 N.L.R.B. at 1322. [ Footnote 16 ] In Retail Clerks International Assn. v. NLRB, supra, MR. CHIEF JUSTICE (then Circuit Judge) BURGER explained the Board's policy on "managerial employees": "The Board also excludes from the protections of the Act, as managerial employees, 'those who formulate, determine, and effectuate an employer's policies,' AFL-CIO, [120 N.L.R.B. 969, 973 (1958)], and those who have discretion in the performance of their jobs, but not if the discretion must conform to an employer's established policy, Eastern Camera and Photo Corp., 140 N.L.R.B. 569, 571 (1963) (store managers who could set prices are not managerial). The rationale for this Board policy, though unarticulated, seems to be the reasonable belief that Congress intended to exclude from the protection of the Act those who comprised a part of 'management' or were allied with it on the theory that they were the one[s] from whom the workers needed protection." 366 F.2d at 645. (Emphasis added.) [ Footnote 17 ] In International Ladies' Garment Workers' Union v. NLRB, supra, MR. JUSTICE (then Circuit Judge) MARSHALL explained that, "[a]lthough the Act makes no special provision for 'managerial employees,' under a Board policy of long duration, this category of personnel has been excluded from the protection of the Act." 339 F.2d at 123. [ Footnote 18 ] The contrary interpretation of the Act urged by the dissent would have far-reaching results. Although a shop foreman would be excluded from the Act, a wide range of executives would be included. A major company, for example, may have scores of executive officers who formulate and effectuate management policies, yet have no supervisory responsibility or identifiable conflict of interest in labor relations. If Congress intended the unionization of such executives, it most certainly would have made its design plain. See n 13, supra. [ Footnote 19 ] The Board has had ample experience in defining the term "managerial" in the manner which we think the Act contemplates. See, e.g., Eastern Camera & Photo Corp., supra, at 571. Of course, the specific job title of the employees involved is not, in itself, controlling. Rather, the question whether particular employees are "managerial" must be answered in terms of the employees' actual job responsibilities, authority, and relationship to management. [ Footnote 20 ] To be sure, it would also be appropriate for the Board to exclude employees from a unit on the ground that their participation in a labor organization would create a conflict of interest with their job responsibilities. New England Telephone, 90 N.L.R.B. 639 (1950). See also Retail Clerks International Assn. v. NLRB, 125 U.S.App.D.C. at 65-66, 366 F.2d at 644-645. In this respect, respondent has suggested that it was never afforded fair notice and an opportunity to introduce evidence relating specifically to the possibility of a conflict of interest in labor relations. Tr. of Oral Arg. 33-35, 43, 47. At the representation hearing, the hearing officer did not indicate that the conflict of interest standard was relevant, and respondent proceeded on the assumption that the only question was whether the buyers were "managerial employees." App. 8, 83. The present record may well be adequate for purposes of this determination. However, if new and relevant information on this point is tendered on remand, the Board should consider reopening the record for purposes of its admission. [ Footnote 21 ] Section 6 provides: "The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this subchapter." 29 U.S.C. § 156. The Administrative Procedure Act (APA) defines "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . ." 5 U.S.C. § 551(4). The rulemaking requirements include publication in the Federal Register of notice of the proposed rulemaking and hearing; an opportunity for interested persons to participate; a statement of the basis and purpose of the proposed rule; and publication in the Federal Register of the rule as adopted. The APA defines "adjudication" as "agency process for the formulation of an order," and "order" is defined as "the whole or a part of a final disposition whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." 5 U.S.C. §§ 551(7), (6). Proceedings for "the certification of worker representatives" are exempted from the Act's procedural requirements for an "adjudication." 5 U.S.C. §§ 554(a)(6), 556(a), 557(a). Sections 9(c)(1) and (2) of the National Labor Relations Act (NLRA) empower the Board to investigate petitions involving questions of unit representation, to conduct hearings on such petitions, to direct representation elections, and to certify the results thereof. 29 U.S.C. §§ 159(c)(1) and (2). Board determinations on such representation questions would appear to constitute "orders" within the meaning of the APA. See 5 U.S.C. §§ 551(6), (7). The NLRA does not specify in what instances the Board must resort to rulemaking. [ Footnote 22 ] A number of Board decisions have excluded buyers from units of rank-and-file employees. See n 14, supra. But American Locomotive Co. and Swift & Co. appear to be the only cases in which the Board has held that buyers are not entitled to organize in a separate unit. [ Footnote 23 ] Chenery II did not involve § 4 of the APA, 5 U.S.C. § 553, but is nevertheless analogous. MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, dissenting in part. I concur in Part III of the Court's opinion insofar as it holds that the Board was not required to resort to rulemaking in deciding this case, but I dissent from its holding Page 416 U. S. 296 in 416 U. S. Section 7 of the Act, 29 U.S.C. § 157, provides that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing. . . ." Section 8(a)(1), 29 U.S.C. § 158(a)(1), makes it an unfair labor practice to interfere with the rights guaranteed in § 7, and under § 8(a)(5), 29 U.S.C. § 158(a)(5), it is an unfair practice for the employer to refuse to bargain collectively with representatives of his "employees." For the purposes of the foregoing sections, the term "employee" as defined in § 2(3) of the Act, means "any employee" of the employer, "but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act. . . ." 29 U.S.C. § 152(3). The issue in this case is whether the term "employee" excludes not only those specifically excluded by § 2, but also the broad category of "managerial" employees who, although literally "employees" of the employer and not expressly excluded by § 2, are nevertheless not to be considered employees for the purposes of the Act because they make and implement managerial policies. The Court holds that no managerial employee is an employee for the purposes of the Act. I cannot agree with this conclusion. Page 416 U. S. 297 The Act is very plain on its face -- "any employee," with specified exclusions, is entitled to the benefits of the Act. Each of the exclusions is a narrow and precisely defined class, and none of them mentions managerial employees. "Supervisors" are excluded, but a precise definition of that class, much narrower than the class of managerial employees, is provided in § 2(11): "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. § 152(11). Without more, it could not be concluded that Congress meant to exclude a whole category of employees in addition to those expressly excepted in § 2(3). To infer that all managerial employees are not employees for purposes of the Act because a specified managerial subgroup, supervisors, was expressly excluded, is unwarranted, at least where Congress was careful to define precisely what employees were within the scope of the supervisory exclusion. What is more, Congress in § 2(12), 29 U.S.C. § 152(12), has defined a special subclass of professional employees having special skills and duties "involving the consistent exercise of discretion and judgment in" the performance of their work. These employees are obviously "employees" for the purposes of the Act; and in § 9, 29 U.S.C. § 159, after investing the Board with the powers necessary to decide the units appropriate for collective bargaining, it is provided Page 416 U. S. 298 that the Board shall not hold any bargaining unit to be appropriate "if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit." It is apparent, it seems to me, that there are many professional employees who would qualify as managerial employees; yet the Act clearly treats them as employees for purposes of the Act, and Congress assumed they would have full organizational and bargaining rights unless it was provided otherwise in accordance with congressional desires. Hence, § 9(b). Insofar as the face of the Act is concerned, and as compared with an across-the-board exclusion of "managerial" employees, the present ruling of the Board, which excludes only those managerial employees whose work may involve them in a conflict of interest if they are permitted to bargain collectively, is a far narrower exclusion adhering much more closely to the rationale of the supervisory exclusion and to the apparent intent of Congress. The Court nevertheless not only holds that the term employee may be construed to exclude managerial employees, but also that it must be so construed. No narrower exclusion, it is said, in addition to those expressly provided for, will satisfy the Act. Although it would appear to be a difficult and questionable feat to rewrite the statute so substantially, the Court purports to find license for its result in the legislative history of the 1947 amendments to the Act, read in the light of previous and subsequent Board and court decisions. It is true that the exclusion of supervisors from the definition of employees first occurred in 1947, but, with all respect, I find no basis in the history of these amendments, read in the light of prior Board cases, for concluding that Congress intended to exclude all Page 416 U. S. 299 managerial employees, in addition to supervisors, from the benefits of the Act. As I understand its decisions, the Board at no time prior to 1947 completely excluded the broad category of managerial employees from the class of employees protected by the Act. The Court concedes that the Board's cases during this period involved only the exclusion of managerial employees from bargaining units of rank-and-file workers. Some of the Board's statements may have been ambiguous, but no Board case held or had occasion to hold that managerial employees as a group would not be protected by the Act. As the Court acknowledges, the Board, in one decision excluding buyers and expediters from a unit of office and clerical employees, pointedly expressed the caveat that "[t]his is not to say, however, that buyers and expediters are to be denied the right to self-organization and to collective bargaining under the Act." Dravo Corp., 54 N.L.R.B. 1174, 1177 (1944). In Hudson Motor Car Co., 55 N.L.R.B. 509, 512 (1944), where the Board excluded buyers from a bargaining unit of office and clerical employees, the reason given for the exclusion was "that their duties are closely allied to management, differing materially from those of the other clerical employees." And in Vulcan Corp., 58 N.L.R.B. 733, 736 (1944), the Board excluded a buyer from a production and maintenance employees' unit not because a managerial employee could not be accorded bargaining rights, but "[b]ecause of the responsibility of his position and his peculiar relationship to management, and in view of the fact that his interests are apparently different from those of the production and maintenance employees." This line of Board decisions addressed the question whether certain managerial employees had sufficient community of interest with rank-and-file employees to be included in the same bargaining unit with them, and the Board was exercising its power to designate Page 416 U. S. 300 appropriate bargaining units under § 9. It is clear that the Board at no time held managerial employees to be outside the scope of the Act during the period prior to the Taft-Hartley amendments. The Board's position with respect to supervisors, as a class, vacillated during this time, the Board first excluding supervisors from rank-and-file units but recognizing units confined to supervisory employees, then refusing to recognize any bargaining units of supervisors, and finally returning to its earlier rule. But even when the Board determined for a short period that supervisors should not be permitted to organize either with other employees or in separate units, it never went as far as to hold supervisors not to be "employees" under the Act. This was the Court's understanding of the Board's position in Packard Co. v. NLRB, 330 U. S. 485 , 330 U. S. 492 n. 3 (1947), the very case which prompted the 80th Congress to go further than the Board had ever gone and exclude supervisors entirely from the category of employees accorded bargaining rights under the Act. [ Footnote 2/1 ] In Maryland Drydock Co., 49 N.L.R.B. 733, 738, 740 (1943), the Board was "no longer convinced that, from the mere determination Page 416 U. S. 301 that a supervisor is an employee, it follows that supervisors may constitute appropriate bargaining units" because "the benefits which supervisory employees might achieve through being certified as collective bargaining units would be outweighed not only by the dangers inherent in the commingling of management and employee functions, but also in its possible restrictive effect upon the organizational freedom of rank and file employees." Shortly thereafter, the Board, faced with a claim by the employer that foremen are not employees within the meaning of the Act, did not address this possible ground of decision, but held instead that it was "not persuaded that the factors militating against the establishment of units of supervisory employees, set forth in . . . the Maryland Drydock case, are obviated by the circumstance that the union seeking to represent such employees is an independent, unaffiliated union." General Motors Corp., 51 N.L.R.B. 457, 460 (1943). Moreover, the Board held in Soss Mfg. Co., 56 N.L.R.B. 348 (1944), that, while a bargaining unit of supervisory employees might not be appropriate, a supervisor, like other employees, was nonetheless protected against an unfair labor practice: "We conclude that supervisors are 'employees,' and that supervisory status does not, by its own force, remove an employee from the protection of Section 8(1) and (3)" of the Act. Id. at 353. Ultimately, in the Packard cases, 61 N.L.R.B. 4, 64 N.L.R.B. 1212 (1945), the Board reverted to its earlier rule that bargaining units of supervisors were entitled to recognition under the Act as long as they included no rank-and-file members. When Congress undertook to amend the Act following this Court's decision in Packard upholding the Board's inclusion of supervisors as employees under the Act, it was acting in light of a renewed Board policy to Page 416 U. S. 302 permit supervisory employees to organize in separate units under the mantle of the Act's protection, an enduring Board policy not to exclude supervisors from the statutory definition of employees, and a further policy which excluded managerial employees from rank-and-file units but had never denied them the right to establish separate bargaining units or placed them outside the Act's definition of "employee." The amendments adopted by Congress in 1947 in light of this pattern of Board practice clearly intended to do away with the Packard decision approving the Board's authority to grant recognition to unions of supervisors. The House and the Senate both proposed to exclude supervisors from the individuals defined as employees for purposes of the Act. The Senate definition of "supervisor" was limited to individuals with authority, in the employer's interest, to take or recommend action involving the employment of other employees, if the exercise of such authority required the use of independent judgment, S. 1126 § 2(11). But the proposed House definition would also have identified as excluded "supervisors" (a) those who could determine or effectively recommend the wages to be paid other employees, (b) employees with responsibility in the area of labor relations, personnel, employment, police, or time-study matters, and (c) confidential employees, H.R. 3020 § 2(12). Neither of these proposals sought to exclude in express terms the entire category of "managerial employees," i.e., those who are in a position to formulate, determine, and effectuate management policies beyond the area of labor relations, whether by defining such persons as "supervisors" or by proposing a separate exclusion for "managerial employees." Such a step could easily have been taken had Congress intended to exclude these individuals from the protection of the Act. But it was not, despite the fact that the Board had recently considered whether Page 416 U. S. 303 certain employees should be denied organizational rights, either because they were supervisory or, separately, because their job responsibilities involved the exercise of managerial discretion. See, e.g., Ford Motor Co., 66 N.L.R.B. 1317, 1322 (1946); Electric Controller & Mfg. Co., 69 N.L.R.B. 1242 (1946). One would expect that, if Congress had intended to eliminate the Board's authority to accord bargaining rights to managerial employees, as well as supervisors, it would have said so, particularly as Board practice had treated these two categories separately and differently. The Court would fill this gap by referring to the House Managers' statement accompanying the Conference Committee Report and explaining the adoption of the narrower Senate definition of excluded "supervisors." This report is indeed instructive, but it indicates even more clearly, in my opinion, that Congress did not contemplate the exclusion of managerial employees from the coverage of the Act: "The conference agreement, in the definition of 'supervisor,' limits such term to those individuals treated as supervisors under the Senate amendment. In the case of persons working in labor relations, personnel and employment departments, it was not thought necessary to make specific provision, as was done in the House bill, since the Board has treated, and presumably will continue to treat, such persons as outside the scope of the act. This is the prevailing Board practice with respect to such people as confidential employees as well, and it was not the intention of the conferees to alter this practice in any respect. The conference agreement does not treat time-study personnel or guards as supervisors, as did the House bill. Since, however, time-study employees may qualify as professional personnel, Page 416 U. S. 304 the special provisions of the Senate amendment . . . applicable with respect to professional employees will cover many in this category. In the case of guards, the conference agreement does not permit the certification of a labor organization as the bargaining representative of guards if it admits to membership, or is affiliated with any organization that admits to membership, employees other than guards. The provision dealing with the certification of bargaining units for guards is dealt with in section 9(b) of the conference agreement. . . ." H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 35-36 (1947). The Court emphasizes that the statutory language adopted in the 1947 amendments did not expressly exclude persons working in labor relations, personnel, or employment departments, or confidential employees, but that these were "impliedly excluded" from the Act's coverage by dint of the House Managers' statements just quoted. From this premise, the Court proceeds to assume that other categories of employees, similarly not excluded under the express terms of the amended definition of "employee," were also impliedly excluded from the Act. In my view, there is no warrant for the assumption that groups of employees, which the statute, or express legislative statements, do not address, are to be excluded from the Act; nor is there any legislative debate whatsoever which can reasonably be construed as expressing an authoritative intent to exclude managerial employees as a class. The House Managers' statement accompanying the Conference Committee Report explains that the Act was not amended expressly to exclude labor relations and confidential employees from coverage under the Act, because it was already prevailing Board practice to exclude these employees. This was not an entirely accurate Page 416 U. S. 305 representation of Board practice, which seemed to hold only that such employees should not be included in rank-and-file bargaining units, and not necessarily that they would have no protections under the Act, see, e.g., Murray Ohio Mfg. Co., 61 N.L.R.B. 47 (1945); Ford Motor Co., 66 N.L.R.B. 1317 (1946), but even accepting the House Managers' statement as an authoritative direction that these workers were not to be considered employees within the meaning of § 2, it does not follow that other groups of employees, regarding whom no such explicit direction was set forth and whom the Board had not treated in such a manner, were also intended to be excluded. Such statement implied that certain groups of employees were to be excluded, but it also noted that some time-study personnel could qualify as professional employees, and could therefore organize in units which a majority of them approved, and that guards were not wholly excluded from the Act, but were restricted to units composed solely of other guards. § 9(b), 29 U.S.C. § 159(b). Given that Congress made specific provision for time-study and plant protection employees, who were to be entitled to bargaining rights, and that it expressed a desire to exclude only labor relations and confidential employees whom it thought the Board had previously held outside the Act, there is no reason to suppose from the further congressional silence that special provisions, whether of inclusion or exclusion, were intended with respect to other categories of employees. If it be argued that the absence of any express treatment of managerial employees by Congress was somehow intended to codify prior Board practice, then the unavoidable fact is that Board decisions had not held that managerial employees were unprotected by the Act. They had only been excluded from rank-and-file bargaining units. Moreover, there is no indication in the legislative history as to what Page 416 U. S. 306 Congress might have perceived the Board's rule to be with respect to managerial employees as a class. [ Footnote 2/2 ] Nor is the Court's position much advanced by the few passing references in the House Report and in the floor debates, which the Court cites, ante at 416 U. S. 283 , and nn. 12 and 13, for the assumption that "executives" would be excluded from the Act apart from whether they were confidential employees or not, and for the discussion of supervisors as representatives of management whom the amendments sought to exclude. In none of the cited passages was the category of "managerial employees," as the Board had defined it, ever addressed, and the focus of these remarks is clearly directed at the exclusion of supervisors as defined in the proposed amendments. Perhaps it was clear to Congress that a confidential secretary's superior would be excluded by the Act, but such an individual would either be a confidential employee himself, or a supervisor, or both. We are referred to Page 416 U. S. 307 nothing in the debates or other congressional materials where the category of managerial employees, as distinguished from the class of supervisory employees, a distinction the Board had previously drawn, is discussed. [ Footnote 2/3 ] Finally, if we are to consider the 1947 amendments as intending to enact the views of the dissenting Justices in Packard, it should be noted that the dissent interpreted the National Labor Relations Act to "put in the employer category all those who acted for management not only in formulating, but also in executing its labor policies. " 330 U.S. at 330 U. S. 496 . (Emphasis supplied.) See also id. at 330 U. S. 500 . Limiting the exclusion of managerial employees to those who are charged with the formulation or implementation of labor relations policies, as the Board has now done in the case before us, is Page 416 U. S. 308 entirely consistent with this view and with the purposes of the Act. As the Senate Report noted, its concern in changing the law with respect to supervisory employees, as construed by Packard, was that the balance of power in the collective bargaining process had been upset by "the successful efforts of labor organizations to invoke the Wagner Act for covering supervisory personnel, traditionally regarded as part of management, into organizations composed of or subservient to the unions of the very men they were hired to supervise." S.Rep. No. 105, 80th Cong., 1st Sess., 3 (1947). See also H.R.Rep. No. 245, 80th Cong., 1st Sess., 13 (1947); 93 Cong.Rec. 3553. Where an employee may be deemed managerial because of the nature of his duties apart from supervision of other employees, however, there is no reason to suppose that union affiliation, at least in separate units, would raise the same labor relations concern. Following the Taft-Hartley amendments in 1947, the Board continued to hold, as it had frequently held before, that buyers, and others with managerial interests, were to be excluded from bargaining units of other employees. Denver Dry Goods, 74 N.L.R.B. 1167 (1947); Palace Laundry Dry Cleaning, 75 N.L.R.B. 320 (1947); Denton's, Inc., 83 N.L.R.B. 35, 37 (1949); Wise, Smith & Co., 83 N.L.R.B. 1019, 1021 n. 6 (1949); Westinghouse Electric Corp., 89 N.L.R.B. 8, 14 (1950). But in 1950, in American Locomotive Co., 92 N.L.R.B. 115, 117, the Board, in rejecting the inclusion of buyers in an office and clerical employees unit or their placement in a separate bargaining unit, said that, "[a]s it appears that the buyers are authorized to make substantial purchases for the Employer, we find that they are representatives of management, and as such may not be accorded bargaining rights under the Act." Reliance for this Page 416 U. S. 309 statement was placed on the Wise, Smith & Co. case and Westinghouse Electric case, which involved the appropriateness of placing the managerial employees in a particular bargaining unit. In Swift & Co., 115 NL.R.B. 752 (1956), the Board held that a proposed unit of procurement drivers could not be accorded bargaining rights, even in a separate unit. There, the Board flatly asserted that it was "the clear intent of Congress to exclude from the coverage of the Act all individuals allied with management." Id. at 753-754. The sole support for this statement, which the Board has now repudiated, was a reference to the statutory definitions of "employee" and "employer" and to the Conference Committee Report's explanation of the term "supervisors," as quoted above and reprinted in the Congressional Record. The Board thereafter continued to exclude managerial employees from bargaining units of other employees, occasionally citing Swift, e.g., Copeland Refrigeration Corp., 118 N.L.R.B. 1364, 1365 n. 2 (1957); AFL-CIO, 120 N.L.R.B. 969 (1958), but more frequently excluding managerial employees from particular units without citing that case or suggesting that the excluded workers were not protected employees. E.g., Mack Trucks, Inc., 116 N.L.R.B. 1576, 1577-1578 (1956); Diana Shop, 118 N.L.R.B. 743, 745 (1957); Federal Tel. & Radio Co., 120 N.L.R.B. 1652, 1654 (1958); Kearney & Trecker Corp., 121 N.L.R.B. 817, 822 (1958); Weaver Motors, 123 N.L.R.B. 209, 216 (1959); Eastern Camera & Photo Corp., 140 N.L.R.B. 569, 572 (1963). Until the Board overruled Swift in North Arkansas Electric Cooperative, Inc., 185 N.L.R.B. 550 (1970), it had thus actually held only twice that managerial employees could not be afforded protection under the Act, and its support for that conclusion was without any persuasive appeal. It is true, of course, that the Board had not held to the contrary either, and that Page 416 U. S. 310 various courts of appeals interpreted and deferred to the Board's position as one of total exclusion of managerial employees from the scope of the Act, although in none of these cases was that conclusion necessary to the result reached. But the Board has now rejected this broad exclusion, and the question is whether the current view should be sustained. That the Board now refuses to follow its prior precedents is no reason to overturn it, for we have frequently sustained Board decisions overruling its prior interpretations of the Act. E.g., Golden State Bottling Co. v. NLRB, 414 U. S. 168 (1973); Packard Co. v. NLRB, 330 U. S. 485 (1947). And the face of the Act and the events of 1947 demonstrate that the Board's present decision is a permissible construction of the statute. Nor did Congress in 1959, when it again amended the statute, expressly or impliedly enact or approve the statutory interpretation announced in Swift & Co. The 1959 amendments dealt with secondary boycotts and picketing, and we are cited to nothing suggesting that the attention of Congress at that time was directed to or focused on the question whether managerial employees were covered or excluded in the statute. Congressional silence does not imply legislative approval of all Board rulings theretofore made. As the Court noted in Boys Markets v. Retail Clerks Union, 398 U. S. 235 , 398 U. S. 241 -242 (1970), which overruled Sinclair Refining Co. v. Atkinson, 370 U. S. 195 (1962): "Nor can we agree that the conclusive weight should be accorded to the failure of Congress to respond to Sinclair on the theory that congressional silence should be interpreted as acceptance of the decision. The Court has cautioned that '[i]t is, at best, treacherous to find in congressional silence alone the adoption of a controlling rule of law.' Girouard v. Page 416 U. S. 311 United States, 328 U. S. 61 , 328 U. S. 69 (1946). Therefore, in the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of Sinclair, the mere silence of Congress is not a sufficient reason for refusing to consider the decision." See also Commissioner v. Glenshaw Glass Co., 348 U. S. 426 , 348 U. S. 431 (1955). Similarly, from the congressional silence in 1959 concerning Swift's exclusion of managerial employees from the protection of the Act, it should not be assumed that Congress intended to approve of Swift and foreclose the possibility of the Board's reconsidering Swift and overruling it on further and more examining reflection. NLRB v. Seven-Up Co., 344 U. S. 344 , 344 U. S. 350 -352 (1953) The Board's decisions in this area have not established a cohesive and precise pattern of rulings. It is often difficult to tell whether an individual decision is based on the propriety of excluding certain employees from a particular bargaining unit or whether the worker under consideration is thought to be outside the scope of the Act. But this Court has consistently said that it will accept the Board's determination of whether a particular individual is an "employee" under the Act if that determination "has warrant in the record' and a reasonable basis in law," NLRB v. Hearst Publications, Inc., 322 U. S. 111 , 322 U. S. 131 (1944); NLRB v. United Insurance Co., 390 U. S. 254 , 390 U. S. 260 (1968). There is no reason here to hamstring the Board and deny a broad category of employees those protections of the Act which neither the statutory language nor its legislative history requires simply because the Board at one time interpreted the Act -- erroneously, it seems to me -- to exclude all managerial as well as supervisory employees. I respectfully dissent. [ Footnote 2/1 ] "The Board had held that supervisory employees may organize in an independent union, Union Collieries Coal Co., 41 N.L.R.B. 961, 44 N.L.R.B. 165; and in an affiliated union, Godchaux Sugars, Inc., 44 N.L.R.B. 874. Then it held that there was no unit appropriate to the organization of supervisory employees. Maryland Drydock Co., 49 N.L.R.B. 733; Boeing Aircraft Co., 51 N.L.R.B. 67; Murray Corp. of America, 51 N.L.R.B. 94; General Motors Corp., 51 N.L.R.B. 457. In this case, 61 N.L.R.B. 4, 64 N.L.R.B. 1212; in L. A. Young Spring & Wire Corp., 65 N.L.R.B. 298; Jones & Laughlin Steel Corp., 66 N.L.R.B. 386, 71 N.L.R.B. 1261; and in California Packing Corp., 66 N.L.R.B. 1461, the Board reembraced its earlier conclusions with the same progressive boldness it had shown in the Union Collieries and Godchaux Sugars cases. In none of this series of cases did the Board hold that supervisors were not employees. See Soss Manufacturing Co., 56 N.L.R.B. 348." [ Footnote 2/2 ] The majority argues that "no explicit exclusionary provision was necessary in 1947 because the Board had never approved the organization of 'managerial employees' in either a separate unit or as part of a rank-and-file unit." Ante at 416 U. S. 284 -285, n. 13. It does not dispute, however, that the Board had never disapproved their organization either, and admits that the Board had stated in Dravo Corp., 54 N.L.R.B. 1174 (1944), that, by excluding buyers from a clerical employees unit, it did not mean to say they would be denied bargaining rights under the Act. The Board had not held managerial employees excluded prior to 1947, and Congress did not address itself to the class of "managerial employees" by that term or by reference to the Board's definition. There is, therefore, no justification for excluding from the statutory designation of "any employee" an entire class that the Board had not previously excluded and that Congress did not expressly deal with in its amendments to the Act or in the legislative materials surrounding their adoption. If Congress had intended to exclude managerial employees, it would have said something about them, since it took such great pains to discuss supervisors and labor relations, confidential, time-study, and plant protection employees. [ Footnote 2/3 ] The majority expresses concern that extending organizational and bargaining rights to managerial employees would permit the extension of the Act to vice-presidents and other high level executives, thereby blurring the distinction between management and labor. The concern is overblown; for most, if not all, executives will obviously be "super" supervisors, confidential employees, professionals or within the Board's definition of those employees whose organization would result in a conflict of interest with respect to the company's labor policies. If there are remaining executives outside these categories who should also be excluded, the Board should be told to exclude that particular group, rather than to exclude the managerial class that would reach not only vertically, but laterally, to deny "hundreds of thousands," 475 F.2d 485, 496, of buyers and other relatively low-level management employees the organizational benefits and other protections of the Act otherwise available to "any employee." To argue, as the majority does, that, had Congress intended to include managerial employees, it would have said so expressly, ignores the fact that the Act covers "any employee," and that the burden properly falls on those who would exclude managerial employees to demonstrate that it was the intent of Congress to exclude this category when it legislated directly to exclude supervisory employees.

Here is a summary of the case: The U.S. Supreme Court case NLRB v. Bell Aerospace Co. (1974) concerned a labor union's petition for a representation election among the buyer employees of the respondent company. The National Labor Relations Board (NLRB) held that the buyers constituted an appropriate collective bargaining unit and directed an election. The company refused to bargain with the union, leading to an unfair labor practice charge. The Court addressed two main issues: the scope of the exclusion of "managerial employees" from the National Labor Relations Act (NLRA) and the NLRB's choice of proceeding by adjudication rather than rulemaking. The Court held that Congress intended to exclude all employees properly classified as "managerial" from the protections of the NLRA, not just those with conflicts of interest in labor relations. This interpretation was supported by the NLRB's early decisions, the Taft-Hartley amendments, and subsequent case law. The Court also upheld the NLRB's discretion to proceed by adjudication, given the varied duties of buyers across different industries. The NLRB was not required to establish a generalized standard through rulemaking, and it had the flexibility to develop standards through case-by-case adjudication. This case clarified the scope of the "managerial employee" exclusion under the NLRA and affirmed the NLRB's authority to determine the appropriate bargaining units through adjudication.

Government Agencies

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co.

https://supreme.justia.com/cases/federal/us/463/29/

U.S. Supreme Court Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29 (1983) Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co. No. 82-354 Argued April 26, 1983 Decided June 24, 1983 463 U.S. 29 ast|>* 463 U.S. 29 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus The National Traffic and Motor Vehicle Safety Act of 1966 (Act) directs the Secretary of Transportation to issue motor vehicle safety standards that "shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms." In issuing these standards, the Secretary is directed to consider "relevant available motor vehicle safety data," whether the proposed standard is "reasonable, practicable and appropriate" for the particular type of motor vehicle for which it is prescribed, and "the extent to which such standards will contribute to carrying out the purposes" of the Act. The Act authorizes judicial review, under the Administrative Procedure Act, of "all orders establishing, amending, or revoking" a motor vehicle safety standard. The National Highway Traffic Safety Administration (NHTSA), to which the Secretary has delegated his authority to promulgate safety standards, rescinded the requirement of Modified Standard 208 that new motor vehicles produced after September 1982 be equipped with passive restraints (automatic seatbelts or airbags) to protect the safety of the occupants of the vehicle in the event of a collision. In explaining the rescission, NHTSA maintained that it was no longer able to find, as it had in 1977 when Modified Standard 208 was issued, that the automatic restraint requirement would produce significant safety benefits. In 1987, NHTSA had assumed that airbags would be installed in 60% of all new cars and automatic seatbelts in 40%. But by 1981 it became apparent that automobile manufacturers planned to install automatic seatbelts in approximately 99% of the new cars, and that the overwhelming majority of such seatbelts could be easily detached and left that way permanently, thus precluding the realization of the lifesaving potential of airbags and requiring the same type of affirmative action that was the stumbling block Page 463 U. S. 30 to achieving high usage of manual belts. For this reason, NHTSA concluded that there was no longer a basis for reliably predicting that Modified Standard 208 would lead to any significant increased usage of restraints. Hence, in NHTSA's view, the automatic restraint requirement was no longer reasonable or practicable. Moreover, given the high expense of implementing such a requirement and the limited benefits arising therefrom, NHTSA feared that many consumers would regard Modified Standard 208 as an instance of ineffective regulation. On petitions for review of NHTSA's rescission of the passive restraint requirement, the Court of Appeals held that the rescission was arbitrary and capricious on the grounds that NHTSA's conclusion that it could not reliably predict an increase in belt usage under the Standard was an insufficient basis for the rescission, that NHTSA inadequately considered the possibility of requiring manufacturers to install nondetachable, rather than detachable, passive belts, and that the agency failed to give any consideration to requiring compliance with the Standard by the installation of airbags. The court found that congressional reaction to various versions of the Standard "raised doubts" that NHTSA's rescission "necessarily demonstrates an effort to fulfill its statutory mandate," and that therefore the agency was obligated to provide "increasingly clear and convincing reasons" for its action. Held: NHTSA's rescission of the passive restraint requirement in Modified Standard 208 was arbitrary and capricious; the agency failed to present an adequate basis and explanation for rescinding the requirement, and must either consider the matter further or adhere to or amend the Standard along lines which its analysis supports. Pp. 463 U. S. 40 -57. (a) The rescission of an occupant crash protection standard is subject to the same standard of judicial review -- the "arbitrary and capricious" standard -- as is the promulgation of such a standard, and should not be judged by, as petitioner Motor Vehicle Manufacturers Association contends, the standard used to judge an agency's refusal to promulgate a rule in the first place. The Act expressly equates orders "revoking" and "establishing" safety standards. The Association's view would render meaningless Congress' authorization for judicial review of orders revoking safety standards. An agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance. While the scope of review under the "arbitrary and capricious" standard is narrow, and a court is not to substitute its judgment for that of the agency, the agency nevertheless must examine the relevant data and articulate a satisfactory explanation for its action. In reviewing that explanation, a court must consider whether the decision was based on a Page 463 U. S. 31 consideration of the relevant factors and whether there was a clear error of judgment. Pp. 463 U. S. 40 -44. (b) The Court of Appeals correctly found that the "arbitrary and capricious" standard of judicial review applied to rescission of agency regulations, but erred in intensifying the scope of its review based upon its reading of legislative events. While an agency's interpretation of a statute may be confirmed or ratified by subsequent congressional failure to change that interpretation, here, even an unequivocal ratification of the passive restraint requirement would not connote approval or disapproval of NHTSA's later decision to rescind the requirement. That decision remains subject to the "arbitrary and capricious" standard. Pp. 463 U. S. 44 -46. (c) The first reason for finding NHTSA's rescission of Modified Standard 208 was arbitrary and capricious is that it apparently gave no consideration to modifying the Standard to require that airbag technology be utilized. Even if NHTSA's conclusion that detachable automatic seatbelts will not attain anticipated safety benefits because so many individuals will detach the mechanism were acceptable in its entirety, standing alone, it would not justify any more than an amendment of the Standard to disallow compliance by means of one technology which will not provide effective passenger protection. It does not cast doubt on the need for a passive restraint requirement or upon the efficacy of airbag technology. The airbag is more than a policy alternative to the passive restraint requirement; it is a technology alternative within the ambit of the existing standard. Pp. 463 U. S. 46 -51. (d) NHTSA was too quick to dismiss the safety benefits of automatic seatbelts. Its explanation for rescission of the passive restraint requirement is not sufficient to enable this Court to conclude that the rescission was the product of reasoned decisionmaking. The agency took no account of the critical difference between detachable automatic seatbelts and current manual seatbelts, failed to articulate a basis for not requiring nondetachable belts, and thus failed to offer the rational connection between facts and judgment required to pass muster under the "arbitrary and capricious" standard. Pp. 463 U. S. 51 -57. 220 U.S.App.D.C. 170, 680 F.2d 206, vacated and remanded. WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in all but Parts V-B and VI of which BURGER, C.J., and POWELL, REHNQUIST and O'CONNOR, JJ., joined. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and POWELL and O'CONNOR, JJ., joined, post, p. 463 U. S. 57 . Page 463 U. S. 32 JUSTICE WHITE delivered the opinion of the Court. The development of the automobile gave Americans unprecedented freedom to travel, but exacted a high price for Page 463 U. S. 33 enhanced mobility. Since 1929, motor vehicles have been the leading cause of accidental deaths and injuries in the United States . In 1982, 46,300 Americans died in motor vehicle accidents, and hundreds of thousands more were maimed and injured. [ Footnote 1 ] While a consensus exists that the current loss of life on our highways is unacceptably high, improving safety does not admit to easy solution. In 1966, Congress decided that at least part of the answer lies in improving the design and safety features of the vehicle itself. [ Footnote 2 ] But much of the technology for building safer cars was undeveloped or untested. Before changes in automobile design could be mandated, the effectiveness of these changes had to be studied, their costs examined, and public acceptance considered. This task called for considerable expertise, and Congress responded by enacting the National Traffic and Motor Vehicle Safety Act of 1966 (Act), 80 Stat. 718, as amended, 15 U. S. C. §1381 et seq. (1976 ed. and Supp. V). The Act, created for the purpose of "reduc[ing] traffic accidents and deaths and injuries to persons resulting from traffic accidents," 15 U. S. C. §1381, directs the Secretary of Transportation or his delegate to issue motor vehicle safety standards that "shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms." 15 U.S.C. §1392(a) (1976 ed., Supp. V). In issuing these standards, the Secretary is directed to consider "relevant available motor vehicle safety data," whether the proposed standard "is reasonable, practicable and appropriate" for the particular type of motor vehicle, and the "extent to which Page 463 U. S. 34 such standards will contribute to carrying out the purposes" of the Act. 15 U.S.C. §§ 1392(f)(1), (3), (4). [ Footnote 3 ] The Act also authorizes judicial review under the provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 706, of all "orders establishing, amending, or revoking a Federal motor vehicle safety standard," 15 U.S.C. § 1392(b). Under this authority, we review today whether NHTSA acted arbitrarily and capriciously in revoking the requirement in Motor Vehicle Safety Standard 208 that new motor vehicles produced after September, 1982, be equipped with passive restraints to protect the safety of the occupants of the vehicle in the event of a collision. Briefly summarized, we hold that the agency failed to present an adequate basis and explanation for rescinding the passive restraint requirement, and that the agency must either consider the matter further or adhere to or amend Standard 208 along lines which its analysis supports. I The regulation whose rescission is at issue bears a complex and convoluted history. Over the course of approximately 60 rulemaking notices, the requirement has been imposed, amended, rescinded, reimposed, and now rescinded again. As originally issued by the Department of Transportation in 1967, Standard 208 simply required the installation of seatbelts in all automobiles. 32 Fed.Reg. 2415. It soon became apparent that the level of seatbelt use was too low to reduce traffic injuries to an acceptable level. The Department therefore began consideration of "passive occupant restraint systems" -- devices that do not depend for their effectiveness Page 463 U. S. 35 upon any action taken by the occupant except that necessary to operate the vehicle. Two types of automatic crash protection emerged: automatic seatbelts and airbags. The automatic seatbelt is a traditional safety belt, which, when fastened to the interior of the door, remains attached without impeding entry or exit from the vehicle and deploys automatically without any action on the part of the passenger. The airbag is an inflatable device concealed in the dashboard and steering column. It automatically inflates when a sensor indicates that deceleration forces from an accident have exceeded a preset minimum, then rapidly deflates to dissipate those forces. The lifesaving potential of these devices was immediately recognized, and in 1977, after substantial on-the-road experience with both devices, it was estimated by NHTSA that passive restraints could prevent approximately 12,000 deaths and over 100,000 serious injuries annually. 42 Fed.Reg. 34298. In 1969, the Department formally proposed a standard requiring the installation of passive restraints, 34 Fed.Reg. 11148, thereby commencing a lengthy series of proceedings. In 1970, the agency revised Standard 208 to include passive protection requirements, 35 Fed.Reg. 16927, and in 1972, the agency amended the Standard to require full passive protection for all front seat occupants of vehicles manufactured after August 15, 1975. 37 Fed.Reg. 3911. In the interim, vehicles built between August, 1973, and August, 1975, were to carry either passive restraints or lap and shoulder belts coupled with an "ignition interlock" that would prevent starting the vehicle if the belts were not connected. [ Footnote 4 ] On review, the Page 463 U. S. 36 agency's decision to require passive restraints was found to be supported by "substantial evidence," and upheld. Chrysler Corp. v. Department of Transportation, 472 F.2d 659 (CA6 1972). [ Footnote 5 ] In preparing for the upcoming model year, most car makers chose the "ignition interlock" option, a decision which was highly unpopular and led Congress to amend the Act to prohibit a motor vehicle safety standard from requiring or permitting compliance by means of an ignition interlock or a continuous buzzer designed to indicate that safety belts were not in use. Motor Vehicle and Schoolbus Safety Amendments of 1974, Pub.L. 93-492, § 109, 88 Stat. 1482, 15 U.S.C. § 1410b(b). The 1974 Amendments also provided that any safety standard that could be satisfied by a system other than seatbelts would have to be submitted to Congress, where it could be vetoed by concurrent resolution of both Houses. 15 U.S.C. § 1410b(b)(2). [ Footnote 6 ] The effective date for mandatory passive restraint systems was extended for a year until August 31, 1976. 40 Fed.Reg. 16217 (1975); id. at 33977. But in June, 1976, Secretary of Transportation William T. Coleman, Jr., initiated a new rulemaking on the issue, 41 Fed.Reg. 24070. After hearing testimony and reviewing written comments, Coleman extended the optional alternatives indefinitely and suspended the passive restraint requirement. Although he found passive Page 463 U. S. 37 restraints technologically and economically feasible, the Secretary based his decision on the expectation that there would be widespread public resistance to the new systems. He instead proposed a demonstration project involving up to 500,000 cars installed with passive restraints, in order to smooth the way for public acceptance of mandatory passive restraints at a later date. Department of Transportation, The Secretary's Decision Concerning Motor Vehicle Occupant Crash Protection (Dec. 6, 1976), App. 2068. Coleman's successor as Secretary of Transportation disagreed. Within months of assuming office, Secretary Brock Adams decided that the demonstration project was unnecessary. He issued a new mandatory passive restraint regulation, known as Modified Standard 208. 42 Fed.Reg. 34289 (1977); 49 CFR § 571.208 (1978). The Modified Standard mandated the phasing in of passive restraints beginning with large cars in model year 1982 and extending to all cars by model year 1984. The two principal systems that would satisfy the Standard were airbags and passive belts; the choice of which system to install was left to the manufacturers. In Pacific Legal Foundation v. Department of Transportation, 193 U.S.App.D.C. 184, 593 F.2d 1338, cert. denied, 444 U.S. 830 (1979), the Court of Appeals upheld Modified Standard 208 as a rational, nonarbitrary regulation consistent with the agency's mandate under the Act. The Standard also survived scrutiny by Congress, which did not exercise its authority under the legislative veto provision of the 1974 Amendments. [ Footnote 7 ] Over the next several years, the automobile industry geared up to comply with Modified Standard 208. As late as July, 1980, NHTSA reported: Page 463 U. S. 38 "On-the-road experience in thousands of vehicles equipped with air bags and automatic safety belts has confirmed agency estimates of the life-saving and injury-preventing benefits of such systems. When all cars are equipped with automatic crash protection systems, each year an estimated 9,000 more lives will be saved, and tens of thousands of serious injuries will be prevented." NHTSA, Automobile Occupant Crash Protection, Progress Report No. 3, p. 4; App. in No. 81-2220 (CADC), p. 1627 (hereinafter App.). In February, 1981, however, Secretary of Transportation Andrew Lewis reopened the rulemaking due to changed economic circumstances and, in particular, the difficulties of the automobile industry. 46 Fed.Reg. 12033. Two months later, the agency ordered a one-year delay in the application of the Standard to large cars, extending the deadline to September 1982, id. at 21172, and at the same time, proposed the possible rescission of the entire Standard. Id. at 21205. After receiving written comments and holding public hearings, NHTSA issued a final rule (Notice 25) that rescinded the passive restraint requirement contained in Modified Standard 208. II In a statement explaining the rescission, NHTSA maintained that it was no longer able to find, as it had in 1977, that the automatic restraint requirement would produce significant safety benefits. Notice 25, id. at 53419. This judgment reflected not a change of opinion on the effectiveness of the technology, but a change in plans by the automobile industry. In 1977, the agency had assumed that airbags would be installed in 60% of all new cars and automatic seatbelts in 40%. By 1981, it became apparent that automobile manufacturers planned to install the automatic seatbelts in approximately 99% of the new cars. For this reason, the lifesaving potential of airbags would not be realized. Moreover, it now appeared that the overwhelming majority of passive belts Page 463 U. S. 39 planned to be installed by manufacturers could be detached easily and left that way permanently. Passive belts, once detached, then required "the same type of affirmative action that is the stumbling block to obtaining high usage levels of manual belts." Id. at 53421. For this reason, the agency concluded that there was no longer a basis for reliably predicting that the Standard would lead to any significant increased usage of restraints at all. In view of the possibly minimal safety benefits, the automatic restraint requirement no longer was reasonable or practicable in the agency's view. The requirement would require approximately $1 billion to implement, and the agency did not believe it would be reasonable to impose such substantial costs on manufacturers and consumers without more adequate assurance that sufficient safety benefits would accrue. In addition, NHTSA concluded that automatic restraints might have an adverse effect on the public's attitude toward safety. Given the high expense and limited benefits of detachable belts, NHTSA feared that many consumers would regard the Standard as an instance of ineffective regulation, adversely affecting the public's view of safety regulation and, in particular, "poisoning . . . popular sentiment toward efforts to improve occupant restraint systems in the future." Id. at 53424. State Farm Mutual Automobile Insurance Co. and the National Association of Independent Insurers filed petitions for review of NHTSA's rescission of the passive restraint Standard. The United States Court of Appeals for the District of Columbia Circuit held that the agency's rescission of the passive restraint requirement was arbitrary and capricious. 220 U.S.App.D.C. 170, 680 F.2d 206 (1982). While observing that rescission is not unrelated to an agency's refusal to take action in the first instance, the court concluded that, in this case, NHTSA's discretion to rescind the passive restraint requirement had been restricted by various forms of congressional "reaction" to the passive restraint issue. It then Page 463 U. S. 40 proceeded to find that the rescission of Standard 208 was arbitrary and capricious for three reasons. First, the court found insufficient as a basis for rescission NHTSA's conclusion that it could not reliably predict an increase in belt usage under the Standard. The court held that there was insufficient evidence in the record to sustain NHTSA's position on this issue, and that, "only a well justified refusal to seek more evidence could render rescission non-arbitrary." Id. at 196, 680 F.2d at 232. Second, a majority of the panel [ Footnote 8 ] concluded that NHTSA inadequately considered the possibility of requiring manufacturers to install nondetachable, rather than detachable, passive belts. Third, the majority found that the agency acted arbitrarily and capriciously by failing to give any consideration whatever to requiring compliance with Modified Standard 208 by the installation of airbags. The court allowed NHTSA 30 days in which to submit a schedule for "resolving the questions raised in th[e] opinion." Id. at 206, 680 F.2d at 242. Subsequently, the agency filed a Notice of Proposed Supplemental Rulemaking setting forth a schedule for complying with the court's mandate. On August 4, 1982, the Court of Appeals issued an order staying the compliance date for the passive restraint requirement until September 1, 1983, and requested NHTSA to inform the court whether that compliance date was achievable. NHTSA informed the court on October 1, 1982, that, based on representations by manufacturers, it did not appear that practicable compliance could be achieved before September, 1985. On November 8, 1982, we granted certiorari, 459 U.S. 987, and on November 18, the Court of Appeals entered an order recalling its mandate. III Unlike the Court of Appeals, we do not find the appropriate scope of judicial review to be the "most troublesome Page 463 U. S. 41 question" in these cases. Both the Act and the 1974 Amendments concerning occupant crash protection standards indicate that motor vehicle safety standards are to be promulgated under the informal rulemaking procedures of the Administrative Procedure Act. 5 U.S.C. § 553. The agency's action in promulgating such standards therefore may be set aside if found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 , 401 U. S. 414 (1971); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281 (1974). We believe that the rescission or modification of an occupant protection standard is subject to the same test. Section 103(b) of the Act, 15 U.S.C. § 1392(b), states that the procedural and judicial review provisions of the Administrative Procedure Act "shall apply to all orders establishing, amending, or revoking a Federal motor vehicle safety standard," and suggests no difference in the scope of judicial review depending upon the nature of the agency's action. Petitioner Motor Vehicle Manufacturers Association (MVMA) disagrees, contending that the rescission of an agency rule should be judged by the same standard a court would use to judge an agency's refusal to promulgate a rule in the first place -- a standard petitioner believes considerably narrower than the traditional arbitrary and capricious test. We reject this view. The Act expressly equates orders "revoking" and "establishing" safety standards; neither that Act nor the APA suggests that revocations are to be treated as refusals to promulgate standards. Petitioner's view would render meaningless Congress' authorization for judicial review of orders revoking safety rules. Moreover, the revocation of an extant regulation is substantially different than a failure to act. Revocation constitutes a reversal of the agency's former views as to the proper course. A "settled course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies Page 463 U. S. 42 committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to." Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800 , 412 U. S. 807 -808 (1973). Accordingly, an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance. In so holding, we fully recognize that "[r]egulatory agencies do not establish rules of conduct to last forever," American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. 397 , 387 U. S. 416 (1967), and that an agency must be given ample latitude to "adapt their rules and policies to the demands of changing circumstances." Permian Basin Area Rate Cases, 390 U. S. 747 , 390 U. S. 784 (1968). But the forces of change do not always or necessarily point in the direction of deregulation. In the abstract, there is no more reason to presume that changing circumstances require the rescission of prior action, instead of a revision in or even the extension of current regulation. If Congress established a presumption from which judicial review should start, that presumption -- contrary to petitioners' views -- is not against safety regulation, but against changes in current policy that are not justified by the rulemaking record. While the removal of a regulation may not entail the monetary expenditures and other costs of enacting a new standard, and, accordingly, it may be easier for an agency to justify a deregulatory action, the direction in which an agency chooses to move does not alter the standard of judicial review established by law. The Department of Transportation accepts the applicability of the "arbitrary and capricious" standard. It argues that, under this standard, a reviewing court may not set aside an agency rule that is rational, based on consideration of the relevant factors, and within the scope of the authority delegated to the agency by the statute. We do not disagree with Page 463 U. S. 43 this formulation. [ Footnote 9 ] The scope of review under the "arbitrary and capricious" standard is narrow, and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action, including a "rational connection between the facts found and the choice made." Burlington Truck Lines, Inc. v. United States, 371 U. S. 156 , 371 U. S. 168 (1962). In reviewing that explanation, we must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 419 U. S. 285 ; Citizens to Preserve Overton Park v. Volpe, supra, at 401 U. S. 416 . Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency's action that the agency itself has not given. SEC v. Chenery Corp., 332 U. S. 194 , 332 U. S. 196 (1947). We will, however, "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., supra, at 419 U. S. 286 . See also Camp v. Pitts, 411 U. S. 138 , 411 U. S. 142 -143 (1973) (per curiam). For purposes of these cases, it is also relevant that Congress required a record of the rulemaking proceedings to be compiled Page 463 U. S. 44 and submitted to a reviewing court, 15 U.S.C. § 1394, and intended that agency findings under the Act would be supported by "substantial evidence on the record considered as a whole." S.Rep. No. 1301, 89th Cong., 2d Sess., 8 (1966); H.R.Rep. No. 1776, 89th Cong., 2d Sess., 21 (1966). IV The Court of Appeals correctly found that the arbitrary and capricious test applied to rescissions of prior agency regulations, but then erred in intensifying the scope of its review based upon its reading of legislative events. It held that congressional reaction to various versions of Standard 208 "raise[d] doubts" that NHTSA's rescission "necessarily demonstrates an effort to fulfill its statutory mandate," and therefore the agency was obligated to provide "increasingly clear and convincing reasons" for its action. 220 U.S.App.D.C. at 186, 193, 680 F.2d at 222, 229. Specifically, the Court of Appeals found significance in three legislative occurrences: "In 1974, Congress banned the ignition interlock, but did not foreclose NHTSA's pursuit of a passive restraint standard. In 1977, Congress allowed the standard to take effect when neither of the concurrent resolutions needed for disapproval was passed. In 1980, a majority of each house indicated support for the concept of mandatory passive restraints, and a majority of each house supported the unprecedented attempt to require some installation of airbags." Id. at 192, 680 F.2d at 228. From these legislative acts and nonacts, the Court of Appeals derived a "congressional commitment to the concept of automatic crash protection devices for vehicle occupants." Ibid. This path of analysis was misguided, and the inferences it produced are questionable. It is noteworthy that, in this Court, respondent State Farm expressly agrees that the postenactment legislative history of the Act does not heighten the Page 463 U. S. 45 standard of review of NHTSA's actions. Brief for Respondent State Farm Mutual Automobile Insurance Co. 13. State Farm's concession is well taken, for this Court has never suggested that the standard of review is enlarged or diminished by subsequent congressional action. While an agency's interpretation of a statute may be confirmed or ratified by subsequent congressional failure to change that interpretation, Bob Jones University v. United States, 461 U. S. 574 , 461 U. S. 599 -602 (1983); Haig v. Agee, 453 U. S. 280 , 453 U. S. 291 -300 (1981), in the cases before us, even an unequivocal ratification -- short of statutory incorporation -- of the passive restraint standard would not connote approval or disapproval of an agency's later decision to rescind the regulation. That decision remains subject to the arbitrary and capricious standard. That we should not be so quick to infer a congressional mandate for passive restraints is confirmed by examining the postenactment legislative events cited by the Court of Appeals. Even were we inclined to rely on inchoate legislative action, the inferences to be drawn fail to suggest that NHTSA acted improperly in rescinding Standard 208. First, in 1974, a mandatory passive restraint standard was technically not in effect, see n 6, supra; Congress had no reason to foreclose that course. Moreover, one can hardly infer support for a mandatory standard from Congress' decision to provide that such a regulation would be subject to disapproval by resolutions of disapproval in both Houses. Similarly, no mandate can be divined from the tabling of resolutions of disapproval which were introduced in 1977. The failure of Congress to exercise its veto might reflect legislative deference to the agency's expertise, and does not indicate that Congress would disapprove of the agency's action in 1981. And even if Congress favored the Standard in 1977, it -- like NHTSA -- may well reach a different judgment, given changed circumstances four years later. Finally, the Court of Appeals read too much into floor action on the 1980 authorization bill, a bill which was not enacted into law. Other Page 463 U. S. 46 contemporaneous events could be read as showing equal congressional hostility to passive restraints. [ Footnote 10 ] V The ultimate question before us is whether NHTSA's rescission of the passive restraint requirement of Standard 208 was arbitrary and capricious. We conclude, as did the Court of Appeals, that it was. We also conclude, but for somewhat different reasons, that further consideration of the issue by the agency is therefore required. We deal separately with the rescission as it applies to airbags and as it applies to seatbelts. A The first and most obvious reason for finding the rescission arbitrary and capricious is that NHTSA apparently gave no consideration whatever to modifying the Standard to require that airbag technology be utilized. Standard 208 sought to achieve automatic crash protection by requiring automobile manufacturers to install either of two passive restraint devices: airbags or automatic seatbelts. There was no suggestion in the long rulemaking process that led to Standard 208 that, if only one of these options were feasible, no passive restraint standard should be promulgated. Indeed, the agency's original proposed Standard contemplated the installation of inflatable restraints in all cars. [ Footnote 11 ] Automatic belts Page 463 U. S. 47 were added as a means of complying with the Standard because they were believed to be as effective as airbags in achieving the goal of occupant crash protection. 36 Fed.Reg. 12859 (1971). At that time, the passive belt approved by the agency could not be detached. [ Footnote 12 ] Only later, at a manufacturer's behest, did the agency approve of the detachability feature -- and only after assurances that the feature would not compromise the safety benefits of the restraint. [ Footnote 13 ] Although it was then foreseen that 60% of the new cars would contain airbags and 40% would have automatic seatbelts, the ratio between the two was not significant as long as the passive belt would also assure greater passenger safety. The agency has now determined that the detachable automatic belts will not attain anticipated safety benefits, because so many individuals will detach the mechanism. Even if this conclusion were acceptable in its entirety, see infra, at 463 U. S. 51 -54, standing alone, it would not justify any more than an amendment of Standard 208 to disallow compliance by means of the one technology which will not provide effective passenger protection. It does not cast doubt on the need for a passive restraint standard or upon the efficacy of airbag technology. In its most recent rulemaking, the agency again acknowledged the lifesaving potential of the airbag: Page 463 U. S. 48 "The agency has no basis at this time for changing its earlier conclusions in 1976 and 1977 that basic air bag technology is sound and has been sufficiently demonstrated to be effective in those vehicles in current use. . . ." NHTSA Final Regulatory Impact Analysis (RIA) XI-4 (Oct.1981), App. 264. Given the effectiveness ascribed to airbag technology by the agency, the mandate of the Act to achieve traffic safety would suggest that the logical response to the faults of detachable seatbelts would be to require the installation of airbags. At the very least, this alternative way of achieving the objectives of the Act should have been addressed and adequate reasons given for its abandonment. But the agency not only did not require compliance through airbags, it also did not even consider the possibility in its 1981 rulemaking. Not one sentence of its rulemaking statement discusses the airbags-only option. Because, as the Court of Appeals stated, "NHTSA's . . . analysis of airbags was nonexistent," 220 U.S.App.D.C. at 200, 680 F.2d at 236, what we said in Burlington Truck Lines, Inc. v. United States, 371 U.S. at 371 U. S. 167 , is apropos here: "There are no findings and no analysis here to justify the choice made, no indication of the basis on which the [agency] exercised its expert discretion. We are not prepared to, and the Administrative Procedure Act will not permit us to, accept such . . . practice. . . . Expert discretion is the lifeblood of the administrative process, but" "unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion." " New York v. United States, 342 U. S. 882 , 342 U. S. 884 (dissenting opinion)." (Footnote omitted.) We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner, Page 463 U. S. 49 Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U.S. at 412 U. S. 806 ; FTC v. Sperry & Hutchinson Co., 405 U. S. 233 , 405 U. S. 249 (1972); NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438 , 380 U. S. 443 (1965); and we reaffirm this principle again today. The automobile industry has opted for the passive belt over the airbag, but surely it is not enough that the regulated industry has eschewed a given safety device. For nearly a decade, the automobile industry waged the regulatory equivalent of war against the airbag [ Footnote 14 ] and lost -- the inflatable restraint was proved sufficiently effective. Now the automobile industry has decided to employ a seatbelt system which will not meet the safety objectives of Standard 208. This hardly constitutes cause to revoke the Standard itself. Indeed, the Act was necessary because the industry was not sufficiently responsive to safety concerns. The Act intended that safety standards not depend on current technology, and could be "technology-forcing" in the sense of inducing the development of superior safety design. See Chrysler Corp. v. Department of Transportation, 472 F.2d at 672-673. If, under the statute, the agency should not defer to the industry's failure to develop safer cars, which it surely should not do, a fortiori it may not revoke a safety standard which can be satisfied by current technology simply because the industry has opted for an ineffective seatbelt design. Although the agency did not address the mandatory airbag option and the Court of Appeals noted that "airbags seem to have none of the problems that NHTSA identified in passive seatbelts," 220 U.S.App.D.C. at 201, 680 F.2d at 237, petitioners recite a number of difficulties that they Page 463 U. S. 50 believe would be posed by a mandatory airbag standard. These range from questions concerning the installation of airbags in small cars to that of adverse public reaction. But these are not the agency's reasons for rejecting a mandatory airbag standard. Not having discussed the possibility, the agency submitted no reasons at all. The short -- and sufficient -- answer to petitioners' submission is that the courts may not accept appellate counsel's post hoc rationalizations for agency action. Burlington Truck Lines, Inc. v. United States, 371 U.S. at 371 U. S. 168 . It is well established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself. Ibid.; SEC v. Chenery Corp., 332 U.S. at 332 U. S. 196 ; American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490 , 452 U. S. 539 (1981). [ Footnote 15 ] Petitioners also invoke our decision in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), as though it were a talisman under which any agency decision is by definition unimpeachable. Specifically, it is submitted that to require an agency to consider an airbags-only alternative is, in essence, to dictate to the agency the procedures it is to follow. Petitioners both misread Vermont Yankee and misconstrue the nature of the remand that is in order. In Vermont Yankee, we held that a court may not impose additional procedural requirements upon an agency. We do not require today any specific procedures Page 463 U. S. 51 which NHTSA must follow. Nor do we broadly require an agency to consider all policy alternatives in reaching decision. It is true that rulemaking "cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man . . . regardless of how uncommon or unknown that alternative may have been. . . ." Id. at 435 U. S. 551 . But the airbag is more than a policy alternative to the passive restraint Standard; it is a technological alternative within the ambit of the existing Standard. We hold only that, given the judgment made in 1977 that airbags are an effective and cost-beneficial lifesaving technology, the mandatory passive restraint rule may not be abandoned without any consideration whatsoever of an airbags-only requirement. B Although the issue is closer, we also find that the agency was too quick to dismiss the safety benefits of automatic seatbelts. NHTSA's critical finding was that, in light of the industry's plans to install readily detachable passive belts, it could not reliably predict "even a 5 percentage point increase as the minimum level of expected usage increase." 46 Fed.Reg. 53423 (1981). The Court of Appeals rejected this finding because there is "not one iota" of evidence that Modified Standard 208 will fail to increase nationwide seatbelt use by at least 13 percentage points, the level of increased usage necessary for the Standard to justify its cost. Given the lack of probative evidence, the court held that "only a well justified refusal to seek more evidence could render rescission nonarbitrary." 220 U.S.App.D.C. at 196, 680 F.2d at 232. Petitioners object to this conclusion. In their view, "substantial uncertainty" that a regulation will accomplish its intended purpose is sufficient reason, without more, to rescind a regulation. We agree with petitioners that, just as an agency reasonably may decline to issue a safety standard if it is uncertain about its efficacy, an agency may also revoke a Page 463 U. S. 52 standard on the basis of serious uncertainties if supported by the record and reasonably explained. Rescission of the passive restraint requirement would not be arbitrary and capricious simply because there was no evidence in direct support of the agency's conclusion. It is not infrequent that the available data do not settle a regulatory issue, and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion. Recognizing that policymaking in a complex society must account for uncertainty, however, does not imply that it is sufficient for an agency to merely recite the terms "substantial uncertainty" as a justification for its actions. As previously noted, the agency must explain the evidence which is available, and must offer a "rational connection between the facts found and the choice made." Burlington Truck Lines, Inc. v. United States, supra, at 371 U. S. 168 . Generally, one aspect of that explanation would be a justification for rescinding the regulation before engaging in a search for further evidence. In these cases, the agency's explanation for rescission of the passive restraint requirement is not sufficient to enable us to conclude that the rescission was the product of reasoned decisionmaking. To reach this conclusion, we do not upset the agency's view of the facts, but we do appreciate the limitations of this record in supporting the agency's decision. We start with the accepted ground that, if used, seatbelts unquestionably would save many thousands of lives and would prevent tens of thousands of crippling injuries. Unlike recent regulatory decisions we have reviewed, Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607 (1980); American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490 (1981), the safety benefits of wearing seatbelts are not in doubt, and it is not challenged that, were those benefits to accrue, the monetary costs of implementing the Standard would be easily justified. We move next to the fact that there is no direct evidence in support of the agency's finding that detachable automatic belts cannot be predicted Page 463 U. S. 53 to yield a substantial increase in usage. The empirical evidence on the record, consisting of surveys of drivers of automobiles equipped with passive belts, reveals more than a doubling of the usage rate experienced with manual belts. [ Footnote 16 ] Much of the agency's rulemaking statement -- and much of the controversy in these cases -- centers on the conclusions that should be drawn from these studies. The agency maintained that the doubling of seatbelt usage in these studies could not be extrapolated to an across-the-board mandatory standard because the passive seatbelts were guarded by ignition interlocks and purchasers of the tested cars are somewhat atypical. [ Footnote 17 ] Respondents insist these studies demonstrate that Modified Standard 208 will substantially increase seatbelt usage. We believe that it is within the agency's discretion to pass upon the generalizability of these field studies. This is precisely the type of issue which rests within the expertise of NHTSA, and upon which a reviewing court must be most hesitant to intrude. But accepting the agency's view of the field tests on passive restraints indicates only that there is no reliable real-world experience that usage rates will substantially increase. To be sure, NHTSA opines that "it cannot reliably predict even a 5 percentage point increase as the minimum level of Page 463 U. S. 54 expected increased usage." Notice 25, 46 Fed.Reg. 53423 (1981). But this and other statements that passive belts will not yield substantial increases in seatbelt usage apparently take no account of the critical difference between detachable automatic belts and current manual belts. A detached passive belt does require an affirmative act to reconnect it, but -- unlike a manual seatbelt -- the passive belt, once reattached, will continue to function automatically unless again disconnected. Thus, inertia -- a factor which the agency's own studies have found significant in explaining the current low usage rates for seatbelts [ Footnote 18 ] -- works in favor of, not against, use of the protective device. Since 20% to 50% of motorists currently wear seatbelts on some occasions, [ Footnote 19 ] there would seem to be grounds to believe that seatbelt use by occasional users will be substantially increased by the detachable passive belts. Whether this is in fact the case is a matter for the agency to decide, but it must bring its expertise to bear on the question. The agency is correct to look at the costs as well as the benefits of Standard 208. The agency's conclusion that the incremental costs of the requirements were no longer reasonable was predicated on its prediction that the safety benefits of the regulation might be minimal. Specifically, the Page 463 U. S. 55 agency's fears that the public may resent paying more for the automatic belt systems is expressly dependent on the assumption that detachable automatic belts will not produce more than "negligible safety benefits." Id. at 53424. When the agency reexamines its findings as to the likely increase in seatbelt usage, it must also reconsider its judgment of the reasonableness of the monetary and other costs associated with the Standard. In reaching its judgment, NHTSA should bear in mind that Congress intended safety to be the preeminent factor under the Act: "The Committee intends that safety shall be the overriding consideration in the issuance of standards under this bill. The Committee recognizes . . . that the Secretary will necessarily consider reasonableness of cost, feasibility and adequate leadtime." S.Rep. No. 1301, 89th Cong., 2d Sess., 6 (1966). "In establishing standards, the Secretary must conform to the requirement that the standard be practicable. This would require consideration of all relevant factors, including technological ability to achieve the goal of a particular standard as well as consideration of economic factors." "Motor vehicle safety is the paramount purpose of this bill, and each standard must be related thereto." H.R.Rep. No. 1776, 89th Cong., 2d Sess., 16 (1966). The agency also failed to articulate a basis for not requiring nondetachable belts under Standard 208. It is argued that the concern of the agency with the easy detachability of the currently favored design would be readily solved by a continuous passive belt, which allows the occupant to "spool out" the belt and create the necessary slack for easy extrication from the vehicle. The agency did not separately consider the continuous belt option, but treated it together with the ignition interlock device in a category it titled "Option of Adopting Use-Compelling Features." 46 Fed.Reg. 53424 Page 463 U. S. 56 (1981). The agency was concerned that use-compelling devices would "complicate the extrication of [an] occupant from his or her car." Ibid. "[T]o require that passive belts contain use-compelling features," the agency observed, "could be counterproductive[, given] . . . widespread, latent and irrational fear in many members of the public that they could be trapped by the seat belt after a crash." Ibid. In addition, based on the experience with the ignition interlock, the agency feared that use-compelling features might trigger adverse public reaction. By failing to analyze the continuous seatbelts option in its own right, the agency has failed to offer the rational connection between facts and judgment required to pass muster under the arbitrary and capricious standard. We agree with the Court of Appeals that NHTSA did not suggest that the emergency release mechanisms used in nondetachable belts are any less effective for emergency egress than the buckle release system used in detachable belts. In 1978, when General Motors obtained the agency's approval to install a continuous passive belt, it assured the agency that nondetachable belts with spool releases were as safe as detachable belts with buckle releases. 43 Fed.Reg. 21912, 21913-21914 (1978). NHTSA was satisfied that this belt design assured easy extricability: "[t]he agency does not believe that the use of [such] release mechanisms will cause serious occupant egress problems. . . ." Id. at 52493, 52494. While the agency is entitled to change its view on the acceptability of continuous passive belts, it is obligated to explain its reasons for doing so. The agency also failed to offer any explanation why a continuous passive belt would engender the same adverse public reaction as the ignition interlock, and, as the Court of Appeals concluded, "every indication in the record points the other way." 220 U.S.App.D.C. at 198, 80 F.2d at 234. [ Footnote 20 ] Page 463 U. S. 57 We see no basis for equating the two devices: the continuous belt, unlike the ignition interlock, does not interfere with the operation of the vehicle. More importantly, it is the agency's responsibility, not this Court's, to explain its decision. VI "An agency's view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis. . . ." Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 394, 444 F.2d 841, 852 (1970) (footnote omitted), cert. denied, 403 U.S. 923 (1971). We do not accept all of the reasoning of the Court of Appeals, but we do conclude that the agency has failed to supply the requisite "reasoned analysis" in this case. Accordingly, we vacate the judgment of the Court of Appeals and remand the cases to that court with directions to remand the matter to the NHTSA for further consideration consistent with this opinion. [ Footnote 21 ] So ordered. * Together with No. 82-365, Consumer Alert et al. v. State Farm Mutual Automobile Insurance Co. et al.; and No. 82-398, United States Department of Transportation et al. v. State Farm Mutual Automobile Insurance Co. et al., also on certiorari to the same court. [ Footnote 1 ] National Safety Council, 1982 Motor Vehicle Deaths By States (May 16, 1983). [ Footnote 2 ] The Senate Committee on Commerce reported: "The promotion of motor vehicle safety through voluntary standards has largely failed. The unconditional imposition of mandatory standards at the earliest practicable date is the only course commensurate with the highway death and injury toll." S. Rep. No. 1301, 89th Cong., 2d Sess., 4 (1966). [ Footnote 3 ] The Secretary's general authority to promulgate safety standards under the Act has been delegated to the Administrator of the National Highway Traffic Safety Administration (NHTSA). 49 CFR § 1.50(a) (1982). This opinion will use the terms NHTSA and agency interchangeably when referring to the National Highway Traffic Safety Administration, the Department of Transportation, and the Secretary of Transportation. [ Footnote 4 ] Early in the process, it was assumed that passive occupant protection meant the installation of inflatable airbag restraint systems. See 34 Fed.Reg. 11148 (1969). In 1971, however, the agency observed that "[s]ome belt-based concepts have been advanced that appear to be capable of meeting the complete passive protection options," leading it to add a new section to the proposed standard "[t]o deal expressly with passive belts." 36 Fed.Reg. 12859. [ Footnote 5 ] The court did hold that the testing procedures required of passive belts did not satisfy the Act's requirement that standards be "objective." 472 F.2d at 675. [ Footnote 6 ] Because such a passive restraint standard was not technically in effect at this time due to the Sixth Circuit's invalidation of the testing requirements, see n 5, supra, the issue was not submitted to Congress until a passive restraint requirement was reimposed by Secretary Adams in 1977. To comply with the Amendments, NHTSA proposed new warning systems to replace the prohibited continuous buzzers. 39 Fed.Reg. 42692 (1974). More significantly, NHTSA was forced to rethink an earlier decision which contemplated use of the interlocks in tandem with detachable belts. See n 13, infra. [ Footnote 7 ] No action was taken by the full House of Representatives. The Senate Committee with jurisdiction over NHTSA alternatively endorsed the Standard, S.Rep. No. 96-481 (1977), and a resolution of disapproval was tabled by the Senate. 123 Cong.Rec. 33332 (1977). [ Footnote 8 ] Judge Edwards did not join the majority's reasoning on these points. [ Footnote 9 ] The Department of Transportation suggests that the arbitrary and capricious standard requires no more than the minimum rationality a statute must bear in order to withstand analysis under the Due Process Clause. We do not view as equivalent the presumption of constitutionality afforded legislation drafted by Congress and the presumption of regularity afforded an agency in fulfilling its statutory mandate. [ Footnote 10 ] For example, an overwhelming majority of the Members of the House of Representatives voted in favor of a proposal to bar NHTSA from spending funds to administer an occupant restraint standard unless the standard permitted the purchaser of the vehicle to select manual, rather than passive, restraints. 125 Cong.Rec. 36926 (1979). [ Footnote 11 ] While NHTSA's 1970 passive restraint requirement permitted compliance by means other than the airbag, 35 Fed.Reg. 16927, "[t]his rule was a de facto air bag mandate, since no other technologies were available to comply with the standard." Graham & Gorham, NHTSA and Passive Restraints: A Case of Arbitrary and Capricious Deregulation, 35 Ad.L.Rev.193, 197 (1983). See n 4, supra. [ Footnote 12 ] Although the agency suggested that passive restraint systems contain an emergency release mechanism to allow easy extrication of passengers in the event of an accident, the agency cautioned that, "[i]n the case of passive safety belts, it would be required that the release not cause belt separation, and that the system be self-restoring after operation of the release." 36 Fed.Reg. 12866 (1971). [ Footnote 13 ] In April, 1974, NHTSA adopted the suggestion of an automobile manufacturer that emergency release of passive belts be accomplished by a conventional latch -- provided the restraint system was guarded by an ignition interlock and warning buzzer to encourage reattachment of the passive belt. 39 Fed.Reg. 14593. When the 1974 Amendments prohibited these devices, the agency simply eliminated the interlock and buzzer requirements, but continued to allow compliance by a detachable passive belt. [ Footnote 14 ] See, e.g., Comments of Chrysler Corp., Docket No. 69-07, Notice 11 (Aug. 5, 1971) (App. 2491); Chrysler Corp. Memorandum on Proposed Alternative Changes to FMVSS 208, Docket No. 44, Notice 76-8 (1976) (App. 2241); General Motor Corp. Response to the Dept. of Transportation Proposal on Occupant Crash Protection, Docket No. 74-14, Notice 08 (May 27, 1977) (App. 1745). See also Chrysler Corp. v. Department of Transportation, 472 F.2d 659 (CA6 1972). [ Footnote 15 ] The Department of Transportation expresses concern that adoption of an airbags-only requirement would have required a new notice of proposed rulemaking. Even if this were so, and we need not decide the question, it would not constitute sufficient cause to rescind the passive restraint requirement. The Department also asserts that it was reasonable to withdraw the requirement as written to avoid forcing manufacturers to spend resources to comply with an ineffective safety initiative. We think that it would have been permissible for the agency to temporarily suspend the passive restraint requirement or to delay its implementation date while an airbag mandate was studied. But, as we explain in text, that option had to be considered before the passive restraint requirement could be revoked. [ Footnote 16 ] Between 1975 and 1980, Volkswagen sold approximately 350,000 Rabbits equipped with detachable passive seatbelts that were guarded by an ignition interlock. General Motors sold 8,000 1978 and 1979 Chevettes with a similar system, but eliminated the ignition interlock on the 13,000 Chevettes sold in 1980. NHTSA found that belt usage in the Rabbits averaged 34% for manual belts and 84% for passive belts. RIA at IV-52, App. 108. For the 1978-1979 Chevettes, NHTSA calculated 34% usage for manual belts and 72% for passive belts. On 1980 Chevettes, the agency found these figures to be 31% for manual belts and 70% for passive belts. Ibid. [ Footnote 17 ] "NHTSA believes that the usage of automatic belts in Rabbits and Chevettes would have been substantially lower if the automatic belts in those cars were not equipped with a use-inducing device inhibiting detachment." Notice 25, 46 Fed.Reg. 53422 (1981). [ Footnote 18 ] NHTSA commissioned a number of surveys of public attitudes in an effort to better understand why people were not using manual belts and to determine how they would react to passive restraints. The surveys reveal that, while 20% to 40% of the public is opposed to wearing manual belts, the larger proportion of the population does not wear belts because they forgot or found manual belts inconvenient or bothersome. RIA at IV-25, App. 81. In another survey, 38% of the surveyed group responded that they would welcome automatic belts, and 25% would "tolerate" them. See RIA at IV-37, App. 93. NHTSA did not comment upon these attitude surveys in its explanation accompanying the rescission of the passive restraint requirement. [ Footnote 19 ] Four surveys of manual belt usage were conducted for NHTSA between 1978 and 1980, leading the agency to report that 40% to 50% of the people use their belts at least some of the time. RIA at IV-25, App. 81. [ Footnote 20 ] The Court of Appeals noted previous agency statements distinguishing interlocks from passive restraints. 42 Fed.Reg. 34290 (1977); 36 Fed.Reg. 8296 (1971); RIA at II-4, App. 30. [ Footnote 21 ] Petitioners construe the Court of Appeals' order of August 4, 1982, as setting an implementation date for Standard 208, in violation of Vermont Yankee's injunction against imposing such time constraints. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 , 435 U. S. 544 -545 (1978). Respondents maintain that the Court of Appeals simply stayed the effective date of Standard 208, which, not having been validly rescinded, would have required mandatory passive restraints for new cars after September 1, 1982. We need not choose between these views, because the agency had sufficient justification to suspend, although not to rescind, Standard 208, pending the further consideration required by the Court of Appeals, and now, by us. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE O'CONNOR join, concurring in part and dissenting in part. I join Parts I, II, III, IV, and V-A of the Court's opinion. In particular, I agree that, since the airbag and continuous Page 463 U. S. 58 spool automatic seatbelt were explicitly approved in the Standard the agency was rescinding, the agency should explain why it declined to leave those requirements intact. In this case, the agency gave no explanation at all. Of course, if the agency can provide a rational explanation, it may adhere to its decision to rescind the entire Standard. I do not believe, however, that NHTSA's view of detachable automatic seatbelts was arbitrary and capricious. The agency adequately explained its decision to rescind the Standard insofar as it was satisfied by detachable belts. The statute that requires the Secretary of Transportation to issue motor vehicle safety standards also requires that "[e]ach such . . . standard shall be practicable [and] shall meet the need for motor vehicle safety." 16 U.S.C. § 1392(a) (1976 ed., Supp. V). The Court rejects the agency's explanation for its conclusion that there is substantial uncertainty whether requiring installation of detachable automatic belts would substantially increase seatbelt usage. The agency chose not to rely on a study showing a substantial increase in seatbelt usage in cars equipped with automatic seatbelts and an ignition interlock to prevent the car from being operated when the belts were not in place and which were voluntarily purchased with this equipment by consumers. See ante at 463 U. S. 53 , n. 16. It is reasonable for the agency to decide that this study does not support any conclusion concerning the effect of automatic seatbelts that are installed in all cars, whether the consumer wants them or not, and are not linked to an ignition interlock system. The Court rejects this explanation because "there would seem to be grounds to believe that seatbelt use by occasional users will be substantially increased by the detachable passive belts," ante at 463 U. S. 54 , and the agency did not adequately explain its rejection of these grounds. It seems to me that the agency's explanation, while by no means a model, is adequate. The agency acknowledged that there would probably be some increase in belt usage, but concluded that the increase would be small, and not worth the cost of mandatory Page 463 U. S. 59 detachable automatic belts. 46 Fed.Reg. 53421-53423 (1981). The agency's obligation is to articulate a " rational connection between the facts found and the choice made.'" Ante at 463 U. S. 42 , 463 U. S. 52 , quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156 , 371 U. S. 168 (1962). I believe it has met this standard. The agency explicitly stated that it will increase its educational efforts in an attempt to promote public understanding, acceptance, and use of passenger restraint systems. 46 Fed.Reg. 53425 (1981). It also stated that it will "initiate efforts with automobile manufacturers to ensure that the public will have [automatic crash protection] technology available. If this does not succeed, the agency will consider regulatory action to assure that the last decade's enormous advances in crash protection technology will not be lost." Id. at 53426. The agency's changed view of the standard seems to be related to the election of a new President of a different political party. It is readily apparent that the responsible members of one administration may consider public resistance and uncertainties to be more important than do their counterparts in a previous administration. A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress,* it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration. * Of course, a new administration may not refuse to enforce laws of which it does not approve, or to ignore statutory standards in carrying out its regulatory functions. But in this case, as the Court correctly concludes, ante at 463 U. S. 44 -46, Congress has not required the agency to require passive restraints.

The U.S. Supreme Court case, Motor Veh. Mfrs. Ass'n v. State Farm Ins. (1983), centered around the National Traffic and Motor Vehicle Safety Act of 1966, which directed the Secretary of Transportation to issue practical motor vehicle safety standards. The National Highway Traffic Safety Administration (NHTSA) rescinded the requirement for new vehicles to have passive restraints (automatic seatbelts or airbags) after finding that the benefits were limited and outweighed by high implementation costs. The Court of Appeals deemed this rescission arbitrary, but the Supreme Court disagreed, stating that NHTSA provided a rational explanation for its decision, including promoting educational efforts and working with manufacturers to ensure the availability of crash protection technology. The case also highlighted the role of administration changes in reassessing regulations, as long as they stay within congressional bounds.

Government Agencies

Chrysler Corp. v. Brown

https://supreme.justia.com/cases/federal/us/441/281/

U.S. Supreme Court Chrysler Corp. v. Brown, 441 U.S. 281 (1979) Chrysler Corp. v. Brown No. 77-922 Argued November 8, 1978 Decided April 18, 1979 441 U.S. 281 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Petitioner, as a party to numerous Government contracts, was required to comply with Executive Orders 11246 and 11375, which charge the Secretary of Labor with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex. Regulations promulgated by the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) require Government contractors to furnish reports about their affirmative action programs and the general composition of their workforces, and provide that, notwithstanding exemption from mandatory disclosure under the Freedom of Information Act (FOIA), records obtained pursuant to Executive Order 11246 shall be made available for inspection if it is determined that the requested inspection furthers the public interest and does not impede agency functions, except in the case of records disclosure of which is prohibited by law. After the Department of Defense's Defense Logistics Agency (DLA), the designated compliance agency responsible for monitoring petitioner's employment practices, informed petitioner that third parties had made an FOIA request for disclosure of certain materials that had been furnished to the DLA by petitioner, petitioner objected to release of the materials. The DLA determined that the materials were subject to disclosure under the FOIA and OFCCP disclosure rules, and petitioner then filed a complaint in the Federal District Court seeking to enjoin release of the documents. Petitioner contended, inter alia, that disclosure was barred by the FOIA and was inconsistent with the Trade Secrets Act, 18 U.S.C. § 1905, which imposes criminal sanctions on Government employees who disclose or make known, in any manner or to any extent "not authorized by law," certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. Finding jurisdiction to subject the disclosure decision to review under the Administrative Procedure Act (APA), the District Court held that certain of the requested information fell within Exemption 4 of the FOIA, relating to trade secrets and commercial or financial information; that whether the requested information may or must be withheld thus Page 441 U. S. 282 depended on applicable agency regulations; and that, here, a regulation (29 CFR § 70.21(a) (1977)) which states that no officer or employee of the Department of Labor is to violate 18 U.S.C. § 1905, and which proscribes specified disclosures if "not authorized by law," required that the information be withheld. Both sides appealed, and the Court of Appeals vacated the District Court's judgment. While agreeing with the District Court that the FOIA does not compel withholding of information that falls within its exemptions, and that analysis must proceed under the APA, the Court of Appeals reached a different conclusion as to the interpretation of 29 CFR § 70.21(a). In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations. Held: 1. The FOIA is exclusively a disclosure statute, and affords petitioner no private right of action to enjoin agency disclosure. The language, logic, and history of the FOIA show that its provisions exempting specified material from disclosure were only meant to permit the agency to withhold certain information, and were not meant to mandate nondisclosure. Congressional concern was with the agency's need or preference for confidentiality; the FOIA, by itself, protects the interest in confidentiality of private entities submitting information only to the extent that this interest is endorsed by the agency collecting the information. Pp. 441 U. S. 290 -294. 2. The type of disclosure threatened in this case is not "authorized by law" within the meaning of the Trade Secrets Act on the theory that the OFCCP regulations relied on by DLA were the source of that authorization. Pp. 441 U. S. 295 -316. (a) The Act addresses formal agency action as well as acts of individual Government employees, and there is nothing in its legislative history to show that Congress intended the phrase "authorized by law" to have a special, limited meaning different from the traditional understanding that properly promulgated, substantive agency regulations have the "force and effect of law." In order for a regulation to have the "force and effect of law," it must be a "substantive" or "legislative-type" rule affecting individual rights and obligations (as do the regulations in the case at bar), and it must be the product of a congressional grant of legislative authority, promulgated in conformity with any procedural requirements imposed by Congress. Pp. 441 U. S. 295 -303. (b) The disclosure regulations at issue in this case cannot be based on § 201 of Executive Order 11246, as amended, and a regulation which permits units in the Department of Labor to promulgate supplemental Page 441 U. S. 283 disclosure regulations consistent with the FOIA. Since materials that are exempt from disclosure under the FOIA are outside the ambit of that Act, the Government cannot rely on the FOIA as congressional authorization for disclosure regulations that permit the release of information within the Act's exemptions. In order for regulations adopted under § 201 of Executive Order 11246 -- which speaks in terms of rules and regulations "necessary and appropriate" to achieve the Executive Order's purposes of ending discrimination by the Federal Government and those who deal with it -- to have the "force and effect of law," there must be a nexus between the regulations and some delegation of the requisite legislative authority by Congress. When Congress enacted statutes which arguably authorized the Executive Order (the Federal Property and Administration Services Act of 1949, Titles VI and VII of the Civil Rights Act of 1964, and the Equal Employment Opportunity Act of 1972), it was not concerned with public disclosure of trade secrets or confidential business information, and it is not possible to find in these statutes a delegation of the disclosure authority asserted by the Government here. Also, one cannot readily pull from the logic and purposes of the Executive Order any concern with the public's access to information in Government files or the importance of protecting trade secrets or confidential business statistics. Pp. 441 U. S. 303 -308. (c) Legislative authority for the OFCCP disclosure regulations cannot be found in 5 U.S.C. § 301, which authorizes heads of Government departments to prescribe regulations to govern internal departmental affairs and the custody and use of its records, and which provides that it does not authorize withholding information from the public or limiting the availability of records to the public. Section 301 is a "housekeeping statute," authorizing rules of agency organization, procedure, or practice as opposed to "substantive rules." There is nothing in the legislative history to indicate that § 301 is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information. Thus, § 301 does not authorize regulations limiting the scope of the Trade Secrets Act. Pp. 308-312. (d) There is also a procedural defect in the OFCCP disclosure regulations that precludes courts from affording them the force and effect of law, since they were promulgated as "interpretative rules" without complying with the APA's requirement that interested persons be given general notice of an agency's proposed rulemaking and an opportunity to comment before a "substantive rule" is promulgated. An "interpretative regulation" cannot be the "authoriz[ation] by law" required by the Trade Secrets Act. Pp. 441 U. S. 312 -316. Page 441 U. S. 284 3. However, the Trade Secrets Act does not afford a private right of action to enjoin disclosure in violation of the statute. Where this Court has implied a private right of action under a criminal statute, "there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone." Cort v. Ash, 422 U. S. 66 , 422 U. S. 79 . Nothing in the Trade Secrets Act prompts such an inference; nor is there any indication of legislative intent to create a private right of action. Most importantly, a private right of action under the Act is not necessary to make effective the congressional purpose, since review of DLA's decision to disclose petitioner's employment data is available under the APA. Pp. 441 U. S. 316 -317. 4. Since the Trade Secrets Act and any "authoriz[ation] by law" contemplated by that Act place substantive limits on agency action, DLA's decision to disclose petitioner's reports is reviewable agency action, and petitioner is a person "adversely affected or aggrieved" within the meaning of the APA's provision affording the right of judicial review of agency action to such a person. Because the Court of Appeals did not reach the issue whether disclosure of petitioner's documents was barred by the Trade Secrets Act, the case is remanded in order that the Court of Appeals may consider whether the contemplated disclosures would violate the Act. Pp. 441 U. S. 317 -319. 565 F.2d 1172, vacated and remanded. REHNQUIST, J., delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, post, p. 441 U. S. 319 . Page 441 U. S. 285 MR. JUSTICE REHNQUIST delivered the opinion of the Court. The expanding range of federal regulatory activity and growth in the Government sector of the economy have increased federal agencies' demands for information about the activities of private individuals and corporations. These developments have paralleled a related concern about secrecy in Government and abuse of power. The Freedom of Information Act (hereinafter FOIA) was a response to this concern, but it has also had a largely unforeseen tendency to exacerbate the uneasiness of those who comply with governmental demands for information. For, under the FOIA, third parties have been able to obtain Government files containing information submitted by corporations and individuals who thought that the information would be held in confidence. This case belongs to a class that has been popularly denominated "reverse-FOIA" suits. The Chrysler Corp. (hereinafter Chrysler) seeks to enjoin agency disclosure on the grounds that it is inconsistent with the FOIA and 18 U.S.C. § 1905, a criminal statute with origins in the 19th century that proscribes disclosure of certain classes of business and personal information. We agree with the Court of Appeals for the Third Circuit that the FOIA is purely a disclosure statute. and affords Chrysler no private right of action to enjoin agency disclosure. But we cannot agree with that court's conclusion that this disclosure is "authorized by law" within the meaning of § 1905. Therefore, we vacate the Court of Appeals' judgment and remand so that it can consider Page 441 U. S. 286 whether the documents at issue in this case fall within the terms of § 1905. I As a party to numerous Government contracts, Chrysler is required to comply with Executive Orders 1146 and 11375, which charge the Secretary of Labor with ensuring that corporations that benefit from Government contracts provide equal employment opportunity regardless of race or sex. [ Footnote 1 ] The United States Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has promulgated regulations which require Government contractors to furnish reports and other information about their affirmative action programs and the general composition of their workforces. [ Footnote 2 ] The Defense Logistics Agency (DLA) (formerly the Defense Supply Agency) of the Department of Defense is the designated compliance agency responsible for monitoring Chrysler's employment practices. [ Footnote 3 ] OFCCP regulations require that Chrysler make available to this agency written affirmative action programs (AAP's) and annually submit Employer Information Reports, known as EEO-1 Reports. The agency may also conduct "compliance reviews" and "complaint investigations," which culminate in Compliance Review Reports (CRR's) and Complaint Investigation Reports (CIR's), respectively. [ Footnote 4 ] Page 441 U. S. 287 Regulations promulgated by the Secretary of Labor provide for public disclosure of information from records of the OFCCP and its compliance agencies. Those regulations state that, notwithstanding exemption from mandatory disclosure under the FOIA, 5 U.S.C. § 552, "records obtained or generated pursuant to Executive Order 11246 (as amended) . . . shall be made available for inspection and copying . . . if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC[P] or the Compliance Agencies except in the case of records disclosure of which is prohibited by law. [ Footnote 5 ]" It is the voluntary disclosure contemplated by this regulation, over and above that mandated by the FOIA, which is the gravamen of Chrysler's complaint in this case. This controversy began on May 14, 1975, when the DLA informed Chrysler that third parties had made an FOIA request for disclosure of the 1974 AAP for Chrysler's Newark, Del., assembly plant and an October, 1974, CIR for the same facility. Nine days later, Chrysler objected to release of the requested information, relying on OFCCP's disclosure regulations and on exemptions to the FOIA. Chrysler also requested a copy of the CIR, since it had never seen it. DLA responded the following week that it had determined that the requested material was subject to disclosure under the FOIA and the OFCCP disclosure rules, and that both documents would be released five days later. On the day the documents were to be released, Chrysler filed a complaint in the United States District Court for Delaware Page 441 U. S. 288 seeking to enjoin release of the Newark documents. The District Court granted a temporary restraining order barring disclosure of the Newark documents and requiring that DLA give five days' notice to Chrysler before releasing any similar documents. Pursuant to this order, Chrysler was informed on July 1, 1975, that DLA had received a similar request for information about Chrysler's Hamtramek, Mich., plant. Chrysler amended its complaint and obtained a restraining order with regard to the Hamtramek disclosure as well. Chrysler made three arguments in support of its prayer for an injunction: that disclosure was barred by the FOIA; that it was inconsistent with 18 U.S.C. § 1905, 42 U.S.C. § 2000e-8(e), and 44 U.S.C. § 350, which, for ease of reference, will be referred to as the "confidentiality statutes"; and finally that disclosure was an abuse of agency discretion insofar as it conflicted with OFCCP rules. The District Court held that it had jurisdiction under 28 U.S.C. § 1331 to subject the disclosure decision to review under the Administrative Procedure Act (APA). 5 U.S.C. §§ 701-706. It conducted a trial de novo on all of Chrysler's claims; both sides presented extensive expert testimony during August, 1975. On April 20, 1976, the District Court issued its opinion. It held that certain of the requested information, the "manning" tables, fell within Exemption 4 of the FOIA. [ Footnote 6 ] The District Court reasoned from this holding that the tables may or must be withheld, depending on applicable agency regulations, and that, here, a governing regulation required that the information be withheld. Pursuant to 5 U.S.C. § 301, the enabling statute which gives federal department heads control over department records, the Secretary of Labor has promulgated a regulation, 29 CFR § 70.21(a) (1978), stating that no officer or employee of the Department is to violate 18 U.S.C. § 1905. That section imposes criminal sanctions on Government employees Page 441 U. S. 289 who make unauthorized disclosure of certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. In essence, the District Court read § 1905 as not merely a prohibition of unauthorized disclosure of sensitive information by Government employees, but as a restriction on official agency actions taken pursuant to promulgated regulations. Both sides appealed, and the Court of Appeals for the Third Circuit vacated the District Court's judgment. Chrysler Corp. v. Schlesinger, 565 F.2d 1172 (1977). It agreed with the District Court that the FOIA does not compel withholding of information that falls within its nine exemptions. It also, like the District Court, rejected Chrysler's reliance on the confidentiality statutes, either because there was no implied private right of action to proceed under the statute or because the statute, by its terms, was not applicable to the information at issue in this case. It agreed with the District Court that analysis must proceed under the APA. But it disagreed with that court's interpretation of 29 CFR § 70.21(a). By the terms of that regulation, the specified disclosures are only proscribed if "not authorized by law," the standard of 18 U.S.C. § 1905. In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations. Therefore, it held that 29 CFR § 70.21(a) was inapplicable. The Court of Appeals also disagreed with the District Court's view of the scope of review under the APA. It held that the District Court erred in conducting a de novo review; review should have been limited to the agency record. However, the Court of Appeals found that record inadequate in this case, and directed that the District Court remand to the agency for supplementation. Because of a conflict in the Circuits [ Footnote 7 ] and the general importance of these "reverse-FOIA" Page 441 U. S. 290 cases, we granted certiorari, 435 U.S. 914, and now vacate the judgment of the Third Circuit and remand for further proceedings. II We have decided a number of FOIA cases in the last few years. [ Footnote 8 ] Although we have not had to face squarely the question whether the FOIA ex proprio vigore forbids governmental agencies from disclosing certain classes of information to the public, we have, in the course of at least one opinion, intimated an answer. [ Footnote 9 ] We have, moreover, consistently recognized that the basic objective of the Act is disclosure. [ Footnote 10 ] Page 441 U. S. 291 In contending that the FOIA bars disclosure of the requested equal employment opportunity information, Chrysler relies on the Act's nine exemptions and argues that they require an agency to withhold exempted material. In this case, it relies specifically on Exemption 4: "(b) [FOIA] does not apply to matters that are -- " " * * * *" "(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential. . . ." 5 U.S.C. § 552(b)(4). Chrysler contends that the nine exemptions in general, and Exemption 4 in particular, reflect a sensitivity to the privacy interests of private individuals and nongovernmental entities. That contention may be conceded without inexorably requiring the conclusion that the exemptions impose affirmative duties on an agency to withhold information sought. [ Footnote 11 ] In fact, that conclusion is not supported by the language, logic, or history of the Act. The organization of the Act is straightforward. Subsection Page 441 U. S. 292 (a), 5 U.S.C. § 552(a), places a general obligation on the agency to make information available to the public and sets out specific modes of disclosure for certain classes of information. Subsection(b), 5 U.S.C. § 552(b), which lists the exemptions, simply states that the specified material is not subject to the disclosure obligations set out in subsection (a). By its terms, subsection (b) demarcates the agency's obligation to disclose; it does not foreclose disclosure. That the FOIA is exclusively a disclosure statute is, perhaps, demonstrated most convincingly by examining its provision for judicial relief. Subsection(a)(4)(b) gives federal district courts "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(b). That provision does not give the authority to bar disclosure, and thus fortifies our belief that Chrysler, and courts which have shared its view, have incorrectly interpreted the exemption provisions of the FOIA. The Act is an attempt to meet the demand for open government while preserving workable confidentiality in governmental decisionmaking. [ Footnote 12 ] Congress appreciated that, with the expanding sphere of governmental regulation and enterprise, much of the information within Government files has been submitted by private entities seeking Government contracts or responding to unconditional reporting obligations imposed by law. There was sentiment that Government agencies should have the latitude, in certain circumstances, to afford the confidentiality desired by these submitters. [ Footnote 13 ] But the congressional concern Page 441 U. S. 293 was with the agency's need or preference for confidentiality; the FOIA, by itself, protects the submitters' interest in confidentiality only to the extent that this interest is endorsed by the agency collecting the information. Enlarged access to governmental information undoubtedly cuts against the privacy concerns of nongovernmental entities, and, as a matter of policy, some balancing and accommodation may well be desirable. We simply hold here that Congress did not design the FOIA exemptions to be mandatory bars to disclosure. [ Footnote 14 ] This conclusion is further supported by the legislative history. The FOIA was enacted out of dissatisfaction with § 3 of the APA, which had not resulted in as much disclosure by the agencies as Congress later thought desirable. [ Footnote 15 ] Statements in both the Senate and House Reports on the effect of the exemptions support the interpretation that the exemptions Page 441 U. S. 294 were only meant to permit the agency to withhold certain information, and were not meant to mandate nondisclosure. For example, the House Report states: "[The FOIA] sets up workable standards for the categories of records which may be exempt from public disclosure . . . ." ". . . There may be legitimate reasons for nondisclosure and [the FOIA] is designed to permit nondisclosure in such cases." "[The FOIA] lists in a later subsection the specific categories of information which may be exempted from disclosure. [ Footnote 16 ]" We therefore conclude that Congress did not limit an agency's discretion to disclose information when it enacted the FOIA. It necessarily follows that the Act does not afford Chrysler any right to enjoin agency disclosure. III Chrysler contends, however, that, even if its suit for injunctive relief cannot be based on the FOIA, such an action can be premised on the Trade Secrets Act, 18 U.S.C. § 1905. The Act provides: "Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such Page 441 U. S. 295 department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment." There are necessarily two parts to Chrysler's argument: that § 1905 is applicable to the type of disclosure threatened in this case, and that it affords Chrysler a private right of action to obtain injunctive relief. A The Court of Appeals held that § 1905 was not applicable to the agency disclosure at issue here, because such disclosure was "authorized by law" within the meaning of the Act. The court found the source of that authorization to be the OFCCP regulations that DLA relied on in deciding to disclose information on the Hamtramek and Newark plants. [ Footnote 17 ] Chrysler contends here that these agency regulations are not "law" within the meaning of § 1905. It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law." [ Footnote 18 ] This doctrine is so well established that agency regulations implementing federal statutes have been Page 441 U. S. 296 held to preempt state law under the Supremacy Clause. [ Footnote 19 ] It would therefore take a clear showing of contrary legislative intent before the phrase "authorized by law" in § 1905 could be held to have a narrower ambit than the traditional understanding. The origins of the Trade Secrets Act can be traced to Rev.Stat. § 3167, an Act which barred unauthorized disclosure of specified business information by Government revenue officers. There is very little legislative history concerning the original bill, which was passed in 1864. [ Footnote 20 ] It was reenacted numerous times, with some modification, and remained part of the revenue laws until 1948. [ Footnote 21 ] Congressional statements made at the time of these reenactments indicate that Congress was primarily concerned with unauthorized disclosure of business information by feckless or corrupt revenue agents [ Footnote 22 ] for Page 441 U. S. 297 in the early dys of the Bureau of Internal Revenue, it was the field agents who had substantial contact with confidential financial information. [ Footnote 23 ] In 1948, Rev.Stat. § 3167 was consolidated with two other statutes -- involving the Tariff Commission and the Department of Commerce -- to form the Trade Secrets Act. [ Footnote 24 ] The statute governing the Tariff Commission was very similar to Rev.Stat. § 3167, and it explicitly bound members of the Commission as well as Commission employees. [ Footnote 25 ] The Commerce Page 441 U. S. 298 Department statute embodied some differences in form. It was a mandate addressed to the Bureau of Foreign and Domestic Commerce and to its Director, but there was no reference to Bureau employees, and it contained no criminal sanctions. [ Footnote 26 ] Unlike the other statutes, it also had no exception for disclosures "authorized by law." In its effort to "consolidat[e]" the three statutes, Congress enacted § 1905 and essentially borrowed the form of Rev.Stat. § 3167 and the Tariff Commission statute. [ Footnote 27 ] We find nothing in the legislative history of § 1905 and its predecessors which lends support to Chrysler's contention that Congress intended the phrase "authorized by law," as used in § 1905, to have a special, limited meaning. Nor do we find anything in the legislative history to support the respondents' suggestion that § 1905 does not address formal agency action -- i.e., that it is essentially an "anti-leak" statute that does not bind the heads of governmental departments or agencies. That would require an expansive and unprecedented holding that any agency action directed or approved by an agency head is "authorized by law," regardless Page 441 U. S. 299 of the statutory authority for that action. As Attorney General Brownell recognized not long after § 1905 was enacted, such a reading is difficult to reconcile with Congress' intent to consolidate the Tariff Commission and Commerce Department statutes, both of which explicitly addressed ranking officials, with Rev.Stat. § 3167. [ Footnote 28 ] It is also inconsistent with a settled understanding -- previously shared by the Department of Justice -- that has been continually articulated and relied upon in Congress during the legislative efforts in the last three decades to increase public access to Government information. [ Footnote 29 ] Although the existence of this understanding Page 441 U. S. 300 is not by any means dispositive, it does shed some light on the intent of the enacting Congress. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 380 -381 (1969); FHA Page 441 U. S. 301 v. The Darlington, Inc., 35 U.S. 84, 358 U. S. 90 (1958). In sum, we conclude that § 1305 does address formal agency action, and that the appropriate inquiry is whether OFCCP's regulations provide the "authorization by law" required by the statute. In order for a regulation to have the "force and effect of law," it must have certain substantive characteristics and be the product of certain procedural requisites. The central distinction among agency regulations found in the APA is that between "substantive rules," on the one hand, and "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice," on the other. [ Footnote 30 ] A "substantive Page 441 U. S. 302 rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference. [ Footnote 31 ] But in Morton v. Ruiz, 415 U. S. 199 (1974), we noted a characteristic inherent in the concept of a "substantive rule." We described a substantive rule -- or a "legislative-type rule," id. at 415 U. S. 236 -- as one "affecting individual rights and obligations." Id. at 415 U. S. 232 . This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law." Id. at 415 U. S. 235 , 415 U. S. 236 . That an agency regulation is "substantive," however, does not, by itself, give it the "force and effect of law." The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes. As this Court noted in Batterton v. Francis, 432 U. S. 416 , 432 U. S. 425 n. 9 (1977): "Legislative, or substantive, regulations are 'issued by an agency pursuant to statutory authority and . . . implement Page 441 U. S. 303 the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission. . . . Such rules have the force and effect of law.' [ Footnote 32 ]" Likewise, the promulgation of these regulations must conform with any procedural requirements imposed by Congress. Morton v. Ruiz, supra, at 415 U. S. 232 . For agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which "assure fairness and mature consideration of rules of general application." NLRB v. Wyman-Gordon Co., 394 U. S. 759 , 394 U. S. 764 (1969). The pertinent procedural limitations in this case are those found in the APA. The regulations relied on by the respondents in this case as providing "authoriz[ation] by law" within the meaning of § 1905 certainly affect individual rights and obligations; they govern the public's right to information in records obtained under Executive Order 11246 and the confidentiality rights of those who submit information to OFCCP and its compliance agencies. It is a much closer question, however, whether they are the product of a congressional grant of legislative authority. In his published memorandum setting forth the disclosure regulations at issue in this case, the Secretary of Labor states that the authority upon which he relies in promulgating the regulations are § 201 of Executive Order 11246, as amended, and 29 CFR § 70.71 (1978), which permits units in the Department of Labor to promulgate supplemental disclosure regulations consistent with 29 CFR pt. 70 and the FOIA. 38 Fed.Reg. 3192-3194 (1973). Since materials that are exempt from disclosure under the FOIA are, by virtue of 441 U. S. outside the ambit of that Act, the Government cannot rely on the FOIA as congressional authorization for Page 441 U. S. 304 disclosure regulations that permit the release of information within the Act's nine exemptions. Section 201 of Executive Order 11246 directs the Secretary of Labor to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof." But in order for such regulations to have the "force and effect of law," it is necessary to establish a nexus between the regulations and some delegation of the requisite legislative authority by Congress. The origins of the congressional authority for Executive Order 11246 are somewhat obscure, and have been roundly debated by commentators and courts. [ Footnote 33 ] The Order itself, as amended, establishes a program to eliminate employment discrimination by the Federal Government and by those who benefit from Government contracts. For purposes of this case, it is not necessary to decide whether Executive Order 11246, as amended, is authorized by the Federal Property and Administrative Services Act of 1949, [ Footnote 34 ] Titles VI Page 441 U. S. 305 and VII of the Civil Rights Act of 1964, [ Footnote 35 ] the Equal Employment Opportunity Act of 1972, [ Footnote 36 ] or some more general notion that the Executive can impose reasonable contractual requirements Page 441 U. S. 306 in the exercise of its procurement authority. [ Footnote 37 ] The pertinent inquiry is whether, under any of the arguable statutory grants of authority, the OFCCP disclosure regulations relied on by the respondents are reasonably within the contemplation of that grant of authority. We think that it is clear that, when it enacted these statutes, Congress was not concerned with public disclosure of trade secrets or confidential business information, and, unless we were to hold that any federal statute that implies some authority to collect information must grant legislative authority to disclose that information to the public, it is simply not possible to find in these statutes a delegation of the disclosure authority asserted by the respondents here. [ Footnote 38 ] Page 441 U. S. 307 The relationship between any grant of legislative authority and the disclosure regulations becomes more remote when one examines § 201 of the Executive Order. It speaks in terms of rules and regulations "necessary and appropriate" to achieve the purposes of the Executive Order. Those purposes are an end to discrimination in employment by the Federal Government and those who deal with the Federal Government. One cannot readily pull from the logic and purposes of the Executive Order any concern with the public's access to information in Government files or the importance of protecting trade secrets or confidential business statistics. The "purpose and scope" section of the disclosure regulations indicates two underlying rationales: OFCCP's general policy "to disclose information to the public," and its policy "to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment." 41 CFR § 640.1 (1978). The respondents argue that "[t]he purpose of the Executive Order is to combat discrimination in employment, and a disclosure policy designed to further this purpose is consistent with the Executive Order and an appropriate subject for regulation under its aegis." Brief for Respondents 4. Were a grant of legislative authority as a basis for Executive Order 11246 more clearly identifiable, we might agree with the respondents that this "compatibility" gives the disclosure regulations the necessary legislative force. But the thread between these regulations and any grant of Page 441 U. S. 308 authority by the Congress is so strained that it would do violence to established principles of separation of powers to denominate these particular regulations "legislative" and credit them with the "binding effect of law." This is not to say that any grant of legislative authority to a federal agency by Congress must be specific before regulations promulgated pursuant to it can be binding on courts in a manner akin to statutes. What is important is that the reviewing court reasonably be able to conclude that the grant of authority contemplates the regulations issued. Possibly the best illustration remains Mr. Justice Frankfurter's opinion for the Court in National Broadcasting Co. v. United States, 319 U. S. 190 (1943). There the Court rejected the argument that the Communications Act of 1934 did not give the Federal Communications Commission authority to issue regulations governing chain broadcasting beyond the specification of technical engineering requirements. Before reaching that conclusion, however, the Court probed the language and logic of the Communications Act and its legislative history. Only after this careful parsing of authority did the Court find that the regulations had the force of law and were binding on the courts unless they were arbitrary or not promulgated pursuant to prescribed procedures. "Our duty is at an end when we find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress. It is not for us to say that the 'public interest' will be furthered or retarded by the Chain Broadcasting Regulations. The responsibility belongs to the Congress for the grant of valid legislative authority and to the Commission for its exercise." Id. at 319 U. S. 224 . The respondents argue, however, that, even if these regulations do not have the force of law by virtue of Executive Order 11246, an explicit grant of legislative authority for such Page 441 U. S. 309 regulations can be found in 5 U.S.C. § 301, commonly referred to as the "housekeeping statute." [ Footnote 39 ] It provides: "The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public." The antecedents of § 301 go back to the beginning of the Republic, when statutes were enacted to give heads of early Government departments authority to govern internal departmental affairs. Those laws were consolidated into one statute in 1874. and the current version of the statute was enacted in 1958. Given this long and relatively uncontroversial history, and the terms of the statute itself, it seems to be simply a grant of authority to the agency to regulate its own affairs. What is clear from the legislative history of the 1958 amendment to § 301 is that this section was not intended to provide authority for limiting the scope of § 1905. [ Footnote 40 ] Page 441 U. S. 310 The 1958 amendment to § 301 was the product of congressional concern that agencies were invoking § 301 as a source of authority to withhold information from the public. Congressman Moss sponsored an amendment that added the last sentence to § 301, which specifically states that this section "does not authorize withholding information from the public." The Senate Report accompanying the amendment stated: "Nothing in the legislative history of [§ 301] shows that Congress intended this statute to be a grant of authority to the heads of the executive departments to withhold information from the public or to limit the availability of records to the public." S.Rep. No. 1621, 85th Cong., 2d Sess., 2 (1958). The logical corollary to this observation is that there is nothing in the legislative history of § 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information. It is indeed a "housekeeping statute," authorizing what the APA terms "rules of agency organization, procedure or practice," as opposed to "substantive rules." [ Footnote 41 ] Page 441 U. S. 311 This would suggest that regulations pursuant to § 301 could not provide the "authoriz[ation] by law" required by § 1905. But there is more specific support for this position. During the debates on the 1958 amendment, Congressman Moss assured the House that the amendment would "not affect the confidential status of information given to the Government and carefully detailed in title 18, United States Code, section 1905." 104 Cong.Rec. 6550 (1958). The respondents argue that this last statement is of little significance, because it is only made with reference to the amendment. But that robs Congressman Moss' statement of any substantive import. If Congressman Moss thought that records within the terms of § 1905 could be released on the authority of a § 301 regulation, why was he (and presumably the House) concerned with whether the amendment affected § 1905? Under the respondents' interpretation, records released pursuant to § 301 are outside § 1905 by virtue of the first sentence of § 301. The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history. Congressman Moss' statement must be considered with the Reports of both Houses and the statements of other Congressmen, all of which refute the respondents' interpretation of the relationship between § 301 and § 1905. [ Footnote 42 ] Of greatest significance, however, Page 441 U. S. 312 is the "housekeeping" nature of § 301 itself. On the basis of this evidence of legislative intent, we agree with the Court of Appeals for the District of Columbia Circuit that "[s]ection 301 does not authorize regulations limiting the scope of section 1905." Charles River Park "A," Inc. v. Department of HUD, 171 U.S.App.D.C. 286, 293-294, 519 F.2d 935, 942-943 (1975) There is also a procedural defect in the OFCCP disclosure regulations which precludes courts from affording them the force and effect of law. That defect is a lack of strict compliance with the APA. Recently we have had occasion to examine the requirements of the APA in the context of "legislative" or "substantive" rulemaking. In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978), we held that courts could only in "extraordinary circumstances" impose procedural requirements on an agency beyond those specified in the APA. It is within Page 441 U. S. 313 an agency's discretion to afford parties more procedure, but it is not the province of the courts to do so. In Vermont Yankee, we recognized that the APA is " a formula upon which opposing social and political forces have come to rest.'" Id. at 435 U. S. 547 (quoting Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 40 (1950)). Courts upset that balance when they override informed choice of procedures and impose obligations not required by the APA. By the same token, courts are charged with maintaining the balance: ensuring that agencies comply with the "outline of minimum essential rights and procedures" set out in the APA. H.R.Rep. No.1980, 79th Cong., 2d Sess., 16 (1946); see Vermont Yankee Nuclear Power Corp., supra at 435 U. S. 549 n. 21. Certainly regulations subject to the APA cannot be afforded the "force and effect of law" if not promulgated pursuant to the statutory procedural minimum found in that Act. [ Footnote 43 ] Section 4 of the APA, 5 U.S.C. § 553, specifies that an agency shall afford interested persons general notice of proposed rulemaking and an opportunity to comment before a substantive rule is promulgated. [ Footnote 44 ] "Interpretive rules, general Page 441 U. S. 314 statements of policy or rules of agency organization, procedure or practice" are exempt from these requirements. When the Secretary of Labor published the regulations pertinent in this case, he stated: "As the changes made by this document relate solely to interpretive rules, general statements of policy, and to rules of agency procedure and practice, neither notice of proposed rule making nor public participation therein is required by 5 U.S.C. 553. Since the changes made by this document either relieve restrictions or are interpretative rules, no delay in effective date is required by 5 Page 441 U. S. 315 U.S.C. 553(d). These rules shall therefore be effective immediately." "In accordance with the spirit of the public policy set forth in 5 U.S.C. 553, interested persons may submit written comments, suggestions, data, or arguments to the Director, Office of Federal Contract Compliance. . . ." 38 Fed.Reg. 3193 (1973). Thus, the regulations were essentially treated as interpretative rules, and interested parties were not afforded the notice of proposed rulemaking required for substantive rules under 5 U.S.C. § 553(b). As we observed in Batterton v. Francis, 432 U.S. at 432 U. S. 425 n. 9: "[A] court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations based on such factors as the timing and consistency of the agency's position, and the nature of its expertise." We need not decide whether these regulations are properly characterized as "interpretative rules." It is enough that such regulations are not properly promulgated as substantive rules, and therefore not the product of procedures which Congress prescribed as necessary prerequisites to giving a regulation the binding effect of law. [ Footnote 45 ] An interpretative regulation or general statement Page 441 U. S. 316 of agency policy cannot be the "authoriz[ation] by law" required by § 1905. This disposition best comports with both the purposes underlying the APA and sound administrative practice. Here, important interests are in conflict: the public's access to information in the Government's files and concerns about personal privacy and business confidentiality. The OFCCP's regulations attempt to strike a balance. In enacting the APA, Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment. With the consideration that is the necessary and intended consequence of such procedures, OFCCP might have decided that a different accommodation was more appropriate. B We reject, however, Chrysler's contention that the Trade Secrets Act affords a private right of action to enjoin disclosure in violation of the statute. In Cort v. Ash, 422 U. S. 66 (1975), we noted that this Court has rarely implied a private right of action under a criminal statute, and, where it has done so, "there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone." [ Footnote 46 ] Nothing in § 1905 prompts such an inference. Nor are other pertinent circumstances outlined in Cort present here. As our review of the legislative history of § 1905 -- or Page 441 U. S. 317 lack of same -- might suggest, there is no indication of legislative intent to create a private right of action. Most importantly, a private right of action under § 1905 is not "necessary to make effective the congressional purpose," J. I. Case Co. v. Borak, 377 U. S. 426 , 377 U. S. 433 (1964), for we find that review of DLA's decision to disclose Chrysler's employment data is available under the APA. [ Footnote 47 ] IV While Chrysler may not avail itself of any violations of the provisions of § 1905 in a separate cause of action, any such violations may have a dispositive effect on the outcome of judicial review of agency action pursuant to § 10 of the APA. Section 10(a) of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof." 5 U.S.C. § 702. Two exceptions to this general rule of reviewability are set out in § 10. Review is not available where "statutes preclude judicial review" or where "agency action is committed to agency discretion by law." 5 U.S.C. §§ 701(a)(1), (2). In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 401 U. S. 410 (1971), the Court held that the latter exception applies "where statutes are drawn in such broad terms that, in a given case, there is no law to apply,'" quoting S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Were we simply confronted with the authorization in 5 U.S.C. § 301 to prescribe regulations regarding "the custody, use, and preservation of [agency] records, papers, and property," it would be difficult to derive any standards limiting agency conduct which might constitute "law to apply." But our discussion in 441 U. S. S. 318� that § 1905 and any "authoriz[ation] by law" contemplated by that section place substantive limits on agency action. [ Footnote 48 ] Therefore, we conclude that DLA's decision to disclose the Chrysler reports is reviewable agency action, and Chrysler is a person "adversely affected or aggrieved" within the meaning of § 10(a). Both Chrysler and the respondents agree that there is APA review of DLA's decision. They disagree on the proper scope of review. Chrysler argues that there should be de novo review, while the respondents contend that such review is only available in extraordinary cases, and this is not such a case. The pertinent provisions of § 10(e) of the APA, 5 U.S.C. § 706, state that a reviewing court shall "(2) hold unlawful and set aside agency action, findings, and conclusions found to be" "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;" " * * * *" "(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court." For the reasons previously stated, we believe any disclosure that violates § 1905 is "not in accordance with law" within the meaning of 5 U.S.C. § 706(2)(A). De novo review by the District Court is ordinarily not necessary to decide whether a contemplated disclosure runs afoul of § 1905. The District Court in this case concluded that disclosure of some of Chrysler's documents was barred by § 1905, but the Court of Appeals did not reach the issue. We shall therefore vacate the Court of Appeals' judgment and remand for further proceedings consistent with this opinion in order that the Court Page 441 U. S. 319 of Appeals may consider whether the contemplated disclosures would violate the prohibition of § 1905. [ Footnote 49 ] Since the decision regarding this substantive issue -- the scope of § 1905 -- will necessarily have some effect on the proper form of judicial review pursuant to § 706(2), we think it unnecessary, and therefore unwise, at the present stage of this case for us to express any additional views on that issue. Vacated and remanded. [ Footnote 1 ] Executive Order No. 11246, 3 CFR 339 (1964-1965 Comp.), prohibits discrimination on the basis of "race, creed, color, or national origin" in federal employment or by government contractors. Under § 202 of this Executive Order, most Government contracts must contain a provision whereby the contractor agrees not to discriminate in such a fashion and to take affirmative action to ensure equal employment opportunity. With promulgation of Executive Order No. 11375, 3 CFR 684 (1966-1970 Comp.), in 1967, President Johnson extended the requirements of the 1965 Order to prohibit discrimination on the basis of sex. [ Footnote 2 ] 41 CFR §§ 60-1.3, 60-1.7 (1978). [ Footnote 3 ] For convenience all references will be to DLA. [ Footnote 4 ] 41 CFR §§ 60-1.20, 60-1.24 (1978). The term "alphabet soup" gained currency in the early days of the New Deal as a description of the proliferation of new agencies such as WPA and PWA. The terminology required to describe the present controversy suggests that the "alphabet soup" of the New Deal era was, by comparison, a clear broth. [ Footnote 5 ] § 60-40.2(a). The regulations also state that EEO-1 Reports "shall be disclosed," § 60-40.4, and that AAP's "must be disclosed" if not within limited exceptions. §§ 60-40.2(b)(1), 60-40.3. [ Footnote 6 ] Manning tables are lists of job titles and of the number of people who perform each job. [ Footnote 7 ] Compare Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (CA4 1976), cert. denied, 431 U.S. 924 (1977), with Sears, Roebuck & Co. v. Eckerd, 575 F.2d 1197 (CA7 1978); General Dynamics Corp. v. Marshall, 572 F.2d 1211 (CA 1978); Pennzoil Co. v. FPC, 534 F.2d 627 (CA5 1976); Charles River Park "A," Inc. v. Department of HUD, 171 U.S.App.D.C. 286, 519 F.2d 935 (1975). [ Footnote 8 ] NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214 (1978); Department of Air Force v. Rose, 425 U. S. 352 (1976); FAA Administrator v. Robertson, 422 U. S. 255 (1975); NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975); Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U. S. 168 (1975); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U. S. 1 (1974); EPA v. Mink, 410 U. S. 73 (1973) [ Footnote 9 ] "Subsection (b) of the Act creates nine exemptions from compelled disclosures. These exemptions are explicitly made exclusive, 5 U.S.C. § 552(c), and are plainly intended to set up concrete, workable standards for determining whether particular material may be withheld or must be disclosed." EPA v. Mink, supra, at 410 U. S. 79 (emphasis added). [ Footnote 10 ] We observed in Department of Air Force v. Rose, supra, at 425 U. S. 361 , that "disclosure, not secrecy, is the dominant objective of the Act." The legislative history is replete with references to Congress' desire to loosen the agency's grip on the data underlying governmental decisionmaking. "A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity and quality of its information varies. . . ." "[The FOIA] provides the necessary machinery to assure the availability of Government information necessary to an informed electorate." H.R.Rep. No. 1497, 9th Cong., 2d Sess., 12 (1966). "Although the theory of an informed electorate is vital to the proper operation of a democracy, there is nowhere in our present law a statute which affirmatively provides for that information." S.Rep. No. 813, 9th Cong., 1st Sess., 3 (1965). [ Footnote 11 ] See, e.g., H.R.Rep. No. 1497, supra, at 10 (emphasis added; footnote omitted): "[Exemption 4] would assure the confidentiality of information obtained by the Government through questionnaires or through material submitted and disclosures made in procedures such as the mediation of labor-management controversies. It exempts such material if it would not customarily be made public by the person from whom it was obtained by the Government. . . . It would . . . include information which is given to an agency in confidence, since a citizen must be able to confide in his Government. Moreover, where the Government has obligated itself in food faith not to disclose documents or information which it receives, it should be able to honor such obligations. " The italicized passage is obviously consistent with Exemption 4's being an exception to the disclosure mandate of the FOIA, and not a limitation on agency discretion. [ Footnote 12 ] See S.Rep. No. 813, supra, at 3: "It is not an easy task to balance the opposing interests, but it is not an impossible one, either. It is not necessary to conclude that, to protect one of the interests, the other must, of necessity, either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure." [ Footnote 13 ] Id. at 9; n 11, supra. [ Footnote 14 ] It is informative in this regard to compare the FOIA with the Privacy Act of 1974, 5 U.S.C. § 552a. In the latter Act, Congress explicitly requires agencies to withhold records about an individual from most third parties unless the subject gives his permission. Even more telling is 49 U.S.C. § 1357, a section which authorizes the Administrator of the FAA to take anti-hijacking measures, including research and development of protection devices. "Notwithstanding [the FOIA], the Administrator shall prescribe such regulations as he may deem necessary to prohibit disclosure of any information obtained or developed in the conduct of research and development activities under this subsection if, in the opinion of the Administrator, the disclosure of such information -- " " * * * *" "(B) would reveal trade secrets or privileged or confidential commercial or financial information obtained from any person. . . ." § 1357(d)(2)(b) [ Footnote 15 ] Section 3 of the original APA provided that an agency should generally publish or make available organizational data, general statements of policy, rules, and final orders. Exception was made for matters "requiring secrecy in the public interest" or "relating solely to the internal management of an agency." This original version of § 3 was repealed with passage of the FOIA. See EPA v. Mink, 410 U. S. 73 (1973). [ Footnote 16 ] H.R.Rep. No. 1497, 89th Cong., 2d Sess., 2, 5, 7 (1966) (emphasis added). See also S.Rep. No. 813, 9th Cong., 1st Sess., 10 (1965). Congressman Moss, the House sponsor of the FOIA, described the exemptions on the House floor as indicating what documents "may be withheld." 112 Cong.Rec. 13641 (1966). [ Footnote 17 ] 41 CFR §§ 60.40-1 to 60.40-4 (197). [ Footnote 18 ] E.g., Batterton v. Francis, 432 U. S. 416 , 432 U. S. 425 n. 9 (1977); Foti v. INS, 375 U. S. 217 , 375 U. S. 223 (1963); United States v. Mersky, 361 U. S. 431 , 361 U. S. 437 -438 (1960); Atchison, T. & S. F. R. Co. v. Scarlett, 300 U. S. 471 , 300 U. S. 474 (1937). [ Footnote 19 ] Paul v. United States, 371 U. S. 245 (1963); Free v. Bland, 369 U. S. 663 (1962); Public Utilities Comm'n of California v. United States, 355 U. S. 534 (1958). [ Footnote 20 ] Revenue Act of 1864, § 3, 13 Stat. 238. [ Footnote 21 ] The last version was codified as 18 U.S.C. § 216 (1940 ed.): "It hall be unlawful for any collector, deputy collector, agent, clerk, or other officer or employee of the United States to divulge or to make known in any manner whatever not provided by law to any person the operations, style of work, or apparatus of any manufacturer or producer visited by him in the discharge of his official duties, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return; and any offense against the foregoing provision shall be a misdemeanor and be punished by a fine not exceeding $1,000 or by imprisonment not exceeding one year, or both, at the discretion of the court; and if the offender be an officer or employee of the United States he shall be dismissed from office or discharged from employment." [ Footnote 22 ] See, e.g., 26 Cong.Rec. 6893 (1948) (Sen. Aldrich) (expressing concern that taxpayer's confidential information is "to be turned over to the tender mercies of poorly paid revenue agents"); id. at 6924 (Sen. Teller) (exposing records to the "idle curiosity of a revenue officer"). See also Cong.Globe, 38th Cong., 1st Sess., 2997 (1864) (Rep. Brown) (expressing concern that 1864 revenue provisions would allow "every little petty officer" to investigate the affairs of private citizens). [ Footnote 23 ] There was virtually no Washington bureaucracy created by the Act of July 1, 1862, ch. 119, 12 Stat. 432, the statute to which the present Internal Revenue Service can be traced. Researchers report that, during the Civil War, 85% of the operations of the Bureau of Internal Revenue were carried out in the field, "including the assessing and collection of taxes, the handling of appeals, and punishment for frauds" -- and this balance of responsibility was not generally upset until the 20th century. L. Schmeckebier & F. Eble, The Bureau of Internal Revenue 8, 40-43 (1923). Agents had the power to enter any home or business establishment to look for taxable property and examine books of accounts. Information was collected and processed in the field. It is, therefore, not surprising to find that congressional comments during this period focused on potential abuses by agents in the field, and not on breaches of confidentiality by a Washington-based bureaucracy. [ Footnote 24 ] See H.R.Rep. No. 304, 80th Cong., 1st Sess., A127-A128 (1947). [ Footnote 25 ] The Tariff Commission statute, last codified as 19 U.S.C. § 1335 (1940 ed.), provided: "It shall be unlawful for any member of the commission, or for any employee, agent, or clerk of the commission, or any other officer or employee of the United States, to divulge, or to make known in any manner whatever not provided for by law, to any person, the trade secrets or processes of any person, firm, copartnership, corporation, or association embraced in any examination or investigation conducted by the commission, or by order of the commission, or by order of any member thereof. Any offense against the provisions of this section shall be a misdemeanor and be punished by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both, in the discretion of the court, and such offender shall also be dismissed from office or discharged from employment." [ Footnote 26 ] 15 U.S.C. § 176a (1940 ed.): "Any statistical information furnished in confidence to the Bureau of Foreign and Domestic Commerce by individuals, corporations, and firms shall be held to be confidential, and shall be used only for the statistical purposes for which it is supplied. The Director of the Bureau of Foreign and Domestic Commerce shall not permit anyone other than the sworn employees of the Bureau to examine such individual reports, nor shall he permit any statistics of domestic commerce to be published in such manner as to reveal the identity of the individual, corporation, or firm furnishing such data." [ Footnote 27 ] H.R.Rep. No. 304, supra, n 24, at A127. [ Footnote 28 ] In a December 1, 1953, opinion, the Attorney General advised the Secretary of the Treasury that he should regard himself as bound by § 1905. The Attorney General noted: "The reviser of the Criminal Code describes the provision as a consolidation of three other sections formerly appearing in the United States Code. Of the three, two expressly operated as prohibitions on the heads of agencies." 41 Op.Atty.Gen. 166, 167 (footnote omitted). See also id. at 221 (Atty. Gen. Brownell advising Federal Communications Commission Chairman to regard himself as bound). [ Footnote 29 ] If we accepted the respondents' position, 18 U.S.C. § 1905 would simply be irrelevant to the issue of public access to agency information. The FOIA and other such "access" legislation are concerned with formal agency action -- to what extent can an agency or department or, put differently, the head of an agency or department, withhold information contained within the governmental unit's files. It is all but inconceivable that a Government employee would withhold information which his superiors had directed him to release; and these Acts are simply not addressed to disclosure by a Government employee that is not sanctioned by the employing agency. This is not to say that the actions of individual employees might not be inconsistent with the access legislation. But such actions are only inconsistent insofar as they are imputed to the agencies themselves. Therefore, if § 1905 is not addressed to formal agency action, i.e., action approved by the agency or department head -- there should have been no concern in Congress regarding the interrelationship of § 1905 and the access legislation, for they would then address totally different types of disclosure. In fact, the legislative history of all the significant access legislation of the last 20 years evinces a concern with this relationship and a concomitant universal assumption that § 1905 embraces formal agency action. Congress was assured that the 1958 amendment to 5 U.S.C. § 301, the housekeeping statute that affords department heads custodial responsibility for department records, would not circumscribe the confidentiality mandated by § 1905. The 1958 amendment simply clarified that § 301 itself was not substantive authority to withhold information. See infra at 441 U. S. 310 -312. Also in 1958, the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary conducted hearings on the power of the President to withhold information from Congress. As part of the investigative effort, a list was compiled of all statutes restricting disclosure of Government information. Section 1905 was listed among them. Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 921, 85th Cong., 2d Sess., pt. 2, p 96 (1958). Two years later, the House Committee on Government Operations conducted a study on statutory authorities restricting or requiring the release of information under the control of executive departments or independent agencies, and again prominent among the statutes "affecting the availability of information to the public" was 18 U.S.C. § 1905. House Committee on Government Operations, Federal Statutes on the Availability of Information 262 (Comm.Print.1960) (§ 1905 denominated as statute prohibiting the disclosure of certain information). In FAA Administrator v. Robertson, 422 U.S. at 422 U. S. 264 -265, we recognized the importance of these lists in Congress' later deliberations concerning the FOIA, particularly in the consideration of the original Exemption 3. That Exemption excepted from the operation of the FOIA matters "specifically exempted from disclosure by statute." As we noted in Robertson: "When the House Committee on Government Operations focused on Exemption 3, it took note that there are 'nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of [the FOIA].' H.R.Rep. No. 1497, 89th Cong., 2d Sess., 10 (1966). (Emphasis added.)" Id. at 422 U. S. 265 . In determining that the statute at issue in Robertson, 49 U.S.C. § 1504, was within Exemption 3, we observed that the statute was on these prior lists, and that the Civil Aeronautics Board had brought the statute to the attention of both the House and Senate Committees as an exempting statute during the hearings on the FOIA. 422 U.S. at 422 U. S. 264 , and n. 11. In fact, during those hearings, 18 U.S.C. § 1905 was the most frequently cited restriction on agency or department disclosure of information. Hearings before the Subcommittee of the House Committee on Government Operations on H.R. 5012 et al., 89th Cong., 1st Sess., 23 (1965) (cited by 28 agencies as authority for withholding information). Among those citing the statute was the Department of Justice. Id. at 386 ("commercial information received or assembled in connection with departmental functions must be withheld pursuant to these requirements"). See also id. at 20 (colloquy between Rep. Moss and Asst. Atty. Gen. Schlei); Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 31-32 (June 1967) (18 U.S.C. § 1905 among the "nearly 100 statutes" mentioned in the House Report). Most recently, in its Report on the Government in the Sunshine Act, the House Committee on Government Operations observed: "[T]he Trade Secrets Act, 18 U.S.C. § 1905, which relates only to the disclosure of information where disclosure is 'not authorized by law,' would not permit the withholding of information otherwise required to be disclosed by the Freedom of Information Act, since the disclosure is there authorized by law. Thus, for example, if material did not come within the broad trade secrets exemption contained in the Freedom of Information Act, section 1905 would not justify withholding; on the other hand, if material is within the trade secrets exemption of the Freedom of Information Act and therefore subject to disclosure if the agency determines that disclosure is in the public interest, section 1905 must be considered to ascertain whether the agency is forbidden from disclosing the information." H.R.Rep. No. 94-880, pt. 1, p. 23 (1976). [ Footnote 30 ] 5 U.S.C. §§ 553(b), (d). [ Footnote 31 ] Neither the House nor Senate Report attempted to expound on the distinction. In prior cases, we have given some weight to the Attorney General's Manual on the Administrative Procedure Act (1947), since the Justice Department was heavily involved in the legislative process that resulted in the Act's enactment in 1946. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 , 435 U. S. 546 (1978); Power Reactor Co. v. Electricians, 367 U. S. 396 , 367 U. S. 408 (1961); United States v. Zucca, 351 U. S. 91 , 351 U. S. 96 (1956). The Manual refers to substantive rules as rules that "implement" the statute. "Such rules have the force and effect of law." Manual, supra, at 30 n. 3. In contrast it suggests that "interpretive rules" and "general statements of policy" do not have the force and effect of law. Interpretive rules are "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Ibid. General statements of policy are "statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power." Ibid. See also Final Report of Attorney General's Committee on Administrative Procedure 27 (1941). [ Footnote 32 ] Quoting Attorney General's Manual on the Administrative Procedure Act, supra, at 30 n. 3. [ Footnote 33 ] See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U. S. 54 (1971); Hearings before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary on the Philadelphia Plan and S. 931, 91st Cong., 1st Sess. (1969); Jones, The Bugaboo of Employment Quotas, 1970 Wis.L.Rev. 341; Leiken, Preferential Treatment in the Skilled Building Trades: An Analysis of the Philadelphia Plan, 56 Cornell L.Rev. 4 (1970); Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 723 (1972); Note, Executive Order 11246: Anti-Discrimination Obligations in Government Contracts, 44 N.Y.U.L.Rev. 590 (1969). The Executive Order itself merely states that it is promulgated "[u]nder and by virtue of the authority vested in [the] President of the United States by the Constitution and statutes of the United States." 3 CFR 339 (1964-1965 Comp.). [ Footnote 34 ] 63 Stat. 377, as amended, 40 U.S.C. § 471 et seq. The Act as amended is prefaced with the following declaration of policy: "It is the intent of the Congress in enacting this legislation to provide for the Government an economical and efficient system for (a) the procurement and supply of personal property and nonpersonal services, including related functions such as contracting, inspection, storage, issue, specifications, property identification and classification, transportation and traffic management, establishment of pools or systems for transportation of Government personnel and property by motor vehicle within specific areas, management of public utility services, repairing and converting, establishment of inventory levels, establishment of forms and procedures, and representation before Federal and State regulatory bodies; (b) the utilization of available property; (c) the disposal of surplus property; and (d) records management." 40 U.S.C. § 471. The Act explicitly authorizes Executive Orders "necessary to effectuate [its] provisions." § 486(a). However, nowhere in the Act is there a specific reference to employment discrimination. Lower courts have suggested that § 486(a) was the authority for predecessors of Executive Order 11246. Farmer v. Philadelphia Electric Co., 329 F.2d 3 (CA3 1964); Forks v. Texas Instruments, Inc., 375 F.2d 629 (CA5), cert. denied, 389 U.S. 977 (1967). But as the Third Circuit noted in Contractors Assn. of Eastern Pa. v. Secretary of Labor, supra, at 167, these suggestions were dicta, and made without any analysis of the nexus between the Federal Property and Administrative Services Act and the Executive Orders. It went on to hold, however, that § 46(a) was authority for at least some aspects of Executive Order 11246 on the ground that "it is in the interest of the United States in all procurement to see that its suppliers are not, over the long run, increasing its costs and delaying its programs by excluding from the labor pool available minority workmen." 442 F.2d at 170. [ Footnote 35 ] 42 U.S.C. §§ 2000d to 2000d-4, 2000e to 2000e-17. Significantly, the question has usually been put in terms of whether Executive Order 11246 is inconsistent with these titles of the Civil Rights Act of 1964. See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, supra, at 171-174. Title VI grants federal agencies that are "empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract," the authority to promulgate rules "which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken." Such rules must be approved by the President, and their enforcement is subject to congressional review. "In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." § 602 of the Civil Rights Act of 1964, 7 Stat. 252, 42 U.S.C. § 2000d-1. Executive Order 11246 contains no provision for congressional review, and therefore is not promulgated pursuant to § 602. Cf. Exec.Order No. 11247, 3 CFR 348 (1964-1965 Comp.). Titles VI and VII contain no other express substantive delegation to the President. [ Footnote 36 ] This is an argument that Congress ratified Executive Order 11246 as amended, when it rejected a series of amendments to the Equal Employment Opportunity Act that were designed to cut back on affirmative action efforts under the Executive Order. [ Footnote 37 ] See Farkas v. Texas Instrument, Inc., supra; Farmer v. Philadelphia Electric Co., supra; cf. Perkins v. Lukens Steel Co., 310 U. S. 113 (1940); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 637 (1952) (Jackson, J., concurring). [ Footnote 38 ] The respondents cite Jones v. Rath Packing Co., 430 U. S. 519 , 430 U. S. 536 (1977), for the proposition that "it has long been acknowledged that administrative regulations consistent with the agencies' substantive statutes have the force and effect of law." Brief for Respondents 3, and n. 24. The legislative delegation in that case, however, was quite explicit. The issue was whether state regulation of the labeling of meats and flour was preempted by the Federal Meat Inspection Act (FMIA), the Federal Food, Drug, and Cosmetic Act (FDCA), and the Fair Packaging and Labeling Act. The FMIA provides that meat or a meat product is misbranded "(5) if in a package or other container unless it bears a label showing . . . (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That . . . reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary." § 1(n)(5) of the FMIA, 21 U.S.C. § 601(n)(5). There is a similar provision in the FDCA. [ Footnote 39 ] See H.R.Rep. No. 1461, 5th Cong., 2d Sess., 1 (1958): "The law has been called an office 'housekeeping' statute, enacted to help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file Government documents. The documents involved are papers pertaining to the day-to-day business of Government which are not restricted under other specific laws nor classified as military information or secrets of state." The Secretary of Labor did not cite this statute as authority for the OFCCP disclosure regulations. 3 Fed.Reg. 3192-3193 (1973). [ Footnote 40 ] This does not mean, of course, that disclosure regulations promulgated on the basis of § 301 are "in excess of statutory jurisdiction, authority, or limitations" for purposes of the APA, 5 U.S.C. § 706(2)(C). It simply means that disclosure pursuant to them is not "authorized by law" within the meaning of § 1905. [ Footnote 41 ] The House Committee on Government Operations cited approvingly an observation by legal experts that "[§ 301] merely gives department heads authority to regulate within their departments the way in which requests for information are to be dealt with -- for example, by centralizing the authority to deal with such requests in the department head." H.R.Rep. No. 1461, 85th Cong., 2d Sess., 7 (1958). It noted that the members of its Special Subcommittee on Government Information "unanimously agreed that [§ 301] originally was adopted in 1789 to provide for the day-to-day office housekeeping in the Government departments, but through misuse, it has become twisted into a claim of authority to withhold information." Id. at 12. There are numerous remarks to similar effect in the Senate Report and the floor debates. See, e.g., S.Rep. No. 1621, 5th Cong., 2d Sess., 2 (1958); 104 Cong.Rec. 6549 (Rep. Moss), 6560 (Rep. Fascell), 15690-15696 (colloquy between Sens. Hruska and Johnston) (1958). [ Footnote 42 ] Throughout the floor debates, references are made to 78 statutes that require the withholding of information, and assurances are consistently given that these statutes are not in any way affected by § 301. E.g., 104 Cong.Rec. 654 (Rep. Brown), 6549-6550 (Rep. Moss) (1958). It is clear from Congressman Moss' comments that § 1905 is one of those statutes. 104 Cong.Rec. 6549-6550 (1958). There is also frequent reference to trade secrets as not being disclosable and the confidentiality of that information as not being affected by § 301. H.R.Rep. No. 1461, 5th Cong., 2d Sess., 2 (195); 104 Cong.Rec. 655 (Rep. Fascell), 6564 (Rep. Wright) (1958). The following exchange between Congressmen Meader and Moss is also instructive. "Mr. MEADER. Mr. Chairman, I should like the attention of the gentleman from California [Mr. Moss], the sponsor of the measure. I would like to read three paragraphs from the additional views I submitted to the report which appear upon page 62 of the report. I said:" "I believe there is unanimous sentiment in the Government Operations Committee on the following points:" "1. That departments and agencies of the Government have construed [§ 301] to authorize them to withhold information from the public and to limit the availability of records to the public." "2. That this interpretation is a strained and erroneous interpretation of the intent of Congress in [§ 301], which merely authorized department heads to make regulations governing day-to-day operation of the department -- a so-called housekeeping function; and that [§ 301] was not intended to deal with the authority to release or withhold information or records." " * * * *" "I now yield to the gentleman from California to state whether or not those three points as I have set them forth in my additional views in the report on this measure accurately state what he understands to be the consensus of the judgment of the members of the Government Operations Committee in reporting out this legislation?" "MR. MOSS. That is correct as I interpret it." Id. at 6562 (emphasis added) . [ Footnote 43 ] See, e.g., Morton v. Ruiz, 415 U. S. 199 (1974); United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742 , 406 U. S. 758 (1972). [ Footnote 44 ] 5 U.S.C. § 553: "(a) This section applies, according to the provisions thereof, except to the extent that there is involved -- " "(1) a military or foreign affairs function of the United States; or" "(2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts." "(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include -- " "(1) a statement of the time, place, and nature of public rule making proceedings;" "(2) reference to the legal authority under which the rule is proposed; and" "(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." "Except when notice or hearing is required by statute, this subsection does not apply -- " "(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or" "(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." "(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection." "(d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except -- " "(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;" "(2) interpretative rules and statements of policy; or" "(3) as otherwise provided by the agency for good cause found and published with the rule." "(e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." [ Footnote 45 ] The regulations at issue in Jones v. Rath Packing Co., see n 38, supra, were the product of notice of proposed rulemaking and comment. 32 Fed.Reg. 10729 (1967); 35 Fed.Reg. 15552 (1970). We also note that the respondents' reliance on FCC v. Schreiber, 381 U. S. 279 (1965), is misplaced. In that case, the Court held that a FCC rule -- that investigatory proceedings would be public unless a hearing examiner found that "the public interest, the proper dispatch of the business . . or the ends of justice" would be served by closed sessions -- was consistent with the pertinent congressional grant of authority, and not arbitrary or unreasonable. This Court held that the District Court impermissibly invaded the province of the agency when it imposed its own notions of proper procedures. Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 (1978). There was no question in the case regarding the applicability of § 1905. Moreover, the respondents had made a broad request that " all testimony and documents to be elicited from them . . . should be received in camera. " 381 U.S. at 381 U. S. 295 (emphasis in original). The Court held that, when specific information was requested that might actually injure Schreiber's firm competitively, "there would be ample opportunity to request that it be received in confidence, and to seek judicial protection if the request were denied." Id. at 381 U. S. 296 . [ Footnote 46 ] 422 U.S. at 422 U. S. 79 , citing Wyandotte Transportation Co. v. United States, 389 U. S. 191 (1967); J. 1. Case Co. v. Borak, 377 U. S. 426 (1964); Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 (1916). [ Footnote 47 ] Jurisdiction to review agency action under the APA is found in 28 U.S.C. § 1331. See Califano v. Sanders, 430 U. S. 99 (1977). Chrysler does not argue in this Court, as it did below, that private rights of action are available under 42 U.S.C. § 2000e-8(e) and 44 U.S.C. § 3508. [ Footnote 48 ] By regulation, the Secretary of Labor also has imposed the standards of § 1905 on OFCCP and its compliance agencies. 29 CFR § 70.21 (1978). [ Footnote 49 ] Since the Court of Appeals assumed for purposes of argument that the material in question was within an exemption to the FOIA, that court found it unnecessary expressly to decide that issue and it is open on remand. We, of course, do not here attempt to determine the relative ambits of Exemption 4 and § 1905, or to determine whether § 1905 is an exempting statute within the terms of the amended Exemption 3, 5 U.S.C. § 522(b)(3). Although there is a theoretical possibility that material might be outside Exemption 4 yet within the substantive provisions of § 1905, and that therefore the FOIA might provide the necessary "authoriz[ation] by law" for purposes of § 1905, that possibility is, at most, of limited practical significance in view of the similarity of language between Exemption 4 and the substantive provisions of § 1905. MR. JUSTICE MARSHALL, concurring. I agree that respondents' proposed disclosure of information is not "authorized by law" within the meaning of 18 U.S.C. § 1905, and I therefore join the opinion of the Court. Because the number and complexity of the issues presented by this case will inevitably tend to obscure the dispositive conclusions, I wish to emphasize the essential basis for the decision today. This case does not require us to determine whether, absent a congressional directive, federal agencies may reveal information obtained during the exercise of their functions. For whatever inherent power an agency has in this regard, § 1905 forbids agencies from divulging certain types of information unless disclosure is independently "authorized by law." Thus, the controlling issue in this case is whether the OFCCP disclosure Page 441 U. S. 320 regulations, 41 CFR §§ 60.40-1 to 60.40-4 (1978), provide the requisite degree of authorization for the agency's proposed release. The Court holds that they do not, because the regulations are not sanctioned directly or indirectly by federal legislation. [ Footnote 2/1 ] In imposing the authorization requirement of § 1905, Congress obviously meant to allow only those disclosures contemplated by congressional action. Ante at 441 U. S. 298 -312. Otherwise, the agencies Congress intended to control could create their own exceptions to § 1905 simply by promulgating valid disclosure regulations. Finally, the Court holds that, since § 10(e) of the Administrative Procedure Act requires agency action to be "in accordance with law," 5 U.S.C. § 706(2)(A), a reviewing court can prevent any disclosure that would violate § 1905. [ Footnote 2/2 ] Our conclusion that disclosure pursuant to the OFCCP regulations is not "authorized by law" for purposes of § 1905, however, does not mean the regulations themselves are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" for purposes of the Administrative Procedure Act. 5 U.S.C. § 706(2)(C). As the Court recognizes, ante at 441 U. S. 309 n. 40, that inquiry involves very different considerations than those presented in the instant case. Accordingly, we do not question the general validity of these OFCCP regulations or any other regulations promulgated under § 201 of Executive Order No. 11246, 3 CFR 340 (1964-1965 Comp.). Nor do we consider whether such an Executive Order must be founded on a legislative enactment. The Page 441 U. S. 321 Court's holding is only that the OFCCP regulations in issue here do not "authorize" disclosure within the meaning of § 1905. Based on this understanding, I join the opinion of the Court. [ Footnote 2/1 ] That the OFCCP regulations were not promulgated in strict compliance with the Administrative Procedure Act, ante at 441 U. S. 312 -316, is an independent reason why those regulations do not satisfy the requirements of § 1905, although the agency could rectify this shortcoming. [ Footnote 2/2 ] Thus, the courts below must determine on remand whether § 1905 covers the types of information respondents intended to disclose. Disclosure of those documents not covered by § 1905 would, under the Court's holding, be "in accordance with law." 5 U.S.C. § 706(2)(A).

In Chrysler Corp. v. Brown, the US Supreme Court ruled that federal agencies cannot create their own exceptions to the Trade Secrets Act, which prohibits the disclosure of trade secrets and confidential information submitted to a government agency. The Court held that only disclosures contemplated by congressional action are permitted and that the Office of Federal Contract Compliance Programs' (OFCCP) disclosure regulations did not provide sufficient authorization for the release of information. The Court also determined that a reviewing court could prevent any disclosure violating the Trade Secrets Act.

Government Agencies

Public Citizen v. Dept. of Justice

https://supreme.justia.com/cases/federal/us/491/440/

U.S. Supreme Court Public Citizen v. Department of Justice, 491 U.S. 440 (1989) Public Citizen v. United States Department of Justice No. 88-429 Argued April 17, 1989 Decided June 21, 1989 491 U.S. 440 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Syllabus To aid the President in fulfilling his constitutional duty to appoint federal judges, the Department of Justice regularly seeks advice from the Standing Committee on Federal Judiciary of the American Bar Association (ABA) regarding potential nominees for judgeships. The ABA Committee's investigations, reports, and votes on potential nominees are kept confidential, although its rating of a particular candidate is made public if he or she is in fact nominated. Appellant Washington Legal Foundation (WLF) filed suit against the Justice Department after the ABA Committee refused WLF's request for the names of potential nominees it was considering and for its reports and minutes of its meetings. The action was brought under the Federal Advisory Committee Act (FACA), which, among other things, defines an "advisory committee" as any group "established or utilized" by the President or an agency to give advice on public questions, and requires a covered group to file a charter, afford notice of its meetings, open those meetings to the public, and make its minutes, records, and reports available to the public. Joined by appellant Public Citizen, WLF asked the District Court to declare the Committee an "advisory group" subject to FACA's requirements and to enjoin the Department from utilizing the ABA Committee until it complied with those requirements. The court dismissed the complaint, holding that the Department's use of the ABA Committee is subject to FACA's strictures, but ruling that applying FACA to the ABA Committee would unconstitutionally infringe on the President's Article II power to nominate federal judges and violate the doctrine of separation of powers. Held: 1. Appellants have standing to bring this suit. The refusal to permit them to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing, and the fact that other groups or citizens might make the same complaint as appellants does not lessen that injury. Moreover, although the statute's Page 491 U. S. 441 disclosure exemptions might bar public access to many of the meetings appellants seek to attend and many of the documents they wish to view, the exemptions probably would not deny access to all meetings and documents, particularly discussions and documents regarding the ABA Committee's overall functioning, and would not excuse the ABA Committee's noncompliance with FACA's other provisions, such as those requiring a covered organization to file a charter and give notice of its meetings. Thus, appellants may gain significant and genuine relief if they prevail in their suit, and such potential gains are sufficient to give them standing. Pp. 491 U. S. 448 -451. 2. FACA does not apply to the Justice Department's solicitation of the ABA Committee's views on prospective judicial nominees. Pp. 491 U. S. 451 -467. (a) Whether the ABA Committee is an "advisory committee" under FACA depends upon whether it is "utilized" by the President or the Department within the statute's meaning. Read unqualifiedly, that verb would extend FACA's coverage to the ABA Committee. However, since FACA was enacted to cure specific ills -- particularly the wasteful expenditure of public funds for worthless committee meetings and biased proposals by special interest groups -- it is unlikely that Congress intended the statute to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice. When the literal reading of a statutory term compels an odd result, this Court searches beyond the bare text for other evidence of congressional intent. Pp. 491 U. S. 451 -455. (b) Although the question is a close one, a careful review of the regulatory scheme prior to FACA's enactment and that statute's legislative history strongly suggests that Congress did not intend that the term "utilized" apply to the Justice Department's use of the ABA Committee. FACA's regulatory predecessor, Executive Order No. 11007, applied to advisory committees formed by a governmental unit, and to those not so formed when "being utilized by [the Government] in the same manner as a Government-formed . . . committee." That the ABA Committee was never deemed to be "utilized" in the relevant sense is evidenced by the fact that no President operating under the Order or any Justice Department official ever applied the Order to the ABA Committee, despite its highly visible role in advising the Department as to potential nominees. That is not surprising, since the ABA Committee -- which was formed privately, rather than at the Government's prompting, to assist the President in performing a constitutionally specified function, and which receives no federal funds and is not amenable to the strict management by agency officials envisaged by the Order -- cannot easily be said to have been "utilized" in the same manner as a Government-formed committee. Moreover, FACA adopted many of the Order's provisions, and there is Page 491 U. S. 442 considerable evidence in the statute's legislative history that Congress sought only to achieve compliance with FACA's more stringent requirements by advisory committees already covered by the Order and by Presidential advisory committees, and that the statute's "or utilized" phrase was intended to clarify that FACA applies to committees "established . . . by" the Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations "for" public agencies as well as "by" such agencies themselves. Read in this way, the word "utilized" does not describe the Justice Department's use of the ABA Committee. Pp. 491 U. S. 455 -465. (c) Construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties. Where, as here, a plausible alternative construction exists that will allow the Court to avoid such problems, the Court will adopt that construction. See, e.g., Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 . Pp. 491 U. S. 465 -467. 691 F. Supp. 483 , affirmed. BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, p. 491 U. S. 467 . SCALIA, J., took no part in the consideration or decision of the cases. Page 491 U. S. 443 JUSTICE BRENNAN delivered the opinion of the Court. The Department of Justice regularly seeks advice from the American Bar Association's Standing Committee on Federal Judiciary regarding potential nominees for federal judgeships. The question before us is whether the Federal Advisory Committee Act (FACA), 86 Stat. 770, as amended, 5 U.S.C.App. § 1 et seq. (1982 ed. and Supp.V), applies to these consultations, and, if it does, whether its application interferes unconstitutionally with the President's prerogative under Article II to nominate and appoint officers of the United States; violates the doctrine of separation of powers; or unduly infringes the First Amendment right of members of the American Bar Association to freedom of association and expression. We hold that FACA does not apply to this special advisory relationship. We therefore do not reach the constitutional questions presented. I A The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Supreme Court Justices and, as established by Congress, other federal judges. Art. II, § 2, cl. 2. Since 1952, the President, through the Department of Justice, has requested advice from the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee) in making such nominations. The American Bar Association is a private voluntary professional association of approximately 343,000 attorneys. It has several working committees, among them the advisory body whose work is at issue here. The ABA Committee consists of 14 persons belonging to, and chosen by, the American Bar Association. Each of the 12 federal judicial Circuits (not including the Federal Circuit) has one representative on the ABA Committee, except for the Ninth Circuit, which has Page 491 U. S. 444 two; in addition, one member is chosen at large. The ABA Committee receives no federal funds. It does not recommend persons for appointment to the federal bench of its own initiative. Prior to announcing the names of nominees for judgeships on the courts of appeals, the district courts, or the Court of International Trade, the President, acting through the Department of Justice, routinely requests a potential nominee to complete a questionnaire drawn up by the ABA Committee and to submit it to the Assistant Attorney General for the Office of Legal Policy, to the chair of the ABA Committee, and to the committee member (usually the representative of the relevant judicial Circuit) charged with investigating the nominee. See American Bar Association Standing Committee on Federal Judiciary, What It Is and How It Works (1983), reprinted in App. 43-49; Brief for Federal Appellee 2. [ Footnote 1 ] The potential nominee's answers and the referral of his or her name to the ABA Committee are kept confidential. The committee member conducting the investigation then reviews the legal writings of the potential nominee, interviews judges, legal scholars, and other attorneys regarding the potential nominee's qualifications, and discusses the matter confidentially with representatives of various professional organizations and other groups. The committee member also interviews the potential nominee, sometimes with other committee members in attendance. Following the initial investigation, the committee representative prepares for the chair an informal written report describing the potential nominee's background, summarizing all interviews, assessing the candidate's qualifications, and recommending one of four possible ratings: "exceptionally well qualified," "well qualified," "qualified," or "not qualified." [ Footnote 2 ] Page 491 U. S. 445 The chair then makes a confidential informal report to the Attorney General's Office. The chair's report discloses the substance of the committee representative's report to the chair, without revealing the identity of persons who were interviewed, and indicates the evaluation the potential nominee is likely to receive if the Department of Justice requests a formal report. If the Justice Department does request a formal report, the committee representative prepares a draft and sends copies to other members of the ABA Committee, together with relevant materials. A vote is then taken, and a final report approved. The ABA Committee conveys its rating -- though not its final report -- in confidence to the Department of Justice, accompanied by a statement whether its rating was supported by all committee members or whether it only commanded a majority or substantial majority of the ABA Committee. After considering the rating and other information the President and his advisors have assembled, including a report by the Federal Bureau of Investigation and additional interviews conducted by the President's judicial selection committee, the President then decides whether to nominate the candidate. If the candidate is in fact nominated, the ABA Committee's rating, but not its report, is made public at the request of the Senate Judiciary Committee. [ Footnote 3 ] B FACA was born of a desire to assess the need for the "numerous committees, boards, commissions, councils, and similar Page 491 U. S. 446 which have been established to advise officers and agencies in the executive branch of the Federal Government." § 2(a), as set forth in 5 U.S.C.App. § 2(a). [ Footnote 4 ] Its purpose was to ensure that new advisory committees be established only when essential, and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature. § 2(b). To attain these objectives, FACA directs the Director of the Office of Management and Budget and agency heads to establish various administrative guidelines and management controls for advisory committees. It also imposes a number of requirements on advisory groups. For example, FACA requires that each advisory committee file a charter, § 9(c), and keep detailed minutes of its meetings. § 10(c). Those meetings must be chaired or attended by an officer or employee of the Federal Government who is authorized to adjourn any meeting when he or she deems its adjournment in the public interest. § 10(e). FACA also requires advisory committees to provide advance notice of their meetings and to open them to the public, § 10(a), unless the President or the agency head to which an advisory committee reports determines that it may be closed to the public in accordance with the Government in the Sunshine Act, 5 U.S.C. § 552b(c). § 10(d). In addition, FACA stipulates that advisory committee minutes, records, and reports be made available Page 491 U. S. 447 to the public, provided they do not fall within one of the Freedom of Information Act's exemptions, see 5 U.S.C. § 552, and the Government does not choose to withhold them. § 10(b). Advisory committees established by legislation or created by the President or other federal officials must also be "fairly balanced in terms of the points of view represented and the functions" they perform. §§ 5(b)(2), (c). Their existence is limited to two years, unless specifically exempted by the entity establishing them. § 14(a)(1). C In October, 1986, appellant Washington Legal Foundation (WLF) brought suit against the Department of Justice after the ABA Committee refused WLF's request for the names of potential judicial nominees it was considering and for the ABA Committee's reports and minutes of its meetings. [ Footnote 5 ] WLF asked the District Court for the District of Columbia to declare the ABA Committee an "advisory committee" as FACA defines that term. WLF further sought an injunction ordering the Justice Department to cease utilizing the ABA Committee as an advisory committee until it complied with FACA. In particular, WLF contended that the ABA Committee must file a charter, afford notice of its meetings, open those meetings to the public, and make its minutes, records, and reports available for public inspection and copying. See WLF Complaint, App. 5-11. The Justice Department moved to dismiss, arguing that the ABA Committee did not fall within FACA's definition of "advisory committee" Page 491 U. S. 448 and that, if it did, FACA would violate the constitutional doctrine of separation of powers. Appellant Public Citizen then moved successfully to intervene as a party plaintiff. Like WLF, Public Citizen requested a declaration that the Justice Department's utilization of the ABA Committee is covered by FACA and an order enjoining the Justice Department to comply with FACA's requirements. The District Court dismissed the action following oral argument. 691 F. Supp. 483 (1988). The court held that the Justice Department's use of the ABA Committee is subject to FACA's strictures, but that "FACA cannot constitutionally be applied to the ABA Committee because to do so would violate the express separation of nomination and consent powers set forth in Article II of the Constitution and because no overriding congressional interest in applying FACA to the ABA Committee has been demonstrated." Id. at 486. Congress' role in choosing judges "is limited to the Senate's advice and consent function," the court concluded; "the purposes of FACA are served through the public confirmation process, and any need for applying FACA to the ABA Committee is outweighed by the President's interest in preserving confidentiality and freedom of consultation in selecting judicial nominees." Id. at 496. We noted probable jurisdiction, 488 U.S. 979 (1988), and now affirm on statutory grounds, making consideration of the relevant constitutional issues unnecessary. II As a preliminary matter, appellee American Bar Association contests appellants' standing to bring this suit. [ Footnote 6 ] Appellee's challenge is twofold. First, it contends that neither appellant has alleged injury sufficiently concrete and specific to confer standing; rather, appellee maintains, they have Page 491 U. S. 449 advanced a general grievance shared in substantially equal measure by all or a large class of citizens, and thus lack standing under our precedents. Brief for Appellee ABA 12-15. Second, appellee argues that, even if appellants have asserted a sufficiently discrete injury, they have not demonstrated that a decision in their favor would likely redress the alleged harm, because the meetings they seek to attend and the minutes and records they wish to review would probably be closed to them under FACA. Hence, the American Bar Association submits, Article III bars their suit. Id. at 15-17. We reject these arguments. Appellee does not, and cannot, dispute that appellants are attempting to compel the Justice Department and the ABA Committee to comply with FACA's charter and notice requirements, and that they seek access to the ABA Committee's meetings and records in order to monitor its workings and participate more effectively in the judicial selection process. Appellant WLF has specifically requested, and been refused, the names of candidates under consideration by the ABA Committee, reports and minutes of the Committee's meetings, and advance notice of future meetings. WLF Complaint, App. 8. As when an agency denies requests for information under the Freedom of Information Act, refusal to permit appellants to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue. Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records. See, e.g., Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989); Department of Justice v. Julian, 486 U. S. 1 (1988); United States v. Weber Aircraft Corp., 465 U. S. 792 (1984); FBI v. Abramson, 456 U. S. 615 (1982); Department of Air Force v. Rose, 425 U. S. 352 (1976). There is no reason for a different rule here. The fact that other citizens Page 491 U. S. 450 or groups of citizens might make the same complaint after unsuccessfully demanding disclosure under FACA does not lessen appellants' asserted injury, any more than the fact that numerous citizens might request the same information under the Freedom of Information Act entails that those who have been denied access do not possess a sufficient basis to sue. We likewise find untenable the American Bar Association's claim that appellants lack standing because a ruling in their favor would not provide genuine relief as a result of FACA's exceptions to disclosure. Appellants acknowledge that many meetings of the ABA Committee might legitimately be closed to the public under FACA, and that many documents might properly be shielded from public view. But they by no means concede that FACA licenses denying them access to all meetings and papers, or that it excuses noncompliance with FACA's other provisions. As Public Citizen contends, if FACA applies to the Justice Department's use of the ABA Committee without violating the Constitution, the ABA Committee will at least have to file a charter and give notice of its meetings. In addition, discussions and documents regarding the overall functioning of the ABA Committee, including its investigative, evaluative, and voting procedures, could well fall outside FACA's exemptions. See Reply Brief for Appellant in No. 88-429, pp. 5-6, and n. 3. Indeed, it is difficult to square appellee's assertion that appellants cannot hope to gain noteworthy relief with its contention that "even more significant interference [than participation of Government officials in the ABA Committee's affairs] would result from the potential application of the 'public inspection' provisions of Section 10 of the Act." Brief for Appellee ABA 36. The American Bar Association explains: "Disclosure and public access are the rule under FACA; the exemptions generally are construed narrowly. In fact, the Government-in-the-Sunshine Act has no deliberative process privilege under which ABA Committee meetings Page 491 U. S. 451 could be closed." Id. at 38-39 (citations omitted). Appellee therefore concludes: "At bottom, there can be no question that application of FACA will impair the sensitive and necessarily confidential process of gathering information to assess accurately the qualifications and character of prospective judicial nominees." Id. at 39. Whatever the merits of these claims, and whatever their relevance to appellee's constitutional objections to FACA's applicability, they certainly show, as appellants contend, that appellants might gain significant relief if they prevail in their suit. Appellants' potential gains are undoubtedly sufficient to give them standing. [ Footnote 7 ] III Section 3(2) of FACA, as set forth in 5 U.S.C.App. § 3(2), defines "advisory committee" as follows: "For the purpose of this Act -- " " * * * *" "(2) The term 'advisory committee' means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as 'committee'), which is -- " "(A) established by statute or reorganization plan, or" "(B) established or utilized by the President, or" "(C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes Page 491 U. S. 452 (i) the Advisory Commission on Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government." Appellants agree that the ABA Committee was not "established" by the President or the Justice Department. See Brief for Appellant in No. 88-429, p. 16; Brief for Appellant in No. 88-494, pp. 13, 15-16, 21. Equally plainly, the ABA Committee is a committee that furnishes "advice or recommendations" to the President via the Justice Department. Whether the ABA Committee constitutes an "advisory committee" for purposes of FACA therefore depends upon whether it is "utilized" by the President or the Justice Department as Congress intended that term to be understood. A There is no doubt that the Executive makes use of the ABA Committee, and thus "utilizes" it in one common sense of the term. As the District Court recognized, however, "reliance on the plain language of FACA alone is not entirely satisfactory." 691 F. Supp. at 488. "Utilize" is a woolly verb, its contours left undefined by the statute itself. Read unqualifiedly, it would extend FACA's requirements to any group of two or more persons, or at least any formal organization, from which the President or an Executive agency seeks advice. [ Footnote 8 ] We are convinced that Congress did not intend that result. A nodding acquaintance with FACA's purposes, Page 491 U. S. 453 as manifested by its legislative history and as recited in § 2 of the Act, reveals that it cannot have been Congress' intention, for example, to require the filing of a charter, the presence of a controlling federal official, and detailed minutes any time the President seeks the views of the National Association for the Advancement of Colored People (NAACP) before nominating Commissioners to the Equal Employment Opportunity Commission, or asks the leaders of an American Legion Post he is visiting for the organization's opinion on some aspect of military policy. Nor can Congress have meant -- as a straightforward reading of "utilize" would appear to require -- that all of FACA's restrictions apply if a President consults with his own political party before picking his Cabinet. It was unmistakably not Congress' intention to intrude on a political party's freedom to conduct its affairs as it chooses, cf. Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 , 489 U. S. 230 (1989), or its ability to advise elected officials who belong to that party, by placing a federal employee in charge of each advisory group meeting and making its minutes public property. FACA was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals; although its reach is extensive, we cannot believe that it was intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice. [ Footnote 9 ] As we Page 491 U. S. 454 said in Church of the Holy Trinity v. United States, 143 U. S. 457 , 143 U. S. 459 (1892): "[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Where the literal reading of a statutory term would "compel an odd result," Green v. Bock Laundry Machine Co., 490 U. S. 504 , 490 U. S. 509 (1989), we must search for other evidence of congressional intent to lend the term its proper scope. See also e.g., Church of the Holy Trinity, supra, at 143 U. S. 472 ; FDIC v. Philadelphia Gear Corp., 476 U. S. 426 , 476 U. S. 432 (1986). "The circumstances of the enactment of particular legislation," for example, "may persuade a court that Congress did not intend words of common meaning to have their literal effect." Watt v. Alaska, 451 U. S. 259 , 451 U. S. 266 (1981). Even though, as Judge Learned Hand said, "the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing," nevertheless "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, Page 491 U. S. 455 but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F.2d 737, 739 (CA2), aff'd, 326 U. S. 404 (1945). Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention, since the plain-meaning rule is "rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. v. United States, 278 U. S. 41 , 278 U. S. 48 (1928) (Holmes, J.). See also United States v. American Trucking Assns., Inc., 310 U. S. 534 , 310 U. S. 543 -544 (1940) ("When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law' which forbids its use, however clear the words may appear on `superficial examination'") (citations omitted). Consideration of FACA's purposes and origins in determining whether the term "utilized" was meant to apply to the Justice Department's use of the ABA Committee is particularly appropriate here, given the importance we have consistently attached to interpreting statutes to avoid deciding difficult constitutional questions where the text fairly admits of a less problematic construction. See infra at 491 U. S. 465 -467. It is therefore imperative that we consider indicators of congressional intent in addition to the statutory language before concluding that FACA was meant to cover the ABA Committee's provision of advice to the Justice Department in connection with judicial nominations. B Close attention to FACA's history is helpful, for FACA did not flare on the legislative scene with the suddenness of a meteor. Similar attempts to regulate the Federal Government's use of advisory committees were common during the 20 years preceding FACA's enactment. See Note, The Federal Page 491 U. S. 456 Advisory Committee Act, 10 Harv.J.Legis. 217, 219-221 (1973). An understanding of those efforts is essential to ascertain the intended scope of the term "utilize." In 1950, the Justice Department issued guidelines for the operation of federal advisory committees in order to forestall their facilitation of anticompetitive behavior by bringing industry leaders together with Government approval. See Hearings on WOC's [Without Compensation Government employees] and Government Advisory Groups before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., pt. 1, pp. 586-587 (1955) (reprinting guidelines). Several years later, after the House Committee on Government Operations found that the Justice Department's guidelines were frequently ignored, Representative Fascell sponsored a bill that would have accorded the guidelines legal status. H.R. 7390, 85th Cong., 1st Sess. (1957). Although the bill would have required agencies to report to Congress on their use of advisory committees and would have subjected advisory committees to various controls, it apparently would not have imposed any requirements on private groups, not established by the Federal Government, whose advice was sought by the Executive. See H.R.Rep. No. 576, 85th Cong., 1st Sess., 5-7 (1957); 103 Cong.Rec. 11252 (1957) (remarks of Rep. Fascell and Rep. Vorys). Despite Congress' failure to enact the bill, the Bureau of the Budget issued a directive in 1962 incorporating the bulk of the guidelines. See Perritt & Wilkinson, Open Advisory Committees and the Political Process: The Federal Advisory Committee Act After Two Years, 63 Geo. L.J. 725, 731 (1975). Later that year, President Kennedy issued Executive Order No. 11007, 3 CFR 573 (1959-1963 Comp.), which governed the functioning of advisory ' committees until FACA's passage. Executive Order No. 11007 is the probable source of the term "utilize" as later employed in FACA. The Order applied to advisory committees "formed by a Page 491 U. S. 457 department or agency of the Government in the interest of obtaining advice or recommendations," or "not formed by a department or agency, but only during any period when it is being utilized by a department or agency in the same manner as a Government-formed advisory committee." § 2(a) (emphasis added). To a large extent, FACA adopted wholesale the provisions of Executive Order No. 11007. For example, like FACA, Executive Order No. 11007 stipulated that no advisory committee be formed or utilized unless authorized by law or determined as a matter of formal record by an agency head to be in the public interest, § 3; that all advisory committee meetings be held in the presence of a Government employee empowered to adjourn the meetings whenever he or she considered adjournment to be in the public interest, § 6(b); that meetings only occur at the call of, or with the advance approval of, a federal employee, § 6(a); that minutes be kept of the meetings, §§ 6(c), (d); and that committees terminate after two years unless statute or an agency head decreed otherwise. § 8. There is no indication, however, that Executive Order No. 11007 was intended to apply to the Justice Department's consultations with the ABA Committee. Neither President Kennedy, who issued the Order, nor President Johnson, nor President Nixon apparently deemed the ABA Committee to be "utilized" by the Department of Justice in the relevant sense of that term. Notwithstanding the ABA Committee's highly visible role in advising the Justice Department regarding potential judicial nominees, and notwithstanding the fact that the Order's requirements were established by the Executive itself, rather than Congress, no President or Justice Department official applied them to the ABA Committee. As an entity formed privately, rather than at the Federal Government's prompting, to render confidential advice with respect to the President's constitutionally specified power to nominate federal judges -- an entity in receipt of no federal funds and not amenable to the strict management by Page 491 U. S. 458 agency officials envisaged by Executive Order No. 11007 -- the ABA Committee cannot easily be said to have been "utilized by a department or agency in the same manner as a Government-formed advisory committee." That the Executive apparently did not consider the ABA Committee's activity within the terms of its own Executive Order is therefore unsurprising. Although FACA's legislative history evinces an intent to widen the scope of Executive Order No. 11007's definition of "advisory committee" by including "Presidential advisory committees," which lay beyond the reach of Executive Order No. 11007, [ Footnote 10 ] see H.R.Rep. No. 91-1731, pp. 9-10 (1970); H.R.Rep. No. 92-1017, p. 4 (1972); S.Rep. No. 92-1098, pp. 3-5, 7 (1972), as well as to augment the restrictions applicable Page 491 U. S. 459 to advisory committees covered by the statute, there is scant reason to believe that Congress desired to bring the ABA Committee within FACA's net. FACA's principal purpose was to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures on them. That purpose could be accomplished, however, without expanding the coverage of Executive Order No. 11007 to include privately organized committees that received no federal funds. Indeed, there is considerable evidence that Congress sought nothing more than stricter compliance with reporting and other requirements -- which were made more stringent -- by advisory committees already covered by the Order, and similar treatment of a small class of publicly funded groups created by the President. The House bill which, in its amended form, became FACA applied exclusively to advisory committees "established" by statute or by the Executive, whether by a federal agency or by the President himself. H.R. 4383, 92d Cong., 2d Sess. § 3(2) (1972). Although the House Committee Report stated that the class of advisory committees was to include "committees which may have been organized before their advice was sought by the President or any agency, but which are used by the President or any agency in the same way as an advisory committee formed by the President himself or the agency itself," H.R.Rep. No. 92-1017, supra, at 4, it is questionable whether the Report's authors believed that the Justice Department used the ABA Committee in the same way as it used advisory committees it established. The phrase "used . . . in the same way" is reminiscent of Executive Order No. 11007's reference to advisory committees "utilized . . . in the same manner" as a committee established by the Federal Government, and the practice of three administrations demonstrates that Executive Order No. 11007 did not encompass the ABA Committee. Page 491 U. S. 460 This inference draws support from the earlier House Report which instigated the legislative efforts that culminated in FACA. That Report complained that committees "utilized" by an agency -- as opposed to those established directly by an agency -- rarely complied with the requirements of Executive Order No. 11007. See H.R.Rep. No. 91-1731, supra, at 15. But it did not cite the ABA Committee or similar advisory committees as willful evaders of the Order. Rather, the Report's paradigmatic example of a committee "utilized" by an agency for purposes of Executive Order No. 11007 was an advisory committee established by a quasi-public organization in receipt of public funds, such as the National Academy of Sciences. [ Footnote 11 ] There is no indication in the Report that a purely private group like the ABA Committee, that was not formed by the Executive, accepted no public funds, and assisted the Executive in performing a constitutionally specified task committed to the Executive, was within the terms of Executive Order No. 11007 or was the type of advisory entity that legislation was urgently needed to address. Page 491 U. S. 461 Paralleling the initial House bill, the Senate bill that grew into FACA defined "advisory committee" as one "established or organized" by statute, the President, or an Executive agency. S. 3529, 92d Cong., 2d Sess. §§ 3(1), (2) (1972). Like the House Report, the accompanying Senate Report stated that the phrase "established or organized" was to be understood in its "most liberal sense, so that, when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice and information, such group is covered by the provisions of this bill." S.Rep. No. 92-1098, supra, at 8. While the Report manifested a clear intent not to restrict FACA's coverage to advisory committees funded by the Federal Government, it did not indicate any desire to bring all private advisory committees within FACA's terms. Indeed, the examples the Senate Report offers -- "the Advisory Council on Federal Reports, the National Industrial Pollution Control Council, the National Petroleum Council, advisory councils to the National Institutes of Health, and committees of the national academies where they are utilized and officially recognized as advisory to the President, to an agency, or to a Government official," ibid. -- are limited to groups organized by, or closely tied to, the Federal Government, and thus enjoying quasi-public status. Given the prominence of the ABA Committee's role and its familiarity to Members of Congress, its omission from the list of groups formed and maintained by private initiative to offer advice with respect to the President's nomination of Government officials is telling. If the examples offered by the Senate Committee on Government Operations are representative, as seems fair to surmise, then there is little reason to think that there was any support, at least at the committee stage, for going beyond the terms of Executive Order No. 11007 to regulate comprehensively the workings of the ABA Committee. It is true that the final version of FACA approved by both Houses employed the phrase "established or utilized," Page 491 U. S. 462 and that this phrase is more capacious than the word "established" or the phrase "established or organized." But its genesis suggests that it was not intended to go much beyond those narrower formulations. The words "or utilized" were added by the Conference Committee to the definition included in the House bill. See H.R.Conf.Rep. No. 92-1403, p. 2 (1972). The Joint Explanatory Statement, however, said simply that the definition contained in the House bill was adopted "with modification." Id. at 9. The Conference Report offered no indication that the modification was significant, let alone that it would substantially broaden FACA's application by sweeping within its terms a vast number of private groups, such as the Republican National Committee, not formed at the behest of the Executive or by quasi-public organizations whose opinions the Federal Government sometimes solicits. Indeed, it appears that the House bill's initial restricted focus on advisory committees established by the Federal Government, in an expanded sense of the word "established," was retained, rather than enlarged, by the Conference Committee. In the section dealing with FACA's range of application, the Conference Report stated: "The Act does not apply to persons or organizations which have contractual relationships with Federal agencies nor to advisory committees not directly established by or for such agencies. Id. at 10 (emphasis added). The phrase 'or utilized' therefore appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations such as the National Academy of Sciences 'for' public agencies as well as 'by' such agencies themselves." Read in this way, the term "utilized" would meet the concerns of the authors of House Report No. 91-1731 that advisory committees covered by Executive Order No. 11007, because they were "utilized by a department or agency in the same manner as a Government-formed advisory committee Page 491 U. S. 463 -- such as the groups organized by the National Academy of Sciences and its affiliates which the Report discussed -- would be subject to FACA's requirements. And it comports well with the initial House and Senate bills' limited extension to advisory groups "established," on a broad understanding of that word, by the Federal Government, whether those groups were established by the Executive Branch or by statute or whether they were the offspring of some organization created or permeated by the Federal Government. Read in this way, however, the word "utilized" does not describe the Justice Department's use of the ABA Committee. Consultations between the Justice Department and the ABA Committee were not within the purview of Executive Order No. 11007, nor can the ABA Committee be said to have been formed by the Justice Department or by some semiprivate entity the Federal Government helped bring into being. In sum, a literalistic reading of § 3(2) would bring the Justice Department's advisory relationship with the ABA Committee within FACA's terms, particularly given FACA's objective of opening many advisory relationships to public scrutiny except in certain narrowly defined situations. [ Footnote 12 ] A Page 491 U. S. 464 literalistic reading, however, would catch far more groups and consulting arrangements than Congress could conceivably have intended. And the careful review which this interpretive difficulty warrants of earlier efforts to regulate Page 491 U. S. 465 federal advisory committees and the circumstances surrounding FACA's adoption strongly suggests that FACA's definition of "advisory committee" was not meant to encompass the ABA Committee's relationship with the Justice Department. That relationship seems not to have been within the contemplation of Executive Order No. 11007. And FACA's legislative history does not display an intent to widen the Order's application to encircle it. Weighing the deliberately inclusive statutory language against other evidence of congressional intent, it seems to us a close question whether FACA should be construed to apply to the ABA Committee, although, on the whole, we are fairly confident it should not. There is, however, one additional consideration which, in our view, tips the balance decisively against FACA's application. C "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible Page 491 U. S. 466 by which the question may be avoided." Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932) (footnote collecting citations omitted). It has long been an axiom of statutory interpretation that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Edward J. Desartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568 , 485 U. S. 575 (1988). See also St. Martin Evangelical Lutheran Church v. South Dakota, 451 U. S. 772 , 451 U. S. 780 (1981); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 , 440 U. S. 500 -501 (1979); Machinists v. Street, 367 U. S. 740 , 367 U. S. 749 -750 (1961). This approach, we said recently, "not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution." Edward J. Desartolo Corp., supra, at 367 U. S. 575 . Our reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of government. See American Foreign Service Assn. v. Garfinkel, 490 U. S. 153 , 490 U. S. 161 (1989) (per curiam). Hence, we are loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils. That construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties is undeniable. The District Court declared FACA unconstitutional insofar as it applied to those consultations, because it concluded that FACA, so applied, infringed unduly on the President's Article II power to nominate federal judges and violated the doctrine of separation of powers. [ Footnote 13 ] Whether or not the court's conclusion Page 491 U. S. 467 was correct, there is no gainsaying the seriousness of these constitutional challenges. To be sure, "[w]e cannot press statutory construction "to the point of disingenuous evasion" even to avoid a constitutional question." United States v. Locke, 471 U. S. 84 , 471 U. S. 96 (1985), quoting Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 289 U. S. 379 (1933). But unlike in Locke, where "nothing in the legislative history remotely suggest[ed] a congressional intent contrary to Congress' chosen words," 471 U.S. at 471 U. S. 96 , our review of the regulatory scheme prior to FACA's enactment and the likely origin of the phrase "or utilized" in FACA's definition of "advisory committee" reveals that Congress probably did not intend to subject the ABA Committee to FACA's requirements when the ABA Committee offers confidential advice regarding Presidential appointments to the federal bench. Where the competing arguments based on FACA's text and legislative history, though both plausible, tend to show that Congress did not desire FACA to apply to the Justice Department's confidential solicitation of the ABA Committee's views on prospective judicial nominees, sound sense counsels adherence to our rule of caution. Our unwillingness to resolve important constitutional questions unnecessarily thus solidifies our conviction that FACA is inapplicable. The judgment of the District Court is Affirmed. JUSTICE SCALIA took no part in the consideration or decision of these cases. [ Footnote 1 ] The Justice Department does not ordinarily furnish the names of potential Supreme Court nominees to the ABA Committee for evaluation prior to their nomination, although in some instances the President has done so. See Brief for Federal Appellee 4-5. [ Footnote 2 ] The ratings now used in connection with Supreme Court nominees are "well qualified," "not opposed," and "not qualified." See American Bar Association Standing Committee on Federal Judiciary, What It Is and How It Works (1983), reprinted in App. 50. [ Footnote 3 ] The Senate regularly requests the ABA Committee to rate Supreme Court nominees if the Justice Department has not already sought the ABA Committee's opinion. As with nominees for other federal judgeships, the ABA Committee's rating is made public at confirmation hearings before the Senate Judiciary Committee. [ Footnote 4 ] Federal advisory committees are legion. During fiscal year 1988, 58 federal departments sponsored 1,020 advisory committees. General Services Administration, Seventeenth Annual Report of the President on Federal Advisory Committees 1 (1988). Over 3,500 meetings were held, and close to 1,000 reports were issued. Ibid. Costs for fiscal year 1988 totaled over $92 million, roughly half of which was spent on federal staff support. Id. at 3. [ Footnote 5 ] WLF originally sued the ABA Committee, its members, and the American Bar Association, but not the Department of Justice. The District Court dismissed that complaint on the ground that the Justice Department was the proper defendant. Washington Legal Foundation v. American Bar Assn. Standing Comm. on Federal Judiciary, 648 F. Supp. 1353 (DC 1986). WLF's appeal on the issue whether a committee can be sued directly for noncompliance with FACA is pending before the Court of Appeals. See Brief for Appellant in No. 88-494, p. 10, n. 9. [ Footnote 6 ] The American Bar Association was not a party below, but intervened for purposes of this appeal after the District Court rendered judgment. [ Footnote 7 ] The Justice Department concedes that appellants have standing to challenge the application of at least some of FACA's provisions to the Justice Department's consultations with the ABA Committee. See Brief for Federal Appellee 11-16. Because those challenges present the threshold question whether the ABA Committee constitutes an advisory committee for purposes of FACA, and because we hold that it does not, we need not address the Department's claim that appellants lack standing to contest the application of certain other provisions. [ Footnote 8 ] FACA provides exceptions for advisory committees established or utilized by the Central Intelligence Agency or the Federal Reserve System, § 4(b), as well as for "any local civic group whose primary function is that of rendering a public service with respect to a Federal program, or any State or local committee, council, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies." § 4(c). The presence of these exceptions does little to curtail the almost unfettered breadth of a dictionary reading of FACA's definition of "advisory committee." [ Footnote 9 ] JUSTICE KENNEDY agrees with our conclusion that an unreflective reading of the term "utilize" would include the President's occasional consultations with groups such as the NAACP and committees of the President's own political party. See post at 491 U. S. 472 . Having concluded that groups such as these are covered by the statute when they render advice, however, JUSTICE KENNEDY refuses to consult FACA's legislative history -- which he later denounces, with surprising hyperbole, as "unauthoritative materials," post at 491 U. S. 473 , although countless opinions of this Court, including many written by the concurring Justices, have rested on just such materials -- because this result would not, in his estimation, be "absurd," post at 491 U. S. 472 . Although this Court has never adopted so strict a standard for reviewing committee reports, floor debates, and other nonstatutory indications of congressional intent, and we explicitly reject that standard today, see also infra at 455, even if "absurdity" were the test, one would think it was met here. The idea that Members of Congress would vote for a bill subjecting their own political parties to bureaucratic intrusion and public oversight when a President or Cabinet officer consults with party committees concerning political appointments is outlandish. Nor does it strike us as in any way "unhealthy," post at 491 U. S. 470 , or undemocratic, post at 491 U. S. 473 , to use all available materials in ascertaining the intent of our elected representatives, rather than read their enactments as requiring what may seem a disturbingly unlikely result, provided only that the result is not "absurd." Indeed, the sounder and more democratic course, the course that strives for allegiance to Congress' desires in all cases, not just those where Congress' statutory directive is plainly sensible or borders on the lunatic, is the traditional approach we reaffirm today. [ Footnote 10 ] Neither Public Citizen nor WLF contends that the ABA Committee is a Presidential advisory committee as Congress understood that term. Nor does it appear to be one. In a House Report on the effectiveness of federal advisory committees, which provided the impetus for legislative proposals that eventually produced FACA, the Committee on Government Operations noted that Presidential committees were a special concern because they often consumed large amounts of federal money and were subject to no controls. The House Committee, however, defined "Presidential committee" narrowly, "as a group with either one or all of its members appointed by the President with a function of advising or making recommendations to him." H.R.Rep. No. 91-1731, p. 10 (1970). None of the ABA Committee's members are appointed by the President, nor does the ABA Committee report directly to him. The House and Senate Reports accompanying early versions of FACA likewise referred to advisory committees "formed" or "established" or "organized" by the President, or to committees created by an Act of Congress to advise the President -- categories into which the ABA Committee cannot readily be fitted. See H.R.Rep. No. 92-1017, pp. 4-5 (1972); S.Rep. No. 92-1098, p. 7 (1972). Although FACA itself provides a more open-ended definition of "Presidential advisory committee," applying it to "an advisory committee which advises the President," § 3(4), as set forth in 5 U.S.C. § 3(4), that category is a species of "advisory committee," and does not purport to cover committees advising the President that were not "established or utilized" by him. As FACA's legislative history reveals, the Presidential advisory committees Congress intended FACA to reach do not include the ABA Committee. [ Footnote 11 ] The relevant paragraph of H.R.Rep. No. 91-1731, supra, at 15 (footnotes omitted), reads in full: "The definition, further, states 'the term also includes any committee, board, . . . that is not formed by a department or agency, when it is being utilized by a department or agency in the same manner as a Government-formed advisory committee.' Rarely were such committees reported. A great number of the approximately 500 advisory committees of the National Academy of Sciences (NAS) and its affiliates possibly should be added to the above 1800 advisory committees, as the NAS committees fall within the intent and literal definition of advisory committees under Executive Order 11007. The National Academy of Sciences was created by Congress as a semiprivate organization for the explicit purpose of furnishing advice to the Government. This is done by the use of advisory committees. The Government meets the expense of investigations and reports prepared by the Academy committees at the request of the Government. Yet very few of the Academy committees were reported by the agencies and departments of the Government." [ Footnote 12 ] Appellants note as well that regulations of the General Services Administration (GSA), the agency responsible for administering FACA, define a "utilized" advisory committee as "a committee or other group composed in whole or in part of other than full-time officers or employees of the Federal Government with an established existence outside the agency seeking its advice which the President or agency official(s) adopts, such as through institutional arrangements, as a preferred source from which to obtain advice or recommendations . . . in the same manner as that individual would obtain advice or recommendations from an established advisory committee." 41 CFR § 101-6.1003 (1988). Appellants argue that the ABA Committee comes within the terms of this regulatory definition, because it exists outside the Justice Department and because it serves as a "preferred source" of advice, inasmuch as the ABA Committee's recommendations regarding potential judicial nominees are unfailingly requested and accorded considerably more weight than those advanced by other groups. See Brief for Appellant in No. 88-429, pp. 17-18; Brief for Appellant in No. 88-494, pp. 18-20. This argument is not without force. For several reasons, however, we do not think it conclusive, either alone or together with appellants' arguments from FACA's text and legislative history. The first is that the regulation, like FACA's definition of "advisory committee," appears too sweeping to be read without qualification unless further investigation of congressional intent confirms that reading. And our review of FACA's legislative history and purposes demonstrates that the Justice Department, assisting the Executive's exercise of a constitutional power specifically assigned to the Executive alone, does not use the ABA Committee in what is obviously the "same manner" as federal agencies use other advisory committees established by them or by some other creature of the Federal Government. Second, appellants' claim that the regulation applies to the ABA Committee is questionable. GSA publishes an annual report listing advisory committees covered by FACA. Although 17 reports have thus far been issued, not once has the ABA Committee been included in that list. The agency's own interpretation of its regulation thus appears to contradict the expansive construction appellants ask us to give it -- a fact which, though not depriving the regulation's language of independent force, see post at 491 U. S. 479 , nevertheless weakens the claim that the regulation applies to the Justice Department's use of the ABA Committee. Third, even if the ABA Committee were covered by the regulation, appellants' case would not be appreciably bolstered. Deference to the agency's expertise in interpreting FACA is less appropriate here than it would be were the regulatory definition a contemporaneous construction of the statute, since the current definition was first promulgated in 1983, see 48 Fed.Reg. 19327 (1983), and did not become final until 1987, see 52 Fed.Reg. 45930 (1987) -- more than a decade after FACA's passage. See, e.g., Aluminum Co. of America v. Central Lincoln Peoples' Utility Dist., 467 U. S. 380 , 467 U. S. 390 (1984); Zenith Radio Corp. v. United States, 437 U. S. 443 , 437 U. S. 450 (1978); General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 142 (1976) (discounting significance of agency interpretive guideline promulgated eight years after statute's enactment, although fact that guideline contradicted agency's earlier position deemed "more importan[t]"); Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396 , 367 U. S. 408 (1961); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 , 288 U. S. 315 (1933). In addition, we owe GSA's regulation diminished deference for a reason independent of its not having been issued contemporaneously with FACA's passage. In General Electric Co. v. Gilbert, supra, we held that an agency's interpretive regulations not promulgated pursuant to express statutory authority should be accorded less weight than "administrative regulations which Congress has declared shall have the force of law, or to regulations which under the enabling statute may themselves supply the basis for imposition of liability." Id. at 429 U. S. 141 (citations omitted). GSA's regulatory definition falls into neither category. Section 7(c), as set forth in 5 U.S.C.App. § 7(c), authorizes the Administrator to "prescribe administrative guidelines and management controls applicable to advisory committees, and, to the maximum extent feasible, provide advice, assistance, and guidance to advisory committees to improve their performance." It does not empower the agency to issue, in addition to these guidelines, a regulatory definition of "advisory committee" carrying the force of law. JUSTICE KENNEDY's assertion that GSA's interpretation of FACA's provisions is "binding," post at 491 U. S. 478 , 491 U. S. 480 , confuses wish with reality. [ Footnote 13 ] In addition, appellee American Bar Association contends that application of FACA to the ABA Committee would impermissibly interfere with the associational and expressive rights guaranteed its members by the First Amendment. See Brief for Appellee ABA 40-48, Brief for People for the American Way Action Fund and Alliance for Justice as Amicus Curiae 22-29. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, concurring in the judgment. "In a government, where the liberties of the people are to be preserved . . . the executive, legislative and judicial, should ever be separate and distinct, and consist Page 491 U. S. 468 of parts, mutually forming a check upon each other." C. Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 M. Farrand, Records of the Federal Convention of 1787, p. 108 (rev. ed. 1966). The Framers of our Government knew that the most precious of liberties could remain secure only if they created a structure of Government based on a permanent separation of power. See, e.g., The Federalist Nos. 47-51 (J. Madison). Indeed, the Framers devoted almost the whole of their attention at the Constitutional Convention to the creation of a secure and enduring structure for the new Government. It remains one of the most vital functions of this Court to police with care the separation of the governing powers. That is so even when, as is the case here, no immediate threat to liberty is apparent. When structure fails, liberty is always in peril. As Justice Frankfurter stated: "The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S. 594 (1952) (concurring opinion). Although one is perhaps more obvious than the other, this suit presents two distinct issues of the separation of powers. The first concerns the rules this Court must follow in interpreting a statute passed by Congress and signed by the President. On this subject, I cannot join the Court's conclusion that the Federal Advisory Committee Act (FACA), 85 Stat. 770, as amended, 5 U.S.C.App. § 1 et seq. (1982 ed. and Supp.V), does not cover the activities of the American Bar Association's Standing Committee on Federal Judiciary in advising the Department of Justice regarding potential nominees for federal judgeships. The result seems sensible in the abstract; but I cannot accept the method by which the Court Page 491 U. S. 469 arrives at its interpretation of FACA, which does not accord proper respect to the finality and binding effect of legislative enactments. The second question in the case is the extent to which Congress may interfere with the President's constitutional prerogative to nominate federal judges. On this issue, which the Court does not reach because of its conclusion on the statutory question, I think it quite plain that the application of FACA to the Government's use of the ABA Committee is unconstitutional. I The statutory question in this suit is simple enough to formulate. FACA applies to "any committee" that is "established or utilized" by the President or one or more agencies, and which furnishes "advice or recommendations" to the President or one or more agencies. 5 U.S.C.App. § 3(2). All concede that the ABA Committee furnishes advice and recommendations to the Department of Justice and, through it, to the President. Ante at 491 U. S. 452 . The only question we face, therefore, is whether the ABA Committee is "utilized" by the Department of Justice or the President. See ibid. There is a ready starting point, which ought to serve also as a sufficient stopping point, for this kind of analysis: the plain language of the statute. Yet the Court is unwilling to rest on this foundation, for several reasons. One is an evident unwillingness to define the application of the statute in terms of the ordinary meaning of its language. We are told that "utilize" is "a woolly verb," ibid., and therefore we cannot be content to rely on what is described, with varying levels of animus, as a "literal reading," ante at 491 U. S. 454 , a "literalistic reading," ante at 491 U. S. 463 , 491 U. S. 464 , and "a dictionary reading" of this word, ante at 491 U. S. 452 , n. 8. We also are told in no uncertain terms that we cannot rely on (what I happen to regard as a more accurate description) "a straightforward reading of utilize.'" Ante at 491 U. S. 453 . Reluctance to working with the basic meaning of words in a normal manner undermines the legal process. This case demonstrates that reluctance of this Page 491 U. S. 470 sort leads instead to woolly judicial construction that mars the plain face of legislative enactments. The Court concedes that the Executive Branch "utilizes" the ABA Committee in the common sense of that word. Ibid. Indeed, this point cannot be contested. As the Court's own recitation of the facts makes clear, the Department of Justice has, over the last four decades, made regular use of the ABA Committee to investigate the background of potential nominees and to make critical recommendations regarding their qualifications. See ante at 491 U. S. 443 -445. This should end the matter. The Court nevertheless goes through several more steps to conclude that, although "it seems to us a close question," ante at 491 U. S. 465 , Congress did not intend that FACA would apply to the ABA Committee. Although I believe the Court's result is quite sensible, I cannot go along with the unhealthy process of amending the statute by judicial interpretation. Where the language of a statute is clear in its application, the normal rule is that we are bound by it. There is, of course, a legitimate exception to this rule, which the Court invokes, see ante at 491 U. S. 453 -454, citing Church of the Holy Trinity v. United States, 143 U. S. 457 , 143 U. S. 459 (1892), and with which I have no quarrel. Where the plain language of the statute would lead to "patently absurd consequences," United States v. Brown, 333 U. S. 18 , 333 U. S. 27 (1948), that "Congress could not possibly have intended," FBI v. Abramson, 456 U. S. 615 , 456 U. S. 640 (1982) (O'CONNOR, J., dissenting) (emphasis added), we need not apply the language in such a fashion. When used in a proper manner, this narrow exception to our normal rule of statutory construction does not intrude upon the lawmaking powers of Congress, but rather demonstrates a respect for the coequal Legislative Branch, which we assume would not act in an absurd way. This exception remains a legitimate tool of the Judiciary, however, only as long as the Court acts with self-discipline by limiting the exception to situations where the result of applying the plain language would be, in a genuine sense, absurd, Page 491 U. S. 471 i.e., where it is quite impossible that Congress could have intended the result, see ibid., and where the alleged absurdity is so clear as to be obvious to most anyone. A few examples of true absurdity are given in the Holy Trinity decision cited by the Court, ante at 491 U. S. 454 , such as where a sheriff was prosecuted for obstructing the mails even though he was executing a warrant to arrest the mail carrier for murder, or where a medieval law against drawing blood in the streets was to be applied against a physician who came to the aid of a man who had fallen down in a fit. See 143 U.S. at 143 U. S. 460 -461. In today's opinion, however, the Court disregards the plain language of the statute not because its application would be patently absurd, but rather because, on the basis of its view of the legislative history, the Court is "fairly confident" that "FACA should [not] be construed to apply to the ABA Committee." Ante at 491 U. S. 465 . I believe the Court's loose invocation of the "absurd result" canon of statutory construction creates too great a risk that the Court is exercising its own "WILL instead of JUDGMENT," with the consequence of "substituti[ng] [its own] pleasure to that of the legislative body." The Federalist No. 78, p. 469 (C. Rossiter ed. 1961) (A. Hamilton). The Court makes only a passing effort to show that it would be absurd to apply the term "utilize" to the ABA Committee according to its common sense meaning. It offers three examples that we can assume are meant to demonstrate this point: the application of FACA to an American Legion Post should the President visit that organization and happen to ask its opinion on some aspect of military policy; the application of FACA to the meetings of the National Association for the Advancement of Colored People (NAACP) should the President seek its views in nominating Commissioners to the Equal Employment Opportunity Commission; and the application of FACA to the national committee of the President's political party should he consult it for advice and Page 491 U. S. 472 recommendations before picking his Cabinet. See ante at 452- 491 U. S. 453 . None of these examples demonstrates the kind of absurd consequences that would justify departure from the plain language of the statute. A common sense interpretation of the term "utilize" would not necessarily reach the kind of ad hoc contact with a private group that is contemplated by the Court's American Legion hypothetical. Such an interpretation would be consistent, moreover, with the regulation of the General Services Administration (GSA) interpreting the word "utilize," which the Court in effect ignores. See infra at 491 U. S. 477 . As for the more regular use contemplated by the Court's examples concerning the NAACP and the national committee of the President's political party, it would not be at all absurd to say that, under the Court's hypothetical, these groups would be "utilized" by the President to obtain "advice or recommendations" on appointments, and therefore would fall within the coverage of the statute. Rather, what is troublesome about these examples is that they raise the very same serious constitutional questions that confront us here (and perhaps others as well). [ Footnote 2/1 ] The Court confuses the two points. The fact that a particular application of the clear terms of a statute might be unconstitutional does not, in and of itself, render a straightforward application of the language absurd, so as to allow us to conclude that the statute does not apply. See infra at 491 U. S. 481 . Unable to show that an application of FACA according the plain meaning of its terms would be absurd, the Court turns instead to the task of demonstrating that a straightforward reading of the statute would be inconsistent with the congressional purposes that lay behind its passage. To the student of statutory construction, this move is a familiar one. It is, as the Court identifies it, the classic Holy Trinity argument. "[A] thing may be within the letter of the statute, and Page 491 U. S. 473 yet not within the statute, because not within its spirit, nor within the intention of its makers." Holy Trinity, supra, at 143 U. S. 459 . I cannot embrace this principle. Where it is clear that the unambiguous language of a statute embraces certain conduct, and it would not be patently absurd to apply the statute to such conduct, it does not foster a democratic exegesis for this Court to rummage through unauthoritative materials to consult the spirit of the legislation in order to discover an alternative interpretation of the statute with which the Court is more comfortable. It comes as a surprise to no one that the result of the Court's lengthy journey through the legislative history is the discovery of a congressional intent not to include the activities of the ABA Committee within the coverage of FACA. The problem with spirits is that they tend to reflect less the views of the world whence they come than the views of those who seek their advice. Lest anyone think that my objection to the use of the Holy Trinity doctrine is a mere point of interpretive purity divorced from more practical considerations, I should pause for a moment to recall the unhappy genesis of that doctrine and its unwelcome potential. In Holy Trinity, the Court was faced with the interpretation of a statute which made it unlawful for "any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States . . . under contract or agreement . . . made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States." 143 U.S. at 143 U. S. 458 . The Church of the Holy Trinity entered into a contract with an alien residing in England to come to the United States to serve as the director and pastor of the church. Notwithstanding the fact that this agreement fell within the plain language Page 491 U. S. 474 of the statute, which was conceded to be the case, see ibid., the Court overrode the plain language, drawing instead on the background and purposes of the statute to conclude that Congress did not intend its broad prohibition to cover the importation of Christian ministers. The central support for the Court's ultimate conclusion that Congress did not intend the law to cover Christian ministers is its lengthy review of the "mass of organic utterances" establishing that "this is a Christian nation," and which were taken to prove that it could not "be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation." Id. at 143 U. S. 471 . I should think the potential of this doctrine to allow judges to substitute their personal predelictions for the will of the Congress is so self-evident from the case which spawned it as to require no further discussion of its susceptibility to abuse. Even if I were inclined to disregard the unambiguous language of FACA, I could not join the Court's conclusions with regard to Congress' purposes. I find the Court's treatment of the legislative history one-sided, and offer a few observations on the difficulties of perceiving the true contours of a spirit. The first problem with the Court's use of legislative history is the questionable relevance of its detailed account of Executive practice before the enactment of FACA. This background is interesting, but not instructive, for, as the Court acknowledges, even the legislative history as presented by the Court "evinces an intent to widen the scope of" the coverage of prior executive orders, ante at 491 U. S. 458 , and, in any event, the language of the statute is "more capacious" than any of the previous "narrower formulations," ante at 491 U. S. 462 . Indeed, Congress would have had little reason to legislate at all in this area if it had intended FACA to be nothing more than a reflection of the provisions of Executive Order No. 11007, 3 CFR 573 (1959-1963 Comp.), which was already the settled Page 491 U. S. 475 and governing law at the time this bill was introduced, considered, and enacted. In other words, the background to FACA cannot be taken to illuminate its breadth precisely because FACA altered the landscape to address the many concerns Congress had about the increasing growth and use of advisory committees. Another problem with the Court's approach lies in its narrow preoccupation with the ABA Committee against the background of a bill that was intended to provide comprehensive legislation covering a widespread problem in the organization and operation of the Federal Government. The Court's discussion takes portentous note of the fact that Congress did not mention or discuss the ABA Committee by name in the materials that preceded the enactment of FACA. But that is hardly a remarkable fact. The legislation was passed at a time when somewhere between 1,800 and 3,200 target committees were thought to be in existence, see S.Rep. No. 92-1098, pp. 3, 4 (1972), and the congressional Reports mentioned few committees by name. More to the point, its argument reflects an incorrect understanding of the kinds of laws Congress passes: it usually does not legislate by specifying examples, but by identifying broad and general principles that must be applied to particular factual instances. And that is true of FACA. Finally, though the stated objective of the Court's inquiry into legislative history is the identification of Congress' purposes in passing FACA, the inquiry does not focus on the most obvious place for finding those purposes, which is the section of the Conference Committee Report entitled "Findings and Purposes." That section lists six findings and purposes that underlie FACA: "(1) the need for many existing advisory committees has not been adequately reviewed;" "(2) new advisory committees should be established only when they are determined to be essential, and their number should be kept to the minimum necessary; " Page 491 U. S. 476 "(3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established;" "(4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees;" "(5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and" "(6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved." H.R.Conf.Rep. No. 92-1403, pp. 1-2 (1972). The most pertinent conclusion to be drawn from this list of purposes is that all of them are implicated by the Justice Department's use of the ABA Committee. In addition, it shows that Congress' stated purposes for addressing the use of advisory committees went well beyond the amount of public funds devoted to their operations, which in any event is not the sole component in the cost of their use; thus the Court errs in focusing on this point. It is most striking that this section of the Conference Committee Report, which contains Congress' own explicit statement of its purposes in adopting FACA, receives no mention by the Court on its amble through the legislative history. The one statement the Court does quote from this Report, that FACA does not apply " to advisory committees not directly established by or for [federal] agencies,'" ante at 491 U. S. 462 , quoting H.R.Conf.Rep. 92-1403, supra, at 10 (emphasis deleted), is of uncertain value. It is not clear that this passage would exclude the ABA Committee, which was established in 1946 and began almost at once to advise the Government on judicial nominees. It also is not clear why the reasons a committee was formed should determine whether and how they are "utilized by" the Government, or how this consideration Page 491 U. S. 477 can be squared with the plain language of the statute. The Court professes puzzlement because the Report says only that the Conference Committee modified the definition of "advisory committee" to include the phrase "or utilized," but does not explain the extent of the modification in any detail. Ante at 491 U. S. 461 -462. One would have thought at least that the Court would have been led to consider how the specific purposes Congress identified for this legislation might shed light on the reasons for the change. Not only does the Court's decision today give inadequate respect to the statute passed by Congress, it also gives inadequate deference to the GSA's regulations interpreting FACA. I have already mentioned that, under the GSA's interpretation of FACA, the Court's hypothetical applications of the Act to groups such as the American Legion are impossible. More important, however, it is plain that, under the GSA's regulations, the ABA Committee is covered by the Act. The GSA defines a "utilized" advisory committee as "a committee or other group composed in whole or in part of other than full-time officers or employees of the Federal Government with an established existence outside the agency seeking its advice which the President or agency official(s) adopts, such as through institutional arrangements, as a preferred source from which to obtain Page 491 U. S. 478 advice or recommendations on a specific issue or policy within the scope of his or her responsibilities in the same manner as that individual would obtain advice or recommendations from an established advisory committee." 52 Fed.Reg. 45930 (1987). I cannot imagine a better description of the function of the ABA Committee. First, the ABA Committee is "composed in whole or in part of other than full-time officers or employees of the Federal Government." Second, the committee has "an established existence outside the agency seeking its advice." Third, the committee has been adopted by the Department of Justice "as a preferred source from which to obtain advice or recommendations of a specific issue or policy." Indeed, the committee performs no other significant function beyond advising the Government on judicial appointments. Fourth, the relation is carried out through what cannot in fairness be denied, after four decades, to be an "institutional arrangement." The committee's views are sought on a regular and frequent basis, are given careful consideration, and are usually followed by the Department. Fifth, the committee is used to obtain advice and recommendations on judicial appointments "in the same manner as . . . an established advisory committee." In this regard, it is pertinent that the Department discloses to the committee the names of the candidates and other confidential Government information. This unusual privilege is normally accorded only to other parts of the Government. The Court concedes that the regulations present difficulties for its conclusion that FACA does not apply to the ABA Committee. Ante at 491 U. S. 464 , n. 12. It nevertheless relegates its entire discussion of this controlling point to a footnote appended as a ragged afterthought to its extensive discussion of the legislative history. See ante at 491 U. S. 463 -465, n. 12. The Court offers four reasons for slighting the agency's interpretation in favor of its own. First, we are told that the language of the GSA regulations, like the statute itself, "appears too sweeping" to be read according to its terms. Of course, once again the Court does not mean either that the agency regulation is not a reasonable interpretation of the plain language of the statute or that the agency interpretation itself would produce absurd consequences. Rather, what the Court means is that the agency regulation is not entirely consistent with the "spirit" of the Act, which it professes to have divined from the legislative history. I do not think this a sound reason for ignoring the binding interpretation of the statute rendered by the implementing agency. Second, the Court tells us that it "is questionable" whether the GSA regulations apply to the ABA Committee. This is Page 491 U. S. 479 quite wrong. The Court does not deny that the committee falls squarely within the terms of the regulations. The Court's doubts on this issue stem entirely from the fact that the GSA's annual report does not list the ABA Committee as one of the advisory committees covered by FACA. But it seems to me to be without relevance one way or the other whether the GSA is aware that the regulations cover the committee. What matters is that the regulations the GSA adopted, which contain a very reasonable interpretation of the statute, plainly cover the committee. If the Court's interpretive approach on this issue were accepted, then the text of the agency's regulations, for which notice was afforded and upon which comment was received, would be of no independent force. Third, the Court notes that the agency's interpretation was not promulgated until 1983, and not made final until 1987, whereas FACA was passed in 1972. I cannot imagine why it is a sensible principle that an agency regulation which is promulgated a decade after the initial passage of a statute should be given less deference because of the mere passage of time. I would not draw any such distinction one way or the other, but, if anything, one would think that the GSA's regulation should be entitled to more deference than a regulation promulgated immediately after the passage of a bill, for at least in the situation we have here, we can have some assurance that GSA thought long and hard, based upon considerable experience and the benefits of extensive notice and comment, before it promulgated an administrative rule that has the binding force of law. The primary case cited in support of the Court's view, see ante at 491 U. S. 464 -465, n. 12, citing General Electric Co. v. Gilbert, 429 U. S. 125 (1976), is not at all pertinent. Although in Gilbert the Court mentioned the passage of time in its discussion of the regulations, it made nothing of this point on its own, but instead refused to defer to the regulations because they "flatly contradict[ed] the position which the agency had enunciated Page 491 U. S. 480 at an earlier date, closer to the enactment of the governing statute." Id. at 429 U. S. 142 . Here, however, the GSA's regulations are consistent with a memorandum prepared by the Office of Management and Budget and distributed to all Government agencies immediately after FACA was enacted. See 38 Fed.Reg. 2307 (1973) (the "utilized by" language of FACA would apply, for example, "to an already existing organization of scholars enlisted by an agency to provide advice on a continuing basis"). [ Footnote 2/2 ] The fourth justification the Court offers for ignoring the agency's interpretation is that the GSA lacks statutory authority to issue a binding regulatory interpretation of the term "advisory committee." In Gilbert, for example, the agency which adopted the regulations at issue did not act pursuant to explicit statutory authority to promulgate regulations, and thus its regulations were at most of persuasive, rather than controlling, force. 429 U.S. at 429 U. S. 141 -142. But the Court errs in suggesting that the GSA's regulations are mere nonbinding administrative guidelines. The GSA is conceded to be the agency "charged with the administration of [FACA]," Blum v. Bacon, 457 U. S. 132 , 457 U. S. 141 (1982); see ante at 491 U. S. 463 , n. 12; it possesses statutory authority to implement the law by promulgating regulations and performing various other specific tasks that have binding effect on other Government agencies and all advisory committees, see FACA, 5 U.S.C.App. §§ 4(a), 7(a) - 7(e), 10(a)(2), 10(a)(3) (1982 ed. and Supp.V); see also 40 U.S.C. § 486(c) (granting statutory authority for the GSA to promulgate regulations Page 491 U. S. 481 necessary to implement the Federal Property and Administrative Services Act of 1949), and it issued its regulations pursuant to that authority, see 41 CFR §§ 101-6.1001 to 101-6.1035 (1988). In sum, it is quite desirable not to apply FACA to the ABA Committee. I cannot, however, reach this conclusion as a matter of fair statutory construction. The plain and ordinary meaning of the language passed by Congress governs, and its application does not lead to any absurd results. An unnecessary recourse to the legislative history only confirms this conclusion. And the reasonable and controlling interpretation of the statute adopted by the agency charged with its implementation is also in accord. The Court's final step is to summon up the traditional principle that statutes should be construed to avoid constitutional questions. Although I agree that we should "first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided," Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932), this principle cannot be stretched beyond the point at which such a construction remains " fairly possible." And it should not be given too broad a scope, lest a whole new range of Government action be proscribed by interpretive shadows cast by constitutional provisions that might or might not invalidate it. The fact that a particular application of the clear terms of a statute might be unconstitutional does not provide us with a justification for ignoring the plain meaning of the statute. If that were permissible, then the power of judicial review of legislation could be made unnecessary, for whenever the application of a statute would have potential inconsistency with the Constitution, we could merely opine that the statute did not cover the conduct in question because it would be discomforting or even absurd to think that Congress intended to act in an unconstitutional manner. The utter circularity of this approach explains why it has never been our rule. Page 491 U. S. 482 The Court's ultimate interpretation of FACA is never clearly stated, except for the conclusion that the ABA Committee is not covered. It seems to read the "utilized by" portion of the statute as encompassing only a committee "established by a quasi-public organization in receipt of public funds," ante at 491 U. S. 460 , or encompassing "groups formed indirectly by quasi-public organizations such as the National Academy of Sciences," ante at 491 U. S. 462 . This is not a "fairly possible" construction of the statutory language, even to a generous reader. I would find the ABA Committee to be covered by FACA. It is, therefore, necessary for me to reach and decide the constitutional issue presented. II Although I disagree with the Court's conclusion that FACA does not cover the Justice Department's use of the ABA Committee, I concur in the judgment of the Court because, in my view, the application of FACA in this context would be a plain violation of the Appointments Clause of the Constitution. The essential feature of the separation of powers issue in this suit, and the one that dictates the result, is that this application of the statute encroaches upon a power that the text of the Constitution commits in explicit terms to the President. Article II, § 2, cl. 2, of the Constitution provides as follows: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of he supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President Page 491 U. S. 483 alone, in the Courts of Law, or in the Heads of Departments. [ Footnote 2/3 ]" By its terms, the Clause divides the appointment power into two separate spheres: the President's power to "nominate," and the Senate's power to give or withhold its "Advice and Consent." No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for appointment. As Hamilton emphasized: "In the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment." The Federalist No. 76, 456-457 (C. Rossiter ed. 1961) (emphasis added). And again: "It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose -- they can only ratify or reject the choice he may have made." Id. No. 66, at 405 (emphasis in original). [ Footnote 2/4 ] Page 491 U. S. 484 Indeed, the sole limitation on the President's power to nominate these officials is found in the Incompatability Clause, which provides that "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time." U.S.Const., Art. I, § 6, cl. 2. In some of our more recent cases involving the powers and prerogatives of the President, we have employed something of a balancing approach, asking whether the statute at issue prevents the President " from accomplishing [his] constitutionally assigned functions.'" Morrison v. Olson, 487 U. S. 654 , 487 U. S. 695 (1988), quoting Nixon v. Administrator of General Services, 433 U. S. 425 , 433 U. S. 443 (1977), and whether the extent of the intrusion on the President's powers "is justified by an overriding need to promote objectives within the constitutional authority of Congress." Ibid. In each of these cases, the power at issue was not explicitly assigned by the text of the Constitution to be within the sole province of the President, but rather was thought to be encompassed within the general grant to the President of the "executive Power." U.S.Const., Art. II, § 1, cl. 1. Thus, for example, the relevant aspect of our decision in Morrison involved the President's power to remove Executive officers, a power we had recognized is not conferred by any explicit provision in the text of the Constitution (as is the appointment power), but rather is inferred to be a necessary part of the grant of the "executive Power." See Myers v. United States, 272 U. S. 52 , 272 U. S. 115 -116 (1926). Similarly, in Administrator of General Services, supra, we were confronted with the question of the Executive Branch's power to control the disposition of Presidential materials, a matter which, though vital to the President's ability to perform his assigned functions, is not given to exclusive Presidential control by any explicit provision in the Constitution itself. We said there that "the proper inquiry Page 491 U. S. 485 focuses on the extent to which [the congressional restriction] prevents the Executive Branch from accomplishing its constitutionally assigned functions," and that we would invalidate the statute only if the potential for disruption of the President's constitutional functions were present and if "that impact [were not] justified by an overriding need to promote objectives within the constitutional authority of Congress." 433 U.S. at 433 U. S. 443 . See also United States v. Nixon, 418 U. S. 683 , 418 U. S. 703 -707 (1974) (Executive privilege). In a line of cases of equal weight and authority, however, where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch. For example, the Constitution confers upon the President the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." U.S.Const., Art. II, § 2, cl. 1. In United States v. Klein , 13 Wall. 128 (1872), the Court considered a federal statute that allowed citizens who had remained loyal to the Union during the Civil War to recover compensation for property abandoned to Union troops during the War. At issue was the validity of a provision in the statute that barred the admission of a Presidential pardon in such actions as proof of loyalty. Although this provision did not impose direct restrictions on the President's power to pardon, the Court held that the Congress could not in any manner limit the full legal effect of the President's power. As we said there: "[I]t is clear that the legislature cannot change the effect of . . . a pardon any more than the executive can change a law." Id. at 148. More than a century later, in Schick v. Reed, 419 U. S. 256 (1974), we reiterated in most direct terms the principle that Congress cannot interfere in any way with the President's power to pardon. The pardon power "flows from the Constitution alone . . . and . . . cannot be modified, abridged, or diminished by the Congress." Id. at 419 U. S. 266 . See also Ex parte Garland , 4 Wall. 333, 71 U. S. 380 (1867). Page 491 U. S. 486 INS v. Chadha, 462 U. S. 919 (1983), is another example of the Court's refusal to apply a balancing test to assess the validity of an enactment which interferes with a power that the Constitution, in express terms, vests within the exclusive control of the President. In Chadha, the Court struck down a legislative veto provision in the Immigration and Nationality Act on the ground, inter alia, that it violated the explicit constitutional requirement that all legislation be presented to the President for his signature before becoming law. Id. at 462 U. S. 946 -948, 462 U. S. 957 -959. In so holding, the Court did not ask whether the "overriding need to promote objectives within the constitutional authority of Congress" justified this intrusion upon the Executive's prerogative, but rather stated that the lawmaking process must adhere in strict fashion to the "[e]xplicit and unambiguous provisions of the Constitution [which] prescribe and define the respective functions of the Congress and of the Executive in the legislative process." Id. at 462 U. S. 945 . [ Footnote 2/5 ] The justification for our refusal to apply a balancing test in these cases, though not always made explicit, is clear enough. Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself. It is improper for this Court to arrogate to itself the power to adjust a balance settled by the explicit terms of the Constitution. To take an obvious example, it would be improper for us to hold that, although the Constitution sets 35 as the age below which one cannot be President, age 30 would in fact be a permissible construction of this term. See U.S.Const., Art. II, § 1. And it would be equally improper for us to determine that the level of importance at which a jury trial in a Page 491 U. S. 487 common law suit becomes available is $1,000 instead of $20, as the Constitution provides. See U.S.Const., Amdt. 7. These minor adjustments might be seen as desirable attempts to modernize the original constitutional provisions, but where the Constitution draws a clear line, we may not engage in such tinkering. However improper would be these slight adjustments to the explicit and unambiguous balances that are struck in various provisions of the Constitution, all the more improper would it be for this Court, which is, after all, one of the three coequal Branches of the Federal Government, to rewrite the particular balance of power that the Constitution specifies among the Executive, Legislative, and Judicial Departments. This is not to say that each of the three Branches must be entirely separate and distinct, for that is not the governmental structure of checks and balances established by the Framers. See Mistretta v. United States, 488 U. S. 361 , 488 U. S. 380 -381 (1989); Humphrey's Executor v. United States, 295 U. S. 602 , 295 U. S. 629 (1935). But as to the particular divisions of power that the Constitution does in fact draw, we are without authority to alter them, and indeed we are empowered to act in particular cases to prevent any other Branch from undertaking to alter them. These considerations are decisive of the suit before us. The President's power to nominate principal officers falls within the line of cases in which a balancing approach is inapplicable. The Appointments Clause sets out the respective powers of the Executive and Legislative Branches with admirable clarity. The President has the sole responsibility for nominating these officials, and the Senate has the sole responsibility of consenting to the President's choice. See supra at 491 U. S. 483 . We have, in effect, already recognized as much in Buckley v. Valeo, 424 U. S. 1 (1976). In Buckley, the Court held that the appointment of Federal Election Commissioners through procedures that were inconsistent with those set forth in the Appointments Clause was unconstitutional. Page 491 U. S. 488 In doing so, it rejected outright the arguments advanced by the Federal Election Commission and various amici that, because the Constitution gave Congress "explicit and plenary authority to regulate [the] field of activity" at issue (federal elections), and because Congress "had good reason[s] for not [creating] a commission composed wholly of Presidential appointees," that Congress could allow these officials to be appointed to their positions without complying with the strict letter of the Appointments Clause. As we stated there: "While one cannot dispute the basis for [Congress' concern that an election commission exist not in whole of presidential appointees] as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not by themselves warrant a distortion of the Framers' work. " Id. at 424 U. S. 134 (emphasis added). It is also plain that the application of FACA would constitute a direct and real interference with the President's exclusive responsibility to nominate federal judges. The District Court found, "at minimum, that the application of FACA to the ABA Committee would potentially inhibit the President's freedom to investigate, to be informed, to evaluate, and to consult during the nomination process," and that these consequences create an "obvious and significant potential for disruption' of the President's constitutional prerogative during the nomination process," 691 F. Supp. 483 , 493 (DC 1988), and these findings are not contested here. As we said in the context of the pardon power, "[t]he simplest statement is the best." United States v. Klein, 13 Wall. at 80 U. S. 148 . The mere fact that FACA would regulate so as to interfere with the manner in which the President obtains information necessary to discharge his duty assigned under the Constitution to Page 491 U. S. 489 nominate federal judges is enough to invalidate the Act. "We think it unnecessary to enlarge." Ibid. For these reasons, I concur in the judgment affirming the District Court. [ Footnote 2/1 ] I do not address here any possible problems under the First Amendment with the application of FACA to the ABA Committee. [ Footnote 2/2 ] Although the Court cites six cases to support the view that a noncontemporaneous agency interpretation of the governing statute is entitled to less deference from a reviewing court, five of the cases do not stand for that proposition, but only quote one another on the general issue. In fact, in those cases, the Court did defer to agency regulations because they were promulgated pursuant to statutory authority, constituted reasonable interpretations and practical applications of the statutory language, and reflected a consistent agency position of long standing. See ante at 491 U. S. 464 -465, n. 12 (citing cases). All those points are true in the case before us. [ Footnote 2/3 ] No issue has been raised in this suit with respect to the Congress' power to vest the appointment of "inferior" officers in anyone other than the President. Cf. Morrison v. Olson, 487 U. S. 654 , 487 U. S. 673 -677 (1988). [ Footnote 2/4 ] Hamilton also explained why it is that the President was given the sole prerogative of nominating principal officers: "The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them." The Federalist No. 76, at 455-456. [ Footnote 2/5 ] Our decision in Chadha might also be read for the more general principle that, where an enactment transgresses the explicit distribution of power in the text of the Constitution, then, regardless of whether it implicates the Legislative, the Judicial, or the Executive power, a balancing inquiry is not appropriate. I need not address the broader principle in this case.

In *Public Citizen v. Department of Justice*, the Supreme Court considered whether the American Bar Association (ABA) Committee's advice to the President on potential federal judge nominees was subject to the Federal Advisory Committee Act (FACA). FACA requires advisory committees to the President or agencies to be open to the public and provide various disclosures. The Court held that while the appellants had standing to bring the suit, applying FACA to the ABA Committee would unconstitutionally infringe on the President's power to nominate federal judges, and thus, FACA did not apply to the ABA Committee.

Government Agencies

Darby v. Cisneros

https://supreme.justia.com/cases/federal/us/509/137/

OCTOBER TERM, 1992 Syllabus DARBY ET AL. v. CISNEROS, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 91-2045. Argued March 22, 1993-Decided June 21, 1993 In a consolidated appeal from decisions by the Department of Housing and Urban Development (HUD) to initiate administrative sanctions against petitioners, an Administrative Law Judge (ALJ) concluded that petitioners should be debarred from participating in federal programs for 18 months. Under HUD regulations, an ALJ's determination "shall be final unless ... the Secretary ... within 30 days of receipt of a request decides as a matter of discretion to review the [ALJ's] finding .... " 24 CFR §24.314(c). Neither party sought further administrative review, but petitioners filed suit in the District Court, seeking an injunction and declaration that the sanctions were not in accordance with law within the meaning of the Administrative Procedure Act (APA). Respondents moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust their administrative remedies. The court denied the motion and granted summary judgment to petitioners on the merits of the case. The Court of Appeals reversed, holding that the District Court had erred in denying the motion to dismiss. Held: Federal courts do not have the authority to require a plaintiff to exhaust available administrative remedies before seeking judicial review under the APA, where neither the relevant statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review. The language of § 10(c) of the APA is explicit that an appeal to "superior agency authority" is a prerequisite to judicial review only when "expressly required by statute" or when the agency requires an appeal "by rule and provides that the [administrative] action is ... inoperative" pending that review. Since neither the National Housing Act nor applicable HUD regulations mandate further administrative appeals, the ALJ's decision was a "final" agency action subject to judicial review under § 10(c). The lower courts were not free to require further exhaustion of administrative remedies, although the exhaustion doctrine continues to apply as a matter of judicial discretion in cases not gov- 138 erned by the APA. Nothing in § 10(c)'s legislative history supports a contrary reading. Pp. 143-154. 957 F.2d 145 , reversed and remanded. BLACKMUN, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which WHITE, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. Steven D. Gordon argued the cause for petitioners. With him on the briefs was Michael H. Ditton. James A. Feldman argued the cause for respondents. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Anthony J. Steinmeyer. JUSTICE BLACKMUN delivered the opinion of the Court.* This case presents the question whether federal courts have the authority to require that a plaintiff exhaust available administrative remedies before seeking judicial review under the Administrative Procedure Act (APA), 5 U. s. C. § 701 et seq., where neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review. At issue is the relationship between the judicially created doctrine of exhaustion of administrative remedies and the statutory requirements of § 10(c) of the APA.l *THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join all but Part III of this opinion. 1 Section W(c), 80 Stat. 392-393, 5 U. S. C. § 704, provides: "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority." We note that the statute as codified in the United States Code refers to "any form of reconsiderations," with the last word being in the plu- 139 I Petitioner R. Gordon Darby2 is a self-employed South Carolina real estate developer who specializes in the development and management of multifamily rental projects. In the early 1980's, he began working with Lonnie Garvin, Jr., a mortgage banker, who had developed a plan to enable multifamily developers to obtain single-family mortgage insurance from respondent Department of Housing and Urban Development (HUD). Respondent Secretary of HUD (Secretary) is authorized to provide single-family mortgage insurance under §203(b) of the National Housing Act, 48 Stat. 1249, as amended, 12 U. S. C. § 1709(b).3 Although HUD also provides mortgage insurance for multifamily projects under § 207 of the National Housing Act, 12 U. S. C. § 1713, the greater degree of oversight and control over such projects makes it less attractive for investors than the singlefamily mortgage insurance option. The principal advantage of Garvin's plan was that it promised to avoid HUD's "Rule of Seven." This rule prevented rental properties from receiving single-family mortgage insurance if the mortgagor already had financial interests in seven or more similar rental properties in the same project ral. The version of § 10(c) as currently enacted, however, uses the singular "reconsideration." See this note, supra, at 138. We quote the text as enacted in the Statutes at Large. See Stephan v. United States, 319 U. S. 423, 426 (1943) ("[T]he Code cannot prevail over the Statutes at Large when the two are inconsistent"). 2 Petitioners include R. Gordon Darby and his affiliate companies: Darby Development Company; Darby Realty Company; Darby Management Company, Inc.; MD Investment; Parkbrook Acres Associates; and Parkbrook Developers. 3 Although the primary purpose of the § 203(b) insurance program was to facilitate home ownership by owner-occupants, investors were permitted in the early 1980's to obtain single-family insurance under certain conditions. Private investor-owners are no longer eligible for single-family mortgage insurance. See Department of Housing and Urban Development Reform Act of 1989, § 143(b), 103 Stat. 2036. 140 or subdivision. See 24 CFR § 203.42(a) (1992).4 Under Garvin's plan, a person seeking financing would use straw purchasers as mortgage insurance applicants. Once the loans were closed, the straw purchasers would transfer title back to the development company. Because no single purchaser at the time of purchase would own more than seven rental properties within the same project, the Rule of Seven appeared not to be violated. HUD employees in South Carolina apparently assured Garvin that his plan was lawful and that he thereby would avoid the limitation of the Rule of Seven. Darby obtained financing for three separate multiunit projects, and, through Garvin's plan, Darby obtained singlefamily mortgage insurance from HUD. Although Darby successfully rented the units, a combination of low rents, falling interest rates, and a generally depressed rental market forced him into default in 1988. HUD became responsible for the payment of over $6.6 million in insurance claims. HUD had become suspicious of Garvin's financing plan as far back as 1983. In 1986, HUD initiated an audit but concluded that neither Darby nor Garvin had done anything wrong or misled HUD personnel. Nevertheless, in June 1989, HUD issued a limited denial of participation (LDP) that prohibited petitioners for one year from participating in any program in South Carolina administered by respondent Assistant Secretary of Housing.5 Two months later, the Assistant Secretary notified petitioners that HUD was also proposing to debar them from further participation in all HUD 4 Prior to August 31, 1955, the Rule of Seven apparently had been the Rule of Eleven. See 24 CFR § 203.42 (1982) and 56 Fed. Reg. 27692 (1991). 5 An LDP precludes its recipient from participating in any HUD "program," which includes "receipt of any benefit or financial assistance through grants or contractual arrangements; benefits or assistance in the form of loan guarantees or insurance; and awards of procurement contracts, notwithstanding any quid pro quo given and whether [HUD] gives anything in return." 24 CFR §24.710(a)(2) (1992). 141 procurement contracts and in any nonprocurement transaction with any federal agency. See 24 CFR § 24.200 (1992). Petitioners' appeals of the LDP and of the proposed debarment were consolidated, and an Administrative Law Judge (ALJ) conducted a hearing on the consolidated appeals in December 1989. The judge issued an "Initial Decision and Order" in April 1990, finding that the financing method used by petitioners was "a sham which improperly circumvented the Rule of Seven." App. to Pet. for Cert. 69a. The ALJ concluded, however, that most of the relevant facts had been disclosed to local HUD employees, that petitioners lacked criminal intent, and that Darby himself "genuinely cooperated with HUD to try [to] work out his financial dilemma and avoid foreclosure." Id., at 88a. In light of these mitigating factors, the ALJ concluded that an indefinite debarment would be punitive and that it would serve no legitimate purpose; 6 good cause existed, however, to debar petitioners for a period of 18 months.7 Id., at 90a. Under HUD regulations, "The hearing officer's determination shall be final unless, pursuant to 24 CFR part 26, the Secretary or the Secretary's designee, within 30 days of receipt of a request decides as a matter of discretion to review the finding of the hearing officer. The 30 day period for deciding whether to review a determination may be extended upon written notice of such extension by the Secretary or his designee. Any party may request such a review in writing within 15 days of receipt of the hearing officer's determination." 24 CFR § 24.314(c) (1992). 6 According to HUD regulations, "[d]ebarment and suspension are serious actions which shall be used only in the public interest and for the Federal Government's protection and not for purposes of punishment." 24 CFR § 24. 115(b) (1992). 7 The ALJ calculated the 18-month debarment period from June 19, 1989, the date on which the LDP was imposed. The debarment would last until December 19, 1990. 142 N either petitioners nor respondents sought further administrative review of the ALJ's "Initial Decision and Order." On May 31, 1990, petitioners filed suit in the United States District Court for the District of South Carolina. They sought an injunction and a declaration that the administrative sanctions were imposed for purposes of punishment, in violation of HUD's own debarment regulations, and therefore were "not in accordance with law" within the meaning of § 10(e)(B)(1) of the APA, 5 U. S. C. § 706(2)(A). Respondents moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust administrative remedies. The District Court denied respondents' motion to dismiss, reasoning that the administrative remedy was inadequate and that resort to that remedy would have been futile. App. to Pet. for Cert. 29a. In a subsequent opinion, the District Court granted petitioners' motion for summary judgment, concluding that the "imposition of debarment in this case encroached too heavily on the punitive side of the line, and for those reasons was an abuse of discretion and not in accordance with the law." Id., at 19a. The Court of Appeals for the Fourth Circuit reversed. Darby v. Kemp, 957 F.2d 145 (1992). It recognized that neither the National Housing Act nor HUD regulations expressly mandate exhaustion of administrative remedies prior to filing suit. The court concluded, however, that the District Court had erred in denying respondents' motion to dismiss, because there was no evidence to suggest that further review would have been futile or that the Secretary would have abused his discretion by indefinitely extending the time limitations for review. The court denied petitioners' petition for rehearing with suggestion for rehearing en bane. See App. to Pet. for Cert. 93a. In order to resolve the tension between this and the APA, as well as to settle a perceived conflict among the 143 Courts of Appeals,s we granted certiorari. 506 U. S. 952 (1992). II Section 10(c) of the APA bears the caption "Actions reviewable." It provides in its first two sentences that judicial review is available for "final agency action for which there is no other adequate remedy in a court," and that "preliminary, procedural, or intermediate agency action ... is subject to review on the review of the final agency action." The last sentence of § 10(c) reads: "Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration [see n. 1, supra], or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority." 80 Stat. 392-393, 5 U. S. C. §704. Petitioners argue that this provision means that a litigant seeking judicial review of a final agency action under the APA need not exhaust available administrative remedies unless such exhaustion is expressly required by statute or agency rule. According to petitioners, since § 10(c) contains an explicit exhaustion provision, federal courts are not free to require further exhaustion as a matter of judicial discretion. 8 The Fourth Circuit's ruling in this case appears to be consistent with Montgomery v. Rumsfeld, 572 F.2d 250 , 253-254 (CA9 1978), and Missouri v. Bowen, 813 F.2d 864 (CA8 1987), but is in considerable tension with United States v. Consolidated Mines & Smelting Co., 455 F.2d 432 , 439-440 (CA9 1971); New England Coalition on Nuclear Pollution v. United States Nuclear Regulatory Comm'n, 582 F.2d 87 , 99 (CA1 1978); and Gulf Oil Corp. v. United States Dept. of Energy, 214 U. S. App. D. C. 119, 131, and n. 73, 663 F.2d 296 , 308, and n. 73 (1981). 144 Respondents contend that § 10(c) is concerned solely with timing, that is, when agency actions become "final," and that Congress had no intention to interfere with the courts' ability to impose conditions on the timing of their exercise of jurisdiction to review final agency actions. Respondents concede that petitioners' claim is "final" under § 10(c), for neither the National Housing Act nor applicable HUD regulations require that a litigant pursue further administrative appeals prior to seeking judicial review. However, even though nothing in § 10(c) precludes judicial review of petitioners' claim, respondents argue that federal courts remain free under the AP A to impose appropriate exhaustion requirements.9 We have recognized that the judicial doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality: "[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate." Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 , 193 (1985). Whether courts are free to impose an exhaustion requirement as a matter of judicial discretion depends, at least in part, on whether Congress has provided otherwise, for "[o]f 9 Respondents also have argued that under HUD regulations, petitioners' debarment remains "inoperative" pending review by the Secretary. See 48 Fed. Reg. 43304 (1983). But this fact alone is insufficient under § 10(c) to mandate exhaustion prior to judicial review, for the agency also must require such exhaustion by rule. Respondents concede that HUD imposes no such exhaustion requirement. Brief for Respondents 31. 145 'paramount importance' to any exhaustion inquiry is congressional intent," McCarthy v. Madigan, 503 U. S. 140 , 144 (1992), quoting Patsy v. Board of Regents of Florida, 457 U. S. 496 , 501 (1982). We therefore must consider whether § 10(c), by providing the conditions under which agency action becomes "final for the purposes of" judicial review, limits the authority of courts to impose additional exhaustion requirements as a prerequisite to judicial review. It perhaps is surprising that it has taken over 45 years since the passage of the AP A for this Court definitively to address this question. Professor Davis noted in 1958 that § 10(c) had been almost completely ignored in judicial opinions, see 3 K. Davis, Administrative Law Treatise § 20.08, p. 101 (1958); he reiterated that observation 25 years later, noting that the "provision is relevant in hundreds of cases and is customarily overlooked." 4 K. Davis, Administrative Law Treatise § 26.12, pp. 468-469 (2d ed. 1983). Only a handful of opinions in the Courts of Appeals have considered the effect of § 10(c) on the general exhaustion doctrine. See This Court has had occasion, however, to consider § 10(c) in other contexts. For example, in ICC v. Locomotive Engineers, 482 U. S. 270 (1987), we recognized that the plain language of § 10(c), which provides that an agency action is final "whether or not there has been presented or determined an application" for any form of reconsideration, could be read to suggest that the agency action is final regardless whether a motion for reconsideration has been filed. We noted, however, that § 10(c) "has long been construed by this and other courts merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review (unless, of course, specifically required to do so by statute-see, e. g., 15 U. S. C. §§ 717r, 3416(a)), but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal" (emphasis in original). Id., at 284-285. 146 In Bowen v. Massachusetts, 487 U. S. 879 (1988), we were concerned with whether relief available in the Claims Court was an "adequate remedy in a court" so as to preclude review in Federal District Court of a final agency action under the first sentence of § 10(c). We concluded that "although the primary thrust of [§ 10(c)] was to codify the exhaustion requirement," id., at 903, Congress intended by that provision simply to avoid duplicating previously established special statutory procedures for review of agency actions. While some dicta in these cases might be claimed to lend support to respondents' interpretation of § 10(c), the text of the APA leaves little doubt that petitioners are correct. Under § 10(a) of the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof" 5 U. S. C. § 702 (emphasis added). Although § 10(a) provides the general right to judicial review of agency actions under the APA, § 10(c) establishes when such review is available. When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is "final for the purposes of this section" and therefore "subject to judicial review" under the first sentence. While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, § 10(c), by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates. The last sentence of § 10(c) refers explicitly to "any form of reconsideration" and "an appeal to superior agency authority." Congress clearly was concerned with making the exhaustion requirement unambiguous so that aggrieved parties would know precisely what administrative steps were required before judicial review would be available. If courts were able to impose additional exhaustion requirements be- 147 yond those provided by Congress or the agency, the last sentence of § 10(c) would make no sense. To adopt respondents' reading would transform § 10(c) from a provision designed to "'remove obstacles to judicial review of agency action,'" Bowen v. Massachusetts, 487 U. S., at 904, quoting Shaughnessy v. Pedreiro, 349 U. S. 48 , 51 (1955), into a trap for unwary litigants. Section 10(c) explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of § 10(c) for courts to require litigants to exhaust optional appeals as well. III Recourse to the legislative history of § 10(c) is unnecessary in light of the plain meaning of the statutory text. Nevertheless, we consider that history briefly because both sides have spent much of their time arguing about its implications. In its report on the APA, the Senate Judiciary Committee explained that the last sentence of § 10(c) was "designed to implement the provisions of section 8(a)." Section 8(a), now codified, as amended, as 5 U. S. C. § 557(b), provides, unless the agency requires otherwise, that an initial decision made by a hearing officer "becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule." The Judiciary Committee explained: "[A]n agency may permit an examiner to make the initial decision in a case, which becomes the agency's decision in the absence of an appeal to or review by the agency. If there is such review or appeal, the examiner's initial decision becomes inoperative until the agency determines the matter. For that reason this subsection [§ 10(c)] permits an agency also to require by rule that, if any party is not satisfied with the initial decision of a subordinate hearing officer, the party must first appeal to the agency (the decision meanwhile being inopera- 148 tive) before resorting to the courts. In no case may appeal to 'superior agency authority' be required by rule unless the administrative decision meanwhile is inoperative, because otherwise the effect of such a requirement would be to subject the party to the agency action and to repetitious administrative process without recourse. There is a fundamental inconsistency in requiring a person to continue 'exhausting' administrative processes after administrative action has become, and while it remains, effective." S. Rep. No. 752, 79th Cong., 1st Sess., 27 (1945); Administrative Procedure Act: Legislative History 1944-1946, S. Doc. No. 248, 79th Cong., 2d Sess., 213 (1946) (hereinafter Leg. Hist.). In a statement appended to a letter dated October 19, 1945, to the Judiciary Committee, Attorney General Tom C. Clark set forth his understanding of the effect of § 10(c): "This subsection states (subject to the provisions of section 10(a)) the acts which are reviewable under section 10. It is intended to state existing law. The last sentence makes it clear that the doctrine of exhaustion of administrative remedies with respect to finality of agency action is intended to be applied only (1) where expressly required by statute ... or (2) where the agency's rules require that decisions by subordinate officers must be appealed to superior agency authority before the decision may be regarded as final for purposes of judicial review." Id., at 44, Leg. Hist. 230.10 10 In his manual on the APA, prepared in 1947, to which we have given some deference, see, e. g., Steadman v. SEC, 450 U. S. 91 , 103, n. 22 (1981); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 , 546 (1978), Attorney General Clark reiterated the Department of Justice's view that § 10(c) "embodies the doctrine of exhaustion of administrative remedies .... Agency action which is finally operative and decisive is reviewable." Attorney General's Manual on the Administrative Procedure Act 103 (1947). See also R. R. Rep. No. 1980, 79th Cong., 2d Sess., 55, n. 21 (1946); Leg. Rist. 289, n. 21 (describing 149 Respondents place great weight on the Attorney General's statement that § 10(c) "is intended to state existing law." That law, according to respondents, "plainly permitted federal courts to require exhaustion of adequate administrative remedies." Brief for Respondents 19-20. We cannot agree with this categorical pronouncement. With respect to the exhaustion of motions for administrative reconsideration or rehearing, the trend in pre- AP A cases was in the opposite direction. In Vandalia R. Co. v. Public Servo Comm'n of Ind., 242 U. S. 255 (1916), for example, this Court invoked the "general rule" that "one aggrieved by the rulings of such an administrative tribunal may not complain that the Constitution of the United States has been violated if he has not availed himself of the remedies prescribed by the state law for a rectification of such rulings." Id., at 261. The state law provided only that the Railroad Commission had the authority to grant a rehearing; it did not require that a rehearing be sought. Nevertheless, "since the record shows that plaintiff in error and its associates were accorded a rehearing upon the very question of modification, but abandoned it, nothing more need be said upon that point." Ibid. Seven years later, in Prendergast v. New York Telephone Co., 262 U. S. 43 , 48 (1923), without even mentioning the Vandalia case, the Court stated: "It was not necessary that the Company should apply to the Commission for a rehearing before resorting to the court. While under the Public Service Commission Law any person interested in an order of the Commission has the right to apply for a rehearing, the Commission is not required to grant such rehearing unless in its judgment sufficient reasons therefor appear .... As the law does not require an application for a rehearing agency's authority to adopt rules requiring a party to take a timely appeal to the agency prior to seeking judicial review as "an application of the time-honored doctrine of exhaustion of administrative remedies"). 150 to be made and its granting is entirely within the discretion of the Commission, we see no reason for requiring it to be made as a condition precedent to the bringing of a suit to enjoin the enforcement of the order." Accord, Banton v. Belt Line R. Corp., 268 U. S. 413 , 416-417 (1925) ("No application to the commission for relief was required by the state law. None was necessary as a condition precedent to the suit"). Shortly before Congress adopted the AP A, the Court, in Levers v. Anderson, 326 U. S. 219 (1945), held that where a federal statute provides that a district supervisor of the Alcohol Tax Unit of the Bureau of Internal Revenue "may hear the application" for a rehearing of an order denying certain liquor permits, such an application was not a prerequisite to judicial review. Nothing "persuades us that the 'may' means must, or that the Supervisors were required to hear oral argument." Id., at 223 (emphasis added). Despite the fact that the regulations permitted a stay pending the motion for reconsideration, the Court concluded that "the motion is in its effect so much like the normal, formal type of motion for rehearing that we cannot read into the Act an intention to make it a prerequisite to the judicial review specifically provided by Congress." Id., at 224. Respondents in effect concede that the trend in the law prior to the enactment of the AP A was to require exhaustion of motions for administrative reconsideration or rehearing only when explicitly mandated by statute. Respondents argue, however, that the law governing the exhaustion of administrative appeals prior to the AP A was significantly different from § 10(c) as petitioners would have us interpret it. Brief for Respondents 23. Respondents rely on United States v. Sing Tuck, 194 U. S. 161 (1904), in which the Court considered whether, under the relevant statute, an aggrieved party had to appeal an adverse decision by the Inspector of Immigration to the Secretary of Commerce and Labor before 151 judicial review would be availableY It recognized that the relevant statute "points out a mode of procedure which must be followed before there can be a resort to the courts," id., at 167, and that a party must go through "the preliminary sifting process provided by the statutes," id., at 170. Accord, Chicago, M., St. P. & P. R. Co. v. Risty, 276 U. S. 567 , 574-575 (1928).12 Nothing in this pre-APA history, however, supports respondents' argument that initial decisions that were "final" for purposes of judicial review were nonetheless unreviewable unless and until an administrative appeal was taken. The pre- AP A cases concerning judicial review of federal agency action stand for the simple proposition that, until an administrative appeal was taken, the agency action was unreviewable because it was not yet "final." This is hardly surprising, given the fact that few, if any, administrative agencies authorized hearing officers to make final agency decisions prior to the enactment of the AP A. See Federal Administrative Law Developments-1971, 1972 Duke L. J. 115, 295, n. 22 ("[P]rior to the passage of the APA, the existing agencies ordinarily lacked the authority to make binding de- 11 The Act of August 18, 1894, 28 Stat. 390, provided: "In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or customs officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of [Commerce and Labor]." 12 In an address to the American Bar Association in 1940, Dean Stason of the University of Michigan Law School summarized the law on exhaustion of administrative appeals: "In the event that a statute setting up an administrative tribunal also creates one or more appellate administrative tribunals, it is almost invariably held that a party who is aggrieved by action of the initial agency must first seek relief by recourse to the appellate agency or agencies." Stason, Timing of Judicial Redress from Erroneous Administrative Action, 25 Minn. L. Rev. 560, 570 (1941). See also 4 K. Davis, Administrative Law Treatise §26.12, p. 469 (2d ed. 1983) ("The pre-1946 law was established that an appeal to higher administrative authorities was a prerequisite to judicial review"). 152 terminations at a level below that of the agency board or commission, so that section 10(c) would be expected to affect the exhaustion doctrine in only a very limited number of instances"). The purpose of § 10(c) was to permit agencies to require an appeal to "superior agency authority" before an examiner's initial decision became final. This was necessary because, under § Sea), initial decisions could become final agency decisions in the absence of an agency appeal. See 5 U. S. C. § 557(b). Agencies may avoid the finality of an initial decision, first, by adopting a rule that an agency appeal be taken before judicial review is available, and, second, by providing that the initial decision would be "inoperative" pending appeal. Otherwise, the initial decision becomes final and the aggrieved party is entitled to judicial review. Respondents also purport to find support for their view in the text and legislative history of the 1976 amendments of the APA. After eliminating the defense of sovereign immunity in APA cases, Congress provided: "Nothing herein ... affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground," Pub. L. 94-574, § 1, 90 Stat. 2721 (codified as 5 U. S. C. § 702). According to respondents, Congress intended by this proviso to ensure that the judicial doctrine of exhaustion of administrative remedies would continue to apply under the AP A to permit federal courts to refuse to review agency actions that were nonetheless final under § 10(c). See S. Rep. No. 94-996, p. 11 (1976) (among the limitations on judicial review that remained unaffected by the 1976 amendments was the "failure to exhaust administrative remedies").13 13 Respondents also rely on then-Assistant Attorney General Scalia's letter to the Chairman of the Senate Subcommittee on Administrative Practice and Procedure where he wrote that the Department of Justice supported the amendment in large part because it expected that many (or most) of the cases disposed of on the basis of sovereign immunity could 153 Putting to one side the obvious problems with relying on postenactment legislative history, see, e. g., United States v. Texas, 507 U. S. 529 , 535, n. 4 (1993); Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633 , 650 (1990), the proviso was added in 1976 simply to make clear that "[a]ll other than the law of sovereign immunity remain unchanged," S. Rep. No. 94-996, at 11. The elimination of the defense of sovereign immunity did not affect any other limitation on judicial review that would otherwise apply under the AP A. As already discussed, the exhaustion doctrine continues to exist under the AP A to the extent that it is required by statute or by agency rule as a prerequisite to judicial review. Therefore, there is nothing inconsistent between the 1976 amendments to the AP A and our reading of § 10(c). IV We noted just last Term in a non-APA case that "appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme." McCarthy v. Madigan, 503 U. S., at 144. Appropriate deference in this case requires the recognition that, with respect to actions brought under the AP A, Congress effectively codified the doctrine of exhaustion of administrative remedies in § 10(c). Of course, the exhaustion have been decided the same way on other legal grounds such as the failure to exhaust administrative remedies. S. Rep. No. 94-996, pp. 25-26 (1976). See also 1 Recommendations and Reports of the Administrative Conference of the United States 222 (1968-1970) (urging Congress to adopt the very language that was eventually incorporated verbatim into the 1976 amendment so that "the abolition of sovereign immunity will not result in undue judicial interference with governmental operations or a flood of burdensome litigation"). 154 doctrine continues to apply as a matter of judicial discretion in cases not governed by the AP A. But where the AP A applies, an appeal to "superior agency authority" is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Courts are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become "final" under § lO(c). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The Supreme Court ruled that federal courts cannot require plaintiffs to exhaust all administrative remedies before seeking judicial review under the Administrative Procedure Act (APA), unless explicitly mandated by statute or agency rules. In this case, the Department of Housing and Urban Development (HUD) regulations did not mandate further administrative appeals, making the Administrative Law Judge's (ALJ) decision final and subject to judicial review. The Court of Appeals erred in requiring further exhaustion of administrative remedies, as the exhaustion doctrine applies as a matter of judicial discretion in cases not governed by the APA.

Government Agencies

Franklin v. Massachusetts

https://supreme.justia.com/cases/federal/us/505/788/

OCTOBER TERM, 1991 Syllabus FRANKLIN, SECRETARY OF COMMERCE, ET AL. v. MASSACHUSETTS ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS No. 91-1502. Argued April 21, 1992-Decided June 26,1992 The Constitution requires that the apportionment of Representatives be determined by an "actual Enumeration" of persons "in each State," conducted every 10 years. Art. I, § 2, cl. 3; Arndt. 14, § 2. After the Secretary of Commerce takes the census in a form and content she determines, 13 U. S. C. § 141(a), she reports the tabulation to the President, § 141(b). He, in turn, sends Congress a statement showing the number of persons in each State, based on data from the "decennial census," and he determines the number of Representatives to which each State will be entitled. 2 U. S. C. § 2a(a). For only the second time since 1900, the Census Bureau (Bureau) allocated the Department of Defense's overseas employees to particular States for reapportionment purposes in the 1990 census, using an allocation method that it determined most closely resembled "usual residence," its standard measure of state affiliation. Appellees Massachusetts and two of its registered voters filed an action against, inter alios, the President and the Secretary of Commerce, alleging, among other things, that the decision to allocate federal overseas employees is inconsistent with the Administrative Procedure Act (APA) and the Constitution. In particular, they alleged that the allocation of overseas military personnel resulted in the shift of a Representative from Massachusetts to Washington State. The District Court, inter alia, held that the Secretary's decision to allocate such employees to the States was arbitrary and capricious under APA standards, directed the Secretary to eliminate them from the apportionment count, and directed the President to recalculate the number of Representatives and submit the new calculation to Congress. Held: The judgment is reversed. 785 F. Supp. 230, reversed. JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and IV, concluding that: 1. There was no "final agency action" reviewable under the APA. Pp. 796-801. (a) An agency action is "final" when an agency completes its decisionmaking process and the result of that process is one that will directly affect the parties. Here, the action that creates an entitlement 789 to a particular number of Representatives and has a direct effect on the reapportionment is the President's statement to Congress. He is not required to transmit the Secretary's report directly to Congress. Rather, he uses the data from the "decennial census" in making his statement, and, even after he receives the Secretary's report, he is not prohibited from instructing the Secretary to reform the census. The statutory structure here differs from those statutes under which an agency action automatically triggers a course of action regardless of any discretionary action taken by the President. Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 , distinguished. Contrary to appellees' argument, the President's action here is not ceremonial or ministerial. Apportionment is not foreordained by the time the Secretary gives the President the report, and the fact that the final action is the President's is important to the integrity of the process. Pp. 796-800. (b) The President's actions are not reviewable under the APA. He is not specifically included in the APA's purview, and respect for the separation of powers and the President's unique constitutional position makes textual silence insufficient to subject him to its provisions. Pp.800-801. 2. The Secretary's allocation of overseas federal employees to their home States is consistent with the constitutional language and goal of equal representation. It is compatible with the standard of "usual residence," which was the gloss given the constitutional phrase "in each State" by the first enumeration Act and which has been used by the Bureau ever since to allocate persons to their home States. The phrase may mean more than mere physical presence, and has been used to include some element of allegiance or enduring tie to a place. The first enumeration Act also used "usual place of abode," "usual resident," and "inhabitant" to describe the required tie. And "Inhabitant," in the related context of congressional residence qualifications, Art. I, § 2, has been interpreted to include persons occasionally absent for a considerable time on public or private business. "Usual residence" has continued to hold broad connotations up to the present day. The Secretary's judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that overseas employees have retained ties to their home States, actually promotes equality. pp. 803-806. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined, the opinion of the Court with respect to Part IV, in which REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III, in which REHNQUIST, C. J., and WHITE 790 and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, KENNEDY, and SouTER, JJ., joined, post, p. 807. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 823. Deputy Solicitor General Roberts argued the cause for appellants. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Edwin S. Kneedler, Michael Jay Singer, and Mark B. Stern. Dwight Golann, Assistant Attorney General of Massachusetts, argued the cause for appellees. With him on the briefs were Scott Harshbarger, Attorney General, Steve Berenson, Assistant Attorney General, and John P. Driscoll, Jr., Edward P. Leibensperger, and Neil P. Motenko, Special Assistant Attorneys General. * JUSTICE O'CONNOR delivered the opinion of the Court, except as to Part III. As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants' allocation of 922,819 overseas military personnel to the State * Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Sanford M. Cohen, Assistant Attorney General, Daniel E. Lungren, Attorney General of California, Thomas D. Barr, and Robert S. Rifkind filed a brief for the State of New York et al. as amici curiae urging affirmance. Kenneth O. Eikenberry, Attorney General of Washington, James M. Johnson, Senior Assistant Attorney General, and J. Lawrence Conifffiled a brief for the State of Washington as amicus curiae. 791 designated in their personnel files as their "home of record" altered the relative state populations enough to shift a Representative from Massachusetts to Washington. A threejudge panel of the United States District Court for the District of Massachusetts held that the decision to allocate military personnel serving overseas to their "homes of record" was arbitrary and capricious under the standards of the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. As a remedy, the District Court directed the Secretary to eliminate the overseas federal employees from the apportionment counts, directed the President to recalculate the number of Representatives per State and transmit the new calculation to Congress, and directed the Clerk of the House of Representatives to inform the States of the change. The federal officials appealed. We noted probable jurisdiction, stayed the District Court's order, and ordered expedited briefing and argument. 503 U. S. 442 (1992). We now reverse. I Article I, § 2, cl. 3, of the Constitution provides that Representatives "shall be apportioned among the several States ... according to their respective Numbers," which requires, by virtue of § 2 of the Fourteenth Amendment, "counting the whole number of persons in each State." The number of persons in each State is to be calculated by "actual Enumeration," conducted every 10 years, "in such Manner as [Congress] shall by Law direct." U. S. Const., Art. I, § 2, cl. 3. The delegates to the Constitutional Convention included the periodic census requirement in order to ensure that entrenched interests in Congress did not stall or thwart needed reapportionment. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 571, 578-588 (rev. ed. 1966). Their effort was only partially successful, as the congressional battles over the method for calculating the reapportionment still caused delays. After just such a 10-year stalemate after the 1920 census, Congress reformed the reapportionment proc- 792 ess to make it virtually self-executing, so that the number of Representatives per State would be determined by the Secretary of Commerce and the President without any action by Congress. See S. Rep. No.2, 71st Cong., 1st Sess., 2-3 (1929) ("The need for legislation of this type is confessed by the record of the past nine years during which Congress has refused to translate the 1920 census into a new apportionment .... As a result, great American constituencies have been robbed of their rightful share of representation ... "); Department of Commerce v. Montana, 503 U. S. 442 , 451-452, and n. 25 (1992). Under the automatic reapportionment statute, the Secretary of Commerce takes the census "in such form and content as [s]he may determine." 13 U. S. C. § 141(a). The Secretary is permitted to delegate her authority for establishing census procedures to the Bureau of the Census. See §§ 2, 4. "The tabulation of total population by States ... as required for the apportionment of Representatives in Congress ... shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States." § 141(b). After receiving the Secretary's report, the President "shall transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions .... " 2 U. S. C. § 2a(a). "Each State shall be entitled ... to the number of Representatives shown" in the President's statement, and the Clerk of the House of Representatives must "send to the executive of each State a certificate of the number of Representatives to which such State is entitled." § 2a(b). With the one-time exception in 1900 of counting overseas servicemen at their family home, the Census Bureau did not allocate federal personnel stationed overseas to particular 793 States for reapportionment purposes until 1970. App. 175, 177. The 1970 census, taken during the Vietnam War, allocated members of the Armed Forces stationed overseas to their "home of record," using Defense Department personnel records. Id., at 179. "Home of record" is the State declared by the person upon entry into military service, and determines where he or she will be moved after military service is complete. Id., at 149. Because the Bureau found that military personnel were likely to designate a "home of record" with low or no income taxes instead of their true home State-even though home of record does not determine state taxation-the Bureau did not allocate overseas employees to particular States in the 1980 census. App. 180. Initially, the Bureau took the position that overseas federal employees would not be included in the 1990 state enumerations either. There were, however, stirrings in Congress in favor of including overseas federal employees, especially overseas military, in the state population counts. Several bills requiring the Secretary to include overseas military were introduced but not passed in the 100th and 101st Congresses. See H. R. 3814, 100th Cong., 1st Sess. (1987); H. R. 4234, 100th Cong., 2d Sess. (1988); H. R. 3815, 100th Cong., 1st Sess. (1987); H. R. 4720, 100th Cong., 2d Sess. (1988); S. 2103, 100th Cong., 2d Sess. (1988); H. R. 1468, 101st Cong., 1st Sess. (1989); H. R. 2661, 101st Cong., 1st Sess. (1989); H. R. 3016, 101st Cong., 1st Sess. (1989); S. 290, 101st Cong., 1st Sess. (1989). In July 1989, nine months before the census taking was to begin, then-Secretary of Commerce Robert Mosbacher agreed to allocate overseas federal employees to their home States for purposes of congressional apportionment. App. 182. His decision memorandum cites both the growing congressional support for including overseas employees and the Department of Defense's belief that "its employees should not be excluded from apportionment counts because of temporary and involuntary residence overseas." Id., at 120. Another factor explaining the Secre- 794 tary's shift was that the Department of Defense, the largest federal overseas employer, planned to poll its employees to determine, among other things, which State they considered their permanent home. Id., at 184. In December 1989, however, the Defense Department canceled its plans to conduct the survey due to a lack of funds. Ibid. As an alternative, the Defense Department suggested that it could provide data on its employees' last six months of residence in the United States, information that would be more complete and up-to-date than the home of record data already in the personnel files. This possibility also failed to materialize when the Defense Department informed the Census Bureau that it was not able to assemble the information after all. Ibid. In the meantime, two more bills were introduced in Congress, but not passed, which would have required the Census Bureau to apportion members of the overseas military to their home States using the "home of record" data already in their personnel files. See H. R. 4903, 101st Cong., 2d Sess. (1990); S. 2675, 101st Cong., 2d Sess. (1990). In July 1990, six months before the census count was due to be reported to the President, the Census Bureau decided to allocate the Department of Defense's overseas employees to the States based on their "home of record." App. 185. It chose the home of record designation over other data available, including legal residence and last duty station, because home of record most closely resembled the Census Bureau's standard measure of state affiliation-"usual residence." 3 Record 925. Legal residence was thought less accurate because the choice of legal residence may have been affected by state taxation. Indeed, the Congressional Research Service found that in 1990 "the nine States with either no income taxes, or those which tax only interest and dividend income, have approximately 9 percent more of the overseas military personnel claiming the States for tax purposes, than those same States receive using home of record." Congressional 795 Research Service Report, App. 151, n. 13. For similar reasons, last duty station was rejected because it would provide only a work address, and the employee's last home address might have been in a different State, as with those, for example, who worked in the District of Columbia but lived in Virginia or Maryland. 3 Record 925. Residence at a "last duty station" may also have been of a very short duration and may not have reflected the more enduring tie of usual residence. App. 150. Those military personnel for whom home of record information was not available were allocated based on legal residence or last duty station, in that order. Id., at 186. The Census Bureau invited 40 other federal agencies with overseas employees to submit counts of their employees as well. Of those, only 30 actually submitted counts, and only 20 agencies included dependents in their enumeration. Four of the agencies could not provide a home State for all of their overseas employees. Ibid. Appellees challenged the decision to allocate federal overseas employees, and the method used to do so, as inconsistent with the AP A and with the constitutional requirement that the apportionment of Representatives be determined by an "actual Enumeration" of persons "in each State." U. S. Const., Art. I, § 2, cl. 3; U. S. Const., Arndt. 14, § 2. Appellees focused their attack on the Secretary's decision to use "home of record" data for military personnel. The District Court, finding that it had jurisdiction to address the merits of the claims, was "skeptical" of the merits of appellees' constitutional claims, speculating that "[t]here would appear to be nothing inherently unconstitutional in a properly supported decision to include overseas federal employees in apportionment counts." Commonwealth v. Mosbacher, 785 F. Supp. 230, 266 (Mass. 1992). The District Court nonetheless held that, on the administrative record before it, the Secretary's decision to allocate the employees and to use home 796 of record data was arbitrary and capricious under the standards of the APA. Id., at 264-266. II Appellees raise claims under both the AP A and the Constitution. We address first the statutory basis for our jurisdiction under the APA. See Blum v. Bacon, 457 U. S. 132 , 137 (1982); Burton v. United States, 196 U. S. 283 , 295 (1905). The AP A sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts. The Secretary's report to the President is an unusual candidate for "agency action" within the meaning of the AP A, because it is not promulgated to the public in the Federal Register, no official administrative record is generated, and its effect on reapportionment is felt only after the President makes the necessary calculations and reports the result to the Congress. Contrast 2 U. S. C. § 441a(e) (requiring Secretary to publish each year in the Federal Register an estimate of the voting age population). Only after the President reports to Congress do the States have an entitlement to a particular number of Representatives. See § 2a(b) ("Each State shall be entitled ... to the number of Representatives shown in the [President's] statement"). The AP A provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U. S. C. § 704. At issue in this case is whether the "final" action that appellees have challenged is that of an "agency" such that the federal courts may exercise their powers of review under the APA. We hold that the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the AP A standards. To determine when an agency action is final, we have looked to, among other things, whether its impact "is suffi- 797 ciently direct and immediate" and has a "direct effect on ... day-to-day business." Abbott Laboratories v. Gardner, 387 U. S. 136, 152 (1967). An agency action is not final if it is only "the ruling of a subordinate official," or "tentative." Id., at 151. The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties. In this case, the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President's statement to Congress, not the Secretary's report to the President. Unlike other statutes that expressly require the President to transmit an agency's report directly to Congress, § 2a does not. Compare, e. g., 20 U. S. C. § 1017(d) ("The President shall transmit each such report [of the National Advisory Council on Continuing Education] to the Congress with his comments and recommendations"); 30 U. S. C. § 1315(c) (similar language); 42 U. S. C. § 3015(f) (similar language); 42 U. S. C. § 6633(b)(2) (similar language). After receiving the Secretary's report, the President is to "transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population." 2 U. S. C. § 2a(a). Section 2a does not expressly require the President to use the data in the Secretary's report, but, rather, the data from the "decennial census." There is no statute forbidding amendment of the "decennial census" itself after the Secretary submits the report to the President. For potential litigants, therefore, the "decennial census" still presents a moving target, even after the Secretary reports to the President. In this case, the Department of Commerce, in its press release issued the day the Secretary submitted the report to the President, was explicit that the data presented to the President was still subject to correction. See United States Department of Commerce News, Bureau of Census, 1990 Census Population for the United States is 249,632,692: Reapportionment Will 798 Shift 19 Seats in the U. S. House of Representatives 2 (Dec. 26, 1990) ("The population counts set forth herein are subject to possible correction for undercount and overcount. The United States Department of Commerce is considering whether to correct these counts and will publish corrected counts, if any, not later than July 15, 1991").1 Moreover, there is no statute that rules out an instruction by the President to the Secretary to reform the census, even after the data are submitted to him. It is not until the President submits the information to Congress that the target stops moving, because only then are the States entitled by § 2a to a particular number of Representatives. Because the Secretary's report to the President carries no direct consequences for the reapportionment, it serves more like a tentative recommendation than a final and binding determination. It is, like "the ruling of a subordinate official," Abbott Laboratories v. Gardner, supra, at 151, not final and therefore not subject to review. Cf. Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 109 (1948); United States v. George S. Bush & Co., 310 U. S. 371 , 379 (1940). The statutory structure in this case differs from that at issue in Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 (1986), in which we held that the Secretary of Commerce's certification to the President that another country was endangering fisheries was "final agency action." Id., at 231, n. 4. In that case, the Secretary's certification IJUSTICE STEVENS suggests that the "decennial census" is a single count, determined solely by the Secretary, that is used for many purposes other than reapportionment of Representatives. Therefore, he reasons, it cannot be within the control of the President. However, the President may be involved in the policymaking tasks of his Cabinet members, whether or not his involvement is explicitly required by statute. The question here is whether the census count is final before the President acts. It seems clear that it is not. The tabulations used for purposes of state redistricting, which include counts of persons in each state district, are not required by statute to be completed until April 1, months after the President's report to Congress. 13 U. S. C. § 141(c). 799 to the President under 22 U. S. C. § 1978(a)(1) automatically triggered sanctions by the Secretary of State under 16 U. S. C. § 1821(e)(2)(B), regardless of any discretionary action the President himself decided to take. Japan Whaling, supra, at 226. Under 13 U. S. C. § 141(a), by contrast, the Secretary's report to the President has no direct effect on reapportionment until the President takes affirmative steps to calculate and transmit the apportionment to Congress. Appellees claim that because the President exercises no discretion in calculating the numbers of Representatives, his "role in the statutory scheme was intended to have no substantive content," and the final action is the Secretary's, not the President's. Brief for Appellees 86. They cite the Senate Report for the bill that became 2 U. S. C. § 2a, which states that the President is to report "upon a problem in mathematics which is standard, and for which rigid specifications are provided by Congress itself, and to which there can be but one mathematical answer." S. Rep. No.2, 71st Cong., 1st Sess., at 4-5. The admittedly ministerial nature of the apportionment calculation itself does not answer the question whether the apportionment is foreordained by the time the Secretary gives her report to the President. To reiterate, § 2a does not curtail the President's authority to direct the Secretary in making policy judgments that result in "the decennial census"; he is not expressly required to adhere to the policy decisions reflected in the Secretary's report. Because it is the President's personal transmittal of the report to Congress that settles the apportionment, until he acts there is no determinate agency action to challenge. The President, not the Secretary, takes the final action that affects the States. Indeed, it is clear that Congress thought it was important to involve a constitutional officer in the apportionment process. Congress originally considered a bill requiring the Secretary to report the apportionment calculation directly 800 to Congress. See S. Rep. No. 1446, 70th Cong., 2d Sess., 4 (1929). The bill was later amended to require the participation of the President: "Another objection to the previous bill was that the Secretary of Commerce should not be intrusted with the final responsibility for making so important a report to Congress. The new and pending bill recognizes this objection to the extent that the President is substituted for the Secretary of Commerce so that this function may be served by a constitutional officer. This makes for greater permanence, which is one of the major virtues to be desired in such a statute." S. Rep. No.2, supra, at 5. It is hard to imagine a purpose for involving the President if he is to be prevented from exercising his accustomed supervisory powers over his executive officers. Certainly no purpose to alter the President's usual superintendent role is evident from the text of the statute. As enacted, 2 U. S. C. § 2a provides that the Secretary cannot act alone; she must send her results to the President, who makes the calculations and sends the final apportionment to Congress. That the final act is that of the President is important to the integrity of the process and bolsters our conclusion that his duties are not merely ceremonial or ministerial. Thus, we can only review the AP A claims here if the President, not the Secretary of Commerce, is an "agency" within the meaning of the Act. The APA defines "agency" as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include(A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia." 5 U. S. C. §§ 701(b)(1), 551(1). The President is not explicitly excluded from the AP A's purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the Presi- 801 dent to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion. Cf. Nixon v. Fitzgerald, 457 U. S. 731 , 748, n. 27 (1982) (Court would require an explicit statement by Congress before assuming Congress had created a damages action against the President). As the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements. Although the President's actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), we hold that they are not reviewable for abuse of discretion under the AP A, see Armstrong v. Bush, 288 U. S. App. D. C. 38, 45, 924 F.2d 282 , 289 (1991). The District Court erred in proceeding to determine the merits of the AP A claims. III Although the reapportionment determination is not subject to review under the standards of the AP A, that does not dispose of appellees' constitutional claims. See Webster v. Doe, 486 U. S. 592 , 603-605 (1988). Constitutional challenges to apportionment are justiciable. See Department of Commerce v. Montana, 503 U. S. 442 (1992). We first address standing.2 To invoke the constitutional power of the federal courts to adjudicate a case or controversy under Article III, appellees here must allege and prove an injury "fairly traceable to the [appellants'] allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U. S. 737 , 751 (1984). 2 While appellants asserted below that the courts have no subjectmatter jurisdiction over this case because it involves a "political question," we recently rejected a similar argument in Department of Commerce v. Montana, 503 U. S., at 456-459, and appellants now concede the issue. Brief for Appellants 21. 802 Opinion of O'CONNOR, J. To determine whether appellees sufficiently allege and prove causation requires separating out appellees' claims: Appellees claim both that the Secretary erred in deciding to allocate overseas employees to various States and that the Secretary erred in using inaccurate data to do so. Appellees have shown that Massachusetts would have had an additional Representative if overseas employees had not been allocated at all. App. 183. They have neither alleged nor shown, however, that Massachusetts would have had an additional Representative if the allocation had been done using some other source of "more accurate" data. Consequently, even if appellees have standing to challenge the Secretary's decision to allocate, they do not have standing to challenge the accuracy of the data used in making that allocation. We need, then, review only the decision to include overseas federal employees in the state population counts, not the Secretary's choice of information sources. The thornier standing question is whether the injury is redressable by the relief sought. Tracking the statutory progress of the census data from the Census Bureau, through the President, and to the States, the District Court entered an injunction against the Secretary of Commerce, the President, and the Clerk of the House. 785 F. Supp., at 268. While injunctive relief against executive officials like the Secretary of Commerce is within the courts' power, see Youngstown Sheet & Tube Co. v. Sawyer, supra, the District Court's grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely "ministerial" duty, Mississippi v. Johnson, 4 Wall. 475, 498-499 (1867), and we have held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United States v. Nixon, 418 U. S. 683 (1974), but in general "this 803 court has no jurisdiction of a bill to enjoin the President in the performance of his official duties." Mississippi v. Johnson, supra, at 501. At the threshold, the District Court should have evaluated whether injunctive relief against the President was available, and, if not, whether appellees' injuries were nonetheless redressable. For purposes of establishing standing, however, we need not decide whether injunctive relief against the President was appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 75, n. 20 (1978); Allen v. Wright, supra, at 752. The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy. And, as the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination. IV On the merits, appellees argue that the Secretary's allocation of overseas federal employees to the States violated the command of Article I, § 2, cl. 3, that the number of Representatives per State be determined by an "actual Enumeration" of "their respective Numbers," that is, a count of the persons "in" each State. Appellees point out that the first census conducted in 1790 required that persons be allocated to their place of "usual residence." Brief for Appellees 77. See Act of Mar. 1, 1790, § 5, 1 Stat. 103. Because the interpretations of the Constitution by the First Congress are per- 804 suasive, Bowsher v. Synar, 478 U. S. 714 , 723-724 (1986), appellees argue that the Secretary should have allocated the overseas employees to their overseas stations, because those were their usual residences. The appellants respond, on the other hand, that the allocation of employees temporarily stationed overseas to their home States is fully compatible with the standard of "usual residence" used in the early censuses. We review the dispute to the extent of determining whether the Secretary's interpretation is consistent with the constitutional language and the constitutional goal of equal representation. See De partment of Commerce v. Montana, 503 U. S., at 459. "U sual residence" was the gloss given the constitutional phrase "in each State" by the first enumeration Act and has been used by the Census Bureau ever since to allocate persons to their home States. App. 173-174. The term can mean more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place. The first enumeration Act itself provided that "every person occasionally absent at the time of the enumeration [shall be counted] as belonging to that place in which he usually resides in the United States." Act of Mar. 1, 1790, § 5, 1 Stat. 103. The Act placed no limit on the duration of the absence, which, considering the modes of transportation available at the time, may have been quite lengthy. For example, during the 36-week enumeration period of the 1790 census, President George Washington spent 16 weeks traveling through the States, 15 weeks at the seat of Government, and only 10 weeks at his home in Mount Vernon. He was, however, counted as a resident of Virginia. The first enumeration Act uses other words as well to describe the required tie to the State: "usual place of abode," "inhabitant," "usual reside[nt]." Act of Mar. 1, 1790, § 5, 1 Stat. 103. The first draft of Article I, § 2, also used the word "inhabitant," which was omitted by the Committee of Style 805 in the final provision. 2 Farrand, Records of the Federal Convention of 1787, at 566, 590.3 In the related context of congressional residence qualifications, U. S. Const., Art. I, § 2, James Madison interpreted the constitutional term "inhabitant" to include "persons absent occasionally for a considerable time on public or private business." 2 Farrand, Records of the Federal Convention of 1787, at 217. This understanding was applied in 1824, when a question was raised about the residency qualifications of would-be Representative John Forsyth, of Georgia. Mr. Forsyth had been living in Spain during his election, serving as minister plenipotentiary from the United States. His qualification for office was challenged on the ground that he was not "an inhabitant of the State in which he [was] chosen." U. S. Const., Art. I, § 2, cl. 2. The House Committee of Elections disagreed, reporting: "There is nothing in Mr. Forsyth's case which disqualifies him from holding a seat in this House. The capacity in which he acted, excludes the idea that, by the performance of his duty abroad, he ceased to be an inhabitant of the United States; and, if so, inasmuch as he had no inhabitancy in any other part of the Union than Georgia, he must be considered as in the same situation as before the acceptance of the appointment." M. Clarke & D. Hall, Cases of Contested Elections in Congress 497-498 (1834). Representative Bailey, supporting the qualification of Mr. Forsyth, pointed out that if "the mere living in a place constituted inhabitancy," it would "exclude sitting members of this House." Id., at 497 (emphasis deleted). Up to the present day, "usual residence" has continued to hold broad connotations. For example, up until 1950, college 3 As submitted to the Committee of Style, the provision read: "[T]he Legislature shall ... regulate the number of representatives by the number of inhabitants." 2 M. Farrand, Records of the Federal Convention of 1787, p. 566 (rev. ed. 1966). After its return by the Committee, it had a more familiar ring: "Representatives ... shall be apportioned among the several states ... according to their respective numbers." Id., at 590. 806 students were counted as belonging to the State where their parents resided, not to the State where they attended school. App. 219. Even today, high school students away at boarding school are allocated to their parents' home State, not the location of the school. Id., at 220. Members of Congress may choose whether to be counted in the Washington, D. C., area or in their home States. Id., at 218. Those persons who are institutionalized in out-of-state hospitals or jails for short terms are also counted in their home States. Id., at 225. In this case, the Secretary of Commerce made a judgment, consonant with, though not dictated by, the text and history of the Constitution, that many federal employees temporarily stationed overseas had retained their ties to the States and could and should be counted toward their States' representation in Congress: "Many, if not most, of these military overseas consider themselves to be usual residents of the United States, even though they are temporarily assigned overseas." Id., at 120. The Secretary's judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually promotes equality. If some persons sharing in Washington's fate had not been properly counted, the votes of all those who reside in Washington State would not have been weighted equally to votes of those who reside in other States. Certainly, appellees have not demonstrated that eliminating overseas employees entirely from the state counts will make representation in Congress more equal. Cf. Karcher v. Daggett, 462 U. S. 725 , 730-731 (1983) (parties challenging state apportionment legislation bear burden of proving disparate representation). We conclude that appellees' constitutional challenge fails on the merits. The District Court's judgment is Reversed. 807 JUSTICE STEVENS, with whom JUSTICE BLACKMUN, JusTICE KENNEDY, and JUSTICE SOUTER join, concurring in part and concurring in the judgment. In my opinion the census report prepared by the Secretary of Commerce is "final agency action" subject to judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. I am persuaded, however, that the Secretary complied with the Census Act and with the Constitution in the preparation of the 1990 census and that, under the standard of deference appropriate here, the Secretary's actions were not arbitrary or capricious. I therefore agree that the judgment of the District Court must be reversed. I During the decade after 1980 the population of Massachusetts increased less rapidly than the population of the entire Nation. In the apportionment following the 1990 census, it received only 10 of the 435 seats in the House of Representatives whereas formerly it had 11. In the District Court, appellees, who are the Commonwealth of Massachusetts and two of its registered voters, made two separate attacks on the process that reduced the size of Massachusetts' congressional delegation. They challenged the Secretary's conduct of the census, and they challenged the method of apportioning congressional seats based on the census report. The District Court rejected the challenge to the constitutionality of the method of apportionment prescribed in the Apportionment Act of 1941, 55 Stat. 761-762. Commonwealth v. Mosbacher, 785 F. Supp. 230,256 (Mass. 1992). That decision was consistent with the analysis subsequently set forth in our opinion in Department of Commerce v. Montana, 503 U. S. 442 (1992), and is no longer in dispute. Pursuant to the judicial review provisions of the AP A, 5 U. S. C. § 706(2), the District Court also examined the decision of the Secretary of Commerce to include overseas federal employees in the census count. The 808 Opinion of STEVENS, J. court concluded that the Secretary's decision was "arbitrary and capricious, and an abuse of discretion." 785 F. Supp., at 267. In a rather surprising development, this Court reverses because it concludes that the census report is not "final agency action," 5 U. S. C. § 704. The reason the Court gives for this conclusion is that the President-who is not himself a part of the agency that prepared the census and who has no statutory responsibilities under the Census Act-might revise that report in some way when he is performing his responsibilities under an entirely separate statute, the Apportionment Act. The logic of the Court's opinion escapes me, and apparently was not obvious to the Solicitor General, for he advanced no such novel claim in his argument seeking reversal. The Court's conclusion is erroneous for several reasons. II Article I, § 2, cl. 3, of the Constitution, as modified by the Fourteenth Amendment, provides that Members of the House of Representatives "shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State .... " To ensure that the apportionment remains representative of the current population, the Constitution further requires that a census be taken at least every 10 years.1 Beginning in 1790, Congress fulfilled the constitutional command by passing a Census Act every 10 years. Under the early census statutes, marshals would transmit the collected information to the Secretary of State. The census functions of the Secretary of State were transferred to the Secretary of the Interior after that Department was estab- 1 "The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such manner as they shall by Law direct." U. S. Const., Art. I, § 2, cl. 3. 809 lished in 1849.2 A Census Office in the Department of the Interior was established in 1899 and made permanent in 1902.3 A year later, the Census Office was moved to the newly formed Department of Commerce and Labor.4 Following each census, Congress enacted a statute to reapportion the House of Representatives. After the 1920 census, however, Congress failed to pass a reapportionment Act. This congressional deadlock provided the impetus for the 1929 Act that established a self-executing apportionment in the case of congressional inaction. See S. Rep. No.2, 71st Cong., 1st Sess., 2-4 (1929). The bill produced an automatic reapportionment through the application of a mathematical formula to the census. The automatic connection between the census and the reapportionment was the key innovation of the Act.5 In its original version, the bill directed the Secretary of Commerce to apply a mathematical formula to the census figures and to transmit the resulting apportionment calculations to Congress. A later version made the President responsible for performing the mathematical computations and reporting the result. From the legislative history, it is clear that this change in the designated official was intended to have no substantive significance.6 There is no indication 2 See C. Wright, The History and Growth of the United States Census, 432 Stat. 826-827. 5 See 71 Congo Rec. 1609-1610 (1929) (remarks of Sen. Vandenberg). The automatic reapportionment on the basis of the decennial census was retained when the reapportionment features of the bill were modified somewhat in 1941. Act of Nov. 15, 1941, 55 Stat. 761. See Department of Commerce V. Montana, 503 U. S. 442 , 451-452, and n. 25 (1992). 6 The sponsor of the bill, Senator Vandenberg, explained the change: "[T]he President of the United States is substituted in the bill as the person who shall make the computation and report instead of the Secretary of Commerce, who was identified in the bill last February simply and solely because it was my own personal notion that if we were to accomplish a permanent end through the passage of permanent legislation it were 810 Opinion of STEVENS, J. whatsoever of an intention to introduce a layer of Executive discretion between the taking of the census and the application of the reapportionment formula. The intention was exactly the contrary: to make the apportionment proceed automatically based on the census. The statutory scheme creates an interlocking set of responsibilities for the Secretary and the President. The Secretary of Commerce is required to take a "decennial census of population as of the first day of April of [every tenth] year, which date shall be known as the 'decennial census date.'" 13 U. S. C. § 141(a). The Secretary reports the collected information to the President, see § 141(b), who is directed to "transmit to the Congress" a statement showing the population of each State "as ascertained under the seventeenth and each subsequent decennial census .... " 2 U. S. C. § 2a(a). The plain language of the statute demonstrates that the President has no substantive role in the computation of the census. The Secretary takes the "decennial census," and the President performs the apportionment calculations and transmits the census figures and apportionment results to Congress. In the face of this clear statutory mandate, the Court must fall back on an argument based on statutory silence. The Court insists that there is no law prohibiting the President from changing the census figures after he receives them from the Secretary. The Court asserts: "Section 2a does not expressly require the President to use the data in the Secretary's report, but, rather, the data from the 'decennial census.'" Ante, at 797 (emphasis added). This statement is difficult to comprehend, for it purports to contrast two terms that the statute equates. The "decennial census" is the name the statute gives to the information collected by the better to name a constitutional officer rather than a statutory officer. I have quite no pride of opinion at that point and I think it makes quite no difference, because everybody will get the same answer when we undertake to do that problem in arithmetic." 71 Congo Rec. 1613 (1929). 811 Secretary and reported to the President. The Court's argument cannot be harmonized with a statutory scheme that directs the Secretary to take the "decennial census" and the President to report to Congress figures "as ascertained under the ... decennial census." This language cannot support the Court's view that the statute endows the President with discretion to modify the census results reported by the Secretary. The legislative record, moreover, establishes that the Executive involvement in the process is to be wholly ministeriaP The question of the discretion allowed to the President was discussed on the floor of the Senate, and the sponsor of the bill, Senator Vandenberg of Michigan, stated unequivocally that the President exercised no discretion whatsoever: "I believe as a matter of indisputable fact, that function served by the President is as purely and completely a ministerial function as any function on earth could be." 71 Congo Rec. 1858 (1929).8 In a colloquy with other legisla- 7 The Senate Report, for example, states: "The objection that this is an improper 'delegation of power' to the Department of Commerce (which takes the census) and to the President (who reports the arithmetic) is answered by an examination of the facts. No power whatever is delegated. The Department of Commerce counts the people (as it always has done) and the President reports upon a problem in mathematics which is standard, and for which rigid specifications are provided by Congress itself, and to which there can be but one mathematical answer." S. Rep. No.2, 71st Cong., 1st Sess., 4-5 (1929). 8 At another point, Senator Vandenberg explained: "The bill calls upon the President to report the result of a census to the Congress. We have always depended upon somebody to report the result of a census to us. The bill calls upon the President, when he reports the result of the census, also to report the result of a problem in arithmetic. If the President did not present the answer to that problem in arithmetic, somebody else would have to do the problem in arithmetic, because no matter what method is embraced for purposes of apportionment, there is inevitably needed a formula which, like a chemical formula, may in itself be somewhat inscrutable, and yet which always reaches the same conclusion." 71 Congo Rec. 1613 (1929). The accuracy of Senator Vandenberg's 812 Opinion of STEVENS, J. tors, Senator Vandenberg made clear that the bill did not allow the President to change the census figures he received: "Mr. SWANSON: As I understand, the Senator from Montana says, after reading the bill carefully, that the President is bound and has no discretion under its terms; so that if there should be glaring frauds all over the country he would be compelled to make the apportionment according to the census. "Mr. WALSH of Montana: I should say so, because as I understand, he is not authorized to disregard any numbers upon any ground. "Mr. SWANSON: I should like to ask the Senator from Michigan if that is his view? I understand the Senator from Montana to say that if the census returns shall be shown to be reeking with frauds the President will have no power to correct them; that he must follow the census returns as certified, regardless of the fraud that may be involved. Is that the view of the Senator from Michigan? "Mr. VANDENBERG: My answer is that the Senator from Montana is entirely correct. There is absolutely no discretion in name or nature reposed in the President in connection with the administration of this proposed act." Id., at 1845-1846.9 No President-indeed, no member of the Executive Branch-has ever suggested that the statute authorizes the President to modify the census figures when he performs the statements is confirmed by the analysis set forth in our opinion in Department of Commerce v. Montana, 503 U. S., at 448-456. 9 An opponent of the bill, Senator Black, questioned whether the Act might allow the President more than a ministerial role in the apportionment process. He considered such a possibility a recipe for tyranny. See 71 Congo Rec. 1612 (1929). 813 apportionment calculations. Nor did the Solicitor General advance that argument in this litigation.10 As a matter of practice, the President has consistently and faithfully performed the ministerial duty described by Senator Vandenberg. The Court's suggestion today that the statute gives him discretion to do otherwise is plainly incorrect.ll 10 While asserting that the President has authority to direct the Secretary's performance of the census, the Solicitor General acknowledged that the statute does not authorize the President to deviate from the Secretary's report: "MR. ROBERTS: The law directs [the President] to apply, of course, a particular mathematical formula to the population figures he receives, but I don't think there is a limit on his exercise of authority to direct the Secretary of Commerce to conduct the census in a particular manner. It would be unlawful, maybe not subject to judicial review, but unlawful just to say, these are the figures, they are right, but I am going to submit a different statement. But he can certainly direct the Secretary in the conduct of the census. "QUESTION: But would he have to remand it in effect to the Secretary or could he say, well, I have had somebody over at the FBI making some checks for me and they tell me there are really more people in Massachusetts, so I am going to give them extra seats. "MR. ROBERTS: I think under the law he is supposed to base his calculation on the figures submitted by the Secretary." Tr. of Oral Arg. 12-13. 11 The Court confuses two duties of the President: (1) the general duty to supervise the actions of the Secretary of Commerce, and (2) the statutory duty to transmit the census report and the apportionment calculations to Congress. This confusion is evident from the Court's statement, "It is hard to imagine a purpose for involving the President if he is to be prevented from exercising his accustomed supervisory powers over his executive officers." Ante, at 800. It may be true that the statute does not purport to limit the President's "accustomed supervisory powers" over the Secretary of Commerce. The President would enjoy these "accustomed powers," however, whether or not he was responsible for transmitting the census and apportionment calculations to Congress. These "accustomed powers," therefore, cannot be relevant in deciding whether agency action is final for the purposes of the APA, or else no action of an Executive department would ever be final. The Court's argument then depends on construing the statute to grant discretion to the President that 814 Opinion of STEVENS, J. Because the Census Act directs that the tabulation of the total population by States shall be "reported by the Secretary to the President," the Court suggests that it is "like a tentative recommendation" to the President, ante, at 798. This suggestion is misleading because, unlike the typical "tentative recommendation," the census report is a public document. It is released to the public at the same time that it is transmitted to the President.12 By law, the census report is distributed to federal and state agencies because it provides the basis for the allocation of various benefits and burdens among the States under a variety of federal programs. The Secretary also transmits the census figures directly to the States to assist them in redistricting. See 13 U. S. C. § 141(c). This wide distribution provides further evidence that the statute does not contemplate the President's changing the Secretary's report. If the President modified the census figures after he received them from the Secretary, the Federal Government and the States would rely on different census results. The Secretary has made clear that the existence of varying "official" population figures is not acceptable. he would not otherwise enjoy. Such additional grants of authority were implicated in the cases on which the Court relies. See Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 (1948); United States v. George S. Bush & Co., 310 U. S. 371 (1940). The statutory language here will not bear this interpretation. Moreover, whatever purpose the Court wishes to "imagine" for the statute's designating the President as the official responsible for performing the apportionment calculations, the legislative record makes it absolutely clear that the purpose was not to give the President any new discretionary authority over the census. See supra, at 810-812, and n. 6. 12 See United States Department of Commerce News, Bureau of Census, 1990 Census Population for the United States is 249,632,692: Reapportionment Will Shift 19 Seats in the U. S. House of Representatives (Dec. 26, 1990); see also N. Y. Times, Dec. 27, 1990, p. AI, col. 3. 815 In setting forth guidelines for possible adjustment of the census results,13 the Secretary stated: "The resulting counts must be of sufficient quality and level of detail to be usable for Congressional reapportionment and legislative redistricting, and for all other purposes and at all levels for which census counts are published .... "[T]here can be, for the population at all geographic levels at anyone point in time, only one set of official government population figures." 55 Fed. Reg. 98409841 (1990). To ensure uniformity, the Secretary's count must establish the final census figures. 14 13 The Court asserts that the possibility of census adjustments prior to the President's report to Congress supports its interpretation of the statute. See ante, at 797-798. On the contrary, the evidence the Court cites undermines its argument. The President's statement accompanying the transmittal of the 1990 census and apportionment figures to Congress explains, "The Department of Commerce is considering whether to correct these counts and will publish corrected counts, if any, not later than July 15,1991." H. R. Doc. No. 102-18, p. 1 (1991). The statement underscores that it is the Secretary, not the President who determines the final census figures. That the Secretary will "publish" the corrected results also demonstrates that the Court is mistaken in likening the Secretary's report to a "tentative recommendation." Ante, at 798. The possibility that the Secretary may modify the census figures, of course, cannot support the Court's view that the President's intervention deprives the Secretary's action of finality. The possibility of correction would mean, at most, that appellees' challenge was not ripe until the Secretary's eventual announcement that he would not adjust the census. See 56 Fed. Reg. 33582 (1991). Similarly, even if it were the President's report to Congress that signaled the end of a census-adjustment process, that would be relevant only in determining when a challenge is ripe, not whether the Secretary's report is "final agency action." 14 Even in the Court's view, the Secretary's report of census information to recipients other than the President would certainly constitute "final agency action." The Court's decision thus appears to amount to a pleading requirement. To avoid the bar to APA review that the Court imposes 816 Opinion of STEVENS, J. In light of the statutory language, the legislative history, and the consistent Executive practice, the Court's conclusion that the census report is not "final agency action" is as insupportable as it is surprising.15 III In view of my conclusion that the census report prepared by the Secretary constitutes final agency action, I must consider the Secretary's contention that judicial review is not available because the conduct of the census is "committed to agency discretion by law." 5 U. S. C. § 701(a)(2). As we have frequently recognized, the "strong presumption that Congress intends judicial review of administrative action," see, e. g., Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 , 670 (1986), cannot be overcome without" 'clear and convincing evidence'" of a contrary legislative intent, Abbott Laboratories v. Gardner, 387 U. S. 136 , 141 (1967) (quoting Rusk v. Cort, 369 U. S. 367 , 380 (1962)). No such evidence appears here. The current version of the statute provides that "[t]he Secretary shall ... take a decennial census of population as of the first day of April ... in such form and content as [s]he may determine .... " 13 U. S. C. § 141(a).16 The Secretary today, litigants need only join their apportionment challenges to other census-related claims. Notwithstanding the Court's novel reading of the statute, in view of the Secretary's insistence on unitary census data, relief on any census claim would yield relief on all other claims. 15 My conclusion that the Secretary's action was reviewable makes it unnecessary for me to consider whether the President is an "agency" within the meaning of the APA. 16 Moreover, this language appeared only recently in the statute. The Act passed in 1929 stated: "That a census of population ... shall be taken by the Director of the Census in the year 1930 and every ten years thereafter." 46 Stat. 21. Before the 1976 amendment, the Act provided: "The Secretary shall, in the year 1960 and every ten years thereafter, take a census of population .... " 71 Stat. 483. It was not until 1976 that Congress added the language, "in such form and content as [s]he may determine." To the extent that the argument for unreviewability depends on 817 asserts that the discretion afforded by the statute is at least as broad as that allowed the Director of Central Intelligence in the statute we considered in Webster v. Doe, 486 U. S. 592 (1988). That assertion cannot withstand scrutiny. The statute at issue in Doe provided that "the Director of Central Intelligence may, in his discretion, terminate the employment of any officer or employee of the Agency whenever he shall deem such termination necessary or advisable in the interests of the United States .... " 50 U. S. C. §403(c). In concluding that employment discharge decisions were committed to agency discretion, we emphasized the language of "deem ... advisable," which we found to provide no meaningful standard of review. We also relied on the overall statutory structure of the National Security Act. No language equivalent to "deem ... advisable" exists in the census statute. There is no indication that Congress intended the Secretary's own mental processes, rather than other more objective factors, to provide the standard for gauging the Secretary's exercise of discretion. Moreover, it this phrase, it requires the conclusion that when Congress amended the statute in 1976, it intended to effect a new, unreviewable commitment to agency discretion. There is no support for this position whatsoever. The main purpose of the 1976 amendment was to provide for a mid-decade census to be used for various purposes (not including apportionment). See S. Rep. No. 94-1256, pp. 2-3 (1976). The legislative history evidences no intention to expand the scope of the Secretary's discretion. The Senate Report on the new language in 13 U. S. C. § 141(a) reads in its entirety: "Subsection (a) of section 141 essentially rewords the existing subsection, adding the term 'decennial census of population' so as to distinguish this census, to be taken in 1980 and every ten years thereafter, from the mid-decade census, which is to be taken in 1985 and every ten years thereafter. New language is added at the end of the subsection to encourage the use of sampling and surveys in the taking of the decennial census." Indeed, other portions of the Act limited the Secretary's authority by requiring, if feasible, the use of sampling in the nonapportionment census. 90 Stat. 2464, 13 U. S. C. § 195. 818 Opinion of STEVENS, J. is difficult to imagine two statutory schemes more dissimilar than the National Security Act and the Census Act. Though they both relate to the gathering of information, the similarity ends there. Doe raises the possibility that, except for constitutional claims, the Director of Central Intelligence may enjoy unreviewable discretion to discharge employees. This conclusion accords with the principle of judicial deference that pervades the area of national security. See, e. g., Department of Navy v. Egan, 484 U. S. 518 , 530 (1988); CIA v. Sims, 471 U. S. 159 , 180-181 (1985). While the operations of a secret intelligence agency may provide an exception to the norm ofreviewability,17 the taking of the census does not. The open nature of the census enterprise and the public dissemination of the information collected are closely connected with our commitment to a democratic form of government.18 The reviewability of decisions relating to the conduct of the census bolsters public confidence in the integrity of the process and helps strengthen this mainstay of our democracy. More generally, the Court has limited the exception to judicial review provided by 5 U. S. C. § 701(a)(2) to cases involving national security, such as Webster v. Doe and Department of Navy v. Egan, or those seeking review of refusal to pursue enforcement actions, see Heckler v. Chaney, 470 U. S. 17 Indeed, it was asserted in Webster v. Doe, 486 U. S. 592 (1988), that the statute should be construed to preclude review even of constitutional claims. See id., at 605-606 (O'CONNOR, J., concurring in part and dissenting in part); id., at 621 (SCALIA, J., dissenting) (describing Court's refusal to preclude constitutional review as creating "the world's only secret intelligence agency that must litigate the dismissal of its agents"). 18 See 3 Encyclopedia of the Social Sciences 296 (reprinted in Subcommittee on Energy, Nuclear Proliferation and Federal Services of the Senate Committee on Governmental Mfairs, The Decennial Census: An Analysis and Review, 96th Cong., 2d Sess., 461 (Comm. Print 1980)). The tradition of publicity, of course, relates to the tabulated information. The confidentiality of individual responses has long been assured by statute. See 13 U. S. C. §§ 8(b), 9(a); see also Baldrige v. Shapiro, 455 U. S. 345 , 356-358 (1982). 819 821 (1985); Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444 (1979); Morris v. Gressette, 432 U. S. 491 (1977). These are areas in which courts have long been hesitant to intrude. The taking of the census is not such an area of traditional deference.19 Nor is this an instance in which the statute is so broadly drawn that "'there is no law to apply.''' Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 410 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). The District Court found that the overall statutory scheme and the Census Bureau's consistently followed policy provided "law to apply" in reviewing the Secretary's exercise of discretion. 785 F. Supp., at 262. As the District Court explained, the relationship of the census provision contained in 13 U. S. C. § 141 and the apportionment provision contained in 2 U. S. C. § 2a demonstrates that the Secretary's discretion is constrained by the requirement that she produce a tabulation of the "whole number of persons in each State." 2 u. S. C. § 2a(a).20 This statutory command also 19 The great weight of authority supports the view that the conduct of the census is not "committed to agency discretion by law." See, e. g., Carey v. Klutznick, 637 F.2d 834 (CA2 1980); New York v. United States Dept. of Commerce, 739 F. Supp. 761 (EDNY 1990); New York v. United States Dept. of Commerce, 713 F. Supp. 48 (EDNY 1989); Cuomo v. Baldrige, 674 F. Supp. 1089 (SDNY 1987); Willacoochee v. Baldrige, 556 F. Supp. 551 (SD Ga. 1983); Carey v. Klutznick, 508 F. Supp. 404 (SDNY 1980); Philadelphia v. Klutznick, 503 F. Supp. 663 (ED Pa. 1980); Young v. Klutznick, 497 F. Supp. 1318 (ED Mich. 1980), rev'd on other grounds, 652 F.2d 617 (CA6 1981), cert. denied sub nom. Young v. Baldrige, 455 20 The Census Act provides various other rules, as well, that limit the Secretary's discretion. For example, the statute requires the Secretary to take a decennial census of population "as of the first day of April" in every 10th year. 13 U. S. C. § 141(a). Thus, persons who die in February or March, or who are not born until Mayor June, are not to be counted. The fact that the statute gives the Secretary broad discretion with respect to the "form and content" of the census surely does not mean that she could lawfully count persons who predeceased the census date or who were 820 Opinion of STEVENS, J. embodies a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment. The "usual residence" policy that has guided the census since 1790 provides a further standard by which to evaluate the Secretary's exercise of discretion. See generally Heckler v. Chaney, 470 U. S., at 836; Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 , 41-43 (1983); Padula v. Webster, 822 F.2d 97 , 100, 261 U. S. App. D. C. 365, 368 (1987). The District Court was clearly correct in concluding that the statutory framework and the long-held administrative tradition provide a judicially administrable standard of review.21 IV For the reasons stated in Part IV of the Court's opinion, I agree that the inclusion of overseas employees in state census totals does not violate the Constitution.22 I turn now to born thereafter. Similarly, it would be plain error to count as Massachusetts residents a family that moved from New York to Boston on June 1. 21 Nothing in the language of the statute or in the overall statutory scheme supports the Secretary's alternative argument that this is an instance in which the relevant "statutes preclude judicial review." 5 U. S. C. § 701(a)(I). In the absence of express statutory language, we have generally reserved that exception for cases in which the existence of an alternative review procedure provided "clear and convincing evidence," Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 , 671 (1986) (citations and internal quotation marks omitted), of a legislative intent to preclude judicial review. See, e. g., Department of Navy v. Egan, 484 U. S. 518 , 530-533 (1988); NLRB v. Food & Commercial Workers, 484 U. S. 112 , 130-133 (1987); Block v. Community Nutrition Institute, 467 U. S. 340 , 346-348 (1984). No such alternative scheme appears here. The ability of Congress, itself, to resolve apportionment issues by enacting new laws does not provide any evidence of an intent to preclude judicial review. 22 I believe that appellees' challenge to the use of "home of record" data also merits brief consideration. The contention that overseas personnel may have little connection with their "home of record" clearly has some force. A person designates a 821 appellees' contention that the Secretary's decision to include overseas federal employees was arbitrary and capricious and should have been set aside under the APA. With the exception of the census conducted in 1900, overseas federal employees were not included in state census totals before 1970.23 In the census conducted in 1970, during the Vietnam War, overseas military personnel were assigned to States for apportionment purposes based on the "home of record" appearing in their personnel files.24 The Bureau reverted to its previous policy of excluding overseas employees from apportionment totals in the 1980 census. In explaining this decision, one of the reasons cited by Bureau officials was the "unknown reliability" of the data relied on to determine the "home State" of overseas personnel. App. 55. In discussions with the Bureau and in testimony before Congress, officials of the Defense Department agreed that "home of record" data had a high "error rate" and might have little correlation with an employee's true feelings of affiliation. See id., at 124, 183. In July 1989, then-Secretary Mosbacher decided to include overseas employees in state population figures in the 1990 "home of record" when entering the service and is not permitted to change it thereafter. See App. 147, n. 5. This information may therefore be quite stale, implicating the constitutional requirements of accuracy and decenniality. The special problems of including overseas personnel in the census, though, necessitate difficult judgments about the best data to use. In view of the discretion available to the Secretary in formulating residence rules, the adoption of the "home of record" principle cannot be said to transgress any constitutional command. Accuracy in this context is clearly a comparative concept, and appellees have not demonstrated that the constitutional requirement of accuracy dictates a different method of determining residence. Like the District Court, I also conclude that the Secretary's decision did not violate any specific provision of the Census Act. See 785 F. Supp., at 266, n. 31. 23 See App. 175-177. 24 See id., at 57. 822 Opinion of STEVENS, J. census.25 The decision memorandum approved by the Secretary described several reasons for this conclusion, including "growing bipartisan concern of the Congress" and the belief of the Defense Department that its employees should be included in apportionment calculations because they considered themselves to be "usual residents" of the United States. Id., at 120. The prospect of more accurate data than previously available also contributed to the decision. The memorandum stated that the Defense Department's plans to conduct an enumeration of its employees provided a "significant reason" for the decision. Id., at 121; see also id., at 184. In December 1989, however, a lack of funds led the Defense Department to cancel the survey. Ibid. The Secretary nevertheless adhered to the decision to include overseas personnel. In reaching the ultimate decision to allocate overseas federal employees to States, the Secretary had an obligation to "examine the relevant data and articulate a satisfactory explanation for [the] action including a 'rational connection between the facts found and the choice made.'" State Farm, 463 U. S., at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156 , 168 (1962)). The District Court was properly concerned by the scant evidence that the Secretary reconsidered the apportionment policy following the cancellation of the Defense Department survey. If the justification for the decision no longer obtained, the refusal to reconsider would be quite capricious. The District Court was certainly correct in concluding that "[i]nertia cannot supply the necessary rationality" for the Secretary's decision. 785 F. Supp., at 265. While the question is a close one, two factors in particular lead me to conclude that the decision to include overseas employees ultimately rested on more than inertia. First, the Secretary received assurances from the Defense Department 25Id., at 182. 823 that, even without the survey, information on overseas personnel would be "supplemented and improved," App. 161, and would thus be more accurate than the data available in the past. Moreover, while the anticipated Defense Department survey played an important role in the Secretary's initial decision, other factors cited in the memorandum continued to support the Secretary's choice to include overseas personnel. The record could be more robust. However, the basis for the agency's decision need not appear with "ideal clarity," Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281 , 286 (1974), as long as it is reasonably discernible. As the Court explains, see ante, Part IV; the Secretary had discretion to include overseas personnel in the census count. Although the hopes for more accurate data were not fully realized, the record discloses that the decision to include overseas personnel continued to be supported by valid considerations. I therefore conclude that the decision of the Secretary was not arbitrary or capricious.26 For these reasons, I concur in the Court's judgment, but only in Part IV of its opinion. JUSTICE SCALIA, concurring in part and concurring in the judgment. I agree with the Court that appellees had no cause of action under the judicial-review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., and I therefore join Parts I and II of its opinion. Appellees have also challenged the constitutionality of the allocation methods used by the Secretary of Commerce in conducting the census. The Court concludes that they have 26 The record indicates that the Secretary considered the alternative methods of allocating overseas employees to States and that the choice of "home of record" data was certainly not arbitrary or capricious. See, e. g., App.162. 824 Opinion of SCALIA, J. standing to assert these claims, but that the claims are meritless.1 I disagree with the Court's conclusion on the standing question, and therefore do not reach the merits. Our cases have established that there are three elements to the "irreducible constitutional minimum of standing" required by Article III: (1) the plaintiffs must establish that they have suffered "injury in fact"; (2) they must show causation between the challenged action and the injury; and (3) they must establish that it is likely that the injury will be redressed by a decision in their favor. Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560 (1992). Appellees have clearly satisfied the first two requirements, but I think they founder on the third. The plurality concludes that declaratory relief directed at the Secretary alone would be sufficient to redress appellees' injury. Ante, at 803. I do not agree. Ordering the Secretary to recalculate the final census totals will not redress appellees' injury unless the President accepts the new numbers, changes his calculations accordingly, and issues a new reapportionment statement to Congress, and the Clerk of the House then submits new certificates to the States. 13 U. S. C. § 141(b); 2 u. S. C. § 2a. I agree that, in light of the Clerk's purely ministerial role, we can properly assume that insofar as his participation is concerned the sequence of events will occur. But as the Court correctly notes, ante, at 797-800, the President's role in the reapportionment process is not purely ministerial; he is not "required to adhere to the policy decisions reflected in the Secretary's report," ante, at 799. I do not think that for purposes of the Article III redressability requirement we are ever entitled to assume, no matter how objectively reasonable the assumption may be, that the President (or, for that matter, any official of the Ex- 1 Although only a plurality of the Court joins that portion of JUSTICE O'CONNOR'S opinion which finds standing (Part III), I must conclude that the Court finds standing since eight Justices join Part IV of the Court's opinion discussing the merits of appellees' constitutional claims. 825 ecutive or Legislative Branches), in performing a function that is not wholly ministerial, will follow the advice of a subordinate official. The decision is by Constitution or law conferred upon him, and I think we are precluded from saying that it is, in practical effect, the decision of someone else. Indeed, judicial inquiry into or speculation about the probability of such "practical" subservience-never mind acting upon the outcome of such inquiry or speculation-seems to me disrespectful of a coordinate branch. On such a theory of redressability, suit would lie (assuming injury-in-fact could be shown) against the members of the President's Cabinet, or even the members of his personal staff, for the almostsure-to-be-followed advice they give him in their respective areas of expertise. The plurality, however, has a different theory of redressability. In its view, it suffices that the "authoritative interpretation of the census statute and constitutional provision" rendered by the District Court will induce the President to submit a new reapportionment that is consistent with what the District Court judgment orders the Secretary to submit. Ante, at 803. It seems to me this bootstrap argument eliminates, rather than resolves, the redressability question. If courts may simply assume that everyone (including those who are not proper parties to an action) will honor the legal rationales that underlie their decrees, then redressability will always exist. Redressability requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power. It is the Court's judgment, in other words, its injunction to the Secretary of Commerce, that must provide appellees relief-not its accompanying excursus on the meaning of the Constitution. Though the Court does not rely upon it, the judgment sought here did run against the President of the United States. The District Court's order expressly required, not 826 Opinion of SCALIA, J. only that a new census tabulation be prepared, but also that the President issue a new certification and that the Clerk of the House forward the new apportionment to the 50 Governors. It is a commentary upon the level to which judicial understanding-indeed, even judicial awareness-of the doctrine of separation of powers has fallen, that the District Court entered this order against the President without blinking an eye. I think it clear that no court has authority to direct the President to take an official act. We have long recognized that the scope of Presidential immunity from judicial process differs significantly from that of Cabinet or inferior officers. Compare Nixon v. Fitzgerald, 457 U. S. 731 , 750 (1982) ("The President's unique status under the Constitution distinguishes him from other executive officials"), with Harlow v. Fitzgerald, 457 U. S. 800 , 811, n. 17 (1982) ("Suits against other officials-including Presidential aides-generally do not invoke separation-of-powers considerations to the same extent as suits against the President himself"). Although we held in United States v. Nixon, 418 U. S. 683 (1974), that the President is not absolutely immune from judicial process, see also United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.) (upholding subpoena directed to President Jefferson), the order upheld there merely required the President to provide information relevant to an ongoing criminal prosecution, which is what any citizen might do; it did not require him to exercise the "executive Power" in a judicially prescribed fashion. We have similarly held that Members of Congress can be subpoenaed as witnesses, see Gravel v. United States, 408 U. S. 606 , 615 (1972), citing United States v. Cooper, 4 Dall. 341 (CC Pa. 1800) (Chase, J., sitting on Circuit), though there is no doubt that we cannot direct them in the performance of their constitutionally prescribed duties, see Eastland v. United States Servicemen's Fund, 421 U. S. 491 (1975) (refusing to enjoin the issuance of a congressional subpoena). 827 I am aware of only one instance in which we were specifically asked to issue an injunction requiring the President to take specified executive acts: to enjoin President Andrew Johnson from enforcing the Reconstruction Acts. As the plurality notes, ante, at 802-803, we emphatically disclaimed the authority to do so, stating that" 'this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.'" Mississippi v. Johnson, 4 Wall. 475, 501 (1867). See also C. Burdick, The Law of the American Constitution §50, pp. 126-127 (1922); C. Pyle & R. Pious, The President, Congress, and the Constitution 170 (1984) ("No court has ever issued an injunction against the president himself or held him in contempt of court"). The apparently unbroken historical tradition supports the view, which I think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested-viz., the President and the Congress (as opposed to their agents)-may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary.2 For similar reasons, I think we cannot issue a declaratory judgment against the President. It is incompatible with his constitutional position that he be compelled personally to defend his executive actions before a court. Many of the reasons we gave in Nixon v. Fitzgerald, supra, for acknowledging an absolute Presidential immunity from civil damages for official acts apply with equal, if not greater, force to requests for declaratory or injunctive relief in official-capacity suits that challenge the President's performance of executive functions: The President's immunity from such judicial relief is 2 In Mississippi v. Johnson, 4 Wall. 475 (1867), we left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely "ministerial" duty, see id., at 498-499; cf. Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1838) (Postmaster General); Marbury v. Madison, 1 Cranch 137 (1803) (Secretary of State). As discussed earlier, the President's duty here was not that. 828 Opinion of SCALIA, J. "a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history." Id., at 749; see also id., at 749-757; id., at 760-764 (Burger, C. J., concurring).3 Permitting declaratory or injunctive relief against the President personally would not only distract him from his constitutional responsibility to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, § 3, but, as more and more disgruntled plaintiffs add his name to their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. (If officialaction suits against the President had been contemplated, surely they would have been placed within this Court's original jurisdiction.) It is noteworthy that in the last substantive section of Nixon v. Fitzgerald where we explain why "[a] rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive," 457 U. S., at 757, because of "[t]he existence of alternative remedies and deterrents," id., at 758, injunctive or declaratory relief against the President is not mentioned. None of these conclusions, of course, in any way suggests that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive, see, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935)-just as unlawful legislative ac- 3 Although the relief granted in Powell v. McCormack, 395 U. S. 486 (1969), was only declaratory, and although we reserved the question whether coercive relief could properly be granted against the congressional officers, we discussed the issue of the form of relief only after having concluded that the actions of these officers were not protected by legislative immunity, id., at 517-518. Accordingly, nothing in the case suggests that declaratory relief may be awarded for actions protected by congressional (or Presidential) immunity. 829 tion can be reviewed, not by suing Members of Congress for the performance of their legislative duties, see, e. g., Powell v. McCormack, 395 U. S. 486 , 503-506 (1969); Dombrowski v. Eastland, 387 U. S. 82 (1967); Kilbourn v. Thompson, 103 U. S. 168 (1881), but by enjoining those congressional (or executive) agents who carry out Congress's directive. Unless the other branches are to be entirely subordinated to the Judiciary, we cannot direct the President to take a specified executive act or the Congress to perform particular legislative duties. In sum, we cannot remedy appellees' asserted injury without ordering declaratory or injunctive relief against appellant President Bush, and since we have no power to do that, I believe appellees' constitutional claims should be dismissed.4 Since I agree with the Court's conclusion that appellees' constitutional claims do not provide an alternative ground that would support the judgment below, I concur in its judgment reversing the District Court. 4 A contrary conclusion is not required by the fact that in Department of Commerce v. Montana, 503 U. S. 442 (1992), we reached the merits of a challenge to the President's use of the method of equal proportions in calculating the reapportionment. "'[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.''' Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 , 119 (1984) (quoting Hagans v. Lavine, 415 U. S. 528 , 533, n. 5 (1974)).

The Supreme Court ruled that the decision of the Secretary of Commerce to include overseas federal employees in the census count for reapportionment purposes was not a "final agency action" reviewable under the Administrative Procedure Act. The Court also held that the President's actions in the census process are not subject to judicial review and that injunctive or declaratory relief against the President is not an available remedy. The Court reversed the District Court's judgment and held that there was no basis for judicial intervention in this case.

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McCarthy v. Madigan

https://supreme.justia.com/cases/federal/us/503/140/

OCTOBER TERM, 1991 Syllabus McCARTHY v. MADIGAN ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No.90-6861. Argued December 9, 1991-Decided March 4,1992 While a federal prisoner, petitioner McCarthy filed a damages action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , alleging that respondent prison officials had violated his Eighth Amendment rights by their deliberate indifference to his needs and medical condition resulting from a back operation and a history of psychiatric problems. The District Court dismissed his complaint on the ground that he had failed to exhaust the Federal Bureau of Prisons' administrative remedy procedure, which, inter alia, includes rapid filing and response timetables to promote efficient dispute resolution but does not provide for any kind of hearing or for the granting of any particular type of relief. The court then denied McCarthy's motion for reconsideration, rejecting his argument that exhaustion was not required because he sought only money damages, which the Bureau could not provide. The Court of Appeals affirmed. Held: Exhaustion of the Bureau of Prisons' administrative procedure is not required before a federal prisoner can initiate a Bivens action solely for money damages. Pp. 144-156. (a) Exhaustion serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency. Where Congress specifically mandates, exhaustion is required. Otherwise, the federal courts must exercise sound judicial discretion, determining whether to require exhaustion by balancing the individual's interest in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion. Individual interests have weighed heavily where resort to the administrative remedy would occasion undue prejudice to subsequent assertion of a court action, where there is some doubt as to whether the agency is empowered to grant effective relief, or where the administrative body is shown to be biased or has otherwise predetermined the issue before it. Pp. 144-149. (b) Congress has not required exhaustion of a federal prisoner's Bi vens claim. And, given the type of claim McCarthy raises and the particular characteristics of the Bureau's general grievance procedure, McCarthy's individual interests outweigh countervailing institutional interests favoring exhaustion. The procedure's short, successive filing deadlines and the absence of any monetary remedy heavily burden a 141 petitioning inmate's individual interests. In contrast, while the Bureau has a substantial interest in encouraging internal resolution of grievances and in preventing the undermining of its authority by unnecessary resort of prisoners to the federal courts, other institutional concerns do not weigh heavily in favor of exhaustion. The Bureau's alleged failure to render medical care implicates only tangentially its authority to carry out the control and management of the federal prisons, and the Bureau does not bring to bear any special expertise on the type of issue presented for resolution here. Nor are the interests of judicial economy advanced substantially by the grievance procedure, which does not create a formal factual record of the type that can be relied on conclusively by a court for disposition of a prisoner's claim on the pleadings or at summary judgment without the aid of affidavits. Pp. 149-156. 914 F.2d 1411 , reversed. BLACKMUN, J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C. J., filed an opinion concurring in the judgment, in which SCALIA and THOMAS, JJ., joined, post, p. 156. Paul M. Smith argued the cause and filed briefs for petitioner. Deputy Solicitor General Mahoney argued the cause for respondents. With her on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Amy L. Wax, Victor D. Stone, and William D. Braun. JUSTICE BLACKMUN delivered the opinion of the Court. The issue in this case is whether a federal prisoner must resort to the internal grievance procedure promulgated by the Federal Bureau of Prisons before he may initiate a suit, pursuant to the authority of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), solely for money damages. The Court of Appeals for the Tenth Circuit ruled that exhaustion of the grievance procedure was required. 914 F.2d 1411 (1990). We granted certiorari to resolve a conflict among the Courts of Appeals.1 499 U. S. 974 (1991). 1 Compare Hessbrook v. Lennon, 777 F.2d 999 (CA5 1985) (exhaustion required), and Brice v. Day, 604 F.2d 664 (CAlO 1979) (same), cert. denied, 444 U. S. lO86 (1980), with Muhammad v. Carlson, 739 F.2d 122 (CA3 142 I While he was a prisoner in the federal penitentiary at Leavenworth, petitioner John J. McCarthy filed a pro se complaint in the United States District Court for the District of Kansas against four prison employees: the hospital administrator, the chief psychologist, another psychologist, and a physician. McCarthy alleged that respondents had violated his constitutional rights under the Eighth Amendment by their deliberate indifference to his needs and medical condition resulting from a back operation and a history of psychiatric problems. On the first page of his complaint, he wrote: "This Complaint seeks Money Damages Only." App.7. The District Court dismissed the complaint on the ground that petitioner had failed to exhaust prison administrative remedies. Id., at 12. Under 28 CFR pt. 542 (1991), setting forth the general "Administrative Remedy Procedure for Inmates" at federal correctional institutions, a prisoner may "seek formal review of a complaint which relates to any aspect of his imprisonment." § 542.10.2 When an inmate files a complaint or appeal, the responsible officials are directed to acknowledge the filing with a "signed receipt" which is returned to the inmate, to "[c]onduct an investigation," and to "[r]espond to and sign all complaints or appeals." §§ 542.11(a)(2) to (4). The general grievance regulations do not provide for any kind of hearing or for the granting of any particular type of relief. 1984) (exhaustion not required), and Goar v. Civiletti, 688 F.2d 27 (CA6 1982) (same). 2 Certain categories of filings, however, "will not be accepted" under the general procedure. These include, among others, "tort claims." See 28 CFR § 542.12 (1991). The Bureau of Prisons has interpreted this "tort claims" exception to include claims under the Federal Tort Claims Act, but not constitutional claims for relief recognized under the Bivens case. Brief for Respondents 3, n. 1. Claims under the Federal Tort Claims Act are governed by a separate administrative procedure. See §§ 543.30 to 543.32. 143 To promote efficient dispute resolution, the procedure includes rapid filing and response timetables. An inmate first seeks informal resolution of his claim by consulting prison personnel. § 542.13(a). If this informal effort fails, the prisoner "may file a formal written complaint on the appropriate form, within fifteen (15) calendar days of the date on which the basis of the complaint occurred." § 542.13(b). Should the warden fail to respond to the inmate's satisfaction within 15 days, the inmate has 20 days to appeal to the Bureau's Regional Director, who has 30 days to respond. If the inmate still remains unsatisfied, he has 30 days to make a final appeal to the Bureau's general counsel, who has another 30 days to respond. §§ 542.14 and 542.15. If the inmate can demonstrate a "valid reason for delay," he "shall be allowed" an extension of any of these time periods for filing. § 542.13(b). Petitioner McCarthy filed with the District Court a motion for reconsideration under Federal Rule of Civil Procedure 60(b), arguing that he was not required to exhaust his administrative remedies, because he sought only money damages which, he claimed, the Bureau could not provide.3 1 Record, Exh. 7. The court denied the motion. App. 14. The Court of Appeals, in affirming, observed that because Bivens actions are a creation of the judiciary, the courts may impose reasonable conditions upon their filing. 914 F. 2d, at 1412. The exhaustion rule, the court reasoned, "is not keyed to the type of relief sought, but to the need for prelim- 3 McCarthy actually had initiated a grievance prior to filing his complaint in the District Court. Brief for Petitioner 5, n. 7. But he did not exhaust the procedures at that time and, in any event, he concedes that that grievance related to his request for a private cell and not to the medical issues at the heart of his federal complaint. After his initial grievance was dismissed, he filed a grievance with respect to the medical issues. It was accepted, even though it was late, but was denied by the warden on the merits. Tr. of Oral Arg. 38. McCarthy's subsequent appeal to the Bureau's regional office was rejected because it was filed late. Id., at 16; Brief for Petitioner 5, n. 7. 144 inary fact-finding" to determine "whether there is a possible Bivens cause of action." Ibid. Accordingly," '[a]lthough the administrative apparatus could not award money damages ... , administrative consideration of the possibility of corrective action and a record would have aided a court in measuring liability and determining the extent of the damages.'" Ibid., quoting Goar v. Civiletti, 688 F.2d 27 , 29 (CA6 1982) (emphasis in original). Exhaustion of the general grievance procedure was required notwithstanding the fact that McCarthy's request was solely for money damages. II The doctrine of exhaustion of administrative remedies is one among related doctrines-including abstention, finality, and ripeness-that govern the timing of federal-court decisionmaking. Of "paramount importance" to any exhaustion inquiry is congressional intent. Patsy v. Board of Regents of Florida, 457 U. S. 496 , 501 (1982). Where Congress specifically mandates, exhaustion is required. Coit Independence Joint Venture v. FSLIC, 489 U. S. 561 , 579 (1989); Patsy, 457 U. S., at 502, n. 4. But where Congress has not clearly required exhaustion, sound judicial discretion governs. McGee v. United States, 402 U. S. 479 , 483, n. 6 (1971). See also Patsy, 457 U. S., at 518 (WHITE, J., concurring in part) ("[E]xhaustion is 'a rule of judicial administration,' ... and unless Congress directs otherwise, rightfully subject to crafting by judges"). Nevertheless, even in this field of judicial discretion, appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme. Id., at 501-502, and n. 4. A This Court long has acknowledged the general rule that parties exhaust prescribed administrative remedies before 145 seeking relief from the federal courts. See, e. g., Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 , 50-51, and n. 9 (1938) (discussing cases as far back as 1898). Exhaustion is required because it serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency. As to the first of these purposes, the exhaustion doctrine recognizes the notion, grounded in deference to Congress' delegation of authority to coordinate branches of Government, that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer. Exhaustion concerns apply with particular force when the action under review involves exercise of the agency's discretionary power or when the agency proceedings in question allow the agency to apply its special expertise. McKart v. United States, 395 U. S. 185 , 194 (1969). See also Bowen v. City of New York, 476 U. S. 467 , 484 (1986). The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that an agency ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court. Correlatively, exhaustion principles apply with special force when "frequent and deliberate flouting of administrative processes" could weaken an agency's effectiveness by encouraging disregard of its procedures. McKart v. United States, 395 U. S., at 195. As to the second of the purposes, exhaustion promotes judicial efficiency in at least two ways. When an agency has the opportunity to correct its own errors, a judicial controversy may well be mooted, or at least piecemeal appeals may be avoided. See, e. g., Parisi v. Davidson, 405 U. S. 34 , 37 (1972); McKart v. United States, 395 U. S., at 195. And even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration, especially in a complex or technical factual context. See, e. g., Weinberger 146 v. Salfi, 422 U. S. 749 , 765 (1975) (exhaustion may allow agency "to compile a record which is adequate for judicial review"). B Notwithstanding these substantial institutional interests, federal courts are vested with a "virtually unflagging obligation" to exercise the jurisdiction given them. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 , 817-818 (1976). "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Accordingly, this Court has declined to require exhaustion in some circumstances even where administrative and judicial interests would counsel otherwise. In determining whether exhaustion is required, federal courts must balance the interest of the individual in retaining prompt access to a federal judicial forum against countervailing institutional interests favoring exhaustion. "[A]dministrative remedies need not be pursued if the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." West v. Bergland, 611 F.2d 710 , 715 (CA8 1979), cert. denied, 449 U. S. 821 (1980). Application of this balancing principle is "intensely practical," Bowen v. City of New York, 476 U. S., at 484, citing Mathews v. Eldridge, 424 U. S. 319 , 331, n. 11 (1976), because attention is directed to both the nature of the claim presented and the characteristics of the particular administrative procedure provided. C This Court's precedents have recognized at least three broad sets of circumstances in which the interests of the individual weigh heavily against requiring administrative exhaustion. First, requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion 147 of a court action. Such prejudice may result, for example, from an unreasonable or indefinite timeframe for administrative action. See Gibson v. Berryhill, 411 U. S. 564 , 575, n. 14 (1973) (administrative remedy deemed inadequate "[m]ost often ... because of delay by the agency"). See also Coit Independence Joint Venture v. FSLIC, 489 U. S., at 587 ("Because the Bank Board's regulations do not place a reasonable time limit on FSLIC's consideration of claims, Coit cannot be required to exhaust those procedures"); Walker v. Southern R. Co., 385 U. S. 196 , 198 (1966) (possible delay of 10 years in administrative proceedings makes exhaustion unnecessary); Smith v. Illinois Bell Telephone Co., 270 U. S. 587 , 591-592 (1926) (claimant "is not required indefinitely to await a decision of the rate-making tribunal before applying to a federal court for equitable relief"). Even where the administrative decisionmaking schedule is otherwise reasonable and definite, a particular plaintiff may suffer irreparable harm if unable to secure immediate judicial consideration of his claim. Bowen v. City of New York, 476 U. S., at 483 (disabilitybenefit claimants "would be irreparably injured were the exhaustion requirement now enforced against them"); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752 , 773 (1947) ("impending irreparable injury flowing from delay incident to following the prescribed procedure" may contribute to finding that exhaustion is not required). By the same token, exhaustion principles apply with less force when an individual's failure to exhaust may preclude a defense to criminal liability. Moore v. East Cleveland, 431 U. S. 494 , 497, n. 5 (1977) (plurality opinion); McKart v. United States, 395 U. S., at 197. Second, an administrative remedy may be inadequate "because of some doubt as to whether the agency was empowered to grant effective relief." Gibson v. Berryhill, 411 U. S., at 575, n. 14. For example, an agency, as a preliminary matter, may be unable to consider whether to grant relief because it lacks institutional competence to resolve the par- 148 ticular type of issue presented, such as the constitutionality of a statute. See, e. g., Moore v. East Cleveland, 431 U. S., at 497, n. 5; Mathews v. Diaz, 426 U. S. 67 , 76 (1976). In a similar vein, exhaustion has not been required where the challenge is to the adequacy of the agency procedure itself, such that "'the question of the adequacy of the administrative remedy ... [is] for all practical purposes identical with the merits of [the plaintiff's] lawsuit.'" Barry v. Barchi, 443 U. S. 55, 63, n. 10 (1979) (quoting Gibson v. Berryhill, 411 U. S., at 575). Alternatively, an agency may be competent to adjudicate the issue presented, but still lack authority to grant the type of relief requested. McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U. S. 668 , 675 (1963) (students seeking to integrate public school need not file complaint with school superintendent because the "Superintendent himself apparently has no power to order corrective action" except to request the Attorney General to bring suit); Montana National Bank of Billings v. Yellowstone County, 276 U. S. 499 , 505 (1928) (taxpayer seeking refund not required to exhaust where "any such application [would have been] utterly futile since the county board of equalization was powerless to grant any appropriate relief" in face of prior controlling court decision). Third, an administrative remedy may be inadequate where the administrative body is shown to be biased or has otherwise predetermined the issue before it. Gibson v. Berryhill, 411 U. S., at 575, n. 14; Houghton v. Shafer, 392 U. S. 639, 640 (1968) (in view of Attorney General's submission that the challenged rules of the prison were "validly and correctly applied to petitioner," requiring administrative review through a process culminating with the Attorney General "would be to demand a futile act"); Association of National Advertisers, Inc. v. FTC, 201 U. S. App. D. C. 165, 170-171, 627 F.2d 1151 , 1156-1157 (1979) (bias of Federal Trade Commission chairman), cert. denied, 447 U. S. 921 (1980). See also Patsy v. Florida International University, 149 634 F.2d 900 , 912-913 (CA5 1981) (en bane) (administrative procedures must "not be used to harass or otherwise discourage those with legitimate claims"), rev'd on other grounds sub nom. Patsy v. Board of Regents of Florida, 457 U. S. 496 (1982). III In light of these general principles, we conclude that petitioner McCarthy need not have exhausted his constitutional claim for money damages. As a preliminary matter, we find that Congress has not meaningfully addressed the appropriateness of requiring exhaustion in this context. Although respondents' interests are significant, we are left with a firm conviction that, given the type of claim McCarthy raises and the particular characteristics of the Bureau's general grievance procedure, McCarthy's individual interests outweigh countervailing institutional interests favoring exhaustion. A Turning first to congressional intent, we note that the general grievance procedure was neither enacted nor mandated by Congress. Respondents, however, urge that Congress, in effect, has acted to require exhaustion by delegating power to the Attorney General and the Bureau of Prisons to control and manage the federal prison system. See 18 U. S. C. §§ 4001(b) and 4042. Brief for Respondents 3, 16; Tr. of Oral Arg. 41-42. We think respondents confuse what Congress could be claimed to allow by implication with what Congress affirmatively has requested or required. By delegating authority, in the most general of terms, to the Bureau to administer the federal prison system, Congress cannot be said to have spoken to the particular issue whether prisoners in the custody of the Bureau should have direct access to the federal courts. Respondents next argue that Congress, by enactment of § 7 of the Civil Rights of Institutionalized Persons Act, 94 Stat. 352, 42 U. S. C. § 1997e, has articulated a policy favoring 150 exhaustion of the prison grievance procedure prior to the filing of a constitutional claim against prison officials. Section 1997e imposes a limited exhaustion requirement for a claim brought by a state prisoner under Rev. Stat. § 1979, 42 U. S. C. § 1983, provided that the underlying state prison administrative remedy meets specified standards. See Patsy v. Board of Regents of Florida, 457 U. S., at 507-512. Section 1997e has no direct application in this case, because at issue here is a Bivens claim by a federal prisoner against federal prison officials. We find it significant that Congress, in enacting § 1997e, stopped short of imposing a parallel requirement in the federal prison context. Section 1997e is not only inapplicable to Bivens claims, but-by its own terms-cuts against respondents' claim that the particular procedure now at issue need be exhausted. First, unlike the rule of exhaustion proposed here, § 1997e does not authorize dismissal of an action for failure to exhaust. Instead, it provides that the action is to be stayed for a maximum of 90 days. See § 1997e(a)(1). Second, § 1997e does not mechanically require exhaustion in every case where an acceptable state procedure is in place. Rather, it directs federal courts to abstain "if the court believes that such a [waiting] requirement would be appropriate and in the interests of justice." § 1997e(a)(1). In other words, if an inmate fails to meet filing deadlines under an administrative scheme, a court has ample discretion to determine that exhaustion nonetheless should be forgone. Third, in contrast to the absence of any provision for the award of money damages under the Bureau's general grievance procedure, the statute conditions exhaustion on the existence of "effective administrative remedies."4 It is diffi- 4 The Conference Committee Report states: "It is the intent of the Congress that the court not find such a requirement [of exhaustion] appropriate in those situations in which the action brought ... raises issues 151 cult to see why a stricter rule of exhaustion than Congress itself has required in the state prison context should apply in the federal prison context. Respondents also argue that requiring exhaustion is appropriate because Bivens relief gives way when necessary to accommodate either the effective functioning of Government or an articulated congressional policy. Brief for Respondents 15. We have recognized that a Bivens remedy does not lie in two situations: (1) where Congress has provided an equally effective alternative remedy and declared it to be a substitute for recovery under the Constitution, and (2) where, in the absence of affirmative action by Congress, special factors counsel hesitation. Carlson v. Green, 446 U. S. 14, 18-19 (1980). As to the first exception, Congress did not create the remedial scheme at issue here and that scheme, in any case, as noted above, cannot be considered to be equally effective with respect to a claim for money damages. As to the second exception, respondents appear to confuse the presence of special factors with any factors counseling hesitation. In Carlson, the Court held that "special factors" do not free prison officials from Bivens liability, because prison officials do not enjoy an independent status in our constitutional scheme, nor are they likely to be unduly inhibited in the performance of their duties by the assertion of a Bivens claim. Carlson v. Green, 446 U. S., at 19. Interpreting the "special factors" exception in Schweiker which cannot, in reasonable probability, be resolved by the grievance resolution system .... " H. R. Conf. Rep. No. 96-897, p. 15 (1980). The Attorney General, charged under the statute with certifying the adequacy of state administrative remedial schemes, has provided by regulation: "The [state] grievance procedure shall afford a successful grievant a meaningful remedy." 28 CFR §40.6 (1991) (emphasis added). At the time of promulgating these regulations, the Department of Justice observed on the public record: "Presumably, where monetary relief was the sole adequate remedy and could not be obtained through a grievance procedure, exhaustion would not be appropriate." 46 Fed. Reg. 3845 (1981). 152 u. S. 367 (1983), the Court found the Bivens remedy displaced because Congress had legislated an elaborate and comprehensive remedial scheme. Schweiker, 487 U. S., at 425; Bush, 462 U. S., at 388. "When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies." Schweiker, 487 U. S., at 423. Here Congress has enacted nothing. B Because Congress has not required exhaustion of a federal prisoner's Bivens claim, we turn to an evaluation of the individual and institutional interests at stake in this case. The general grievance procedure heavily burdens the individual interests of the petitioning inmate in two ways. First, the procedure imposes short, successive filing deadlines that create a high risk of forfeiture of a claim for failure to comply. Second, the administrative "remedy" does not authorize an award of monetary damages-the only relief requested by McCarthy in this action. The combination of these features means that the prisoner seeking only money damages has everything to lose and nothing to gain from being required to exhaust his claim under the internal grievance procedure. The filing deadlines for the grievance procedure require an inmate, within 15 days of the precipitating incident, not only to attempt to resolve his grievance informally but also to file a formal written complaint with the prison warden. 28 CFR § 542.13 (1991). Then, he must successively hurdle 20-day and 30-day deadlines to advance to the end of the grievance process. § 542.15. Other than the Bureau's general and quite proper interest in having early notice of any claim, we have not been apprised of any urgency or exigency justifying this timetable. Cf. Yakus v. United States, 321 U. S. 414, 435 (1944) ("The sixty days' period allowed for protest of the Administrator's regulations cannot be said to be 153 unreasonably short in view of the urgency and exigencies of wartime price regulation"). As a practical matter, the filing deadlines, of course, may pose little difficulty for the knowledgeable inmate accustomed to grievances and court actions. But they are a likely trap for the inexperienced and unwary inmate, ordinarily indigent and unrepresented by counsel, with a substantial claim. Respondents argue that the deadlines are not jurisdictional and may be extended for any "valid" reason. See 28 CFR §§ 542.13(b) and 542.15 (1991). Yet the regulations do not elaborate upon what a "valid" reason is. Moreover, it appears that prison officials-perhaps the very officials subject to suit-are charged with determining what is a "valid" reason. All in all, these deadlines require a good deal of an inmate at the peril of forfeiting his claim for money damages. The "first" of "the principles that necessarily frame our analysis of prisoners' constitutional claims" is that "federal courts must take cognizance of the valid constitutional claims of prison inmates." Turner v. Safley, 482 U. S. 78 , 84 (1987). Because a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most "fundamental political right, because preservative of all rights." Yick Wo v. Hopkins, 118 U. S. 356 , 370 (1886). The rapid filing deadlines counsel strongly against exhaustion as a prerequisite to the filing of a federalcourt action.5 5 Petitioner concedes that if his complaint contained a prayer for injunctive relief, exhaustion principles would apply differently. Brief for Petitioner 20, n. 20. Were injunctive relief sought, the grievance procedure probably would be capable of producing the type of corrective action desired. Additionally, because of the continuing nature of conduct subject to injunctive relief, the short filing deadlines would pose less difficulty because the limitations period would be triggered anew by ongoing conduct. 154 As we have noted, the grievance procedure does not include any mention of the award of monetary relief. Respondents argue that this should not matter, because "in most cases there are other things that the inmate wants." Tr. of Oral Arg. 30. This may be true in some instances. But we cannot presume, as a general matter, that when a litigant has deliberately forgone any claim for injunctive relief and has singled out discrete past wrongs, specifically requesting monetary compensation only, that he is likely interested in "other things." The Bureau, in any case, is always free to offer an inmate administrative relief in return for withdrawal of his lawsuit. We conclude that the absence of any monetary remedy in the grievance procedure also weighs heavily against imposing an exhaustion requirement. In the alternative, respondents argue that, despite the absence of any provision in the general grievance procedure for the award of money damages, such damages in fact are available for most prisoners asserting Bivens claims. As to Bivens claims that could have been brought under the Federal Tort Claims Act (FTCA),6 respondents contend that a grievance asking for money damages can be "converted" by prison officials to a FTCA claim for which prison officials are au- 6 Respondents contend that Bivens claims are almost always categorizable as FTCA claims, especially in view of the Attorney General's concession that corrections guards are "law enforcement" officers within the meaning of the exception to the intentional-tort exception of the FTCA. Tr. of Oral Arg. 41. As to those claims that are not categorizable as FTCA claims, respondents concede that the Bureau of Prisons has no authority to offer a monetary settlement. Id., at 40. Instead, they contend that the Department of Justice has a general settlement authority under the federal regulations that might be exercised to dispose of general grievance claims. 28 CFR § 50.15(c)(2) (1991). Nothing in the record indicates that this authority has ever been exercised to recompense a prisoner with a Bivens claim. Moreover, it is highly unlikely that a monetary settlement would be made in the course of an administrative proceeding, because the regulation provides that "[a]bsent exceptional circumstances" a monetary settlement will not be paid "before entry of an adverse verdict, judgment, or award." § 50.15(c)(3). 155 thorized, under 28 CFR § 543.30 (1991), to award money damages. This "conversion" authority does not appear in the regulations having to do with the grievance procedure, which raises substantial doubt that an inmate would have sufficient notice as to how his claim would be treated. In any event, respondents have not pointed to anything in the record showing that prison officials have a practice of converting a claim filed under the general grievance procedure to a claim under the FTCA procedure. We agree with petitioner that it is implausible to think that they do. The availability of a money damages remedy is, at best, uncertain, and the uncertainty of the administrative agency's authority to award relief counsels against requiring exhaustion. See Hillsborough v. Cromwell, 326 U. S. 620 , 626 (1946); Union Pacific R. Co. v. Board ofComm'rs of Weld County, 247 U. S. 282 , 287 (1918). We do not find the interests of the Bureau of Prisons to weigh heavily in favor of exhaustion in view of the remedial scheme and particular claim presented here. To be sure, the Bureau has a substantial interest in encouraging internal resolution of grievances and in preventing the undermining of its authority by unnecessary resort by prisoners to the federal courts. But other institutional concerns relevant to exhaustion analysis appear to weigh in hardly at all. The Bureau's alleged failure to render medical care implicates only tangentially its authority to carry out the control and management of the federal prisons. Furthermore, the Bureau does not bring to bear any special expertise on the type of issue presented for resolution here. The interests of judicial economy do not stand to be advanced substantially by the general grievance procedure. No formal factfindings are made. The paperwork generated by the grievance process might assist a court somewhat in ascertaining the facts underlying a prisoner's claim more quickly than if it has only a prisoner's complaint to review. But the grievance procedure does not create a formal factual 156 REHNQUIST, C. J., concurring in judgment record of the type that can be relied on conclusively by a court for disposition of a prisoner's claim on the pleadings or at summary judgment without the aid of affidavits. C In conclusion, we are struck by the absence of supporting material in the regulations, the record, or the briefs that the general grievance procedure here was crafted with any thought toward the principles of exhaustion of claims for money damages. The Attorney General's professed concern for internal dispute resolution has not translated itself into a more effective grievance procedure that might encourage the filing of an administrative complaint as opposed to a court action. Congress, of course, is free to design or require an appropriate administrative procedure for a prisoner to exhaust his claim for money damages. Even without further action by Congress, we do not foreclose the possibility that the Bureau itself may adopt an appropriate administrative procedure consistent with congressional intent. The judgment of the Court of Appeals is reversed. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring in the judgment. I agree with the Court's holding that a federal prisoner need not exhaust the procedures promulgated by the Federal Bureau of Prisons. My view, however, is based entirely on the fact that the grievance procedure at issue does not provide for any award of monetary damages. As a result, in cases such as this one where prisoners seek monetary relief, the Bureau's administrative remedy furnishes no effective remedy at all, and it is therefore improper to impose an exhaustion requirement. See McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U. S. 668 , 675 (1963); Montana National Bank of Billings v. Yellowstone County, 276 U. S. 499 , 505 (1928). 157 Because I would base the decision on this ground, I do not join the Court's extensive discussion of the general principles of exhaustion, nor do I agree with the implication that those general principles apply without modification in the context of a Bivens claim. In particular, I disagree with the Court's reliance on the grievance procedure's filing deadlines as a basis for excusing exhaustion. As the majority observes, ante, at 146-147, we have previously refused to require exhaustion of administrative remedies where the administrative process subjects plaintiffs to unreasonable delay or to an indefinite timeframe for decision. See Coit Independence Joint Venture v. FSLIC, 489 U. S. 561 , 587 (1989); Gibson v. Berryhill, 411 U. S. 564 , 575, n. 14 (1973); Walker v. Southern R. Co., 385 U. S. 196 , 198 (1966); Smith v. Illinois Bell Telephone Co., 270 U. S. 587 , 591-592 (1926). This principle rests on our belief that when a plaintiff might have to wait seemingly forever for an agency decision, agency procedures are "inadequate" and therefore need not be exhausted. Coit Independence Joint Venture v. FSLIC, supra, at 587. But the Court makes strange use of this principle in holding that filing deadlines imposed by agency procedures may provide a basis for finding that those procedures need not be exhausted. Ante, at 152-153. Whereas before we have held that procedures without "reasonable time limit[sJ" may be inadequate because they make a plaintiff wait too long, Coit Independence Joint Venture v. FSLIC, supra, at 587, today the majority concludes that strict filing deadlines might also contribute to a finding of inadequacy because they make a plaintiff move too quickly. But surely the second proposition does not follow from the first. In fact, short filing deadlines will almost always promote quick decisionmaking by an agency, the very result that we have advocated repeatedly in the cases cited above. So long as there is an escape clause, as there is here, and the time limit is within a 158 REHNQUIST, C. J., concurring in judgment zone of reasonableness, as I believe it is here, the length of the period should not be a factor in deciding the adequacy of the remedy.

The Supreme Court ruled that a federal prisoner does not need to exhaust administrative procedures before filing a damages action under Bivens, seeking monetary compensation for alleged violations of their Eighth Amendment rights by prison officials. The Court considered the purposes of exhaustion, individual interests, and institutional interests, concluding that the prisoner's individual interests outweighed the need for exhaustion. The Bureau of Prisons' grievance procedure, with its short deadlines and lack of monetary relief, burdened the prisoner's interests, while the Bureau's interest in encouraging internal resolution and preventing undue resort to courts was not significantly impacted by the ruling.

Government Agencies

Air Courier Conference v. American Postal Workers Union

https://supreme.justia.com/cases/federal/us/498/517/

U.S. Supreme Court Air Courier Conf.v. Postal Workers, 498 U.S. 517 (1991) Air Courier Conference of America v. American Postal Workers Union, AFL-CIO No. 89-1416 Argued Nov. 28, 1990 Decided Feb. 26, 1991 498 U.S. 517 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus The United States Postal Service's monopoly over the carriage of letters in and for the Nation is codified in a group of statutes known as the Private Express Statutes (PES). The monopoly was created by Congress as a revenue protection measure for the Postal Service vis-a-vis private competitors. Pursuant to a PES provision allowing it to suspend PES restrictions as to any mail route where the public interest so requires, the Postal Service issued a regulation authorizing a practice called "international remailing," which entails bypassing the Service and using private couriers to deposit with foreign postal services letters destined for foreign addresses. Respondent Unions, representing Postal Service employees, sued in the District Court, challenging the regulation pursuant to the judicial review provisions of the Administrative Procedure Act (APA), and claiming that the rulemaking record was inadequate to support a finding that the regulation's suspension of the PES was in the public interest. The Court of Appeals vacated the District Court's grant of summary judgment in favor of the Postal Service and petitioner Air Courier Conference of America (ACCA), holding that the Unions satisfied the zone-of-interests requirement for APA review under Clarke v. Securities Industry Assn., 479 U. S. 388 , and, on the merits, that the PES suspension was not justified by the public interest. Held: 1. This Court declines to decide whether 39 U.S.C. § 410(a) exempts the Postal Service from judicial review under the APA, since the question was not argued to, nor considered by, either of the lower courts, was not raised by ACCA in its certiorari petition, was raised by the Postal Service for the first time in its brief in opposition to the petition, and is not encompassed by the questions presented upon which certiorari was granted. Pp. 498 U. S. 522 -523. 2. The Unions do not have standing to challenge the Postal Service's suspension of the PES to permit private couriers to engage in international remailing. To establish APA standing under Clarke and similar cases, the Unions must show, among other things, that the claimed adverse effect on postal workers' employment opportunities resulting from the suspension is within the zone of interests encompassed by the PES. Page 498 U. S. 518 This they cannot do, since the language, see, e.g., 18 U.S.C. § 1696(c) and 39 U.S.C. § 601(a), and legislative history of the PES demonstrate that, in enacting those statutes, Congress was concerned not with protecting postal employment or furthering postal job opportunities, but with the receipt of necessary revenues for the Postal Service. The PES enable the Service to fulfill its responsibilities to provide service to all communities at a uniform rate by preventing private couriers from competing selectively on the Service's most profitable routes. The postal monopoly, therefore, exists to protect the citizenry at large, not postal workers. Nor can the courts, in applying the zone-of-interests test, look beyond the PES to the 1970 Postal Reorganization Act (PRA), which, in addition to reenacting the PES without substantive changes, contains various labor-management provisions designed to improve pay, working conditions, and labor-management relations for postal employees. None of the PES provisions have any integral relationship with the PRA labor-management provisions, and the PRA's legislative history contains no indication that such a connection exists. It stretches the zone-of-interests test too far to say that, simply because the PES may be the linchpin of the Postal Service, those whom a different part of the PRA was designed to benefit may challenge a violation of the PES. Clarke, supra, at 479 U. S. 401 , distinguished. Pp. 498 U. S. 523 -530. 3. In light of the Unions' lack of standing, this Court does not reach the merits of their claim that the PES suspension was not in the public interest. Pp. 498 U. S. 530 -531. 282 U.S.App.D.C. 5, 891 F.2d 304, reversed. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 498 U. S. 531 . Page 498 U. S. 519 Chief Justice REHNQUIST delivered the opinion of the Court. This case requires us to decide whether postal employees are within the "zone of interests" of the Private Express Statutes, so that they may challenge the action of the United States Postal Service in suspending the operation of the PES with respect to a practice of private courier services called "international remailing." We hold that they are not. Since its establishment, the United States Postal Service has exercised a monopoly over the carriage of letters in and from the United States. The postal monopoly is codified in a group of statutes known as the Private Express Statutes (PES), 18 U.S.C. §§ 1693-1699 and 39 U.S.C. §§ 601-606. The monopoly was created by Congress as a revenue protection measure for the Postal Service to enable it to fulfill its mission. See Regents of University of California v. Public Employment Relations Board, 485 U. S. 589 , 485 U. S. 598 (1988). It prevents private competitors from offering service on low-cost routes at prices below those of the Postal Service, while leaving the Service with high-cost routes and insufficient means to fulfill its mandate of providing uniform rates and service to patrons in all areas, including those that are remote or less populated. See J. Haldi, Postal Monopoly: An Assessment of the Private Express Statutes 9 (1974); Craig & Alvis, The Postal Monopoly: Two Hundred Years of Covering Commercial as Well as Personal Messages, 12 U.S.F.L.Rev. 57, 60, and n. 8 (1977). A provision of the PES allows the Postal Service to "suspend [the PES restrictions] upon any mail route where the public interest requires the suspension." 39 U.S.C. § 601(b). In 1979, the Postal Service suspended the PES restrictions for "extremely urgent letters," thereby allowing overnight delivery of letters by private courier services. 39 CFR § 320.6 (1990); 44 Fed.Reg. 61178 (1979). Private courier services, including members of petitioner-intervenor Air Courier Conference of America, relied on that suspension to Page 498 U. S. 520 engage in a practice called "international remailing." This entails bypassing the Postal Service and using private courier systems to deposit with foreign postal systems letters destined for foreign addresses. Believing this international remailing was a misuse of the urgent-letter suspension, the Postal Service issued a proposed modification and clarification of its regulation in order to make clear that the suspension for extremely urgent letters did not cover this practice. 50 Fed.Reg. 41462 (1985). The comments received in response to the proposed rule were overwhelmingly negative, and focused on the perceived benefits of international remailing: Lower cost, faster delivery, greater reliability, and enhanced ability of United States companies to remain competitive in the international market. Because of the vigorous opposition to the proposed rule, the Postal Service agreed to reconsider its position, and instituted a rulemaking "to remove the cloud" over the validity of the international remailing services. 51 Fed.Reg. 9852, 9853 (1986). After receiving additional comments and holding a public meeting on the subject, on June 17, 1986, the Postal Service issued a proposal to suspend operation of the PES for international remailing. Id. at 21929-21932. Additional comments were received, and after consideration of the record it had compiled, the Postal Service issued a final rule suspending the operation of the PES with respect to international remailing. Id. at 29637. Respondents, the American Postal Workers Union, AFL-CIO and the National Association of Letter Carriers, AFL-CIO (Unions), sued in the United States District Court for the District of Columbia, challenging the international remailing regulation pursuant to the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 702 (APA). They claimed that the rulemaking record was inadequate to support a finding that the suspension of the PES for international remailing was in the public interest. Petitioner Air Courier Conference of America (ACCA) intervened. Page 498 U. S. 521 On December 20, 1988, the District Court granted summary judgment in favor of the Postal Service and ACCA. American Postal Workers Union, AFL-CIO v. United States Postal Service, 701 F. Supp. 880 (1988). The Unions appealed to the Court of Appeals for the District of Columbia Circuit, and that court vacated the grant of summary judgment. American Postal Workers Union, AFL-CIO v. United States Postal Service, 282 U.S.App.D.C. 5, 891 F.2d 304 (1989). It held that the Unions satisfied the zone-of-interests requirement for APA review under Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), and that the Postal Service's regulation was arbitrary and capricious because it relied on too narrow an interpretation of "the public interest." In determining that the Unions' interest in employment opportunities was protected by the PES, the Court of Appeals noted that the PES were reenacted as part of the Postal Reorganization Act (PRA), Pub.L. 91-375, 84 Stat. 719, codified at 39 U.S.C. § 101 et seq. The Court of Appeals found that a "key impetus" and "principal purpose" of the PRA was "to implement various labor reforms that would improve pay, working conditions and labor-management relations for postal employees." 282 U.S.App.D.C. at 10-11, 891 F.2d at 309-310. Reasoning that "[t]he Unions' asserted interest is embraced directly by the labor reform provisions of the PRA," id. at 11, 891 F.2d at 310, and that "[t]he PES constitute the linchpin in a statutory scheme concerned with maintaining an effective, financially viable Postal Service," ibid. the court concluded that "[t]he interplay between the PES and the entire PRA persuades us that there is an 'arguable' or 'plausible' relationship between the purposes of the PES and the interests of the Union[s]." Ibid. The Court of Appeals also held that "the revenue protective purposes of the PES, standing alone, plausibly relate to the Unions' interest in preventing the reduction of employment opportunities," since "postal workers benefit from the PES's Page 498 U. S. 522 function in ensuring a sufficient revenue base" for the Postal Service's activities. Ibid. Addressing the merits of the Unions' challenge to the suspension order, the Court of Appeals held that it was arbitrary and capricious, because the Postal Service had applied § 601(b)'s public interest test too narrowly by considering only the benefits of the international remail rule to the small segment of the Postal Service's consumer base that engages in international commerce. We granted certiorari, 496 U.S. 904 (1990), and we now reverse. The United States Postal Service, nominally a respondent, argues along with ACCA that the Unions do not have standing to challenge the Postal Service's suspension of the PES for international remailing. The Postal Service argues now that Congress precluded judicial review of Postal Service action under the APA by enacting 39 U.S.C. § 410(a), which the Postal Service contends provides that Chapters 5 and 7 of Title 5 do not apply to the Postal Service. [ Footnote 1 ] Chapters 5 and 7 of Title 5 are the provisions of the APA dealing with "Administrative Procedure" (Chapter 5) and "Judicial Review" (Chapter 7). The Postal Service raised this argument for the first time in its brief in opposition to the petition for writ of certiorari. It was not argued to either of the lower courts, and was not considered by either court below in deciding this case. This issue was not raised by ACCA in its petition for writ of certiorari, nor is it encompassed by the questions presented upon which we based our grant of certiorari. [ Footnote 2 ] Consequently, Page 498 U. S. 523 we decline to decide whether § 410(a) exempts the Postal Service from judicial review under the APA. [ Footnote 3 ] To establish standing to sue under § 702 of the APA, respondents must establish that they have suffered a legal wrong because of the challenged agency action, or are adversely affected or "aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Once they have shown that they are adversely affected, i.e., have suffered an "injury in fact," see Allen v. Wright, 468 U. S. 737 , 468 U. S. 751 (1984), the Unions must show that they are within the zone of interests sought to be protected through the PES. Lujan v. National Wildlife Federation, 497 U. S. 871 (1990); Clarke v. Securities Industry Assn., 479 U. S. 388 (1987); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). Specifically, "the plaintiff must establish that the injury he complains of ( his aggrievement, or the adverse effect upon him ) falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the Page 498 U. S. 524 legal basis of his complaint." Lujan, supra, at 497 U. S. 883 (citing Clarke, supra, 479 U.S. at 479 U. S. 396 -397). The District Court found that the Unions had satisfied the injury-in-fact test because increased competition through international remailing services might have an adverse effect on employment opportunities of postal workers. This finding of injury in fact was not appealed. The question before us, then, is whether the adverse effects on the employment opportunities of postal workers resulting from the suspension is within the zone of interests encompassed by the PES -- the statutes which the Unions assert the Postal Service has violated in promulgating the international remailing rule. The Court of Appeals found that the Unions had standing because "the revenue-protective purposes of the PES, standing alone, plausibly relate to the Unions' interest in preventing the reduction of employment opportunities." 282 U.S.App.D.C. at 11, 891 F.2d at 310. This view is mistaken, for it conflates the zone-of-interests test with injury in fact. In Lujan, this Court gave the following example illustrating how injury in fact does not necessarily mean one is within the zone of interests to be protected by a given statute: "[T]he failure of an agency to comply with a statutory provision requiring 'on the record' hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings, and not those of the reporters, that company would not be 'adversely affected within the meaning' of the statute." 497 U.S. at 497 U. S. 883 . We must inquire then, as to Congress' intent in enacting the PES in order to determine whether postal workers were meant to be within the zone of interests protected by those statutes. The particular language of the statutes provides no support for respondents' assertion that Congress intended Page 498 U. S. 525 to protect jobs with the Postal Service. [ Footnote 4 ] In fact, the provisions of 18 U.S.C. § 1696(c), allowing private conveyance of letters if done on a one-time basis or without compensation, and 39 U.S.C. § 601(a), allowing letters to be carried out of the mails if certain procedures are followed, indicate that the congressional concern was not with opportunities for postal Page 498 U. S. 526 workers, but with the receipt of necessary revenues for the Postal Service. Nor does the history of this legislation -- such as it is -- indicate that the PES were intended for the benefit of postal workers. When the first statutes limiting private carriage of letters on post roads were enacted in 1792, the Post Office offered no pick-up or delivery services. See C. Scheele, A Short History of the Mail Service 66, 91 (1970). Statutory authority to employ letter carriers was not enacted until two years later, and was largely ignored until the late 1820's. Id. at 66. The 1792 restrictions on private carriage protected the Government's capital investment in the post roads, not the jobs of as yet virtually nonexistent postal employees. In 1825 and 1827, Acts were passed prohibiting the private carriage of letters through the use of stages or other vehicles, packet boats or other vessels, § 19, Ch. 64 of Act of March 3, 1825, 4 Stat. at 107, and foot and horse posts. Section 3, Ch. 61 of Act of March 2, 1827, 4 Stat. 238. Postal employees cannot have been within the zone of interests of either the 1824 or 1827 Acts; those Acts targeted transportation of mail, which even then was contracted out to private carriers. See W. Fuller, The American Mail: Enlarger of the Common Life 150 (1972). Congress' consideration of the 1845 Act was the only occasion on which the postal monopoly was the subject of substantial debate. The 1845 statute, entitled "An Act to reduce the rates of postage, to limit the use and correct the abuse of the franking privilege, and for the prevention of frauds on the revenues of the Post Office Department," 5 Stat. 732, was the result of three circumstances, none of which involved the interests of postal employees. First, the Post Office Department continued to run substantial deficits in spite of high postage rates. H.R.Rep. No. 477, 28th Cong., 1st Sess., 2-3, 5 (1844). Second, high postal rates enabled private expresses to make substantial inroads into the domestic market for delivery of letters, and the 1825 and 1827 Acts proved unsuccessful in prosecuting them. Priest, The History of the Page 498 U. S. 527 Postal Monopoly in the United States, 18 J.Law & Econ., 33, 60 (1975) (citing United States v. Gray, 26 F. Cas. 18 (No. 15, 253) (Mass. 1840) and United States v. Adams, 24 F. Cas. 761 (No. 14, 421) (SDNY 1843)). Third, inauguration of the "penny post" in England quadrupled use of the mails, and it was thought that a substantial reduction in American postal rates would have the dual virtues of driving private expresses out of business and increasing mail volume of the Post Office. This, in turn, would help reduce the Post Office's deficit. 14 Cong.Globe, 28th Cong., 2d Sess., 213 (1845) (remarks of Sens. Simmons & Breese). See also H.R.Rep. No. 477, supra, at 5. The legislative history of the sections of the Act limiting private carriage of letters shows a two-fold purpose. First, the Postmaster General and the States most distant from the commercial centers of the Northeast believed that the postal monopoly was necessary to prevent users of faster private expresses from taking advantage of early market intelligence and news of international affairs that had not yet reached the general populace through the slower mails. S.Doc. No. 66, 28th Cong., 2d Sess., 3-4 (1845). Second, it was thought to be the duty of the Government to serve outlying, frontier areas, even if it meant doing so below cost. H.R.Rep. No. 477, supra, at 2-3. Thus, the revenue protection provisions were not seen as an end in themselves, nor in any sense as a means of insuring certain levels of public employment, but rather were seen as the means to achieve national integration and to ensure that all areas of the Nation were equally served by the Postal Service. The PES enable the Postal Service to fulfill its responsibility to provide service to all communities at a uniform rate by preventing private courier services from competing selectively with the Postal Service on its most profitable routes. If competitors could serve the lower cost segment of the market, leaving the Postal Service to handle the high-cost services, the Service would lose lucrative portions of its business, Page 498 U. S. 528 thereby increasing its average unit cost and requiring higher prices to all users. [ Footnote 5 ] See Report of the President's Commission on Postal Organization, Towards Postal Excellence, 94th Cong., 2d Sess., 129 (Comm.Print 1968). The postal monopoly, therefore, exists to ensure that postal services will be provided to the citizenry at large, and not to secure employment for postal workers. The Unions' claim on the merits is that the Postal Service has failed to comply with the mandate of 39 U.S.C. § 601(b) that the PES be suspended only if the public interest requires. The foregoing discussion has demonstrated that the PES were not designed to protect postal employment or further postal job opportunities, but the Unions argue that the courts should look beyond the PES to the entire 1970 Postal Reorganization Act in applying the zone-of-interests test. The Unions argue that, because one of the purposes of the labor-management provisions of the PRA was to stabilize labor-management relations within the Postal Service, and because the PES is the "linchpin" of the Postal Service, employment opportunities of postal workers are arguably within the zone of interests covered by the PES. The Unions rely upon our opinion in Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), to support this contention. Page 498 U. S. 529 Clarke is the most recent in a series of cases in which we have held that competitors of regulated entities have standing to challenge regulations. Clarke, supra; Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). In Clarke, we said that "we are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress' overall purposes in the National Bank Act." 479 U.S. at 479 U. S. 401 . This statement, like all others in our opinions, must be taken in the context in which it was made. In the next paragraph of the opinion, the Court pointed out that 12 U.S.C. § 36, which the plaintiffs in that case claimed had been misinterpreted by the Comptroller, was itself "a limited exception to the otherwise applicable requirement of [12 U.S.C.] § 81," limiting the places at which a national bank could transact business to its headquarters and any "branches" permitted by § 36. Thus the zone-of-interests test was to be applied not merely in the light of § 36, which was the basis of the plaintiffs' claim on the merits, but also in the light of § 81, to which § 36 was an exception. The situation in the present case is quite different. The only relationship between the PES, upon which the Unions rely for their claim on the merits, and the labor-management provisions of the PRA, upon which the Unions rely for their standing, is that both were included in the general codification of postal statutes embraced in the PRA. The statutory provisions enacted and reenacted in the PRA are spread over some 65 pages in the United States Code, and take up an entire title of that volume. We said in Lujan that "the relevant statute [under the APA] of course, is the statute whose violation is the gravamen of the complaint." 497 U.S. at 497 U. S. 886 . To adopt petitioners' contention would require us to hold that the "relevant statute" in this case is the PRA, with all of its various provisions united only by the fact that they deal with the Postal Service. But to accept this level of generality Page 498 U. S. 530 in defining the "relevant statute" could deprive the zone-of-interests test of virtually all meaning. Unlike the two sections of the National Bank Act discussed in Clarke, supra, none of the provisions of the PES has any integral relationship with the labor-management provisions of the PRA. When it enacted the PRA, Congress made no substantive changes to those portions of the PES codified in the Criminal Code, 18 U.S.C. §§ 1693-1699; Congress readopted without change those portions of the PES codified in the Postal Service Code, 39 U.S.C. §§ 601-606; and Congress required the Postal Service to conduct a 2-year study and reevaluation of the PES before deciding whether those laws should be modified or repealed. PRA, Pub.L. 91-375, § 7, 84 Stat. 783; S.Rep. No. 91-912, p. 22 (1970); H.R.Rep. No. 91-1104, p. 48 (1970), U.S. Code Cong. & Admin.News 1970, p. 3649. None of the documents constituting the PRA legislative history suggests that those concerned with postal reforms saw any connection between the PES and the provisions of the PRA dealing with labor-management relations. The Senate and House Reports simply note that the proposed bills continue existing law without change and require the Postal Service to conduct a study of the PES. The Court of Appeals referred to the PES as the "linchpin" of the Postal Service, which it may well be; but it stretches the zone-of-interests test too far to say that, because of that fact, those whom a different part of the PRA was designed to benefit may challenge a violation of the PES. It would be a substantial extension of our holdings in Clarke, supra, Data Processing, supra, and Investment Co. Institute, supra, to allow the Unions in this case to leapfrog from their asserted protection under the labor-management provisions of the PRA to their claim on the merits under the PES. We decline to make that extension, and hold that the Unions do not have standing to challenge the Postal Service's suspension of the PES to permit private couriers to engage in international remailing. We therefore do not reach the Page 498 U. S. 531 merits of the Unions' claim that the suspension was not in the public interest. The judgment of the Court of Appeals is Reversed [ Footnote 1 ] Title 39 U.S.C. § 410 provides in pertinent part: "[N]o Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the exercise of the powers of the Postal Service." [ Footnote 2 ] The questions presented in this case are as follows: 1. Are postal employees within the "zone of interest" of the Private Express Statutes that establish and allow the United States Postal Service to suspend restrictions on the private carriage of letters when "the public interest requires?" 2. Did the Postal Service act unreasonably, arbitrarily, or capriciously in promulgating its international remail regulation under the "public interest" standard for suspending the Private Express Statutes where it found no adverse effects on revenues and found general benefits to the public, competition, and users of remail services? [ Footnote 3 ] The Postal Service argues that, since "congressional preclusion of judicial review is in effect jurisdictional," Block v. Community Nutrition Institute, 467 U. S. 340 , 467 U. S. 353 , n. 4 (1984), the issue cannot be waived by the parties. We do not agree. Section 410, at most, exempts the Postal Service from the APA. The judicial review provisions of the APA are not jurisdictional, Califano v. Sanders, 430 U. S. 99 (1977), so a defense based on exemption from the APA can be waived by the Government. Whether § 410(a) exempts the Postal Service from APA review is in essence a question of whether Congress intended to allow a certain cause of action against the Postal Service. Whether a cause of action exists is not a question of jurisdiction, and may be assumed without being decided. Burks v. Lasker, 441 U. S. 471 , 441 U. S. 476 , n. 5 (1979). [ Footnote 4 ] Title 18 U.S.C. § 1696 provides: " Private express for letters and packets " "(a) Whoever establishes any private express for the conveyance of letters or packets, or in any manner causes or provides for the conveyance of the same by regular trips or at stated periods over any post route which is or may be established by law, or from any city, town, or place to any other city, town or place, between which mail is regularly carried, shall be fined not more than $500 or imprisoned not more than six months, or both." " * * * *" "(b) Whoever transmits by private express or other unlawful means, or delivers to any agent thereof, or deposits at any appointed place, for the purpose of being so transmitted any letter or packet, shall be fined not more than $50." "(c) This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation, or by special messenger employed for the particular occasion only. Whenever more than twenty-five such letters or packets are conveyed or transmitted by such special messenger, the requirements of section 601 of title 39, shall be observed as to each piece." Title 39 U.S.C. § 601 provides: " Letters carried out of the mail " "(a) A letter may be carried out of the mails when -- " "(1) it is enclosed in an envelope;" "(2) the amount of postage which would have been charged on the letter if it had been sent by mail is paid by stamps, or postage meter stamps, on the envelope;" "(3) the envelope is properly addressed;" "(4) the envelope is so sealed that the letter cannot be taken from it without defacing the envelope;" "(5) any stamps on the envelope are canceled in ink by the sender; and" "(6) the date of the letter, of its transmission or receipt by the carrier is endorsed on the envelope in ink." "(b) The Postal Service may suspend the operation of any part of this section upon any mail route where the public interest requires the suspension." [ Footnote 5 ] The PES is a competition statute that regulates the conduct of competitors of the Postal Service. The postal employees for whose benefit the unions have brought suit here are not competitors of either the Postal Service or remailers. Employees have generally been denied standing to enforce competition laws, because they lack competitive and direct injury. See, eg., Adams v. Pan American World Airways, Inc., 264 U.S.App.D.C. 174, 828 F.2d 24 (1987), cert. denied sub nom. Union de Transports Aeriens v. Beckman, 485 U.S. 934 (1988) (former airline employees denied standing to assert antitrust claim against airline that allegedly drove their former employer out of business); Curtis v. Campbell-Taggart, Inc., 687 F.2d 336 (CA10), cert. denied, 459 U.S. 1090 (1982) (employees of corporation injured by anticompetitive conduct denied standing under antitrust laws). Justice STEVENS, with whom Justice MARSHALL and Justice BLACKMUN join, concurring in the judgment. There is no ambiguity in the text of 39 U.S.C. § 410(a). That section of the Postal Reorganization Act provides that the judicial review provisions of the Administrative Procedure Act (APA) do not apply to the exercise of the powers of the Postal Service. See ante at 498 U. S. 522 , n. 1. It is therefore not only unnecessary, but also unwise, for the Court to issue an opinion on the entirely hypothetical question whether, if the APA did authorize judicial review of actions of the Postal Service, its employees would have standing to invoke such review to challenge a regulation that may curtail their job opportunities. I therefore do not join the opinion discussing this hypothetical standing question. Nor do I consider it necessary to decide whether this objection to judicial review may be waived by the Government, because it is surely a matter that we may notice on our own motion. * Faithful adherence to the doctrine of judicial restraint provides a fully adequate justification for deciding this case on the best and narrowest ground available. I would do Page 498 U. S. 532 so. Accordingly, relying solely on 39 U.S.C. § 410(a), I concur in the Court's judgment that the Unions' challenge must be dismissed. * It is at least arguable that the Government did not waive this objection to judicial review. As the Court points out, the Government raised this argument in its brief in opposition to the petition for writ of certiorari. See ante at 498 U. S. 522 . In deciding to review this case, therefore, we were cognizant that an issue antecedent to the standing issue might first have to be resolved. Moreover, although the Government's objection to judicial review was not raised in the lower courts, the Court of Appeals recognized that "the USPS is exempt from the strictures of the Administrative Procedure Act ( APA'), see 39 U.S.C. § 410(a)," American Postal Workers Union, AFL-CIO v. United States Postal Service, 282 U.S.App. D.C. 5, 8, 891 F.2d 304, 307 (1989), and nevertheless continued to review the actions of the Postal Service, thus implicitly rejecting the contention made by the Government here.

The case centers on the United States Postal Service's monopoly over letter carriage and the Private Express Statutes (PES), which authorize the Postal Service to suspend restrictions on mail routes in the public interest. The Postal Service allowed private couriers to engage in "international remailing," bypassing the Postal Service for letters destined for foreign addresses. Postal worker unions sued, claiming the change was not in the public interest and would hurt their employment opportunities. The Supreme Court declined to decide if the Postal Service was exempt from judicial review under the Administrative Procedure Act (APA) due to the lack of argumentation and consideration in lower courts. The Court also ruled that the unions lacked standing to challenge the suspension, as the PES's purpose was to protect postal revenue, not employment opportunities. The judgment vacated the lower court's decision and held that the unions could not bring the claim.

Government Agencies

Stone v. INS

https://supreme.justia.com/cases/federal/us/514/386/

OCTOBER TERM, 1994 Syllabus STONE v. IMMIGRATION AND NATURALIZATION SERVICE CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 93-1199. Argued November 28, 1994-Decided April 19, 1995 In 1988, an Immigration Judge ordered petitioner Stone deported. The Board of Immigration Appeals (BIA) affirmed on July 26, 1991, and denied Stone's motion to reopen and/or reconsider the deportation in February 1993. Shortly thereafter, he petitioned the Court of Appeals for review of both the deportation and reconsideration orders. The court dismissed the petition for want of jurisdiction to the extent that it sought review of the underlying deportation determination, holding that the filing of the reconsideration motion did not toll the running of the 90-day filing period for review of final deportation orders specified in § 106(a)(1) of the Immigration and Nationality Act (INA). Held: A timely motion for reconsideration of a BIA decision does not toll the running of § 106(a)(1)'s 90-day period. Pp.390-406. (a) The parties agree that a deportation order becomes final upon the BIA's dismissal of an appeal and that the 90-day appeal period started to run in this case on July 26, 1991. It is also clear that the Hobbs Administrative Orders Review Act, which Congress has directed governs review of deportation orders, embraces a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review. ICC v. Locomotive Engineers, 482 U. S. 270 . That conventional tolling rule would apply to this case had Congress specified using the Hobbs Act to govern review of deportation orders without further qualification. Pp. 390-393. (b) However, Congress instead specified 10 exceptions to the use of Hobbs Act procedures, one of which is decisive here. Section 106(a)(6), added to the INA in 1990, provides that whenever a petitioner seeks review of an order under § 106, "any review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." By its terms, § 106(a)(6) contemplates two petitions for review and directs the courts to consolidate the matters. The direction that the motion to reopen or reconsider is to be consolidated with the review of the underlying order, not the other way around, indicates that the action to review the underlying order remains active and pending before the court. Were a motion for reconsideration to render the underlying order nonfinal, there would be, in the normal 387 course, only one petition for review filed and hence nothing for the Judiciary to consolidate. Since it appears that only the no-tolling rule would give rise to two separate petitions for review simultaneously before the courts, which it is plain § 106(a)(6) contemplates, it would seem that only that rule gives meaning to the section. Pp. 393-395. (c) Petitioner's construction of § 106(a)(6)-which presumes that a reconsideration motion renders the underlying order nonfinal if the motion is filed before a petition for review but that finality is unaffected if the reconsideration motion is filed after the petition for review-is unacceptable. It is implausible that Congress would direct different results in the two circumstances. Moreover, it is presumed that Congress intends its amendment of a statute to have real and substantial effect, yet under petitioner's construction the consolidation provision would have effect only in the rarest of circumstances. Pp. 395-398. (d) Underlying considerations of administrative and judicial efficiency, as well as fairness to the alien, support the conclusion that Congress intended to depart from the conventional tolling rule in deportation cases. While an appeal of a deportation order results in an automatic stay, a motion for agency reconsideration does not. Congress might not have wished to impose on aliens the Hobson's choice of petitioning for reconsideration at the risk of immediate deportation or forgoing reconsideration and petitioning for review to obtain the automatic stay. In addition, the tolling rule's policy of delayed review would be at odds with Congress' fundamental purpose in enacting § 106, which was to abbreviate the judicial review process in order to prevent aliens from forestalling deportation by dilatory tactics in the courts. Pp. 398-401. (e) A consideration of the analogous practice of appellate court review of district court judgments confirms the correctness of this Court's construction of Congress' language. The filing of a motion for relief from judgment more than 10 days after judgment under Federal Rule of Civil Procedure 60(b)-the closest analogy to the petition for agency reconsideration here-does not affect the finality of a district court's judgment. If filed before the appeal is taken, it does not toll the running of the time to take an appeal; if filed after the notice of appeal, appellate court jurisdiction is not divested. Each case gives rise to two separate appellate proceedings that can be consolidated. However, if a post-trial motion that renders an underlying judgment nonfinal is filed before an appeal, it tolls the time for review, and if filed afterwards, it divests the appellate court of jurisdiction. Thus, it gives rise to only one appeal in which all matters are reviewed. In contrast, the hybrid tolling rule suggested by the dissent-that a reconsideration motion before the BIA renders the original order nonfinal if made before a petition for judicial review is filed but does not affect the finality of the order if filed after- 388 wards-has no analogue at all in the appellate court-district court context. Pp. 401-406. 13 F.3d 934 , affirmed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, SCALIA, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion, in which O'CONNOR and SOUTER, JJ., joined, post, p. 406. Alan B. Morrison argued the cause for petitioner. On the briefs was David Eric Funke. Beth S. Brinkmann argued the cause for respondent. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, and Deputy Solicitor General Kneedler. JUSTICE KENNEDY delivered the opinion of the Court. We consider whether the filing of a timely motion for reconsideration of a decision by the Board of Immigration Appeals tolls the running of the 90-day period for seeking judicial review of the decision. I Petitioner, Marvin Stone, is a citizen of Canada and a businessman and lawyer by profession. He entered the United States in 1977 as a nonimmigrant visitor for business and has since remained in the United States. On January 3, 1983, Stone was convicted of conspiracy and mail fraud, in violation of 18 U. S. C. §§ 371 and 1341. He served 18 months of a 3-year prison term. In March 1987, after his release, the Immigration and Naturalization Service (INS) served him with an order to show cause why he should not be deported as a nonimmigrant who had remained in the United States beyond the period authorized by law. In January 1988, after a series of hearings, an Immigration Judge ordered Stone deported. The IJ concluded that under the regulations in effect when Stone entered the United States, an alien on a nonimmigrant for business visa 389 could remain in the country for an initial period not to exceed six months with the privilege of seeking extensions, which could be granted in 6-month increments. 8 CFR § 214.2 (b) (1977). The IJ ordered deportation under 8 U. S. C. § 1251(a)(2) (now § 1251(a)(1)(B) (1988 ed., Supp. V)) based on petitioner's testimony that he had remained in the United States since 1977 without seeking any extension. The IJ denied Stone's application for suspension of deportation under 8 U. S. C. § 1254(a)(1), concluding that Stone's conviction of mail fraud and 18-month incarceration barred him, as a matter of law, from establishing "good moral character" as required by § 1254. See § 1101(f)(7). Stone's administrative appeals were as follows: he appealed to the Board of Immigration Appeals, which affirmed the IJ's determinations and dismissed the appeal on July 26, 1991; he filed a "Motion to Reopen and/or to Reconsider" with the BIA in August 1991; on February 3, 1993, some 17 months later, the BIA denied the reconsideration motion as frivolous. Judicial review was sought next. The record does not give the precise date, but, sometime in February or March 1993, Stone petitioned the Court of Appeals for the Sixth Circuit for review of both the July 26, 1991, deportation order and the February 3, 1993, order denying reconsideration. The Court of Appeals dismissed the petition for want of jurisdiction to the extent the petition sought review of the July 26, 1991, order, the underlying deportation determination. The court held that the filing of the reconsideration motion did not toll the running of the 90-day filing period for review of final deportation orders. 13 F.3d 934 , 938-939 (1994). We granted certiorari, 511 U. S. 1105 (1994), to resolve a conflict among the Circuits on the question, compare Akrap v. INS, 966 F.2d 267 , 271 (CA7 1992), and Nocon v. INS, 789 F.2d 1028 ,1033 (CA3 1986) (agreeing that the filing of a reconsideration motion does not toll the statutory time limit for seeking review of a deportation order), with Fleary 390 v. INS, 950 F.2d 711 , 713 (CAll 1992), Pierre v. INS, 932 F. 2d 418, 421 (CA5 1991) (per curiam), Attoh v. INS, 606 F. 2d 1273, 1275, n. 15 (CADC 1979), and Bregman v. INS, 351 F.2d 401 , 402-403 (CA9 1965) (holding that a petition to review a deportation order is timely if filed within the statutory period following the disposition of a timely filed reconsideration motion). We now affirm. II A Section 106(a)(1) of the Immigration and Nationality Act (INA) specifies that "a petition for review [of a final deportation order] may be filed not later than 90 days after the date of the issuance of the final deportation order, or, in the case of an alien convicted of an aggravated felony, not later than 30 days after the issuance of such order." 8 U. S. C. § 1l05a(a)(1) (1988 ed. and Supp. V). The clause pertaining to an "aggravated felony" is not a factor in the analysis, petitioner's offense not being within that defined term. See § 1l01(a)(43). He had the benefit of the full 90-day filing period. There is no dispute that a deportation order "become[s] final upon dismissal of an appeal by the Board of Immigration Appeals," 8 CFR § 243.1 (1977), and, the parties agree, the 90-day period started on July 26, 1991. The parties disagree, however, regarding the effect that petitioner's later filing of a timely motion to reconsider had on the finality of the order. Petitioner contends that a timely motion to reconsider renders the underlying order nonfinal, and that a petition seeking review of both the order and the reconsideration denial is timely if filed (as this petition was) within 90 days of the reconsideration denial. The INS argues that the finality and reviewability of an order are unaffected by the filing of a motion to reconsider or to reopen. In its view the Court of Appeals had jurisdiction to review the denial of the motion to reconsider but not to review the original order. 391 We considered the timeliness of a review petition where there is a motion to reconsider or reopen an agency's order in ICC v. Locomotive Engineers, 482 U. S. 270 (1987). The Interstate Commerce Commission's governing statute provided that, with certain exceptions, judicial review of ICC orders would be governed by the Hobbs Administrative Orders Review Act, 28 U. S. C. § 2341 et seq. See Locomotive Engineers, 482 U. S., at 277. We held that "the timely petition for administrative reconsideration stayed the running of the Hobbs Act's limitation period until the petition had been acted upon by the Commission." Id., at 284. Our conclusion, we acknowledged, was in some tension with the language of both the Hobbs Act, which permits an aggrieved party to petition for review "within 60 days after [the] entry" of a final order, 28 U. S. C. § 2344, and of 49 U. S. C. § 10327(i), "which provides that, '[n]otwithstanding' the provision authorizing the Commission to reopen and reconsider its orders (§ 10327(g)), 'an action of the Commission ... is final on the date on which it is served, and a civil action to enforce, enjoin, suspend, or set aside the action may be filed after that date.'" Locomotive Engineers, supra, at 284. We found the controlling language similar to the corresponding provision of the Administrative Procedure Act (APA), 5 U. S. C. § 704, which provides that "agency action otherwise final is final for the purposes of this section [entitled 'Actions Reviewable'] whether or not there has been presented or determined an application for ... any form of reconsideratio[n]"- "language [that] has long been construed ... merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review ... but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal." Locomotive Engineers, supra, at 284-285 (citation omitted). In support of that longstanding construction of the AP A language, we cited dicta in two earlier cases, American Farm Lines v. Black Ball Freight Service, 397 U. S. 532 , 541 392 (1970); CAB v. Delta Air Lines, Inc., 367 U. S. 316 , 326-327 (1961), and the holding in Outland v. CAB, 284 F.2d 224 , 227 (CADC 1960), a decision cited with approval in both Black Ball and Delta. Outland justified treating orders as nonfinal for purposes of review during the pendency of a motion for reconsideration in terms of judicial economy: "[W]hen the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary." Outland, supra, at 227. As construed in Locomotive Engineers both the APA and the Hobbs Act embrace a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review. In consequence, pendency of reconsideration renders the underlying decision not yet final, and it is implicit in the tolling rule that a party who has sought rehearing cannot seek judicial review until the rehearing has concluded. 4 K. Davis, Administrative Law Treatise § 26:12 (2d ed. 1988); United Transportation Union v. ICC, 871 F.2d 1114 , 1118 (CADC 1989); Bellsouth Corp. v. FCC, 17 F.3d 1487 , 1489-1490 (CADC 1994). Indeed, those Circuits that apply the tolling rule have so held. See Fleary, 950 F. 2d, at 711-712 (deportation order not reviewable during pendency of motion to reopen); Hyun Joon Chung v. INS, 720 F.2d 1471 , 1474 (CA9 1984) (same). Section 106 of the INA provides that "[t]he procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation .... " 8 U. S. C. § 1105a(a) (1988 ed. and Supp. V). The reference to chapter 158 of Title 28 is a reference to the Hobbs Act. In light of our construction of the Hobbs Act in Locomotive Engineers, had Congress used that Act to govern review of deportation orders without further qualification, it would follow that the so-called tolling rule applied. 393 The INS, however, proffers a different reading of Locomotive Engineers. Relying on our statement that the provision of the AP A, 5 U. S. C. § 704, has been construed "not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal," 482 U. S., at 285 (emphasis supplied), the INS understands Locomotive Engineers to set forth merely a default rule from which agencies may choose to depart. It argues that it did so here. If the case turned on this theory, the question would arise whether an agency subject to either the APA or the Hobbs Act has the authority to specify whether the finality of its orders for purposes of judicial review is affected by the filing of a motion to reconsider. The question is not presented here. Both the Hobbs Act and the AP A are congressional enactments, and Congress may alter or modify their application in the case of particular agencies. We conclude that in amending the INA Congress chose to depart from the ordinary judicial treatment of agency orders under reconsideration. B Congress directed that the Hobbs Act procedures would govern review of deportation orders, except for 10 specified qualifications. See 8 U. S. C. § 1l05a(a). Two of those exceptions are pertinent. The first, contained in § 106(a)(1) of the INA, provides an alien with 90 days to petition for review of a final deportation order (30 days for aliens convicted of an aggravated felony), instead of the Hobbs Act's 60-day period. See 8 U. S. C. § 1l05a(a)(1) (1988 ed., Supp. V). The second and decisive exception is contained in § 106(a)(6), a provision added when Congress amended the INA in 1990. The section provides: "[W]henever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be 394 consolidated with the review of the order." 8 U. S. C. § 1l05a(a)(6). By its terms, § 106(a)(6) contemplates two petitions for review and directs the courts to consolidate the matters. The words of the statute do not permit us to say that the filing of a petition for reconsideration or reopening dislodges the earlier proceeding reviewing the underlying order. The statute, in fact, directs that the motion to reopen or reconsider is to be consolidated with the review of the order, not the other way around. This indicates to us that the action to review the underlying order remains active and pending before the court. We conclude that the statute is best understood as reflecting an intent on the part of Congress that deportation orders are to be reviewed in a timely fashion after issuance, irrespective of the later filing of a motion to reopen or reconsider. Were a motion for reconsideration to render the underlying order nonfinal, there would be, in the normal course, only one petition for review filed and hence nothing for the judiciary to consolidate. As in Locomotive Engineers itself, review would be sought after denial of reconsideration, and both the underlying order and the denial of reconsideration would be reviewed in a single proceeding, insofar, at least, as denial of reconsideration would be reviewable at all. See Locomotive Engineers, 482 U. S., at 280. Indeed, the Ninth Circuit, which before the 1990 amendment had held that pendency of a reconsideration motion did render a deportation order nonfinal, understood that the tolling rule contemplates just one petition for review: "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review .... " Yamada v. INS, 384 F.2d 214 , 218 (CA9 1967). The tolling rule is hard to square with the existence of two separate judicial review proceedings. 395 Under the no-tolling rule, by contrast, two separate petitions for review will exist in the normal course. An order would be final when issued, irrespective of the later filing of a reconsideration motion, and the aggrieved party would seek judicial review of the order within the specified period. Upon denial of reconsideration, the petitioner would file a separate petition to review that second final order. Because it appears that only the no-tolling rule could give rise to two separate petitions for review simultaneously before the courts, which it is plain § 106(a)(6) contemplates, it would seem that only that rule gives meaning to the section. Although the consolidation provision does not mention tolling, see post, at 408 (BREYER, J., dissenting), tolling would be the logical consequence if the statutory scheme provided for the nonfinality of orders upon the filing of a reconsideration motion. Locomotive Engineers' conclusion as to tolling followed as a necessary consequence from its conclusion about finality. Finality is the antecedent question, and as to that matter the consolidation provision speaks volumes. All would agree that the provision envisions two petitions for review. See post, at 408 (BREYER, J., dissenting). Because only "final deportation order[sJ" may be reviewed, 8 U. S. c. § 1l05a(a)(1), it follows by necessity that the provision requires for its operation the existence of two separate final orders, the petitions for review of which could be consolidated. The two orders cannot remain final and hence the subject of separate petitions for review if the filing of the reconsideration motion rendered the original order nonfinal. It follows that the filing of the reconsideration motion does not toll the time to petition for review. By speaking to finality, the consolidation provision does say quite a bit about tolling. Recognizing this problem, petitioner at oral argument sought to give meaning to § 106(a)(6) by offering a different version of what often might occur. Petitioner envisioned an alien who petitioned for review of a final deportation order, 396 and, while the petition was still pending, went back to the agency to seek its reconsideration or, if new evidence had arisen, reopening. If, upon denial of reconsideration or reopening, the alien sought review, and the review of the original order were still pending, § 106(a)(6) would apply and the two petitions would be consolidated. The dissent relies on the same assumed state of events. See post, at 409-410. That construct, however, is premised on a view of finality quite inconsistent with the tolling rule petitioner himself proposes. If, as petitioner advocates, the filing of a timely petition for reconsideration before seeking judicial review renders the underlying order nonfinal, so that a reviewing court would lack jurisdiction to review the order until after disposition of the reconsideration motion, one wonders how a court retains jurisdiction merely because the petitioner delays the reconsideration motions until after filing the petition for judicial review of the underlying order. The policy supporting the nonfinality rule-that "when the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary," Outland, 284 F. 2d, at 227-applies with equal force where the party seeks agency rehearing after filing a petition for judicial review. Indeed, the Court of Appeals for the District of Columbia Circuit, whose decision in Outland we cited in support of our construction in Locomotive Engineers, has so held in the years following our decision. See Wade v. FCC, 986 F.2d 1433 , 1434 (1993) (per curiam) ("The danger of wasted judicial effort ... arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review") (citations omitted). The Wade holding rested on, and is consistent with, our decision in a somewhat analogous context that the filing of a Federal Rule of Civil Procedure 59 motion to alter or amend a district court's judgment strips the appellate court of jurisdiction, whether the Rule 59 motion is filed before or after the notice of appeal. See Griggs 397 v. Provident Consumer Discount Co., 459 U. S. 56 , 61 (1982) (per curiam). Our decision, based on a construction of Federal Rule of Appellate Procedure 4(a)(4), noted the "theoretical inconsistency" of permitting the district court to retain jurisdiction to decide the Rule 59 motion while treating the notice of appeal as "adequate for purposes of beginning the appeals process." Griggs, supra, at 59. We need not confirm the correctness of the Wade decision, but neither should we go out of our way to say it is incorrect, as petitioner and the dissent would have us do. The inconsistency in petitioner's construction of § 106(a)(6) is the same inconsistency that we noted in Griggs. Petitioner assumes that a reconsideration motion renders the underlying order nonfinal if the motion is filed before a petition for review, but that finality is unaffected if the reconsideration motion is filed one day after the petition for review. It is implausible that Congress would direct different results in the two circumstances. At any rate, under petitioner's construction the consolidation provision would have effect only in the rarest of circumstances. When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect. See Reiter v. Sonotone Corp., 442 U. S. 330 , 339 (1979) (Court must construe statute to give effect, if possible, to every provision); Moskal v. United States, 498 U. S. 103 , 109-111 (1990) (same). Had Congress intended review of INS orders to proceed in a manner no different from review of other agencies, as petitioner appears to argue, there would have been no reason for Congress to have included the consolidation provision. The reasonable construction is that the amendment was enacted as an exception, not just to state an already existing rule. Section 106(a)(6) is an explicit exception to the general applicability of the Hobbs Act procedures, so it must be construed as creating a procedure different from normal practice under the Act. We conclude, as did the Court of Appeals, see 13 F. 3d, at 938, and the Seventh 398 Circuit, see Akrap, 966 F. 2d, at 271, that the consolidation provision Congress inserted when it amended the Act in 1990 is best understood as reflecting its expectation that in the particular context of INS deportation orders the normal tolling rule will not apply. C Underlying considerations of administrative and judicial efficiency, as well as fairness to the alien, support our conclusion that Congress intended to depart from the conventional tolling rule in deportation cases. Deportation orders are self-executing orders, not dependent upon judicial enforcement. This accounts for the automatic stay mechanism, the statutory provision providing that service of the petition for review of the deportation order stays the deportation absent contrary direction from the court or the alien's aggravated felony status. See 8 U. S. C. § 1l05a(a)(3). The automatic stay would be all but a necessity for preserving the jurisdiction of the court, for the agency might not otherwise refrain from enforcement. Indeed, the INA provides that "nothing in this section [Judicial review of orders of deportation and exclusion] shall be construed to require the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review of the order granted by this section." 8 U. S. C. § 1l05a(a)(8) (1988 ed., Supp. V). And it has been the longstanding view of the INS, a view we presume Congress understood when it amended the Act in 1990, that a motion for reconsideration does not serve to stay the deportation order. 8 CFR § 3.8 (1977). Cf. Delta Air Lines, 367 U. S., at 325-327 (certificate of public convenience and necessity effective when issued though not final for purposes of judicial review because of pendency of reconsideration motion). Were the tolling rule to apply here, aliens subject to deportation orders might well face a Hobson's choice: petition for agency reconsideration at the risk of immediate deporta- 399 tion, or forgo reconsideration and petition for review to obtain the automatic stay. The choice is a hard one in deportation cases, in that the consequences of deportation are so final, unlike orders in some other administrative contexts. Once an alien has been deported, the courts lack jurisdiction to review the deportation order's validity. See 8 U. S. C. § 1l05a(c). This choice is one Congress might not have wished to impose on the alien. An alien who had filed for agency reconsideration might seek to avoid immediate deportation by seeking a judicial stay. At oral argument, petitioner suggested a habeas corpus action as one solution to the dilemma. Even on the assumption that a habeas corpus action would be available, see § 1l05a(a) (Exclusiveness of procedure), the solution is unsatisfactory. In evaluating those stay applications the courts would be required to assess the probability of the alien's prevailing on review, turning the stay proceedings into collateral previews of the eventual petitions for review-indeed a preview now implicating the district court, not just the court of appeals. By inviting duplicative review in multiple courts, the normal tolling rule would frustrate, rather than promote, its stated goal of judicial economy. From an even more fundamental standpoint, the policies of the tolling rule are at odds with Congress' policy in adopting the judicial review provisions of the INA. The tolling rule reflects a preference to postpone judicial review to ensure completion of the administrative process. Reconsideration might eliminate the need for judicial intervention, and the resultant saving in judicial resources ought not to be diminished by premature adjudication. By contrast, Congress' "fundamental purpose" in enacting § 106 of the IN A was "to abbreviate the process of judicial review ... in order to frustrate certain practices ... whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Foti v. INS, 375 U. S. 217 , 224 (1963). Congress' concern reflected the reality that "in a deportation 400 proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty, 502 U. S. 314 , 321-325 (1992). Congress' intent in adopting and then amending the INA was to expedite both the initiation and the completion of the judicial review process. The tolling rule's policy of delayed review would be at odds with the congressional purpose. The dissent does not dispute that a principal purpose of the 1990 amendments to the INA was to expedite petitions for review and to redress the related problem of successive and frivolous administrative appeals and motions. In the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 5048, Congress took five steps to reduce or eliminate these abuses. First, it directed the Attorney General to promulgate regulations limiting the number of reconsideration and reopening motions that an alien could file. § 545(b). Second, it instructed the Attorney General to promulgate regulations specifying the maximum time period for the filing of those motions, hinting that a 20-day period would be appropriate. See ibid. Third, Congress cut in half the time for seeking judicial review of the final deportation order, from 180 to 90 days. See ibid. Fourth, Congress directed the Attorney General to define "frivolous behavior for which attorneys may be sanctioned" in connection with administrative appeals and motions. See § 545(a). In the dissent's view, a fifth measure, the consolidation provision, was added for no apparent reason and bears no relation to the other amendments Congress enacted at the same time. It is more plausible that when Congress took the first four steps to solve a problem, the fifth-the consolidation provision-was also part of the solution, and not a step in the other direction. By envisioning that a final deportation order will remain final and reviewable for 90 days from the date of its issuance irrespective of the later filing of a reconsideration motion, Congress' amendment eliminates much if not all of the incen- 401 tive to file a meritless reconsideration motion, and, like the other amendments adopted at the same time, expedites the time within which the judicial review process of the deportation order begins. D A consideration of the analogous practice of appellate court review of district court judgments confirms the correctness of our construction of Congress' language. The closest analogy to the INS' discretionary petition for agency reconsideration is the motion for relief from judgment under Federal Rule of Civil Procedure 60(b). The effect of Rule 60(b) motions (at least when made more than 10 days after judgment, an exception discussed below), on the finality and appealability of district court judgments is comparable to the effect of reconsideration motions on INS orders. With the exception noted, the filing of a Rule 60(b) motion does not toll the running of the time for taking an appeal, see Fed. Rule Civ. Proc. 60(b); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2871 (1973) (Wright & Miller), and the pendency of the motion before the district court does not affect the continuity of a prior-taken appeal. See ibid. And last but not least, the pendency of an appeal does not affect the district court's power to grant Rule 60 relief. See Standard Oil Co. of Cal. v. United States, 429 U. S. 17 , 18-19 (1976) (per curiam); Wright & Miller § 2873 (1994 Supp.). A litigant faced with an unfavorable district court judgment must appeal that judgment within the time allotted by Federal Rule of Appellate Procedure 4, whether or not the litigant first files a Rule 60(b) motion (where the Rule 60 motion is filed more than 10 days following judgment). Either before or after filing his appeal, the litigant may also file a Rule 60(b) motion for relief with the district court. The denial of the motion is appealable as a separate final order, and if the original appeal is still pending it would seem that the court of appeals can consolidate the proceedings. In each of these respects, the practice of litigants under Rule 60(b) is, under 402 our construction, identical to that of aliens who file motions for reconsideration before the BIA. In each case two separate postdecision appeals are filed. For reasons not relevant here, in 1991 the Rules of Appellate Procedure were amended to provide that Rule 60(b) motions filed within 10 days of a district court's judgment do toll the time for taking an appeal. See Fed. Rule App. Proc. 4(a)(4)(F). That amendment added Rule 60(b) motions filed within 10 days of judgment to a list of other post-trial motions that toll the running of the time for appeal, a list that includes Rule 59 motions to alter or amend a judgment. See Fed. Rule App. Proc. 4(a)(4)(C). A consideration of this provision of the appellate rules is quite revealing. The list of post-trial motions that toll the time for appeal is followed, and hence qualified, by the language interpreted in Griggs, language that provides in express terms that these motions also serve to divest the appellate court of jurisdiction where the motions are filed after appeal is taken. The language of Rule 4 undermines the dissent's reliance on a presumption that appellate court jurisdiction once asserted is not divested by further proceedings at the trial or agency level. See post, at 410. Indeed, the practice is most often to the contrary where appellate court review of district court judgments subject to post-trial motions is concerned. See Fed. Rule App. Proc. 4(a)( 4) (specifying that the majority of post judgment motions filed with the district court divest the appellate court of jurisdiction that had once existed). A district court judgment subject to one of these enumerated motions, typified by Rule 59, is reviewable only after, and in conjunction with, review of the denial of the post-trial motion, and just one appeal pends before the appellate court at anyone time. In short, the Rules of Appellate Procedure evince a consistent and coherent view of the finality and appealability of district court judgments subject to post-trial motions. The majority of post-trial motions, such as Rule 59, render the 403 underlying judgment nonfinal both when filed before an appeal is taken (thus tolling the time for taking an appeal), and when filed after the notice of appeal (thus divesting the appellate court of jurisdiction). Other motions, such as Rule 60(b) motions filed more than 10 days after judgment, do not affect the finality of a district court's judgment, either when filed before the appeal (no tolling), or afterwards (appellate court jurisdiction not divested). Motions that do toll the time for taking appeal give rise to only one appeal in which all matters are reviewed; motions that do not toll the time for taking an appeal give rise to two separate appellate proceedings that can be consolidated. E Our colleagues in dissent agree that the consolidation provision envisions the existence of two separate petitions for review. See post, at 408. To give the provision meaning while at the same time concluding that the tolling rule applies, the dissent is compelled to conclude that a reconsideration motion before the BIA renders the original order nonfinal if made before a petition for judicial review is filed but does not affect the finality of the order if filed afterwards. See post, at 413-414. The hybrid tolling rule the dissent suggests has no analogue at all in the appellate court-district court context. On the contrary, as we have just observed, the uniform principle where appellate review of district court judgments is concerned is that motions that toll produce but one appeal, motions that do not toll produce two. It is only by creating this new hybrid that the dissent can give meaning to the consolidation provision, and avoid the Hobson's choice for the alien. While litigants who practice before the district courts and the BIA will have familiarity with both types of post-trial motions discussed above, and will have no difficulty practicing under the rule we announce today, practitioners would have no familiarity with the hy- 404 brid tolling rule the dissent is compelled to devise in order to give the consolidation provision meaning. It is worthwhile pausing to consider just how many steps the dissent must take to reconcile the consolidation provision with the tolling rule it prefers. The dissent's construction would require that the Court conclude, without any briefing, that our decision in Griggs does not apply to agency review. The dissent would as well disrupt administrative law in general by overturning the practice of the Court of Appeals with the most experience reviewing agency decisions when faced with agency reconsideration motions made after petition for review (the District of Columbia Circuit), thereby resolving a circuit split without any briefing or argument. See post, at 412. Our construction avoids each of these extraordinary steps. It creates a practice parallel to that of appellate courts reviewing district court judgments subject to pending Rule 60(b) motions filed more than 10 days after judgment and requires us to take no firm position on whether Griggs applies to agency review where tolling does occur. But the full import of our decision in Griggs, and the concomitant problem addressed in Wade, are in some sense secondary to our fundamental point of dispute with the dissent. In our view the consolidation provision reflects Congress' intent to depart from the normal tolling rule in this context, whereas on the dissent's view it does not. Congress itself was explicit in stating that the consolidation provision is an exception to the applicability of the Hobbs Act procedures, see supra, at 393, and it took the deliberate step of amending the Act in 1990 to add the provision. The challenge for the dissent is not, then, just to give the consolidation provision some work to do that is consistent with the tolling rule, but to give it some work as an exception to the applicability of the Hobbs Act procedures, a meaning that explains why Congress might have taken trouble to add it. The dissent's construction of the consolidation provision gives it effect, if any, only in what must be those rare instances where aliens first 405 petition for judicial review and then seek agency reconsideration. And, more important, its construction cannot account for Congress' decision to amend the Act in 1990 to provide that the Hobbs Act procedures, which in the normal course include the tolling rule, shall apply "except" for the consolidation provision. F Whatever assessment Congress might have made in enacting the judicial review provisions of the INA in the first instance, we conclude from the consolidation provision added in 1990 that it envisioned two separate petitions filed to review two separate final orders. To be sure, it would have been preferable for Congress to have spoken with greater clarity. Judicial review provisions, however, are jurisdictional in nature and must be construed with strict fidelity to their terms. As we have explained: "Section 106(a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes." Cheng Fan Kwok v. INS, 392 U. S. 206 , 212 (1968). This is all the more true of statutory provisions specifying the timing of review, for those time limits are, as we have often stated, "mandatory and jurisdictional," Missouri v. Jenkins, 495 U. S. 33 , 45 (1990), and are not subject to equitable tolling. See Fed. Rule App. Proc. 26(b). *** The consolidation provision in § 106(a)(6) reflects Congress' understanding that a deportation order is final, and reviewable, when issued. Its finality is not affected by the subsequent filing of a motion to reconsider. The order being final when issued, an alien has 90 days from that date to seek review. The alien, if he chooses, may also seek agency re- 406 consideration of the order and seek review of the disposition upon reconsideration within 90 days of its issuance. Where the original petition is still before the court, the court shall consolidate the two petitions. See 8 U. S. C. § 1l05a(a)(6) (1988 ed., Supp. V). Because Stone's petition was filed more than 90 days after the issuance of the BIA's July 26, 1991, decision, the Court of Appeals lacked jurisdiction to review that order. The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE BREYER, with whom JUSTICE O'CONNOR and JUSTICE SOUTER join, dissenting. The majority reads § 106(a) of the Immigration and N ationality Act (INA), 8 U. S. C. § 1l05a(a) (1988 ed., Supp. V), as creating an exception to the ordinary legal rules that govern the interaction of (1) motions for agency reconsideration with (2) time limits for appeals. In my view, the statute does not create such an exception. And, reading it to do so risks unnecessary complexity in the technical, but important, matter of how one petitions a court for judicial review of an adverse agency decision. For these reasons, I dissent. This Court, in ICC v. Locomotive Engineers, 482 U. S. 270 (1987), considered the interaction between reconsideration motions and appeal time limits when one wants to petition a court of appeals to review an adverse judgment of an administrative agency (which I shall call an "agency/court" appeal). The Court held that this interaction resembled that which takes place between (1) an appeal from a district court judgment to a court of appeals (which I shall call a "court/court" appeal) and (2) certain motions for district court reconsideration, namely, those filed soon after entry of the district court judgment. See Fed. Rule App. Proc. 4(a)(4). The relevant statute (commonly called the Hobbs Act) said that a petition for review of a final agency order may be filed in the court 407 of appeals "within 60 days after its entry." 28 U. S. C. § 2344. The Court concluded, on the basis of precedent, that the filing of a proper petition for reconsideration, "within the period allotted for judicial review of the original order ... tolls the period for judicial review of the original order." 482 U. S., at 279. That order can "be appealed to the courts ... after the petition for reconsideration is denied." Ibid. See also id., at 284-285. In my view, we should interpret the IN A as calling for tolling, just as we interpreted the Hobbs Act in Locomotive Engineers. For one thing, the appeals time limit language in the IN A is similar to that in the Hobbs Act. Like the Hobbs Act, the INA does not mention tolling explicitly; it simply says that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." INA § 106(a)(1), 8 U. S. C. § 1l05a(a)(1) (1988 ed., Supp. V). More importantly, the INA explicitly states that the "procedure prescribed by, and all the provisions of [the Hobbs Act, 28 U. S. C. § 2341 et seq.,] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." INA § 106(a), 8 U. S. C. § 1l05a(a). This statutory phrase is not conclusive because it is followed by several exceptions, one of which is the subsection setting the "[t]ime for filing [a] petition" for review. INA § 106(a)(1), 8 U. S. C. § 1l05a(a)(1). But, the context suggests that the reason for calling the latter clause an exception lies in the number of days permitted for filing90 in the INA, as opposed to 60 in the Hobbs Act. Nothing in the language of § 106(a) (which was amended three years after Locomotive Engineers, see Immigration Act of 1990, § 545(b), 104 Stat. 5065) suggests any further exception in respect to tolling. Finally, interpreting the INA and the Hobbs Act consistently makes it easier for the bar to understand, and to follow, these highly technical rules. With consistent rules, a nonimmigration-specialist lawyer (say, a lawyer used to working 408 in the ordinary agency/court context) who seeks reconsideration of a Board of Immigration Appeals (BIA) decision is less likely to lose his client's right to appeal simply through inadvertence. The majority reaches a different conclusion because it believes that one subsection of the INA, § 106(a)(6), is inconsistent with the ordinary Locomotive Engineers tolling rule. That subsection says that "whenever a petitioner seeks [(1)] review of [a final deportation] order ... any [(2)] review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U. S. C. § 1l05a(a)(6) (1988 ed., Supp. V). This "consolidation" subsection, however, says nothing about tolling. Indeed, it does not address, even in a general way, the timing of petitions for judicial review; it just says what must happen when two reviews make it separately to the court of appeals and are on the court's docket at the same time (i. e., they must be consolidated). And, the legislative history is likewise silent on the matter. See, e. g., H. R. Conf. Rep. No. 101-955, pp. 132-133 (1990). Given that § 106(a)(6) was enacted only three years after Locomotive Engineers, it seems unlikely that Congress consciously created a significantly different approach to the reviewdeadline/reconsideration-petition problem (with the consequent risk of confusing lawyers) in so indirect a manner. Nevertheless, the majority believes this subsection is inconsistent with the ordinary Locomotive Engineers tolling rule because application of the ordinary tolling rule would normally lead an alien to appeal both (1) the original deportation order and (2) a denial of agency reconsideration, in a single petition, after the denial takes place. Thus, in the majority's view, one could never find (1) a petition to review an original deportation order and (2) a petition to review a denial of a motion to reconsider that order, properly together 409 in the court of appeals at the same time. And, for that reason, there would be nothing to "consolidate" under the statute. An opposite rule (one which denies tolling) would, in the majority's view, sometimes produce (simultaneously) both (1) an initial appeal from the original order and (2) an appeal from a denial of reconsideration (if the reconsideration motion were decided, and the second appeal taken, before the court could decide the initial appeal). The "notolling" rule would therefore sometimes produce two appeals, ready for consolidation. The majority concludes that it must infer this "no-tolling" rule in order to give the "consolidation" subsection some work to do and thereby make it legally meaningful. I do not believe it necessary, however, to create a special exception from the ordinary Locomotive Engineers tolling rule in order to make the "consolidation" subsection meaningful, for even under that ordinary tolling rule, the "consolidation" subsection will have work to do. Consider the following case: The BIA enters a final deportation order on Day Zero. The alien files a timely petition for review in a court of appeals on Day 50. Circumstances suddenly change-say, in the alien's home country-and on Day 70 the alien then files a motion to reopen with the agency. (The majority says such a filing "must be" a "rare" happening, ante, at 404, but I do not see why. New circumstances justifying reopening or reconsideration might arise at any time. Indeed, this situation must arise with some frequency, since INS regulations expressly recognize that a motion to reopen or reconsider may be filed after judicial review has been sought. See, e. g., 8 CFR § 3.8(a) (1994) (requiring that motions to reopen or reconsider state whether the validity of the order to be reopened has been, or is, the subject of a judicial proceeding).) The agency denies the reconsideration motion on Day 100. The alien then appeals that denial on Day 110. In this case, the court of appeals would have before it two appeals: the appeal filed on Day 50 and the appeal filed on 410 Day 110. The "consolidation" subsection tells the court of appeals to consolidate those two appeals and decide them together. (In fact, the alien might well have informed the court of appeals, say on Day 70, about the reconsideration motion, in which case the court, unless it thought the motion a frivolous stalling device, might have postponed decision on the merits of the initial appeal, awaiting the results of the reconsideration decision, an appeal from which it could then consolidate with the initial appeal. See, e. g., Gebremichael v. INS, 10 F.3d 28 , 33, n. 13 (CA1 1993) (decision on appeal stayed until the agency resolved alien's motion for reconsideration; initial appeal then consolidated with the appeal from the denial of rehearing).) In this example, the subsection would have meaning as an "exception" to the Hobbs Act, cf. ante, at 404-405, since nothing in the Hobbs Act requires the consolidation of court reviews. The majority understands this counterexample, but rejects it, for fear of creating both a conceptual and a precedential problem. Neither of those perceived problems, however, is significant. The conceptual problem the majority fears arises out of the fact that, under the ordinary tolling rule, the filing of a petition for reconsideration is deemed to render an otherwise "final" initial (but not-yet-appealed) order "nonfinal" for purposes of court review. Hence, one may not appeal the merits of that initial order until the district court or agency finally decides the reconsideration petition. The majority believes that the reconsideration petition in the counterexample above (a petition filed after an appeal is taken from the initial order) also renders "nonfinal," and hence not properly appealable, the initial order, removing the initial appeal from the court of appeals, and thereby leaving nothing to consolidate. The answer to this conceptual argument lies in the "general principle" that "jurisdiction, once vested, is not divested, although a state of things should arrive in which original jurisdiction could not be exercised." United States v. The 411 Little Charles, 26 F. Cas. 979, 982 (No. 15,612) (CC Va. 1818) (Marshall, C. J., Circuit Justice), quoted in Republic Nat. Bank of Miami v. United States, 506 U. S. 80 (1992). The first appeal, as of Day 50, has reached the court of appeals. Thus, conceptually speaking, one should not consider a later filed motion for reconsideration as having "divested" the court of jurisdiction. And, practically speaking, it makes sense to leave the appeal there, permitting the court of appeals to decide it, or to delay it, as circumstances dictate (say, depending upon the extent to which effort and resources already have been expended in prosecuting and deciding the appeal). After all, we have long recognized that courts have inherent power to stay proceedings and "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U. S. 248 , 254 (1936); cf. 28 U. S. C. § 1367(c)(3) (1988 ed., Supp. V) (providing that district court may, but need not, decline to exercise supplemental jurisdiction over a claim when it has dismissed all claims over which it has original jurisdiction). The precedential problem, in the majority's view, arises out of Griggs v. Provident Consumer Discount Co., 459 U. S. 56 (1982) (per curiam), a court/court case in which this Court held that the filing of a reconsideration motion under Federal Rule of Civil Procedure 59 caused an earlier filed notice of appeal to "'self-destruc[tJ,'" 459 U. S., at 61, despite the fact that the earlier-filed notice had "vested" the Court of Appeals with "jurisdiction." Were the same principle to apply in the agency/court context, then the reconsideration motion filed on Day 70 would cause the earlier filed petition for review, filed on Day 50, to "self-destruct," leaving nothing for the court of appeals to consolidate with an eventual appeal from an agency denial of a reconsideration motion (on Day 100). Griggs, however, does not apply in the agency/court context. This Court explicitly rested its decision in Griggs upon the fact that a specific Federal Rule of Appellate Proce- 412 dure, Rule 4(a)(4), provides for the "self-destruction." That Rule says that upon the filing of, say, a Rule 59 motion to amend a district court judgment, a "notice of appeal filed before the disposition of [e. g., that Rule 59 motion] shall have no effect." By its terms, Rule 4(a)(4) applies only in the court/court context; and, to my knowledge, there is no comparable provision applicable in agency/court contexts such as this one. In the absence of such a provision, Griggs explicitly adds that the "district courts and courts of appeals would both have had the power to modify the same judgment," 459 U. S., at 60 (emphasis added)-as I believe the agency and the Court of Appeals have here. I recognize that at least one Court of Appeals has adopted an agency/court rule analogous to the "self-destruct" rule set forth in Rule 4(a)(4). Wade v. FCC, 986 F.2d 1433 , 1434 (CADC 1993) (per curiam); see also Losh v. Brown, 6 Vet. App. 87, 89 (1993). But see Berroteran-Melendez v. INS, 955 F.2d 1251 , 1254 (CA9 1992) (court retains jurisdiction when motion to reopen is filed after the filing of a petition for judicial review); Lozada v. INS, 857 F.2d 10 , 12 (CA1 1988) (court retained jurisdiction over petition for review notwithstanding later filed motion to reopen, but held case in abeyance pending agency's decision on the motion). That court's conclusion, however, was based upon a single observation: that "[t]he danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal." Wade, supra, at 1434 (citations omitted) (referring to the danger that the agency's ruling might change the order being appealed, thereby mooting the appeal and wasting any appellate effort expended). While this observation is true enough, it does not justify the "self-destruct" rule, because it fails to take into account other important factors, namely, (a) the principle that jurisdiction, once vested, is generally not divested, and (b) the fact that, in some cases (say, when 413 briefing and argument already have been completed in the court of appeals) judicial economy may actually weigh against stripping the court of jurisdiction. On this last point, it is significant that under the Federal Rules, the motions to revise or reopen court judgments that cause an earlier filed appeal to "self-destruct" must be filed within a few days after the entry of judgment. See, e. g., Fed. Rule Civ. Proc. 4(a)(4) (10 days). The agency rules before us, in contrast, permit a motion for reconsideration (or reopening) well after the entry of the agency's final order. See 8 CFR § 3.8(a) (1994) (no time limit on motion for reconsideration filed with BIA). See also, e. g., 10 CFR § 2. 734(a)(1) (1995) (Nuclear Regulatory Commission may consider untimely motion to reopen where "grave issue" raised). This timing difference means that it is less likely in the court/court context than in the agency/court context that "self-destruction" of an earlier filed notice of appeal would interrupt (and therefore waste) a court of appeals review already well underway. Consequently, this Court should not simply assume that the court/court rule applies in the agency/court context. The majority ultimately says we ought not decide whether the "self-destruct" rule applies in the agency/court context. Ante, at 397, 404. But, the decision cannot be avoided. That is because the majority's basic argument-that a tolling rule would deprive the consolidation subsection of meaning-depends upon the assumption that the "self-destruct" rule does apply. And, for the reasons stated above, that assumption is not supported by any statutory or rule-based authority. Because this matter is so complicated, an analogy to the court/court context may help. In that context, in a normal civil case, a losing party has 30 days to file an appeal (60, if the Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules then distinguish between two kinds of reconsideration motions: those filed within 10 days (including motions for relief from judgment under Federal Rule of Civil Proce- 414 dure 60(b)), which toll the time for appeal, and those filed after 10 days (in the main, other Rule 60(b) motions), which do not toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a party files a motion of the first sort (which I shall call an "immediate" reconsideration motion), a previously filed notice of appeal "self-destructs." Ibid. When a party files a motion of the second sort (which I shall call a "distant" reconsideration motion), a previously filed notice of appeal remains valid. A complex set of rules creates this system, and lawyers normally refer to those rules in order to understand what they are supposed to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure cited therein). Agency reconsideration motions are sometimes like "immediate" court reconsideration motions, filed soon after entry of a final order, but sometimes they are like "distant" reconsideration motions, filed long after entry of a final order. (Petitioner in this case filed his motion 35 days after entry of an order that he had 90 days to appeal.) The problem before us is that we lack precise rules, comparable to the Federal Rules of Appellate and Civil Procedure, that distinguish (for appeal preserving purposes) between the "immediate" and the "distant" reconsideration motion. We therefore must read an immigration statute, silent on these matters, in one of three possible ways: (1) as creating rules that make Federal Rules-type distinctions; (2) in effect, as analogizing an agency reconsideration motion to the "distant" court reconsideration motion (and denying tolling); or (3) in effect, as analogizing an agency reconsideration motion to the "immediate" court reconsideration motion (and permitting tolling). The first possibility is a matter for the appropriate Rules Committees, not this Court. Those bodies can focus directly upon the interaction of reconsideration motions and appellate time limits; they can consider relevant similarities and differences between agency/court and court/court appeals; and they can consider the relevance of special, immigration- 415 related circumstances, such as the fact that the filing of a petition for review from a "final" deportation order automatically stays deportation, INA § 106(a)(3), 8 U. s. C. § l105a(a)(3) (1988 ed., Supp. V). The second possibility (that adopted by the majority) creates a serious risk of unfair loss of a right to appeal, because it is inconsistent with Locomotive Engineers (thereby multiplying complexity). And, it has no basis in the INA, which generally incorporates the procedures of the Hobbs Act and the text and history of which simply do not purport to make an exception denying tolling. The third possibility, in my view, is the best of the three, for it promotes uniformity in practice among the agencies; it is consistent with the Hobbs Act, whose procedures the INA generally adopts; and it thereby helps to avoid inadvertent or unfair loss of the right to appeal. The upshot is that Locomotive Engineers, Griggs, the language of the immigration statute before us, the language of the Federal Rules, and various practical considerations together argue for an interpretation of INA § 106(a) that both (1) permits the filing of a motion for reconsideration to toll the time for petitioning for judicial review (when no petition for review has yet been filed), and (2) permits court review that has already "vested" in the court of appeals to continue there (when the petition for review was filed prior to the filing of the motion for reconsideration). This interpretation simply requires us to read the language of the IN A as this Court read the Hobbs Act in Locomotive Engineers. It would avoid creating any "Hobson's choice" for the alien, cf. ante, at 398-399, for an alien could both appeal (thereby obtaining an automatic stay of deportation, INA § 106(a)(3), 8 U. S. C. § l105a(a)(3)), and then also petition for reconsideration. And, it would avoid entrapping the unwary lawyer who did not immediately file a petition for court review, thinking that a reconsideration petition would toll the appeal time limit as it does in other agency/court contexts. 416 This approach does not undermine Congress' goal of expediting the deportation-order review process. Although the court of appeals might postpone decision of an appeal pending the agency's decision on a later filed motion to reopen or reconsider, it need not do so. If the motion is frivolous, or made for purposes of delay, the INS can call that fact to the court's attention. And, of course, the agency can simply decide the motion quickly. The alien could prevent the court of appeals from acting by not filing an appeal from the original order, but, instead (as here) simply filing a reconsideration motion. That motion would toll the time for taking an appeal. But, the fact that the alien would lose the benefit of the automatic stay would act as a check on aliens filing frivolous reconsideration motions (without filing an appeal) solely for purposes of delay. The majority, and the parties, compare and contrast the tolling and nontolling rules in various court-efficiency and delay-related aspects. But, on balance, these considerations do not argue strongly for one side or the other. When Congress amended the INA in 1990 (adding, among other things, the consolidation subsection) it did hope to diminish delays. But, the statute explicitly set forth several ways of directly achieving this objective. See, e. g., Immigration Act of 1990, § 545(a), 104 Stat. 5063 (creating IN A § 242B(d), 8 U. S. C. § 1252b(d), directing the Attorney General to issue regulations providing for summary dismissal of, and attorney sanctions for, frivolous administrative appeals); § 545(b)(1) (reducing time for petitioning for review from 6 months to 90 days); § 545(d)(1) (directing the Attorney General to issue regulations limiting the number of motions to reopen and to reconsider an alien may file and setting a maximum time period for the filing of such motions); § 545(d)(2) (directing the Attorney General to do the same with respect to the number and timing of administrative appeals). Significantly, the statute did not list an antitolling rule as one of those ways. At the same time, Congress enacted certain 417 measures apparently designed to make the deportationorder review process more efficient. See, e. g., § 545(d)(2) (asking the Attorney General to issue regulations specifying that the administrative appeal of a deportation order must be consolidated with the appeal of all motions to reopen or reconsider that order; providing for the filing of appellate and reply briefs; and identifying the items to be included in the notice of administrative appeal). In light of these last mentioned provisions, the consolidation subsection would seem consistent with Congress' purposes in 1990 even without an implicit no-tolling rule. Indeed, the Attorney General has construed one of these last mentioned 1990 amendments as authorizing, in a somewhat analogous situation, a tolling provision roughly similar to that in Locomotive Engineers. In § 545(d)(2) of the 1990 Act, Congress asked the Attorney General to issue regulations with respect to "the consolidation of motions to reopen or to reconsider [an Immigration Judge's deportation order] with the appeal [to the BIA] of [that] order." 104 Stat. 5066 (emphasis added). In response, the Attorney General has proposed a regulation saying, among other things, that "[a] motion to reopen a decision rendered by an Immigration Judge ... that is pending when an appeal [to the BIA] is filed ... shall be deemed a motion to remand [the administrative appeal] for further proceedings before the Immigration Judge .... Such motion ... shall be consolidated with, and considered by the Board [later] in connection with, the appeal to the Board .... " 59 Fed. Reg. 29386, 29388 (1994) (proposed new 8 CFR § 3.2(c)(4)). See also 59 Fed. Reg., at 29387 (proposed new § 3.2(b) (parallel provision for motions to reconsider)). This approach, which is comparable to the Locomotive Engineers tolling rule, would govern the interaction of administrative appeals and motions to reopen the decision of an Immigration Judge. It seems logical that Congress might want the same rule to govern the analogous situation concerning the interaction of petitions for judicial 418 review and motions to reconsider or reopen a decision of the BIA. One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR § 243.1 (1994), which, it says, interprets IN A § 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 843 (1984). The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR § 243.1 (1994) ("[A]n order of deportation ... shall become final upon [the BIA's] dismissal of an appeal" from the order of a single immigration judge), with the language at issue in Locomotive Engineers, 49 U. S. C. § 10327(i) ("[A]n action of the [Interstate Commerce] Commission ... is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with Chu v. INS, 875 F.2d 777 , 779 (CA9 1989) (in which INS argued that a reconsideration motion makes the initial order nonfinal, and thereby implies tolling). See, e. g., Thomas Jefferson Univ. v. Shalala, 512 U. S. 504 , 514-515 (1994) (inconsistent interpretation entitled to "considerably less deference" than consistently held agency view). For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule. I would reverse the judgment of the Court of Appeals.

The Supreme Court ruled that a motion for reconsideration of a deportation order does not pause the 90-day period for seeking judicial review of the order. The case concerned an individual's deportation order, which was affirmed by the Board of Immigration Appeals (BIA) in 1991. The individual filed a motion to reopen and/or reconsider the deportation order, which was denied in 1993. The individual then sought judicial review of both the deportation order and the denial of the motion to reopen/reconsider. The Court of Appeals dismissed the petition for lack of jurisdiction, holding that the 90-day period for seeking review of the deportation order was not tolled by the filing of the motion to reopen/reconsider. The Supreme Court agreed, finding that the relevant statute, Section 106(a)(6) of the Immigration and Nationality Act, contemplated two separate petitions for review and directed courts to consolidate them. The Court also rejected the argument that a regulation issued by the Immigration and Naturalization Service (INS) eliminated the tolling rule, finding that the regulation did not address tolling and that the INS had interpreted it inconsistently.

Government Agencies

Skinner v. Railway Labor Executives Ass'n

https://supreme.justia.com/cases/federal/us/489/602/

U.S. Supreme Court Skinner v. Railway Lab. Execs. Ass'n, 489 U.S. 602 (1989) Skinner v. Railway Labor Executives' Association No. 87-1555 Argued November 2, 1988 Decided March 21, 1989 489 U.S. 602 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Upon the basis of evidence indicating that alcohol and drug abuse by railroad employees had caused or contributed to a number of significant train accidents, the Federal Railroad Administration (FRA) promulgated regulations under petitioner Secretary of Transportation's statutory authority to adopt safety standards for the industry. Among other things, Subpart C of the regulations requires railroads to see that blood and urine tests of covered employees are conducted following certain major train accidents or incidents, while Subpart D authorizes, but does not require, railroads to administer breath or urine tests, or both, to covered employees who violate certain safety rules. Respondents, the Railway Labor Executives' Association and various of its member labor organizations, brought suit in the Federal District Court to enjoin the regulations. The court granted summary judgment for petitioners, concluding that the regulations did not violate the Fourth Amendment. The Court of Appeals reversed, ruling, inter alia, that a requirement of particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable under the Fourth Amendment. The court stated that such a requirement would ensure that the tests, which reveal the presence of drug metabolites that may remain in the body for weeks following ingestion, are confined to the detection of current impairment. Held: 1. The Fourth Amendment is applicable to the drug and alcohol testing mandated or authorized by the FRA regulations. Pp. 489 U. S. 613 -618. (a) The tests in question cannot be viewed as private action outside the reach of the Fourth Amendment. A railroad that complies with Subpart C does so by compulsion of sovereign authority, and therefore must be viewed as an instrument or agent of the Government. Similarly, even though Subpart D does not compel railroads to test, it cannot be concluded, in the context of this facial challenge, that such testing will be primarily the result of private initiative, since specific features of the regulations combine to establish that the Government has actively encouraged, endorsed, and participated in the testing. Specifically, since Page 489 U. S. 603 the regulations preempt state laws covering the same subject matter, and are intended to supersede collective bargaining and arbitration award provisions, the Government has removed all legal barriers to the testing authorized by Subpart D. Moreover, by conferring upon the FRA the right to receive biological samples and test results procured by railroads, Subpart D makes plain a strong preference for testing and a governmental desire to share the fruits of such intrusions. In addition, the regulations mandate that railroads not bargain away their Subpart D testing authority, and provide that an employee who refuses to submit to such tests must be withdrawn from covered service. Pp. 489 U. S. 614 -616. (b) The collection and subsequent analysis of the biological samples required or authorized by the regulations constitute searches of the person subject to the Fourth Amendment. This Court has long recognized that a compelled intrusion into the body for blood to be tested for alcohol content, and the ensuing chemical analysis, constitute searches. Similarly, subjecting a person to the breath test authorized by Subpart D must be deemed a search, since it requires the production of "deep lung" breath, and thereby implicates concerns about bodily integrity. Moreover, although the collection and testing of urine under the regulations do not entail any intrusion into the body, they nevertheless constitute searches, since they intrude upon expectations of privacy as to medical information and the act of urination that society has long recognized as reasonable. Even if the employer's antecedent interference with the employee's freedom of movement cannot be characterized as an independent Fourth Amendment seizure, any limitation on that freedom that is necessary to obtain the samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches affected by the testing program. Pp. 489 U. S. 616 -618. 2. The drug and alcohol tests mandated or authorized by the FRA regulations are reasonable under the Fourth Amendment, even though there is no requirement of a warrant or a reasonable suspicion that any particular employee may be impaired, since, on the present record, the compelling governmental interests served by the regulations outweigh employees' privacy concerns. Pp. 489 U. S. 618 -633. (a) The Government's interest in regulating the conduct of railroad employees engaged in safety-sensitive tasks in order to ensure the safety of the traveling public and of the employees themselves plainly justifies prohibiting such employees from using alcohol or drugs while on duty or on call for duty and the exercise of supervision to assure that the restrictions are in fact observed. That interest presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. Pp. 489 U. S. 618 -621. Page 489 U. S. 604 (b) Imposing a warrant requirement in the present context is not essential to render the intrusions at issue reasonable. Such a requirement would do little to further the purposes of a warrant, since both the circumstances justifying toxicological testing and the permissible limits of such intrusions are narrowly and specifically defined by the regulations, and doubtless are well known to covered employees, and since there are virtually no facts for a neutral magistrate to evaluate, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program. Moreover, imposing a warrant requirement would significantly hinder, and in many cases frustrate, the objectives of the testing program, since the delay necessary to procure a warrant could result in the destruction of valuable evidence, in that alcohol and drugs are eliminated from the bloodstream at a constant rate, and since the railroad supervisors who set the testing process in motion have little familiarity with the intricacies of Fourth Amendment jurisprudence. Pp. 489 U. S. 621 -624. (c) Imposing an individualized suspicion requirement in the present context is not essential to render the intrusions at issue reasonable. The testing procedures contemplated by the regulations pose only limited threats to covered employees' justifiable privacy expectations, particularly since they participate in an industry subject to pervasive safety regulation by the Federal and State Governments. Moreover, because employees ordinarily consent to significant employer-imposed restrictions on their freedom of movement, any additional interference with that freedom that occurs in the time it takes to procure a sample from a railroad employee is minimal. Furthermore, Schmerber v. California, 384 U. S. 757 , established that governmentally imposed blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity, and the breath tests authorized by Subpart D are even less intrusive than blood tests. And, although urine tests require employees to perform an excretory function traditionally shielded by great privacy, the regulations reduce the intrusiveness of the collection process by requiring that samples be furnished in a medical environment, without direct observation. In contrast, the governmental interest in testing without a showing of individualized suspicion is compelling. A substance-impaired railroad employee in a safety-sensitive job can cause great human loss before any signs of the impairment become noticeable, and the regulations supply an effective means of deterring such employees from using drugs or alcohol by putting them on notice that they are likely to be discovered if an accident occurs. An individualized suspicion requirement would also impede railroads' ability to obtain valuable information about the causes of accidents or incidents and how to protect the public, since obtaining evidence giving rise to the suspicion Page 489 U. S. 605 that a particular employee is impaired is impracticable in the chaotic aftermath of an accident, when it is difficult to determine which employees contributed to the occurrence and objective indicia of impairment are absent. The Court of Appeals' conclusion that the regulations are unreasonable because the tests in question cannot measure current impairment is flawed. Even if urine test results disclosed nothing more specific than the recent use of controlled substances, this information would provide the basis for a further investigation, and might allow the FRA to reach an informed judgment as to how the particular accident occurred. More importantly, the court overlooked the FRA's policy of placing principal reliance on blood tests, which unquestionably can identify recent drug use, and failed to recognize that the regulations are designed not only to discern impairment, but to deter it. Pp. 489 U. S. 624 -632. 839 F.2d 575, reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and in all but portions of Part III of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 489 U. S. 634 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 489 U. S. 635 Page 489 U. S. 606 JUSTICE KENNEDY delivered the opinion of the Court. The Federal Railroad Safety Act of 1970 authorizes the Secretary of Transportation to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety." 84 Stat. 971, 45 U.S.C. § 431(a). Finding that alcohol and drug abuse by railroad employees poses a serious threat to safety, the Federal Railroad Administration (FRA) has promulgated regulations that mandate blood and urine tests of employees who are involved in certain train accidents. The FRA also has adopted regulations that do not require, but do authorize, railroads to administer breath and urine tests to employees who violate certain safety rules. The question presented by this case is whether these regulations violate the Fourth Amendment. I A The problem of alcohol use on American railroads is as old as the industry itself, and efforts to deter it by carrier rules began at least a century ago. For many years, railroads have prohibited operating employees from possessing alcohol or being intoxicated while on duty, and from consuming alcoholic beverages while subject to being called for duty. More recently, these proscriptions have been expanded to forbid possession or use of certain drugs. These restrictions are Page 489 U. S. 607 embodied in "Rule G," an industry-wide operating rule promulgated by the Association of American Railroads, and are enforced, in various formulations, by virtually every railroad in the country. The customary sanction for Rule G violations is dismissal. In July, 1983, the FRA expressed concern that these industry efforts were not adequate to curb alcohol and drug abuse by railroad employees. The FRA pointed to evidence indicating that on-the-job intoxication was a significant problem in the railroad industry. [ Footnote 1 ] The FRA also found, after a review of accident investigation reports, that, from 1972 to 1983, "the nation's railroads experienced at least 21 significant train accidents involving alcohol or drug use as a probable cause or contributing factor," and that these accidents "resulted in 25 fatalities, 61 non-fatal injuries, and property damage estimated at $19 million (approximately $27 million in 1982 dollars)." 48 Fed.Reg. 30726 (1983). The FRA further identified "an additional 17 fatalities to operating employees working on or around rail rolling stock that involved alcohol or drugs as a contributing factor." Ibid. In light of these problems, the FRA solicited comments from interested parties on a various regulatory approaches to the problems of alcohol and drug abuse throughout the Nation's railroad system. Comments submitted in response to this request indicated that railroads were able to detect a relatively small number of Rule G violations, owing, primarily, to their practice of Page 489 U. S. 608 relying on observation by supervisors and coworkers to enforce the rule. 49 Fed.Reg. 24266-24267 (1984). At the same time, "industry participants . . . confirmed that alcohol and drug use [did] occur on the railroads with unacceptable frequency," and available information from all sources "suggest[ed] that the problem includ[ed] 'pockets' of drinking and drug use involving multiple crew members (before and during work), sporadic cases of individuals reporting to work impaired, and repeated drinking and drug use by individual employees who are chemically or psychologically dependent on those substances." Id. at 24253-24254. "Even without the benefit of regular post-accident testing," the FRA "identified 34 fatalities, 66 injuries and over $28 million in property damage (in 1983 dollars) that resulted from the errors of alcohol and drug-impaired employees in 45 train accidents and train incidents during the period 1975 through 1983." Id. at 24254. Some of these accidents resulted in the release of hazardous materials and, in one case, the ensuing pollution required the evacuation of an entire Louisiana community. Id. at 24254, 24259. In view of the obvious safety hazards of drug and alcohol use by railroad employees, the FRA announced, in June, 1984, its intention to promulgate federal regulations on the subject. B After reviewing further comments from representatives of the railroad industry, labor groups, and the general public, the FRA, in 1985, promulgated regulations addressing the problem of alcohol and drugs on the railroads. The final regulations apply to employees assigned to perform service subject to the Hours of Service Act, ch. 2939, 34 Stat. 1415, as amended, 45 U.S.C. § 61 et seq. The regulations prohibit covered employees from using or possessing alcohol or any controlled substance. 49 CFR § 219.101(a)(1) (1987). The regulations further prohibit those employees from reporting for covered service while under the influence of, or Page 489 U. S. 609 impaired by, alcohol, while having a blood alcohol concentration of .04 or more, or while under the influence of, or impaired by, any controlled substance. § 219.101(a)(2). The regulations do not restrict, however, a railroad's authority to impose an absolute prohibition on the presence of alcohol or any drug in the body fluids of persons in its employ, § 219.101(c), and, accordingly, they do not "replace Rule G or render it unenforceable." 50 Fed.Reg. 31538 (1985). To the extent pertinent here, two subparts of the regulations relate to testing. Subpart C, which is entitled "Post-Accident Toxicological Testing," is mandatory. It provides that railroads "shall take all practicable steps to assure that all covered employees of the railroad directly involved . . . provide blood and urine samples for toxicological testing by FRA," § 219.203(a), upon the occurrence of certain specified events. Toxicological testing is required following a "major train accident," which is defined as any train accident that involves (i) a fatality, (ii) the release of hazardous material accompanied by an evacuation or a reportable injury, or (iii) damage to railroad property of $500,000 or more. § 219.201 (a)(1). The railroad has the further duty of collecting blood and urine samples for testing after an "impact accident," which is defined as a collision that results in a reportable injury, or in damage to railroad property of $50,000 or more. § 219.201(a)(2). Finally, the railroad is also obligated to test after "[a]ny train incident that involves a fatality to any on-duty railroad employee." § 219.201(a)(3). After occurrence of an event which activates its duty to test, the railroad must transport all crew members and other covered employees directly involved in the accident or incident to an independent medical facility, where both blood and urine samples must be obtained from each employee. [ Footnote 2 ] After Page 489 U. S. 610 the samples have been collected, the railroad is required to ship them by prepaid air freight to the FRA laboratory for analysis. § 219.205(d). There, the samples are analyzed using "state-of-the-art equipment and techniques" to detect and measure alcohol and drugs. [ Footnote 3 ] The FRA proposes to place primary reliance on analysis of blood samples, as blood is "the only available body fluid . . . that can provide a clear indication not only of the presence of alcohol and drugs but also their current impairment effects." 49 Fed.Reg. 24291 (1984). Urine samples are also necessary, however, because drug traces remain in the urine longer than in blood, and in some cases it will not be possible to transport employees to a medical facility before the time it takes for certain drugs to be eliminated from the bloodstream. In those instances, a "positive urine test, taken with specific information on the pattern of elimination for the particular drug and other information on the behavior of the employee and the circumstances of the accident, may be crucial to the determination of" the cause of an accident. Ibid. The regulations require that the FRA notify employees of the results of the tests and afford them an opportunity to respond in writing before preparation of any final investigative report. See § 219.211(a)(2). Employees who refuse to provide required blood or urine samples may not perform covered Page 489 U. S. 611 service for nine months, but they are entitled to a hearing concerning their refusal to take the test. § 219.213. Subpart D of the regulations, which is entitled "Authorization to Test for Cause," is permissive. It authorizes railroads to require covered employees to submit to breath or urine tests in certain circumstances not addressed by Subpart C. Breath or urine tests, or both, may be ordered (1) after a reportable accident or incident, where a supervisor has a "reasonable suspicion" that an employee's acts or omissions contributed to the occurrence or severity of the accident or incident, § 219.301(b)(2); or (2) in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding, § 219.301(b)(3). A railroad also may require breath tests where a supervisor has a "reasonable suspicion" that an employee is under the influence of alcohol, based upon specific, personal observations concerning the appearance, behavior, speech, or body odors of the employee. § 219.301(b)(1). Where impairment is suspected, a railroad, in addition, may require urine tests, but only if two supervisors make the appropriate determination, § 219.301(c)(2)(i), and, where the supervisors suspect impairment due to a substance other than alcohol, at least one of those supervisors must have received specialized training in detecting the signs of drug intoxication, § 219.301(c)(2)(ii). Subpart D further provides that, whenever the results of either breath or urine tests are intended for use in a disciplinary proceeding, the employee must be given the opportunity to provide a blood sample for analysis at an independent medical facility. § 219.303(c). If an employee declines to give a blood sample, the railroad may presume impairment, absent persuasive evidence to the contrary, from a positive showing of controlled substance residues in the urine. The railroad must, however, provide detailed notice of this presumption to its employees, and advise them of their right to provide a contemporaneous blood sample. As in the case of samples procured under Subpart C, the regulations set forth Page 489 U. S. 612 procedures for the collection of samples, and require that samples "be analyzed by a method that is reliable within known tolerances." § 219.307(b). C Respondents, the Railway Labor Executives' Association and various of its member labor organizations, brought the instant suit in the United States District Court for the Northern District of California, seeking to enjoin the FRA's regulations on various statutory and constitutional grounds. In a ruling from the bench, the District Court granted summary judgment in petitioners' favor. The court concluded that railroad employees "have a valid interest in the integrity of their own bodies" that deserved protection under the Fourth Amendment. App. to Pet. for Cert. 53a. The court held, however, that this interest was outweighed by the competing "public and governmental interest in the . . . promotion of . . . railway safety, safety for employees, and safety for the general public that is involved with the transportation." Id. at 52a. The District Court found respondents' other constitutional and statutory arguments meritless. A divided panel of the Court of Appeals for the Ninth Circuit reversed. Railway Labor ExecUtives' Assn. v. Burnley, 839 F.2d 575 (1988). The court held, first, that tests mandated by a railroad in reliance on the authority conferred by Subpart D involve sufficient Government action to implicate the Fourth Amendment, and that the breath, blood, and urine tests contemplated by Page 489 U. S. 613 the FRA regulations are Fourth Amendment searches. The court also "agre[ed] that the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant." Id. at 583. The court further held "that accommodation of railroad employees' privacy interest with the significant safety concerns of the government does not require adherence to a probable cause requirement," and, accordingly, that the legality of the searches contemplated by the FRA regulations depends on their reasonableness under all the circumstances. Id. at 587. The court concluded, however, that particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable. Ibid. A requirement of individualized suspicion, the court stated, would impose "no insuperable burden on the government," id. at 588, and would ensure that the tests are confined to the detection of current impairment, rather than to the discovery of "the metabolites of various drugs, which are not evidence of current intoxication and may remain in the body for days or weeks after the ingestion of the drug." Id. at 588-589. Except for the provisions authorizing breath and urine tests on a "reasonable suspicion" of drug or alcohol impairment, 49 CFR §§ 219.301(b)(1) and (c)(2) (1987), the FRA regulations did not require a showing of individualized suspicion, and, accordingly, the court invalidated them. Judge Alarcon dissented. He criticized the majority for "fail[ing] to engage in [a] balancing of interests" and for focusing instead "solely on the degree of impairment of the workers' privacy interests." 839 F.2d at 597. The dissent would have held "that the government's compelling need to assure railroad safety by controlling drug use among railway personnel outweighs the need to protect privacy interests." Id. at 596. We granted the federal parties' petition for a writ of certiorari, 486 U.S. 1042 (1988), to consider whether the regulations invalidated by the Court of Appeals violate the Fourth Amendment. We now reverse. II The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary Page 489 U. S. 614 and invasive acts by officers of the Government or those acting at their direction. Camara v. Municipal Court of San Francisco, 387 U. S. 523 , 387 U. S. 528 (1967). See also Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 653 -654 (1979); United States v. Martinez-Fuerte, 428 U. S. 543 , 428 U. S. 554 (1976). Before we consider whether the tests in question are reasonable under the Fourth Amendment, we must inquire whether the tests are attributable to the Government or its agents, and whether they amount to searches or seizures. We turn to those matters. A Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. See United States v. Jacobsen, 466 U. S. 109 , 466 U. S. 113 -114 (1984); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 487 (1971). See also Burdeau v. McDowell, 256 U. S. 465 , 256 U. S. 475 (1921). A railroad that complies with the provisions of Subpart C of the regulations does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment. Petitioners contend, however, that the Fourth Amendment is not implicated by Subpart D of the regulations, as nothing in Subpart D compels any testing by private railroads. We are unwilling to conclude, in the context of this facial challenge, that breath and urine tests required by private railroads in reliance on Subpart D will not implicate the Fourth Amendment. Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, cf. Lustig v. United States, 338 U. S. 74 , 338 U. S. 78 -79 (1949) (plurality opinion); Byars v. United States, 273 U. S. 28 , 273 U. S. 32 -33 (1927), a question that can only be resolved "in light of all the circumstances," Coolidge v. New Hampshire, supra, Page 489 U. S. 615 at 403 U. S. 487 . The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Here, specific features of the regulations combine to convince us that the Government did more than adopt a passive position toward the underlying private conduct. The regulations, including those in Subpart D, preempt state laws, rules, or regulations covering the same subject matter, 49 CFR § 219.13(a) (1987), and are intended to supersede "any provision of a collective bargaining agreement, or arbitration award construing such an agreement," 50 Fed.Reg. 31552 (1985). They also confer upon the FRA the right to receive certain biological samples and test results procured by railroads pursuant to Subpart D. § 219.11(c). In addition, a railroad may not divest itself of, or otherwise compromise by contract, the authority conferred by Subpart D. As the FRA explained, such "authority . . . is conferred for the purpose of promoting the public safety, and a railroad may not shackle itself in a way inconsistent with its duty to promote the public safety." 50 Fed.Reg. 31552 (1985). Nor is a covered employee free to decline his employer's request to submit to breath or urine tests under the conditions set forth in Subpart D. See § 219.11(b). An employee who refuses to submit to the tests must be withdrawn from covered service. See 4 App. to Field Manual 18. In light of these provisions, we are unwilling to accept petitioners' submission that tests conducted by private railroads in reliance on Subpart D will be primarily the result of private initiative. The Government has removed all legal barriers to the testing authorized by Subpart D, and indeed has made plain not only its strong preference for testing but also its desire to share the fruits of such intrusions. In addition, it has mandated that the railroads not bargain away the authority to perform tests granted by Subpart D. These are clear indices of the Government's encouragement, endorsement, Page 489 U. S. 616 and participation, and suffice to implicate the Fourth Amendment. B Our precedents teach that where, as here, the Government seeks to obtain physical evidence from a person, the Fourth Amendment may be relevant at several levels. See, e.g., United States v. Dionisio, 410 U. S. 1 , 410 U. S. 8 (1973). The initial detention necessary to procure the evidence may be a seizure of the person, Cupp v. Murphy, 412 U. S. 291 , 412 U. S. 294 -295 (1973); Davis v. Mississippi, 394 U. S. 721 , 394 U. S. 726 -727 (1969), if the detention amounts to a meaningful interference with his freedom of movement. INS v. Delgado, 466 U. S. 210 , 466 U. S. 215 (1984); United States v. Jacobsen, supra, at 466 U. S. 113 , n. 5. Obtaining and examining the evidence may also be a search, see Cupp v. Murphy, supra, at 412 U. S. 295 ; United States v. Dionisio, supra, at 410 U. S. 8 , 410 U. S. 13 -14, if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable, see, e.g., California v. Greenwood, 486 U. S. 35 , 486 U. S. 43 (1988); United States v. Jacobsen, supra, at 466 U. S. 113 . We have long recognized that a "compelled intrusio[n] into the body for blood to be analyzed for alcohol content" must be deemed a Fourth Amendment search. See Schmerber v. California, 384 U. S. 757 , 384 U. S. 767 -768 (1966). See also Winston v. Lee, 470 U. S. 753 , 470 U. S. 760 (1985). In light of our society's concern for the security of one's person, see, e.g., Terry v. Ohio, 392 U. S. 1 , 392 U. S. 9 (1968), it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee's privacy interests. Cf. Arizona v. Hicks, 480 U. S. 321 , 480 U. S. 324 -325 (1987). Much the same is true of the breath-testing procedures required under Subpart D of the regulations. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or "deep lung" breath for chemical analysis, see, e.g., 467 U. S. Page 489 U. S. 617 Trombetta, 467 U. S. 479 , 467 U. S. 481 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986 (1986). Unlike the blood testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated: "There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms, if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law, as well as social custom." National Treasury Employees UnIon v. Von Raab, 816 F.2d 170, 175 (1987). Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment. [ Footnote 4 ] Page 489 U. S. 618 In view of our conclusion that the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches, we need not characterize the employer's antecedent interference with the employee's freedom of movement as an independent Fourth Amendment seizure. As our precedents indicate, not every governmental interference with an individual's freedom of movement raises such constitutional concerns that there is a seizure of the person. See United States v. Dionisio, 410 U.S. at 410 U. S. 9 -11 (grand jury subpoena, though enforceable by contempt, does not effect a seizure of the person); United States v. Mara, 410 U. S. 19 , 410 U. S. 21 (1973) (same). For present purposes, it suffices to note that any limitation on an employee's freedom of movement that is necessary to obtain the blood, urine, or breath samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches effected by the Government's testing program. Cf. United States v. Place, 462 U. S. 696 , 462 U. S. 707 -709 (1983). III A To hold that the Fourth Amendment is applicable to the drug and alcohol testing prescribed by the FRA regulations Page 489 U. S. 619 is only to begin the inquiry into the standards governing such intrusions. O'Connor v. Ortega, 480 U. S. 709 , 480 U. S. 719 (1987) (plurality opinion); New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 337 (1985). For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U. S. 675 , 470 U. S. 682 (1985); Schmerber v. California, 384 U.S. at 384 U. S. 768 . What is reasonable, of course, "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985). Thus, the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. at 440 U. S. 654 ; United States v. Martinez-Fuerte, 428 U. S. 543 (1976). In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. See United States v. Place, supra, at 462 U. S. 701 , and n. 2; United States v. United States District Court, 407 U. S. 297 , 407 U. S. 315 (1972). Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. See, e.g., Payton v. New York, 445 U. S. 573 , 445 U. S. 586 (1980); Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 390 (1978). We have recognized exceptions to this rule, however, "when 'special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.'" Griffin v. Wisconsin, 483 U. S. 868 , 483 U. S. 873 (1987), quoting New Jersey v. T.L.O., 469 U.S. at 469 U. S. 351 (BLACKMUN, J., concurring in judgment). When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context. See, e.g., Griffin v. Wisconsin, supra, at 483 U. S. 873 (search of probationer's home); New York v. Page 489 U. S. 620 Burger, 482 U. S. 691 , 482 U. S. 699 -703 (1987) (search of premises of certain highly regulated businesses); O'Connor v. Ortega, 480 U.S. at 480 U. S. 721 -725 (work-related searches of employees' desks and offices); New Jersey v. T.L.O., supra, at 469 U. S. 337 -342 (search of student's property by school officials); Bell v. Wolfish, 441 U. S. 520 , 441 U. S. 558 -560 (1979) (body cavity searches of prison inmates). The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, "likewise presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements." Griffin v. Wisconsin, 483 U.S. at 483 U. S. 873 -874. The hours of service employees covered by the FRA regulations include persons engaged in handling orders concerning train movements, operating crews, and those engaged in the maintenance and repair of signal systems. 50 Fed.Reg. 31511 (1985). It is undisputed that these and other covered employees are engaged in safety-sensitive tasks. The FRA so found, and respondents conceded the point at oral argument. Tr. of Oral Arg. 46-47. As we have recognized, the whole premise of the Hours of Service Act is that "[t]he length of hours of service has direct relation to the efficiency of the human agencies upon which protection [of] life and property necessarily depends." Baltimore & Ohio R. Co. v. ICC, 221 U. S. 612 , 221 U. S. 619 (1911). See also Atchison, T. & S. F. R. Co. v. United States, 244 U. S. 336 , 244 U. S. 342 (1917) ("[I]t must be remembered that the purpose of the act was to prevent the dangers which must necessarily arise to the employee and to the public from continuing men in a dangerous and hazardous business for periods so long as to render them unfit to give that service which is essential to the protection of themselves and those entrusted to their care"). The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather "to prevent accidents Page 489 U. S. 621 and casualties in railroad operations that result from impairment of employees by alcohol or drugs." 49 CFR § 219.1(a) (1987). [ Footnote 5 ] This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also "require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed." Griffin v. Wisconsin, 483 U.S. at 483 U. S. 875 . The question that remains, then, is whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion. B An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search Page 489 U. S. 622 or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope. See, e.g., New York v. Burger, 482 U.S. at 482 U. S. 703 ; United States v. Chadwick, 433 U. S. 1 , 433 U. S. 9 (1977); Camara v. Municipal Court of San Francisco, 387 U.S. at 387 U. S. 532 . A warrant also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case. See United States v. Chadwick, supra, at 433 U. S. 9 . In the present context, however, a warrant would do little to further these aims. Both the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them, and doubtless are well known to covered employees. Cf. United States v. Biswell, 406 U. S. 311 , 406 U. S. 316 (1972). Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate. Cf. Colorado v. Bertine, 479 U. S. 367 , 479 U. S. 376 (1987) (BLACKMUN, J., concurring). [ Footnote 6 ] Page 489 U. S. 623 We have recognized, moreover, that the Government's interest in dispensing with the warrant requirement is at its strongest when, as here, "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court of San Francisco, supra, at 387 U. S. 533 . See also New Jersey v. T.L.O., 469 U.S. at 469 U. S. 340 ; Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 603 (1981). As the FRA recognized, alcohol and other drugs are eliminated from the bloodstream at a constant rate, see 49 Fed.Reg. 24291 (1984), and blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible. See Schmerber v. California, 384 U.S. at 384 U. S. 770 -771. Although the metabolites of some drugs remain in the urine for longer periods of time, and may enable the FRA to estimate whether the employee was impaired by those drugs at the time of a covered accident, incident, or rule violation, 49 Fed.Reg. 24291 (1984), the delay necessary to procure a warrant nevertheless may result in the destruction of valuable evidence. The Government's need to rely on private railroads to set the testing process in motion also indicates that insistence on a warrant requirement would impede the achievement of the Government's objective. Railroad supervisors, like school officials, see New Jersey v. T.L.O., supra, at 469 U. S. 339 -340, and hospital administrators, see O'Connor v. Ortega, 480 U.S. at 480 U. S. 722 , are not in the business of investigating violations of the criminal laws or enforcing administrative codes, and otherwise have little occasion to become familiar with the intricacies of this Court's Fourth Amendment jurisprudence. "Imposing unwieldy warrant procedures . . . upon supervisors, Page 489 U. S. 624 who would otherwise have no reason to be familiar with such procedures, is simply unreasonable." Ibid. In sum, imposing a warrant requirement in the present context would add little to the assurances of certainty and regularity already afforded by the regulations, while significantly hindering, and in many cases frustrating, the objectives of the Government's testing program. We do not believe that a warrant is essential to render the intrusions here at issue reasonable under the Fourth Amendment. C Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. See New Jersey v. T.L.O., supra, at 469 U. S. 340 . When the balance of interests precludes insistence on a showing of probable cause, we have usually required "some quantum of individualized suspicion" before concluding that a search is reasonable. See, e.g., United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 560 . We made it clear, however, that a showing of individualized suspicion is not a constitutional floor below which a search must be presumed unreasonable. Id. at 428 U. S. 561 . In limited circumstances, where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here. By and large, intrusions on privacy under the FRA regulations are limited. To the extent transportation and like restrictions are necessary to procure the requisite blood, breath, and urine samples for testing, this interference alone is minimal, given the employment context in which it takes place. Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for Page 489 U. S. 625 his employment, and few are free to come and go as they please during working hours. See, e.g., INS v. Delgado, 466 U.S. at 466 U. S. 218 . Any additional interference with a railroad employee's freedom of movement that occurs in the time it takes to procure a blood, breath, or urine sample for testing cannot, by itself, be said to infringe significant privacy interests. Our decision in Schmerber v. California, 384 U. S. 757 (1966), indicates that the same is true of the blood tests required by the FRA regulations. In that case, we held that a State could direct that a blood sample be withdrawn from a motorist suspected of driving while intoxicated, despite his refusal to consent to the intrusion. We noted that the test was performed in a reasonable manner, as the motorist's "blood was taken by a physician in a hospital environment according to accepted medical practices." Id. at 384 U. S. 771 . We said also that the intrusion occasioned by a blood test is not significant, since such "tests are a commonplace in these days of periodic physical examinations, and experience with them teaches that the quantity of blood extracted is minimal, and that, for most people, the procedure involves virtually no risk, trauma, or pain." Ibid. Schmerber thus confirmed "society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity." Winston v. Lee, 470 U.S. at 470 U. S. 762 . See also South Dakota v. Neville, 459 U. S. 553 , 563 (1983) ("The simple blood-alcohol test is . . . safe, painless, and commonplace"); Breithaupt v. Abram, 352 U. S. 432 , 352 U. S. 436 (1957) ("The blood test procedure has become routine in our everyday life"). The breath tests authorized by Subpart D of the regulations are even less intrusive than the blood tests prescribed by Subpart C. Unlike blood tests, breath tests do not require piercing the skin, and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the employee's bloodstream, and nothing more. Page 489 U. S. 626 Like the blood testing procedures mandated by Subpart C, which can be used only to ascertain the presence of alcohol or controlled substances in the bloodstream, breath tests reveal no other facts in which the employee has a substantial privacy interest. Cf. United States v. Jacobsen, 466 U.S. at 466 U. S. 123 ; United States v. Place, 462 U.S. at 462 U. S. 707 . In all the circumstances, we cannot conclude that the administration of a breath test implicates significant privacy concerns. A more difficult question is presented by urine tests. Like breath tests, urine tests are not invasive of the body and, under the regulations, may not be used as an occasion for inquiring into private facts unrelated to alcohol or drug use. [ Footnote 7 ] We recognize, however, that the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests. While we would not characterize these additional privacy concerns as minimal in most contexts, we note that the regulations endeavor to reduce the intrusiveness of the collection process. The regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample. See 50 Fed.Reg. 31555 (1985). See also Field Manual B-15, D-l. The sample is also collected in a medical environment, by personnel unrelated to the railroad Page 489 U. S. 627 employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination. More importantly, the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees. This relation between safety and employee fitness was recognized by Congress when it enacted the Hours of Service Act in 1907, Baltimore & Ohio R. Co. v. ICC, 221 U.S. at 221 U. S. 619 , and also when it authorized the Secretary to "test . . . railroad facilities, equipment, rolling stock, operations, or persons, as he deems necessary to carry out the provisions" of the Federal Railroad Safety Act of 1970. 45 U.S.C. § 437(a) (emphasis added). It has also been recognized by state governments, [ Footnote 8 ] and has long been reflected in industry practice, as evidenced by the industry's promulgation and enforcement of Rule G. Indeed, the FRA found, and the Court of Appeals acknowledged, see 839 F.2d at 585, that "most railroads require periodic physical examinations for train and engine employees and certain other employees." 49 Fed.Reg. 24278 (1984). See also Railway Labor Executives Assn. v. Norfolk & Western R. Co., 833 F.2d 700, 705-706 (CA7 1987); Brotherhood of Maintenance of Page 489 U. S. 628 Way Employees, Lodge 16 v. Burlington Northern R. Co., 802 F.2d 1016, 1024 (CA8 1986). We do not suggest, of course, that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal. Here, however, the covered employees have long been a principal focus of regulatory concern. As the dissenting judge below noted: "The reason is obvious. An idle locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs." 839 F.2d at 593. Though some of the privacy interests implicated by the toxicological testing at issue reasonably might be viewed as significant in other contexts, logic and history show that a diminished expectation of privacy attaches to information relating to the physical condition of covered employees and to this reasonable means of procuring such information. We conclude, therefore, that the testing procedures contemplated by Subparts C and D pose only limited threats to the justifiable expectations of privacy of covered employees. By contrast, the Government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities, see, e.g., Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (CA8 1988); Alverado v. Washington Public Power Supply System, 111 Wash. 2d 424 , 436, 759 P.2d 427 , 433-434 (1988), cert. pending, No. 88-645, employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. An impaired employee, the FRA found, will seldom display any outward "signs detectable by the lay person or, in many cases, even the physician." 50 Fed.Reg. 31526 (1985). This view finds Page 489 U. S. 629 ample support in the railroad industry's experience with Rule G, and in the judgment of the courts that have examined analogous testing schemes. See, e.g., Brotherhood of Maintenance Way Employees, Lodge 16 v. Burlington Northern R. Co., supra, at 1020. Indeed, while respondents posit that impaired employees might be detected without alcohol or drug testing, [ Footnote 9 ] the premise of respondents' lawsuit is that even the occurrence of a major calamity will not give rise to a suspicion of impairment with respect to any particular employee. While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place. 50 Fed.Reg. 31541 (1985). The railroad industry's experience with Rule G persuasively shows, and common sense confirms, that the customary dismissal sanction Page 489 U. S. 630 that threatens employees who use drugs or alcohol while on duty cannot serve as an effective deterrent unless violators know that they are likely to be discovered. By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, cf. Griffin v. Wisconsin, 483 U.S. at 483 U. S. 876 , concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty. The testing procedures contemplated by Subpart C also help railroads obtain invaluable information about the causes of major accidents, see 50 Fed.Reg. 31541 (1985), and to take appropriate measures to safeguard the general public. Cf. Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 510 (1978) (noting that prompt investigation of the causes of a fire may uncover continuing dangers, and thereby prevent the fire's recurrence); Michigan v. Clifford, 464 U. S. 287 , 464 U. S. 308 (1984) (REHNQUIST, J., dissenting) (same). Positive test results would point toward drug or alcohol impairment on the part of members of the crew as a possible cause of an accident, and may help to establish whether a particular accident, otherwise not drug-related, was made worse by the inability of impaired employees to respond appropriately. Negative test results would likewise furnish invaluable clues, for eliminating drug impairment as a potential cause or contributing factor would help establish the significance of equipment failure, inadequate training, or other potential causes, and suggest a more thorough examination of these alternatives. Tests performed following the rule violations specified in Subpart D likewise can provide valuable information respecting the causes of those transgressions, which the FRA found to involve "the potential for a serious train accident or grave personal injury, or both." 50 Fed.Reg. 31553 (1985). Page 489 U. S. 631 A requirement of particularized suspicion of drug or alcohol use would seriously impede an employer's ability to obtain this information, despite its obvious importance. Experience confirms the FRA's judgment that the scene of a serious rail accident is chaotic. Investigators who arrive at the scene shortly after a major accident has occurred may find it difficult to determine which members of a train crew contributed to its occurrence. Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the best of circumstances, is most impracticable in the aftermath of a serious accident. While events following the rule violations that activate the testing authority of Subpart D may be less chaotic, objective indicia of impairment are absent in these instances as well. Indeed, any attempt to gather evidence relating to the possible impairment of particular employees likely would result in the loss or deterioration of the evidence furnished by the tests. Cf. Michigan v. Clifford, supra, at 464 U. S. 293 , n. 4 (plurality opinion); Michigan v. Tyler, supra, at 436 U. S. 510 . It would be unrealistic, and inimical to the Government's goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances. Without quarreling with the importance of these governmental interests, the Court of Appeals concluded that the post-accident testing regulations were unreasonable because "[b]lood and urine tests intended to establish drug use other than alcohol . . . cannot measure current drug intoxication or degree of impairment." 839 F.2d at 588. The court based its conclusion on its reading of certain academic journals that indicate that the testing of urine can disclose only drug metabolites, which "may remain in the body for days or weeks after the ingestion of the drug." Id. at 589. We find this analysis flawed for several reasons. As we emphasized in New Jersey v. T.L.O., "it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but Page 489 U. S. 632 only have 'any tendency to make the existence of any fact that is of consequence to the determination [of the point in issue] more probable or less probable than it would be without the evidence.'" 469 U.S. at 469 U. S. 345 , quoting Fed.Rule Evid. 401. Even if urine test results disclosed nothing more specific than the recent use of controlled substances by a covered employee, this information would provide the basis for further investigative work designed to determine whether the employee used drugs at the relevant times. See Field Manual B-4. The record makes clear, for example, that a positive test result, coupled with known information concerning the pattern of elimination for the particular drug and information that may be gathered from other sources about the employee's activities, may allow the FRA to reach an informed judgment as to how a particular accident occurred. See supra at 489 U. S. 609 -610. More importantly, the Court of Appeals overlooked the FRA's policy of placing principal reliance on the results of blood tests, which unquestionably can identify very recent drug use, see, e.g., 49 Fed.Reg. 24291 (1984), while relying on urine tests as a secondary source of information designed to guard against the possibility that certain drugs will be eliminated from the bloodstream before a blood sample can be obtained. The court also failed to recognize that the FRA regulations are designed not only to discern impairment, but also to deter it. Because the record indicates that blood and urine tests, taken together, are highly effective means of ascertaining on-the-job impairment and of deterring the use of drugs by railroad employees, we believe the Court of Appeals erred in concluding that the post-accident testing regulations are not reasonably related to the Government objectives that support them. [ Footnote 10 ] Page 489 U. S. 633 We conclude that the compelling Government interests served by the FRA's regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee. In view of our conclusion that, on the present record, the toxicological testing contemplated by the regulations is not an undue infringement on the justifiable expectations of privacy of covered employees, the Government's compelling interests outweigh privacy concerns. IV The possession of unlawful drugs is a criminal offense that the Government may punish, but it is a separate and far more dangerous wrong to perform certain sensitive tasks while under the influence of those substances. Performing those tasks while impaired by alcohol is, of course, equally dangerous, though consumption of alcohol is legal in most other contexts. The Government may take all necessary and reasonable regulatory steps to prevent or deter that hazardous conduct, and since the gravamen of the evil is performing certain functions while concealing the substance in the body, it may be necessary, as in the case before us, to examine the body or its fluids to accomplish the regulatory purpose. The necessity to perform that regulatory function with respect to railroad employees engaged in safety-sensitive tasks, and the reasonableness of the system for doing so, have been established in this case. Alcohol and drug tests conducted in reliance on the authority of Subpart D cannot be viewed as private action outside the reach of the Fourth Amendment. Because the testing procedures mandated or authorized by Subparts C and D effect Page 489 U. S. 634 searches of the person, they must meet the Fourth Amendment's reasonableness requirement. In light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired. We hold that the alcohol and drug tests contemplated by Subparts C and D of the FRA's regulations are reasonable within the meaning of the Fourth Amendment. The judgment of the Court of Appeals is accordingly reversed. It is so ordered. [ Footnote 1 ] The FRA noted that a 1979 study examining the scope of alcohol abuse on seven major railroads found that "[a]n estimated one out of every eight railroad workers drank at least once while on duty during the study year." 48 Fed.Reg. 30724 (1983). In addition, "5% of workers reported to work very drunk' or got `very drunk' on duty at least once in the study year," and "13% of workers reported to work at least `a little drunk' one or more times during that period." Ibid. The study also found that 23% of the operating personnel were "problem drinkers," but that only 4% of these employees "were receiving help through an employee assistance program, and even fewer were handled through disciplinary procedures." Ibid. [ Footnote 2 ] The regulations provide a limited exception from testing "if the railroad representative can immediately determine, on the basis of specific information, that the employee had no role in the cause(s) of the accident/incident." 49 CFR 219.203(a)(3)(i) (1987). No exception may be made, however, in the case of a "major train accident." Ibid. In promulgating the regulations, the FRA noted that, while it is sometimes possible to exonerate crew members in other situations calling for testing, it is especially difficult to assess fault and degrees of fault in the aftermath of the more substantial accidents. See 50 Fed.Reg. 31544 (1985). [ Footnote 3 ] See Federal Railroad Administration, United States Dept. of Transportation Field Manual: Control of Alcohol and Drug Use in Railroad Operations B-12 (1986) (Field Manual). Ethyl alcohol is measured by gas chromatography. Ibid. In addition, while drug screens may be conducted by immunoassays or other techniques, "[p]ositive drug findings are confirmed by gas chromatography/mass spectrometry." Ibid. These tests, if properly conducted, identify the presence of alcohol and drugs in the biological samples tested with great accuracy. [ Footnote 4 ] See, e.g., Lovvorn v. Chattanooga, 846 F.2d 1539, 1542 (CA6 1988); Copeland v. Philadelphia Police Dept., 840 F.2d 1139, 1143 (CA3 1988), cert. pending No. 88-66; Railway Labor Executives' Assn. v. Burnley, 839 F.2d 575, 580 (CA9 1988) (case below); Everett v. Napper, 833 F.2d 1507, 1511 (CA11 1987); Jones v. McKenzie, 266 U.S.App.D.C. 85, 88, 833 F.2d 335, 338 (1987); National Treasury Employees Union v. Von Raab, 816 F.2d 170, 176 (CA5 1987), aff'd in pertinent part, post, p. 656; McDonell v. Hunter, 809 F.2d 1302, 1307 (CA8 1987); Division 241, Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1266-1267 (CA7), cert. denied, 429 U.S. 1029 (1976). See also Alverado v. Washington Public Power Supply System, 111 Wash. 2d 424 , 434, 759 P.2d 427 , 432-433 (1988), cert. pending, No. 88-645. Taking a blood or urine sample might also be characterized as a Fourth Amendment seizure, since it may be viewed as a meaningful interference with the employee's possessory interest in his bodily fluids. Cf. United States v. Jacobsen, 466 U. S. 109 , 466 U. S. 113 (1984). It is not necessary to our analysis in this case, however, to characterize the taking of blood or urine samples as a seizure of those bodily fluids, for the privacy expectations protected by this characterization are adequately taken into account by our conclusion that such intrusions are searches. [ Footnote 5 ] The regulations provide that "[e]ach sample provided under [Subpart C] is retained for not less than six months following the date of the accident or incident and may be made available to . . . a party in litigation upon service of appropriate compulsory process on the custodian. . . ." 49 CFR § 219.211(d) (1987). The FRA explained, when it promulgated this provision, that it intends to retain such samples primarily "for its own purposes ( e.g., to permit reanalysis of a sample if another laboratory reported detection of a substance not tested for in the original procedure)." 50 Fed.Reg. 31545 (1985). While this provision might be read broadly to authorize the release of biological samples to law enforcement authorities, the record does not disclose that it was intended to be, or actually has been, so used. Indeed, while respondents aver generally that test results might be made available to law enforcement authorities, Brief for Respondents 24, they do not seriously contend that this provision, or any other part of the administrative scheme, was designed as "a pretext' to enable law enforcement authorities to gather evidence of penal law violations." New York v. Burger, 482 U. S. 691 , 482 U. S. 716 -717, n. 27 (1987). Absent a persuasive showing that the FRA's testing program is pretextual, we assess the FRA's scheme in light of its obvious administrative purpose. We leave for another day the question whether routine use in criminal prosecutions of evidence obtained pursuant to the administrative scheme would give rise to an inference of pretext, or otherwise impugn the administrative nature of the FRA's program. [ Footnote 6 ] Subpart C of the regulations, for example, does not permit the exercise of any discretion in choosing the employees who must submit to testing, except in limited circumstances, and then only if warranted by objective criteria. See n 2, supra. Subpart D, while conferring some discretion to choose those who may be required to submit to testing, also imposes specific constraints on the exercise of that discretion. Covered employees may be required to submit to breath or urine tests only if they have been directly involved in specified rule violations or errors, or if their acts or omissions contributed to the occurrence or severity of specified accidents or incidents. To be sure, some discretion necessarily must be used in determining whether an employee's acts or omissions contributed to the occurrence or severity of an event, but this limited assessment of the objective circumstances surrounding the event does not devolve unbridled discretion upon the supervisor in the field. Cf. Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 323 (1978). In addition, the regulations contain various safeguards against any possibility that discretion will be abused. A railroad that requires post-accident testing in bad faith, 49 CFR § 219.201(c) (1987), or that willfully imposes a program of authorized testing that does not comply with Subpart D, § 219.9(a)(3), or that otherwise fails to follow the regulations, § 219.9 (a)(5), is subject to civil penalties, see pt. 219, App. A, p. 105, in addition to whatever damages may be awarded through the arbitration process. [ Footnote 7 ] When employees produce the blood and urine samples required by Subpart C, they are asked by medical personnel to complete a form stating whether they have taken any medications during the preceding 30 days. The completed forms are shipped with the samples to the FRA's laboratory. See Field Manual B-15. This information is used to ascertain whether a positive test result can be explained by the employee's lawful use of medications. While this procedure permits the Government to learn certain private medical facts that an employee might prefer not to disclose, there is no indication that the Government does not treat this information as confidential, or that it uses the information for any other purpose. Under the circumstances, we do not view this procedure as a significant invasion of privacy. Cf. Whalen v. Roe, 429 U. S. 589 , 429 U. S. 602 (1977). [ Footnote 8 ] See, e.g., Ala.Code § 37-2-85 (1977) (requiring that persons to be employed as dispatchers, engineers, conductors, brakemen, and switchmen be subjected to a "thorough examination" respecting, inter alia, their skill, sobriety, eyesight, and hearing); Mass.Gen.Laws §§ 160:178-160:181 (1979) (prescribing eyesight examination and experience requirements for railroad engineers and conductors); N.Y.R.R.Law § 63 (McKinney 1952) (requiring that all applicants for positions as motormen or gripmen "be subjected to a thorough examination . . . as to their habits, physical ability, and intelligence"). See also Nashville, C. & S. L. R. Co. v. Alabama, 128 U. S. 96 , 128 U. S. 98 -99 (1888) (noting, in upholding a predecessor of Alabama's fitness-for-duty statute against a Commerce Clause challenge, that a State may lawfully require railway employees to undergo eye examinations in the interests of safety). [ Footnote 9 ] Respondents offer a list of "less drastic and equally effective means" of addressing the Government's concerns, including reliance on the private proscriptions already in force, and training supervisory personnel "to effectively detect employees who are impaired by drug or alcohol use without resort to such intrusive procedures as blood and urine tests." Brief for Respondents 40-43. We have repeatedly stated, however, that "[t]he reasonableness of any particular government activity does not necessarily or invariably turn on the existence of alternative 'less intrusive' means." Illinois v. Lafayette, 462 U. S. 640 , 462 U. S. 647 (1983). See also Colorado v. Bertine, 479 U. S. 367 , 479 U. S. 373 -374 (1987). It is obvious that "[t]he logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers," United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 556 -557, n. 12, because judges engaged in post hoc evaluations of government conduct "'can almost always imagine some alternative means by which the objectives of the [Government] might have been accomplished.'" United States v. Montoya de Hernandez, 473 U. S. 531 , 473 U. S. 542 (1985), quoting United States v. Sharpe, 470 U. S. 675 , 470 U. S. 686 -687 (1985). Here, the FRA expressly considered various alternatives to its drug screening program, and reasonably found them wanting. At bottom, respondents' insistence on less drastic alternatives would require us to second-guess the reasonable conclusions drawn by the FRA after years of investigation and study. This we decline to do. [ Footnote 10 ] The Court of Appeals also expressed concern that the tests might be quite unreliable, and thus unreasonable. 839 F.2d at 589. The record compiled by the FRA after years of investigation and study does not support this conclusion. While it is impossible to guarantee that no mistakes will ever be made in isolated cases, respondents have challenged the administrative scheme on its face. We deal therefore with whether the tests contemplated by the regulations can ever be conducted. Cf. Bell v. Wolfish, 441 U. S. 520 , 441 U. S. 560 (1979). Respondents have provided us with no reason for doubting the FRA's conclusion that the tests at issue here are accurate in the overwhelming majority of cases. JUSTICE STEVENS, concurring in part and concurring in the judgment. In my opinion, the public interest in determining the causes of serious railroad accidents adequately supports the validity of the challenged regulations. I am not persuaded, however, that the interest in deterring the use of alcohol or drugs is either necessary or sufficient to justify the searches authorized by these regulations. I think it a dubious proposition that the regulations significantly deter the use of alcohol and drugs by hours of service employees. Most people -- and I would think most railroad employees as well -- do not go to work with the expectation that they may be involved in a major accident, particularly one causing such catastrophic results as loss of life or the release of hazardous material requiring an evacuation. Moreover, even if they are conscious of the possibilities that such an accident might occur and that alcohol or drug use might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior. Page 489 U. S. 635 For this reason, I do not join the portions of Part III of the Court's opinion that rely on a deterrence rationale; I do, however, join the balance of the opinion and the Court's judgment. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting. The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here is whether the Government's deployment in that war of a particularly draconian weapon -- the compulsory collection and chemical testing of railroad workers' blood and urine -- comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation camp cases, Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944), and the Red scare and McCarthy-era internal subversion cases, Schenck v. United States, 249 U. S. 47 (1919); Dennis v. United States, 341 U. S. 494 (1951), are only the most extreme reminders that, when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it. In permitting the Government to force entire railroad crews to submit to invasive blood and urine tests, even when it lacks any evidence of drug or alcohol use or other wrongdoing, the majority today joins those shortsighted courts which have allowed basic constitutional rights to fall prey to momentary emergencies. The majority holds that the need of the Federal Railroad Administration (FRA) to deter and diagnose train accidents outweighs any "minimal" intrusions on personal dignity and privacy posed by mass toxicological testing of persons who have given no indication whatsoever of Page 489 U. S. 636 impairment. Ante at 489 U. S. 624 . In reaching this result, the majority ignores the text and doctrinal history of the Fourth Amendment, which require that highly intrusive searches of this type be based on probable cause, not on the evanescent cost-benefit calculations of agencies or judges. But the majority errs even under its own utilitarian standards, trivializing the raw intrusiveness of, and overlooking serious conceptual and operational flaws in, the FRA's testing program. These flaws cast grave doubts on whether that program, though born of good intentions, will do more than ineffectually symbolize the Government's opposition to drug use. The majority purports to limit its decision to post-accident testing of workers in "safety-sensitive" jobs, ante at 489 U.S. 620 , much as it limits its holding in the companion case to the testing of transferees to jobs involving drug interdiction or the use of firearms. National Treasury Employees Union v. Von Raab, post at 489 U. S. 664 . But the damage done to the Fourth Amendment is not so easily cabined. The majority's acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens. I therefore dissent. I The Court today takes its longest step yet toward reading the probable cause requirement out of the Fourth Amendment. For the fourth time in as many years, a majority holds that a " special nee[d], beyond the normal need for law enforcement,'" makes the "`requirement'" of probable cause "`impracticable.'" Ante at 489 U. S. 619 (citations omitted). With the recognition of "[t]he Government's interest in regulating the conduct of railroad employees to ensure safety" as such a need, ante at 620, the Court has now permitted "special needs" to displace constitutional text in each of the four categories of searches enumerated in the Fourth Amendment: searches of "persons," ante at 489 U. S. 613 -614; "houses," Griffin v. Wisconsin, 483 U. S. 868 (1987); "papers," O'Connor v. Ortega , Page 489 U. S. 637 480 U. S. 709 (1987); and "effects," New Jersey v. T.L.O., 469 U. S. 325 (1985). The process by which a constitutional "requirement" can be dispensed with as "impracticable" is an elusive one to me. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The majority's recitation of the Amendment, remarkably, leaves off after the word "violated," ante at 489 U. S. 613 , but the remainder of the Amendment -- the Warrant Clause -- is not so easily excised. As this Court has long recognized, the Framers intended the provisions of that Clause -- a warrant and probable cause -- to "provide the yardstick against which official searches and seizures are to be measured." T.L.O., supra, at 469 U. S. 359 -360 (opinion of BRENNAN, J.). Without the content which those provisions give to the Fourth Amendment's overarching command that searches and seizures be "reasonable," the Amendment lies virtually devoid of meaning, subject to whatever content shifting judicial majorities, concerned about the problems of the day, choose to give to that supple term. See Dunaway v. New York, 442 U. S. 200 , 442 U. S. 213 (1979) ("[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases"). Constitutional requirements like probable cause are not fair-weather friends, present when advantageous, conveniently absent when "special needs" make them seem not. Until recently, an unbroken line of cases had recognized probable cause as an indispensable prerequisite for a full-scale search, regardless of whether such a search was conducted pursuant to a warrant or under one of the recognized exceptions to the warrant requirement. T.L.O., supra, at 469 U. S. 358 Page 489 U. S. 638 and 469 U. S. 359 , n. 3 (opinion of BRENNAN, J.); see also Chambers v. Maroney, 399 U. S. 42 , 399 U. S. 51 (1970). Only where the Government action in question had a "substantially less intrusive" impact on privacy, Dunaway, supra, at 442 U. S. 210 , and thus clearly fell short of a full-scale search, did we relax the probable cause standard. Id. at 442 U. S. 214 ("For all but those narrowly defined intrusions, the requisite balancing' . . . is embodied in the principle that seizures are `reasonable' only if supported by probable cause"); see also T.L.O., supra, at 469 U. S. 360 (opinion of BRENNAN, J.). Even in this class of cases, we almost always required the Government to show some individualized suspicion to justify the search. [ Footnote 2/1 ] The few searches which we upheld in the absence of individualized justification were routinized, fleeting, and nonintrusive encounters conducted pursuant to regulatory programs which entailed no contact with the person. [ Footnote 2/2 ] Page 489 U. S. 639 In the four years since this Court, in T.L.O., first began recognizing "special needs" exceptions to the Fourth Amendment, the clarity of Fourth Amendment doctrine has been badly distorted, as the Court has eclipsed the probable cause requirement in a patchwork quilt of settings: public school principals' searches of students' belongings, T.L.O.; public employers' searches of employees' desks, O'Connor; and probation officers' searches of probationers' homes, Griffin. [ Footnote 2/3 ] Tellingly, each time the Court has found that "special needs" counseled ignoring the literal requirements of the Fourth Amendment for such full-scale searches in favor of a formless and unguided "reasonableness" balancing inquiry, it has concluded that the search in question satisfied that test. I have joined dissenting opinions in each of these cases, protesting the "jettison[ing of] . . . the only standard that finds support in the text of the Fourth Amendment" and predicting that the majority's "Rohrschach-like balancing test'" portended "a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens." T.L.O., supra, at 469 U. S. 357 -358 (opinion of BRENNAN, J.). The majority's decision today bears out that prophecy. After determining that the Fourth Amendment applies to the FRA's testing regime, the majority embarks on an extended inquiry into whether that regime is "reasonable," an inquiry in which it balances " all the circumstances surrounding the search or seizure and the nature of the search or seizure itself.'" Ante at 489 U. S. 619 , quoting United States v. Montoya de Page 489 U. S. 640 Hernandez, 473 U. S. 531 , 473 U. S. 537 (1985). The result is "special needs" balancing analysis' deepest incursion yet into the core protections of the Fourth Amendment. Until today, it was conceivable that, when a Government search was aimed at a person and not simply the person's possessions, balancing analysis had no place. No longer: with nary a word of explanation or acknowledgment of the novelty of its approach, the majority extends the "special needs" framework to a regulation involving compulsory blood withdrawal and urinary excretion, and chemical testing of the bodily fluids collected through these procedures. And until today, it was conceivable that a prerequisite for surviving "special needs" analysis was the existence of individualized suspicion. No longer: in contrast to the searches in T.L.O., O'Connor, and Griffin, which were supported by individualized evidence suggesting the culpability of the persons whose property was searched, [ Footnote 2/4 ] the regulatory regime upheld today requires the post-accident collection and testing of the blood and urine of all covered employees -- even if every member of this group gives every indication of sobriety and attentiveness. In widening the "special needs" exception to probable cause to authorize searches of the human body unsupported by any evidence of wrongdoing, the majority today completes the process begun in T.L.O. of eliminating altogether the probable cause requirement for civil searches -- those undertaken for reasons "beyond the normal need for law enforcement." Ante at 489 U. S. 619 (citations omitted). In its place, the majority substitutes a manipulable balancing inquiry under which, upon the mere assertion of a "special need," even the deepest dignitary and privacy interests become vulnerable Page 489 U. S. 641 to governmental incursion. See ante at 489 U. S. 619 (distinguishing criminal from civil searches). By its terms, however, the Fourth Amendment -- unlike the Fifth and Sixth -- does not confine its protections to either criminal or civil actions. Instead, it protects generally "[t]he right of the people to be secure." [ Footnote 2/5 ] The fact is that the malleable "special needs" balancing approach can be justified only on the basis of the policy results it allows the majority to reach. The majority's concern with the railroad safety problems caused by drug and alcohol abuse is laudable; its cavalier disregard for the text of the Constitution is not. There is no drug exception to the Constitution, any more than there is a communism exception or an exception for other real or imagined sources of domestic unrest. Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 455 (1971). Because abandoning the explicit protections of the Fourth Amendment seriously imperils "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men," Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting), I reject the majority's "special needs" rationale as unprincipled and dangerous. II The proper way to evaluate the FRA's testing regime is to use the same analytic framework which we have traditionally used to appraise Fourth Amendment claims involving full-scale searches, at least until the recent "special needs" cases. Under that framework, we inquire, serially, whether a Page 489 U. S. 642 search has taken place, see, e.g., Katz v. United States, 389 U. S. 347 , 389 U. S. 350 -353 (1967); whether the search was based on a valid warrant or undertaken pursuant to a recognized exception to the warrant requirement, see, e.g., Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 748 -750 (1984); whether the search was based on probable cause or validly based on lesser suspicion because it was minimally intrusive, see, e.g., Dunaway, 442 U.S. at 442 U. S. 208 -210; and, finally, whether the search was conducted in a reasonable manner, see, e.g., Winston v. Lee, 470 U. S. 753 , 470 U. S. 763 -766 (1985). See also T.L.O., 469 U.S. at 469 U. S. 354 -355 (opinion of BRENNAN, J.) (summarizing analytic framework). The majority's threshold determination that "covered" railroad employees have been searched under the FRA's testing program is certainly correct. Ante at 489 U. S. 616 -618. Who among us is not prepared to consider reasonable a person's expectation of privacy with respect to the extraction of his blood, the collection of his urine, or the chemical testing of these fluids? United States v. Jacobsen, 466 U. S. 109 , 1 466 U. S. 13 (1984). [ Footnote 2/6 ] The majority's ensuing conclusion that the warrant requirement may be dispensed with, however, conveniently overlooks the fact that there are three distinct searches at issue. Although the importance of collecting blood and urine samples before drug or alcohol metabolites disappear justifies waiving the warrant requirement for those two searches under the narrow "exigent circumstances" exception, see Schmerber v. California, 384 U. S. 757 , 384 U. S. 770 (1966) ("[T]he delay necessary to obtain a warrant . . . threaten[s] the destruction of evidence'"), no such exigency prevents railroad officials from securing a warrant before chemically testing the samples they obtain. Blood and urine do not spoil if Page 489 U. S. 643 properly collected and preserved, and there is no reason to doubt the ability of railroad officials to grasp the relatively simple procedure of obtaining a warrant authorizing, where appropriate, chemical analysis of the extracted fluids. It is therefore wholly unjustified to dispense with the warrant requirement for this final search. See Chimel v. California, 395 U. S. 752 , 395 U. S. 761 -764 (1969) (exigency exception permits warrantless searches only to the extent that exigency exists). It is the probable cause requirement, however, that the FRA's testing regime most egregiously violates, a fact which explains the majority's ready acceptance and expansion of the countertextual "special needs" exception. By any measure, the FRA's highly intrusive collection and testing procedures qualify as full-scale personal searches. Under our precedents, a showing of probable cause is therefore clearly required. But even if these searches were viewed as entailing only minimal intrusions on the order, say, of a police stop-and-frisk, the FRA's program would still fail to pass constitutional muster, for we have, without exception, demanded that even minimally intrusive searches of the person be founded on individualized suspicion. See supra at 489 U. S. 638 , and n. 1. The federal parties concede it does not satisfy this standard. Brief for Federal Parties 18. Only if one construes the FRA's collection and testing procedures as akin to the routinized and fleeting regulatory interactions which we have permitted in the absence of individualized suspicion, see 489 U.S. 602 fn2/2|>n. 2, supra, might these procedures survive constitutional scrutiny. Presumably for this reason, the majority likens this case to United States v. Martinez-Fuerte, 428 U. S. 543 (1976), which upheld brief automobile stops at the border to ascertain the validity of motorists' residence in the United States. Ante at 489 U. S. 624 . Case law and common sense reveal both the bankruptcy of this absurd analogy and the constitutional imperative of adhering to the textual standard of probable cause to evaluate the FRA's multifarious full-scale searches. Page 489 U. S. 644 Compelling a person to submit to the piercing of his skin by a hypodermic needle so that his blood may be extracted significantly intrudes on the "personal privacy and dignity against unwarranted intrusion by the State" against which the Fourth Amendment protects. Schmerber, supra, at 384 U. S. 767 . As we emphasized in Terry: "Even a limited search of the outer clothing . . . constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." 392 U.S. 392 U. S. 24 -25. We have similarly described the taking of a suspect's fingernail scrapings as a " severe, though brief, intrusion upon cherished personal security.'" Cupp v. Murphy, 412 U. S. 291 , 412 U. S. 295 (1973) (quoting Terry, supra, at 392 U. S. 24 -25, and upholding this procedure upon a showing of probable cause). The government-compelled withdrawal of blood, involving as it does the added aspect of physical invasion, is surely no less an intrusion. The surrender of blood on demand is, furthermore, hardly a quotidian occurrence. Cf. Martinez-Fuerte, supra, at 428 U. S. 557 (routine stops involve "quite limited" intrusion). In recognition of the intrusiveness of this procedure, we specifically required in Schmerber that police have evidence of a drunk-driving suspect's impairment before forcing him to endure a blood test: "The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear. . . ." 384 U.S. at 384 U. S. 769 -770. Schmerber strongly suggested that the "clear indication" needed to justify a compulsory blood test amounted to a showing of probable cause, which "plainly" existed in that case. Id. at 384 U. S. 768 . Although subsequent cases interpreting Schmerber have differed over whether a showing of individualized Page 489 U. S. 645 suspicion would have sufficed, compare Winston, 470 U.S. at 470 U. S. 760 ( Schmerber "noted the importance of probable cause"), with Montoya de Hernandez, 473 U.S. at 473 U. S. 540 ( Schmerber "indicate[d] the necessity for particularized suspicion"), by any reading, Schmerber clearly forbade compulsory blood tests on any lesser showing than individualized suspicion. Exactly why a blood test which, if conducted on one person, requires a showing of at least individualized suspicion may, if conducted on many persons, be based on no showing whatsoever, the majority does not -- and cannot -- explain. [ Footnote 2/7 ] Compelling a person to produce a urine sample on demand also intrudes deeply on privacy and bodily integrity. Urination is among the most private of activities. It is generally forbidden in public, eschewed as a matter of conversation, and performed in places designed to preserve this tradition of Page 489 U. S. 646 personal seclusion. Cf. Martinez-Fuerte, supra, at 428 U. S. 560 (border-stop questioning involves no more than "some annoyance," and is neither "frightening" nor "offensive"). The FRA, however, gives scant regard to personal privacy, for its Field Manual instructs supervisors monitoring urination that railroad workers must provide urine samples " under direct observation by the physician/technician." Federal Railroad Administration, United States Dept. of Transportation, Field Manual: Control of Alcohol and Drug Use in Railroad Operations D-5 (1986) (emphasis added). [ Footnote 2/8 ] That the privacy interests offended by compulsory and supervised urine collection are profound is the overwhelming judgment of the lower courts and commentators. As Professor -- later Solicitor General -- Charles Fried has written: "[I]n our culture, the excretory functions are shielded by more or less absolute privacy, so much so that situations in which this privacy is violated are experienced as extremely distressing, as detracting from one's dignity and self esteem." Privacy, 77 Yale L.J. 475, 487 (1968). [ Footnote 2/9 ] The majority's characterization of the privacy interests implicated by urine collection as "minimal," ante at 489 U. S. 624 , is nothing Page 489 U. S. 647 short of startling. This characterization is, furthermore, belied by the majority's own prior explanation of why compulsory urination constitutes a search for the purposes of the Fourth Amendment: "'There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms, if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.'" Ante at 489 U.S. 617 , quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (CA5 1987). The fact that the majority can invoke this powerful passage in the context of deciding that a search has occurred, and then ignore it in deciding that the privacy interests this search implicates are "minimal," underscores the shameless manipulability of its balancing approach. Finally, the chemical analysis the FRA performs upon the blood and urine samples implicates strong privacy interests apart from those intruded upon by the collection of bodily fluids. Technological advances have made it possible to uncover, through analysis of chemical compounds in these fluids, not only drug or alcohol use, but also medical disorders such as epilepsy, diabetes, and clinical depression. Cf. Martinez-Fuerte, 428 U.S. at 428 U. S. 558 , quoting United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 880 (1975) (checkpoint inquiry involves only " a brief question or two'" about motorist's residence). As the Court of Appeals for the District of Columbia has observed: "[S]uch tests may provide Government officials with a periscope through which they can peer into an individual's behavior in her private life, even in her own home." Jones v. McKenzie, 266 U.S.App.D.C. 85, 89, 833 F.2d 335, 339 (1987); see also Capua v. Plainfield, 643 F. Supp. 1507 , 1511 (NJ 1986) (urine testing is "form of surveillance" which "reports on a person's off-duty activities just as surely as someone had been present and Page 489 U. S. 648 watching"). The FRA's requirement that workers disclose the medications they have taken during the 30 days prior to chemical testing further impinges upon the confidentiality customarily attending personal health secrets. By any reading of our precedents, the intrusiveness of these three searches demands that they -- like other full-scale searches -- be justified by probable cause. It is no answer to suggest, as does the majority, that railroad workers have relinquished the protection afforded them by this Fourth Amendment requirement, either by "participat[ing] in an industry that is regulated pervasively to ensure safety" or by undergoing periodic fitness tests pursuant to state law or to collective bargaining agreements. Ante at 489 U. S. 627 . Our decisions in the regulatory search area refute the suggestion that the heavy regulation of the railroad industry eclipses workers' rights under the Fourth Amendment to insist upon a showing of probable cause when their bodily fluids are being extracted. This line of cases has exclusively involved searches of employer property, with respect to which "[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 313 (1978) (emphasis added; citation omitted), quoted in New York v. Burger, 482 U. S. 691 , 482 U. S. 700 (1987). Never have we intimated that regulatory searches reduce employees' rights of privacy in their persons. See Camara v. Municipal Court of San Francisco, 387 U. S. 523 , 387 U. S. 537 (1967) ("[T]he inspections are [not] personal in nature"); cf. Donovan v. Dewey, 452 U. S. 594 , 452 U. S. 598 -599 (1981); Marshall, supra, at 313. As the Court pointed out in O'Connor, individuals do not lose Fourth Amendment rights at the workplace gate, 480 U.S. at 480 U. S. 716 -718; see also Oliver v. United States, 466 U. S. 170 , 466 U. S. 178 , n. 8 (1984), any more than they relinquish these rights at the schoolhouse door, T.L.O., 469 U.S. at 469 U. S. 333 , or the hotel room threshold. Hoffa v. United States, 385 U. S. 293 , 385 U. S. 301 (1966). These rights mean Page 489 U. S. 649 little indeed if, having passed through these portals, an individual may remain subject to a suspicionless search of his person justified solely on the grounds that the Government already is permitted to conduct a search of the inanimate contents of the surrounding area. In holding that searches of persons may fall within the category of regulatory searches permitted in the absence of probable cause or even individualized suspicion, the majority sets a dangerous and ill-conceived precedent. The majority's suggestion that railroad workers' privacy is only minimally invaded by the collection and testing of their bodily fluids because they undergo periodic fitness tests, ante at 489 U. S. 624 -625, is equally baseless. As an initial matter, even if participation in these fitness tests did render "minimal" an employee's "interest in bodily security," ante at 489 U. S. 628 , such minimally intrusive searches of the person require, under our precedents, a justificatory showing of individualized suspicion. See supra, at 489 U. S. 637 . More fundamentally, railroad employees are not routinely required to submit to blood or urine tests to gain or to maintain employment, and railroad employers do not ordinarily have access to employees' blood or urine, and certainly not for the purpose of ascertaining drug or alcohol usage. That railroad employees sometimes undergo tests of eyesight, hearing, skill, intelligence, and agility, ante at 489 U. S. 627 , n. 8, hardly prepares them for Government demands to submit to the extraction of blood, to excrete under supervision, or to have these bodily fluids tested for the physiological and psychological secrets they may contain. Surely employees who release basic information about their financial and personal history so that employers may ascertain their "ethical fitness" do not, by so doing, relinquish their expectations of privacy with respect to their personal letters and diaries, revealing though these papers may be of their character. I recognize that invalidating the full-scale searches involved in the FRA's testing regime for failure to comport with the Fourth Amendment's command of probable cause Page 489 U. S. 650 may hinder the Government's attempts to make rail transit as safe as humanly possible. But constitutional rights have their consequences, and one is that efforts to maximize the public welfare, no matter how well-intentioned, must always be pursued within constitutional boundaries. Were the police freed from the constraints of the Fourth Amendment for just one day to seek out evidence of criminal wrongdoing, the resulting convictions and incarcerations would probably prevent thousands of fatalities. Our refusal to tolerate this spectre reflects our shared belief that even beneficent governmental power -- whether exercised to save money, save lives, or make the trains run on time -- must always yield to "a resolute loyalty to constitutional safeguards." Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 273 (1973). The Constitution demands no less loyalty here. III Even accepting the majority's view that the FRA's collection and testing program is appropriately analyzed under a multifactor balancing test, and not under the literal terms of the Fourth Amendment, I would still find the program invalid. The benefits of suspicionless blood and urine testing are far outstripped by the costs imposed on personal liberty by such sweeping searches. Only by erroneously deriding as "minimal" the privacy and dignity interests at stake, and by uncritically inflating the likely efficacy of the FRA's testing program, does the majority strike a different balance. For the reasons stated above, I find nothing minimal about the intrusion on individual liberty that occurs whenever the Government forcibly draws and analyzes a person's blood and urine. Several aspects of the FRA's testing program exacerbate the intrusiveness of these procedures. Most strikingly, the agency's regulations not only do not forbid, but, in fact, appear to invite criminal prosecutors to obtain the blood and urine samples drawn by the FRA and use them as the basis of criminal investigations and trials. See 49 CFR Page 489 U. S. 651 § 219.211(d) (1987) ("Each sample . . . may be made available to . . . a party in litigation upon service of appropriate compulsory process on the custodian of the sample . . ."). This is an unprecedented invitation, leaving open the possibility of criminal prosecutions based on suspicionless searches of the human body. Cf. National Treasury Employees Union, post at 666 (Customs Service drug-testing program prohibits use of test results in criminal prosecutions); Camara, 387 U.S. at 387 U. S. 537 . To be sure, the majority acknowledges, in passing, the possibility of criminal prosecutions, ante at 489 U. S. 621 , n. 5, but it refuses to factor this possibility into its Fourth Amendment balancing process, stating that "the record does not disclose that [49 CFR § 219.211(d) (1987)] was intended to be, or actually has been, so used." Ibid. This demurrer is highly disingenuous. The federal parties concede that they find "no prohibition on the release of FRA testing results to prosecutors." Brief for Federal Parties 10, n. 15. The absence of prosecutions to date -- which is likely due to the fact that the FRA's regulations have been held invalid for much of their brief history -- hardly proves that prosecutors will not avail themselves of the FRA's invitation in the future. If the majority really views the impact of FRA testing on privacy interests as minimal even if these tests generate criminal prosecutions, it should say so. If the prospect of prosecutions would lead the majority to reassess the validity of the testing program with prosecutions as part of the balance, it should say so, too, or condition its approval of that program on the nonrelease of test results to prosecutors. In ducking this important issue, the majority gravely disserves both the values served by the Fourth Amendment and the rights of those persons whom the FRA searches. Furthermore, the majority's refusal to restrict the release of test results casts considerable doubt on the conceptual basis of its decision -- that the "special need" of railway safety is one "beyond the Page 489 U. S. 652 normal need for law enforcement." Ante at 489 U. S. 619 (citations omitted). [ Footnote 2/10 ] The majority also overlooks needlessly intrusive aspects of the testing process itself. Although the FRA requires the collection and testing of both blood and urine, the agency concedes that mandatory urine tests -- unlike blood tests -- do not measure current impairment, and therefore cannot differentiate on-duty impairment from prior drug or alcohol use which has ceased to affect the user's behavior. See 49 CFR § 219.309(2) (1987) (urine test may reveal use of drugs or alcohol as much as 60 days prior to sampling). Given that the FRA's stated goal is to ascertain current impairment, and not to identify persons who have used substances in their spare time sufficiently in advance of their railroad duties to pose no risk of on-duty impairment, § 219.101(a), mandatory urine testing seems wholly excessive. At the very least, the FRA could limit its use of urinalysis to confirming findings of current impairment suggested by a person's blood tests. The additional invasion caused by automatically testing urine as well as blood hardly ensures that privacy interests "will be invaded no more than is necessary." T.L.O., 469 U.S. at 469 U. S. 343 . The majority's trivialization of the intrusions on worker privacy posed by the FRA's testing program is matched at the other extreme by its blind acceptance of the Government's assertion that testing will "dete[r] employees engaged in safety-sensitive tasks from using controlled substances or alcohol," and "help railroads obtain invaluable information Page 489 U. S. 653 about the causes of major accidents." Ante at 489 U. S. 629 , 489 U. S. 630 . With respect, first, to deterrence, it is simply implausible that testing employees after major accidents occur, 49 CFR § 219.201(a)(1) (1987), will appreciably discourage them from using drugs or alcohol. As JUSTICE STEVENS observes in his concurring opinion: "Most people -- and I would think most railroad employees as well -- do not go to work with the expectation that they may be involved in a major accident, particularly one causing such catastrophic results as loss of life or the release of hazardous material requiring an evacuation. Moreover, even if they are conscious of the possibilities that such an accident might occur and that alcohol or drug use might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior." Ante at 489 U. S. 634 . Under the majority's deterrence rationale, people who skip school or work to spend a sunny day at the zoo will not taunt the lions because their truancy or absenteeism might be discovered in the event they are mauled. It is, of course, the fear of the accident, not the fear of a post-accident revelation, that deters. The majority's credulous acceptance of the FRA's deterrence rationale is made all the more suspect by the agency's failure to introduce, in an otherwise ample administrative record, any studies explaining or supporting its theory of accident deterrence. The poverty of the majority's deterrence rationale leaves the Government's interest in diagnosing the causes of major accidents as the sole remaining justification for the FRA's testing program. I do not denigrate this interest, but it seems a slender thread from which to hang such an intrusive program, particularly given that the knowledge that one or more workers were impaired at the time of an accident falls far short of proving that substance abuse caused or exacerbated Page 489 U. S. 654 that accident. See 839 F.2d 575, 587 (CA9 1988). Some corroborative evidence is needed: witness or coworker accounts of a worker's misfeasance, or at least indications that the cause of the accident was within a worker's area of responsibility. Such particularized facts are, of course, the very essence of the individualized suspicion requirement which the respondent railroad workers urge, and which the Court of Appeals found to "pos[e] no insuperable burden on the government." Id. at 588. Furthermore, reliance on the importance of diagnosing the causes of an accident as a critical basis for upholding the FRA's testing plan is especially hard to square with our frequent admonition that the interest in ascertaining the causes of a criminal episode does not justify departure from the Fourth Amendment's requirements. "[T]his Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime. . . ." Katz, 389 U.S. at 389 U. S. 356 . Nor should it here. IV In his first dissenting opinion as a Member of this Court, Oliver Wendell Holmes observed: "Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." Northern Securities Co. v. United States, 193 U. S. 197 , 193 U. S. 400 -401 (1904). A majority of this Court, swept away by society's obsession with stopping the scourge of illegal drugs, today succumbs to the popular pressures described by Justice Holmes. In upholding the FRA's plan for blood and urine testing, the Page 489 U. S. 655 majority bends time-honored and textually based principles of the Fourth Amendment -- principles the Framers of the Bill of Rights designed to ensure that the Government has a strong and individualized justification when it seeks to invade an individual's privacy. I believe the Framers would be appalled by the vision of mass governmental intrusions upon the integrity of the human body that the majority allows to become reality. The immediate victims of the majority's constitutional timorousness will be those railroad workers whose bodily fluids the Government may now forcibly collect and analyze. But ultimately, today's decision will reduce the privacy all citizens may enjoy, for, as Justice Holmes understood, principles of law, once bent, do not snap back easily. I dissent. [ Footnote 2/1 ] The first, and leading, case of a minimally intrusive search held valid when based on suspicion short of probable cause is Terry v. Ohio, 392 U. S. 1 , 392 U. S. 30 (1968), where we held that a police officer who observes unusual conduct suggesting criminal activity by persons he reasonably suspects are armed and presently dangerous may "conduct a carefully limited search of the outer clothing of such persons." See also United States v. Hensley, 469 U. S. 221 (1985) (upholding brief stop of person described on wanted flyer while police ascertain if arrest warrant has been issued); Delaware v. Prouse, 440 U. S. 648 (1979) (invalidating discretionary stops of motorists to check licenses and registrations when not based on reasonable suspicion that the motorist is unlicensed, the automobile is unregistered, or that the vehicle or an occupant should otherwise be detained); Pennsylvania v. Mimms, 434 U. S. 106 (1977) (upholding limited search where officers who had lawfully stopped car saw a large bulge under the driver's jacket); United States v. Brignoni-Ponce, 422 U. S. 873 (1975) (upholding brief stops by roving border patrols where officers reasonably believe car may contain illegal aliens); Adams v. Williams, 407 U. S. 143 (1972) (upholding brief stop to interrogate suspicious individual believed to be carrying narcotics and gun). [ Footnote 2/2 ] See, e.g., United States v. Martinez-Fuerte, 428 U. S. 543 (1976) (brief interrogative stop at permanent border checkpoint to ascertain motorist's residence status); Camara v. Municipal Court of San Francisco, 387 U. S. 523 (1967) (routine annual inspection by city housing department). [ Footnote 2/3 ] The "special needs" the Court invoked to justify abrogating the probable cause requirement were, in New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 341 (1985), "the substantial need of teachers and administrators for freedom to maintain order in the schools"; in O'Connor v. Ortega, 480 U. S. 709 , 480 U. S. 725 (1987), "the efficient and proper operation of the workplace"; and in Griffin v. Wisconsin, 483 U. S. 868 , 483 U. S. 878 (1987), the need to preserve "the deterrent effect of the supervisory arrangement" of probation. [ Footnote 2/4 ] See T.L.O., supra, at 469 U. S. 346 (teacher's report that student had been smoking provided reasonable suspicion that purse contained cigarettes); O'Connor, supra, at 480 U. S. 726 (charges of specific financial improprieties gave employer individualized suspicion of misconduct by employee); Griffin, supra, at 483 U. S. 879 -880 (tip to police officer that probationer was storing guns in his apartment provided reasonable suspicion). [ Footnote 2/5 ] That the Fourth Amendment applies equally to criminal and civil searches was emphasized, ironically enough, in the portion of T.L.O. holding the Fourth Amendment applicable to schoolhouse searches. 469 U.S. at 469 U. S. 335 . The malleability of "special needs" balancing thus could not be clearer: the majority endorses the applicability of the Fourth Amendment to civil searches in determining whether a search has taken place, but then wholly ignores it in the subsequent inquiry into the validity of that search. [ Footnote 2/6 ] The FRA's breath-testing procedures also constitute searches subject to constitutional safeguards. See ante at 489 U. S. 616 -617 (reaching same conclusion). I focus my discussion on the collection and testing of blood and urine because those more intrusive procedures better demonstrate the excesses of the FRA's scheme. [ Footnote 2/7 ] The majority, seeking to lessen the devastating ramifications of Schmerber v. California, 384 U. S. 757 (1966), and to back up its assertion that Government-imposed blood extraction does not "infringe significant privacy interests," ante at 489 U. S. 625 , emphasizes Schmerber's observation that blood tests are commonplace, and can be performed with " virtually no risk, trauma, or pain.'" Ibid., quoting 384 U.S. at 384 U. S. 771 . The majority, however, wrenches this statement out of context. The Schmerber Court made this statement only after it established that the blood test fell within the exigent circumstances exception to the warrant requirement, and that the test was supported by probable cause. Indeed, the statement was made only in the context of the separate inquiry into whether the compulsory blood test was conducted in a reasonable manner. 384 U.S. at 384 U. S. 768 -772; see also Winston v. Lee, 470 U. S. 753 , 470 U. S. 760 -761 (1985) (" Schmerber recognized that the ordinary requirements of the Fourth Amendment would be the threshold requirements for conducting this kind of surgical search and seizure. . . . Beyond these standards, Schmerber's inquiry considered a number of other factors in determining the `reasonableness' of the blood test") (emphasis added). The majority also cites South Dakota v. Neville, 459 U. S. 553 (1983), and Breithaupt v. Abram, 352 U. S. 432 (1957), for the proposition that blood tests are commonplace. Ante at 489 U. S. 625 . In both those cases, however, the police officers who attempted to impose blood tests on drunk-driving suspects had exceptionally strong evidence of the driver's inebriation. 459 U.S. at 459 U. S. 554 -556; 352 U.S. at 352 U. S. 433 . [ Footnote 2/8 ] The majority dismisses as nonexistent the intrusiveness of such "direct observation," on the ground that FRA regulations state that such observation is not "require[d]." 50 Fed.Reg. 31555 (1985), cited ante at 489 U. S. 626 . The majority's dismissal is too hasty, however, for the regulations -- in the very same sentence -- go on to state: "but observation is the most effective means of ensuring that the sample is that of the employee and has not been diluted." 50 Fed.Reg. 31555 (1985). Even if this were not the case, the majority's suggestion that officials monitoring urination will disregard the clear commands of the Field Manual with which they are provided is dubious, to say the least. [ Footnote 2/9 ] See, e.g., National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (CA5 1987), aff'd in pertinent part, post, p. 656; Taylor v. O'Grady, 669 F. Supp. 1422 , 1433-1434 (ND Ill.1987); Feliciano v. Cleveland, 661 F. Supp. 578 , 586 (ND Ohio 1987); American Federation of Government Employees, AFL-CIO v. Weinberger, 651 F. Supp. 726 , 732-733 (SD Ga.1986); Capua v. Plainfield, 643 F. Supp. 1507 , 1514 (NJ 1986). [ Footnote 2/10 ] As a result of the majority's extension of the regulatory search doctrine to searches of the person, individuals the FRA finds to have used drugs may face criminal prosecution, even if their impairment had nothing to do with causing an accident. The majority observes that evidence of criminal behavior unearthed during an otherwise valid regulatory search is not excludible unless the search is shown to be a "pretext" for obtaining evidence for a criminal trial, ante at 489 U. S. 621 , n. 5, citing New York v. Burger, 482 U. S. 691 , 482 U. S. 716 -717, n. 27 (1987) -- a defense the majority belittles but, mercifully, preserves for another day.

The U.S. Supreme Court case Skinner v. Railway Labor Executives' Association (1989) dealt with the Fourth Amendment implications of drug and alcohol testing regulations for railroad employees. The Court applied the Fourth Amendment to the testing, viewing it as compelled by government authority. It considered the tests reasonable due to the safety-sensitive nature of the railroad industry and the minimal privacy expectations of employees in safety-sensitive positions. The Court allowed for testing without individualized suspicion but required safeguards to protect employees' privacy. This case set a precedent for drug and alcohol testing in safety-sensitive industries.

Government Agencies

Lujan v. National Wildlife Federation

https://supreme.justia.com/cases/federal/us/497/871/

U.S. Supreme Court Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) Lujan v. National Wildlife Federation No. 89-640 Argued April 16, 1990 Decided June 27, 1990 497 U.S. 871 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus The National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained-of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions. Held: 1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person . . . Page 497 U. S. 872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 497 U. S. 882 -889. (a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U. S. 388 , 479 U. S. 396 -397. Pp. 497 U. S. 882 -883. (b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U. S. 317 , 477 U. S. 322 . Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id. at 477 U. S. 323 . Pp. 497 U. S. 883 -885. (c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the allegedly affected interests set forth in the affidavits -- "recreational use and aesthetic enjoyment" -- are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of" immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained-of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 , distinguished. Pp. 497 U.S. 885 -889. Page 497 U. S. 873 2. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 497 U. S. 890 -898. (a) The affidavits are insufficient to enable respondent to challenge the entirety of petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 497 U. S. 890 -894. (b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post-deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension, nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 497 U. S. 894 -898. Page 497 U. S. 874 3. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 497 U. S. 898 -899. 278 U.S.App.D.C. 320, 878 F.2d 422, reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 497 U. S. 900 . Page 497 U. S. 875 JUSTICE SCALIA delivered the opinion of the Court. In this, case we must decide whether respondent, the National Wildlife Federation (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands. I Respondent filed this action in 1985 in the United States District Court for the District of Columbia against petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute. In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President "at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the Page 497 U. S. 876 public lands of the United States . . . and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes. . . ." Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec.Order No. 6910, Nov. 26, 1934; Exec.Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses "and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public land laws." 49 Stat.1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that "[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry." Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government. Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970) -- about one-third of the land within the United States, see id. at 19 -- had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id. at 52; and that there were inadequate records to show the purposes Page 497 U. S. 877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that "Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964." Ibid. In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 western States, § 1714 (1)(1), and to "determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs," § 1714(1)(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation. Pursuant to the directives of the FLPMA, the petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with Page 497 U. S. 878 respect to withdrawals in 11 western States. The law requires the Secretary to "report his recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands;" the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1)(2). The Secretary has submitted a number of reports to the President in accordance with this provision. Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: an agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record-clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145. Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple-use management, 43 CFR pt. 2420 (1988), for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated Page 497 U. S. 879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination. II In its complaint, respondent averred generally that the reclassification of some withdrawn lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to "develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands," 43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 western States to the President, § 1714(1); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to "include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on . . . the environmental impact of the proposed action." 42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register. In December, 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from "[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection Page 497 U. S. 880 of lands in the public domain that was in effect on January 1, 1981," and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id. at 248, 835 F.2d at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land-status actions that respondent sought to challenge -- since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -- and asserted harm to respondent's members attributable to those particular actions. Id. at 249, 835 F.2d at 313. To support the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was "concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions," and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss, and directed the parties and the District Court "to proceed with this litigation with dispatch." National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). Page 497 U. S. 881 Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction, and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F. Supp. 327 , 332 (DC 1988). This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves, and held that it was an abuse of discretion not to consider the four additional affidavits as well. [ Footnote 1 ] The Court of Appeals also concluded that Page 497 U. S. 882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042 (1990). III A We first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter . . . agency action' ha[s] the meanin[g] given . . . by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added)). Page 497 U. S. 883 Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved . . . within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -- as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of preexisting law. Rather, we have said that, to be "adversely affected or aggrieved . . . within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U. S. 388 , 479 U. S. 396 -397 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings, and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute. B Because this case comes to us on petitioners' motion for summary judgment, we must assess the record under the Page 497 U. S. 884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(e) further provides: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." As we stated in Celotex Corp. v. Catrett, 477 U. S. 317 (1986), "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 477 U. S. 322 . Where no such showing is made, "[t]he moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 477 U. S. 323 . These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. Sierra Club v. Morton , Page 497 U. S. 885 405 U. S. 727 , 405 U. S. 740 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary, "regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied." 477 U.S. at 477 U. S. 323 . C We turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved . . . within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -- "recreational use and aesthetic enjoyment" -- are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333 (1977). As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg.19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at 47 Fed.Reg. 7232-7233 Page 497 U. S. 886 (1982), an order captioned Public Land Order 6156 and dated February 18, 1982. We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute" -- i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -- both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected. The Peterson affidavit averred: "My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass-Green Mountain, Wyoming, have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass-Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands." App. to Pet. for Cert.191a. Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kanab National Forest." Id. at 187a. The District Court found the Peterson affidavit inadequate for the following reasons: "Peterson . . . claims that she uses federal lands in the vicinity of the South Pass-Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment, and that her recreational and aesthetic enjoyment Page 497 U. S. 887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing. . . . This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining. . . . There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit, on its face, contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation." 699 F. Supp. at 331 (emphasis in original). The District Court found the Erman affidavit "similarly flawed." "The magnitude of Erman's claimed injury stretches the imagination. . . . [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one-eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is, and for many years has been, open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non-metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for nonmetalliferous mining." Id. at 332. The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason: "If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious. . . . Page 497 U. S. 888 [T]he trial court overlooks the fact that, unless Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document." "At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party. . . . This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres." 278 U.S.App.D.C. at 329, 878 F.2d at 431. That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the nonmoving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U. S. 242 , 477 U. S. 249 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without any significant probative evidence tending to support the complaint'"), quoting First National Bank of Ariz. v. Cities Service Co., 391 U. S. 253 , 391 U. S. 290 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one Page 497 U. S. 889 sworn averment of that fact before the lengthy process of litigation continues. At the margins, there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -- whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -- Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the missing facts because, without them, the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts, since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is). Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts, has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment, but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U. S. 41 , 355 U. S. 45 -46 (1957). Page 497 U. S. 890 IV We turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action. A It is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -- much less a "final agency action" -- than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F. Supp. at 332. [ Footnote 2 ] Page 497 U. S. 891 Respondent alleges that violation of the law is rampant within this program -- failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which, as a practical matter, requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U. S. 136 , 387 U. S. 152 -154 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U. S. 167 , 387 U. S. 171 -173 (1967). Cf. 387 U. S. S. 892� Goods Assn., Inc. v. Gardner,@ 387 U. S. 158 , 387 U. S. 164 -166 (1967).) In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and future effect, " 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs. [ Footnote 3 ] But it is at least entirely Page 497 U. S. 893 certain that the flaws in the entire "program" -- consisting principally of the many individual actions referenced in the complaint, and presumably actions yet to be taken as well -- cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members. [ Footnote 4 ] Page 497 U. S. 894 The case-by-case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S. at 387 U. S. 164 -166. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches. B The Court of Appeals' reliance upon the supplemental affidavits was wrong for a second reason: the District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September, 1986; respondent filed an opposition, but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding Page 497 U. S. 895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F. Supp. at 328, n. 3. Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.R.Civ.P. 56(c), and under Rule 6(d), which states more generally that, "[w]hen a motion is supported by affidavit, . . . opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." Rule 6(b) sets out the proper approach in the case of late filings: "When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . ." This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism Page 497 U. S. 896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any post -deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it; [ Footnote 5 ] it would have had to interpret "cause Page 497 U. S. 897 shown" to mean merely "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect." This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because "there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted." 278 U.S.App.D.C. at 331, 878 F.2d at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June, 1988, announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. Page 497 U. S. 898 Perhaps it is true that the District Court could have overcome all the obstacles we have described -- apparent lack of a motion, of a showing, and of excusable neglect -- to admit the affidavits at issue here. But the proposition that it was compelled to receive them -- that it was an abuse of discretion to reject them -- cannot be accepted. V Respondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person . . . adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice-presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the protection and enhancement of federal lands," App. to Pet. for Cert.193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure "to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program." Id. at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F. Supp. at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue. We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," Fed.R.Civ.P. Page 497 U. S. 899 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows: "NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department, and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program." App. to Pet. for Cert.194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. Page 497 U. S. 900 * * * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed. It is so ordered. [ Footnote 1 ] As an additional basis for its conclusion, the Court of Appeals held that the earlier panel's finding that the Peterson and Erman affidavits were sufficient to establish respondent's right to sue was the "law of the case." We do not address this conclusion, as the earlier panel's ruling does not, of course, bind this Court. Messenger v. Anderson, 225 U. S. 436 , 225 U. S. 444 (1912). [ Footnote 2 ] Contrary to the apparent understanding of the dissent, we do not contend that no "land withdrawal review program" exists, any more than we would contend that no weapons procurement program exists. We merely assert that it is not an identifiable "final agency action" for purposes of the APA. If there is, in fact, some specific order or regulation applying some particular measure across the board to all individual classification terminations and withdrawal revocations, and if that order or regulation is final and has become ripe for review in the manner we discuss subsequently in text, it can of course be challenged under the APA by a person adversely affected -- and the entire "land withdrawal review program," insofar as the content of that particular action is concerned, would thereby be affected. But that is quite different from permitting a generic challenge to all aspects of the "land withdrawal review program," as though that itself constituted a final agency action. [ Footnote 3 ] Under the Secretary's regulations, any person seeking to conduct mining operations that will "cause a cumulative surface disturbance" of five acres or more must first obtain approval of a plan of operations. 43 CFR § 3809.1-4 (1988). Mining operations that cause surface disturbance of less than 5 acres do not require prior approval, but prior notice must be given to the district office of the BLM. § 3809.1-3. Neither approval nor notification is required only with respect to "casual use operations," § 3809.1-2, defined as "activities ordinarily resulting in only negligible disturbance of the Federal lands and resources," § 3809.0-5. (Activities are considered "casual" if "they do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off-road vehicles. . . ." Ibid. ) Thus, before any mining use ordinarily involving more than "negligible disturbance" can take place, there must occur either agency action in response to a submitted plan or agency inaction in response to a submitted notice. In one of the four new affidavits, Peggy Peterson, one of the original affiants, states that a corporation has filed a mine permit application with the BLM covering a portion of the land to which her original affidavit pertained. App. to Brief in Opposition for Respondent National Wildlife Federation 16. If that permit is granted, there is no doubt that agency action ripe for review will have occurred; nor any doubt that, in the course of an otherwise proper court challenge, affiant Peterson, and through her respondent, would be able to call into question the validity of the classification order authorizing the permit. However, before the grant of such a permit, or (when it will suffice) the filing of a notice to engage in mining activities, or (when only "negligible disturbance" will occur) actual mining of the land, it is impossible to tell where or whether mining activities will occur. Indeed, it is often impossible to tell from a classification order alone whether mining activities will even be permissible. As explained in the uncontested affidavit of the BLM's Assistant Director of Land Resources: "The lands may be subject to another withdrawal of comparable scope, or they may be subject to classification segregations tantamount to such a withdrawal. In that case, the lands would not be opened to the operation of the public land laws, so that the removal of one of the withdrawals has no practical effect. Another reason why there may not be any change is that, before the revocation occurred, the lands may have been transferred into private ownership. Consequently, the withdrawal revocation amounts to nothing more than a paper transaction. . . . In the alternative, a revoked withdrawal may open the lands to the operation of the public land and mineral laws. . . . Some withdrawal revocations are made without prior knowledge as to what subsequent disposition may be made of the lands. After the lands are opened, they might be transferred out of federal ownership by sale, exchange, or some other discretionary mode of disposal, not anticipated when the withdrawal was revoked. These subsequent discretionary actions require separate and independent decisionmaking that, obviously, are divorced from the prior revocation decision. Environmental and other management concerns and public participation are taken into account in relation to the post-revocation decisionmaking." Affidavit of Frank Edwards, Aug. 18, 1985, App. 61-62. [ Footnote 4 ] Nothing in this is contrary to our opinion in Automobile Workers v. Brock, 477 U. S. 274 (1986), cited by the Court of Appeals. That opinion did not discuss, and the respondent Secretary of Labor did not rely upon, the requirements of 5 U.S.C. § 702 and our ripeness jurisprudence in cases such as Abbott Laboratories v. Gardner, 387 U. S. 136 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U. S. 167 (1967); and Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158 (1967). The only challenge made and decided, with respect to the individuals' right to sue, relied upon 19 U.S.C. § 2311(d) (1982 ed.), which, according to the Secretary of Labor, made entertainment of that suit "'contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts.'" 477 U.S. at 477 U. S. 283 , quoting Brief for Respondent in Automobile Workers, No. 84-1777, p. 16. [ Footnote 5 ] The dissent asserts that a footnote in respondent's reply memorandum to the District Court was a "motion" within the meaning of Rule 6(b)(2), and was so obviously so that the District Court committed reversible error in failing to construe it that way. Post at 497 U. S. 909 -910, n. 10. We cannot agree. Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions -- or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible, but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all post-deadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between pre-deadline and post-deadline filings that the Rule painstakingly draws. Surely the post-deadline "request," to be even permissibly treated as a "motion," must contain a high degree of formality and precision, putting the opposing party on notice that a motion is at issue, and that he therefore ought to respond. The request here had not much of either characteristic. As for formality, it was not even made in a separate filing or in a separate appearance before the court, but was contained in a single sentence at the end of the first paragraph of one of the 18 single-spaced footnotes in a 20-page memorandum of law. Our district judges must read footnotes with new care if they are to be reversed for failing to recognize motions buried in this fashion. And as for precision, the request not only did not ask for any particular extension of time (7 days, 30 days), it did not specifically ask for an extension of time at all, but merely said that respondent "should be given adequate opportunity to supplement the record." Even this, moreover, was not requested (much less moved for) unconditionally, but only "[i]f the court intends to reverse its prior ruling [regarding NWF standing]." Record, Doc. No. 294, p. 17, n. 16. We think it quite impossible to agree with the dissent that the District Judge not only might treat this request as a motion, but that he was compelled to do so. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. In my view, the affidavits of Peggy Kay Peterson and Richard Loren Erman, in conjunction with other record evidence before the District Court on the motions for summary judgment, were sufficient to establish the standing of the National Wildlife Federation (Federation or NWF) to bring this suit. I also conclude that the District Court abused its discretion by refusing to consider supplemental affidavits filed after the hearing on the parties' cross-motions for summary judgment. I therefore would affirm the judgment of the Court of Appeals. I The Federation's asserted injury in this case rested upon its claim that the Government actions challenged here would lead to increased mining on public lands; that the mining would result in damage to the environment; and that the recreational opportunities of NWF's members would consequently be diminished. Abundant record evidence supported the Federation's assertion that, on lands newly opened for mining, mining in fact would occur. [ Footnote 2/1 ] Similarly, the record furnishes ample support for NWF's contention that mining activities can be expected to cause severe environmental Page 497 U. S. 901 damage to the affected lands. [ Footnote 2/2 ] The District Court held, however, that the Federation had not adequately identified particular members who were harmed by the consequences of the Government's actions. Although two of NWF's members expressly averred that their recreational activities had been impaired, the District Court concluded that these affiants had not identified with sufficient precision the particular sites on which their injuries occurred. The majority, like the District Court, holds that the averments of Peterson and Erman were insufficiently specific to withstand a motion for summary judgment. Although these affidavits were not models of precision, I believe that they were adequate at least to create a genuine issue of fact as to the organization's injury. Page 497 U. S. 902 As the Court points out, the showing (whether as to standing or the merits) required to overcome a motion for summary judgment is more extensive than that required in the context of a motion to dismiss. The principal difference is that, in the former context, evidence is required, while in the latter setting the litigant may rest upon the allegations of his complaint. See Celotex Corp. v. Catrett, 477 U. S. 317 , 477 U. S. 324 (1986) (Federal Rule of Civil Procedure 56(e) "requires the nonmoving party to go beyond the pleadings"). In addition, Rule 56(e) requires that the party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial" (emphasis added). Thus, Courts of Appeals have reiterated that "conclusory" allegations unsupported by "specific" evidence will be insufficient to establish a genuine issue of fact. [ Footnote 2/3 ] The requirement that evidence be submitted is satisfied here: the Federation has offered the sworn statements of two of its members. There remains the question whether the allegations in these affidavits were sufficiently precise to satisfy the requirements of Rule 56(e). The line of demarcation between "specific" and "conclusory" allegations is hardly a bright one. But, to my mind, the allegations contained in the Peterson and Erman affidavits, in the context of the record as a whole, were adequate to defeat a motion for summary judgment. These affidavits, as the majority acknowledges, were at least sufficiently precise to enable Bureau of Land Management (BLM) officials to identify the particular termination orders to which the affiants referred. See ante at 497 U.S. 885 -886. And the affiants averred that their "recreational use and aesthetic enjoyment of federal lands . . . have been and continue to be adversely affected in fact by the unlawful Page 497 U. S. 903 actions of the Bureau and the Department." App. to Pet. for Cert. 188a (Erman affidavit), 191a (Peterson affidavit). The question, it should be emphasized, is not whether the NWF has proved that it has standing to bring this action, but simply whether the materials before the District Court established "that there is a genuine issue for trial," see Rule 56(e), concerning the Federation's standing. In light of the principle that, "[o]n summary judgment, the inferences to be drawn from the underlying facts contained in [evidentiary] materials must be viewed in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U. S. 654 , 369 U. S. 655 (1962), I believe that the evidence before the District Court raised a genuine factual issue as to NWF's standing to sue. No contrary conclusion is compelled by the fact that Peterson alleged that she uses federal lands "in the vicinity of South Pass-Green Mountain, Wyoming," App. to Pet. for Cert.191a, rather than averring that she uses the precise tract that was recently opened to mining. The agency itself has repeatedly referred to the "South Pass-Green Mountain area" in describing the region newly opened to mining. [ Footnote 2/4 ] Peterson's assertion that her use and enjoyment of federal lands have been adversely affected by the agency's decision to permit more extensive mining is, as the Court of Appeals stated, National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 329, 878 F.2d 422, 431 (1989), "meaningless, or perjurious" if the lands she uses do not include those harmed by mining undertaken pursuant to termination order W-6228. [ Footnote 2/5 ] To read particular assertions within the affidavit in light of the document as a whole is, as the majority might put it, "a world apart" from "presuming" facts that are neither stated nor implied simply because, without them, the Page 497 U. S. 904 plaintiff would lack standing. The Peterson and Erman affidavits doubtless could have been more artfully drafted, but they definitely were sufficient to withstand the federal parties' summary judgment motion. II I also conclude that the District Court abused its discretion in refusing to consider the supplemental affidavits filed by NWF after the hearing on the summary judgment motion. [ Footnote 2/6 ] The court's decision abruptly derailed the Federation's lawsuit after three years of proceedings involving massive time and expense. The District Court and Court of Appeals both had concluded that NWF's claims were sufficiently substantial to warrant the entry of a nationwide injunction. Whatever the ultimate merits of the Federation's claims, litigation of this magnitude should not be aborted on technical grounds if that result legitimately can be avoided. The majority's approach reflects an insufficient appreciation both of the realities of complex litigation and of the admonition that the Federal Rules of Civil Procedure "shall be construed to secure Page 497 U. S. 905 the just, speedy, and inexpensive determination of every action." Rule 1. That a requirement is "technical" does not, of course, mean that it need not be obeyed. And an appeal to the "spirit" of the Federal Rules is an insufficient basis for ignoring the import of their text. If the Rules imposed an absolute deadline for the submission of evidentiary materials, the District Court could not be faulted for strictly enforcing that deadline, even though the result in a particular case might be unfortunate. But, as the Court acknowledges, the Rules expressly permit the District Court to exercise discretion in deciding whether affidavits in opposition to a summary judgment motion may be submitted after the hearing. [ Footnote 2/7 ] Once the District Court's power to accept untimely affidavits is recognized, the question whether that power should be exercised in a particular instance must be answered by reference to the explanation for the litigant's omission and the purposes the Rules are designed to serve. In my view, NWF showed adequate cause for its failure to file the supplemental affidavits prior to the hearing. Moreover, the organization's untimely filing in no way disserved the purposes of Rule 56(c), and the federal parties suffered no prejudice as a consequence of the Page 497 U. S. 906 delay. Under these circumstances, I believe that the District Court's refusal to consider these submissions constituted an abuse of discretion. The Federal Rules require that affidavits in opposition to a motion ordinarily must be served at least one day prior to the hearing; the Rules provide, however, that the affidavits may be filed at a later time "where the failure to act was the result of excusable neglect." Rule 6(b); see 497 U.S. 871 fn2/7|>n. 7, supra. Prior to the July 22, 1988, hearing on the parties' cross-motions for summary judgment, NWF had been assured repeatedly that its prior submissions were sufficient to establish its standing to sue. In its memorandum opinion granting the Federation's motion for a preliminary injunction, the District Court stated: "We continue to find irreparable injury to plaintiff, and reaffirm plaintiff's standing to bring this action." National Wildlife Federation v. Burford, 676 F. Supp. 280 , 281 (DC 1986). Later that year, the federal parties sought additional discovery on the question of standing. NWF sought to quash discovery, arguing that "[t]he Court should bar any additional discovery on this issue because (1) it has already found that plaintiff has standing; (2) plaintiff has already produced affidavits which demonstrate standing, and therefore any additional discovery would be unreasonably cumulative, duplicative, burdensome and expensive within the meaning of Rule 26(c)(1); and (3) contrary to the government defendants' apparent theory, plaintiff need not demonstrate injury as to each and every action that is part of the program." Memorandum of Points and Authorities in Support of Plaintiff's Motion To Quash and for a Protective Order 5-6 (July 1, 1986). In the alternative, NWF argued that, if additional discovery on standing was to be ordered, it should be confined to the requirement that a limited number of additional affidavits be submitted. Id. at 22. The District Court, on July 14, 1986, granted in full the Federation's motion to quash, and ordered "that no further discovery of plaintiff or Page 497 U. S. 907 its members, officers, employees, agents, servants, or attorneys shall be permitted until subsequent order of this court, if any." App. to Pet. for Cert. 170a-171a. When the District Court's grant of a preliminary injunction was subjected to appellate review, the Court of Appeals concluded that the Peterson and Erman affidavits "provide a concrete indication that the Federation's members use specific lands covered by the agency's Program, and will be adversely affected by the agency's actions." National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 249, 835 F.2d 305, 313 (1987). [ Footnote 2/8 ] The majority's statement that "a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect," ante at 497 U. S. 897 , is therefore simply irrelevant to the present case: the District Court and the Court of Appeals repeatedly had indicated that the Federation had offered sufficient evidence of its standing. Nor did the District Court's order of June 27, 1988, scheduling a motion hearing for the following July 22, place NWF on notice that its claim of standing might be reconsidered. That order made clear that the hearing would consider the summary judgment motions of both the federal parties and Page 497 U. S. 908 the Federation. The principal submission of the federal parties relevant to the hearing was the Defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment and in support of Defendants' Motion for Summary Judgment and/or for Dissolution of the Preliminary Injunction Issued on February 10, 1986; that memorandum was filed on September 12, 1986. This 86-page memorandum included only 9 1/2 pages devoted to standing, and half of that discussion set forth the federal parties claim that no broad programmatic challenge could succeed even if the Peterson and Erman affidavits adequately alleged injury from Government decisions as to particular tracts of land. Moreover, even the attack on the Peterson and Erman affidavits did not purport to show that summary judgment for the federal parties should be entered on the ground that the Federation lacked standing. Rather, the federal parties argued principally that summary judgment for NWF would be inappropriate, because a genuine factual dispute existed as to the Federation's standing to sue. See Defendants' Memorandum, at 45-47. In fact, the 86-page memorandum included only two sentences arguing that the federal parties should be awarded summary judgment on standing grounds. Id. at 11-12, 8. The District Court's decision to schedule a hearing on the parties' cross-motions for summary judgment provided no hint that previous assurances concerning standing were open to reconsideration. [ Footnote 2/9 ] Certainly the Federation could have submitted additional evidentiary materials in support of its claim of standing, even though it had no reason to believe that further submissions were necessary. But it would hardly enhance the efficiency Page 497 U. S. 909 of the adjudicative process to encourage litigants to reargue questions previously settled in their favor. In my view, NWF established sufficient cause for its failure to submit the supplemental affidavits prior to the hearing. [ Footnote 2/10 ] Page 497 U. S. 910 Moreover, the District Court's refusal to consider the additional submissions in this case did not significantly advance the interests that Rule 56(c) is designed to serve. The Rule requires that affidavits in opposition to a motion for summary judgment must be served "prior to the day of hearing." The Courts of Appeals consistently have recognized, however, that "Rule 56 does not necessarily contemplate an oral hearing. Rather, 10-day advance notice to the adverse party that the motion and all materials in support of or in opposition to the motion will be taken under advisement by the trial court as of a certain day satisfies the notice and hearing Page 497 U. S. 911 dictates of Rule 56." Moore v. Florida, 703 F.2d 516, 519 (CA11 1983). [ Footnote 2/11 ] Rule 56(c)'s requirement that a summary judgment motion be filed 10 days in advance of a scheduled hearing serves to ensure that the nonmoving party is afforded adequate notice of the motion. Similarly, the requirement that opposing affidavits be submitted prior to the day of the hearing reflects the fact that the district court may rule on the summary judgment motion at the hearing or at any time thereafter; submission of affidavits prior to that day is thus essential if the moving party is to be assured the opportunity to respond at a time when a response is meaningful. The requirement also allows the district court to establish a deadline by which time all evidence and arguments must be submitted; thereafter, the court may deliberate with the assurance that no subsequent filings will alter the terms of the dispute. These are pressing concerns when the hearing on a summary judgment motion represents the parties' last opportunity to set forth their legal arguments. In the present case, however, the District Court concluded the July 22, 1988, hearing by requesting supplemental briefing on the issue of standing. [ Footnote 2/12 ] NWF's supplemental affidavits, filed on August 22 as an attachment to its legal memorandum, were submitted at a time when the federal parties had ample opportunity to respond. (Indeed, the opportunity to respond here -- 10 days -- was far greater than would have been the case if NWF had filed (timely) affidavits the day before the hearing and no Page 497 U. S. 912 supplemental briefing had been allowed.) The affidavits, moreover, were filed well before the time when the case was to be taken under advisement. The record in this case is voluminous, currently filling six large boxes; consideration of five more affidavits would not have added significantly to the complexity of the issues before the District Court. Under these circumstances, submission of the supplemental affidavits neither disserved the purposes of the Rule nor prejudiced the federal parties in any respect. The District Court discussed none of these factors in explaining its refusal to consider the supplemental affidavits. Indeed, the District Court offered no justification at all for its action beyond the assertion that the affidavits were untimely. [ Footnote 2/13 ] Similarly, the Court today fails to assess the District Court's action by reference to the excuse for NWF's untimely filing or the absence of prejudice to the federal parties. The District Court and today's majority fail to recognize the guiding principle of the Federal Rules of Civil Procedure, the principle that procedural rules should be construed pragmatically, so as to ensure the just and efficient resolution of legal disputes. Some provisions of the Rules strip the District Courts of discretion, and the courts have no choice but to enforce these requirements with scrupulous precision. [ Footnote 2/14 ] But where the Rules expressly confer a range of Page 497 U. S. 913 discretion, a district court may abuse its authority by refusing to take account of equitable concerns, even where its action violates no express command. In my view, such an abuse of discretion occurred here. III In Part IV-A, ante at 497 U. S. 890 -894, the majority sets forth a long and abstract discussion of the scope of relief that might have been awarded had the Federation made a sufficient showing of injury from environmental damage to a particular tract of land. Since the majority concludes in other portions of its opinion that the Federation lacks standing to challenge any of the land use decisions at issue here, it is not clear to me why the Court engages in the hypothetical inquiry contained in Part IV-A. In any event, I agree with much of the Court's discussion, at least in its general outline. The Administrative Procedure Act permits suit to be brought by any person "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. In some cases the "agency action" will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances, a single plaintiff, so long as he is injured by the rule, may obtain "programmatic" relief that affects the rights of parties not before the court. On the other hand, if a generally lawful policy is applied in an illegal manner on a particular occasion, one who is injured is not thereby entitled to challenge other applications of the rule. Application of these principles to the instant case does not turn on whether, or how often, the Bureau's land-management policies have been described as a "program." [ Footnote 2/15 ] In one sense, Page 497 U. S. 914 of course, there is no question that a "program" exists. Everyone associated with this lawsuit recognizes that the BLM, over the past decade, has attempted to develop and implement a comprehensive scheme for the termination of classifications and withdrawals. The real issue is whether the actions and omissions that NWF contends are illegal are themselves part of a plan or policy. For example: if the agency had published a regulation stating that an environmental impact statement (EIS) should never be developed prior to the termination of a classification or withdrawal, NWF could challenge the regulation (which would constitute an "agency action"). If the reviewing court then held that the statute required a pretermination EIS, the relief (invalidation of the rule) would directly affect tracts other than the ones used by individual affiants. At the other extreme, if the applicable BLM regulation stated that an EIS must be developed, and NWF alleged that the administrator in charge of South Pass/Green Mountain had inexplicably failed to develop one, NWF should not be allowed (on the basis of the Peterson affidavit) to challenge a termination in Florida on the ground that an administrator there made the same mistake. The majority, quoting the District Court, characterizes the Bureau's land management program as " 1250 or so individual classification terminations and withdrawal revocations.'" Ante at 497 U. S. 890 ; see National Wildlife Federation v. Burford, 699 F. Supp. 327 , 332 (DC 1988). The majority offers no argument in support of this conclusory assertion, and I am far from certain that the characterization is an accurate one. Since this issue bears on the scope of the relief ultimately to be awarded should the plaintiff prevail, rather than on the jurisdiction Page 497 U. S. 915 of the District Court to entertain the suit, I would allow the District Court to address the question on remand. [ Footnote 2/16 ] IV Since I conclude that the Peterson and Erman affidavits provided sufficient evidence of NWF's standing to withstand a motion for summary judgment, and that the District Court abused its discretion by refusing to consider the Federation's supplemental affidavits, I would affirm the judgment of the Court of Appeals. I respectfully dissent. [ Footnote 2/1 ] Prior to the District Court's entry of the preliminary injunction, 406 mining claims had been staked in the South Pass-Green Mountain area alone. App. 119. An exhibit filed by the federal parties indicated that over 7,200 claims had been filed in 12 Western States. Exh. 1 to Affidavit of Joseph Martyak (Apr. 1 1, 1986) . [ Footnote 2/2 ] A Bureau of Land Management (BLM) draft of a Resource Management Plan/Environmental Impact Statement for the Lander, Wyo., Resource Area stated: "In the Green Mountain Management Unit . . . significant long-term impacts to elk and mule deer herds could occur from habitat losses caused by oil and gas activities over the next 60 years. . . . In the South Pass Management Unit, significant acreages of lodgepole pine forest and aspen conifer woodland habitat types could be disturbed, which would cause significant long-term impacts to moose and elk. . . . If gold mining activities continued to erode these high-value habitats, trout fisheries, the Lander moose herd, the beaver pond ecosystems, and the populations of many other wildlife species would suffer significant cumulative negative effects." Draft RMP/EIS, pp. 226-228 (Exh. 3 to Defendant-Intervenors' Reply to Plaintiff's Opposition to Defendants' Motions for Stay Pending Appeal (May 14, 1986)). A BLM Mineral Report issued June 17, 1982, concluded that mining and associated activities "could have an adverse impact on crucial moose habitat, deer habitat, some elk habitat, and a variety of small game and bird species. Improvements at campgrounds, as well as land in the immediate vicinity, could either be damaged or destroyed. These activities could make it difficult for the BLM to manage the forest production and harvesting in the South Pass area. Historical and cultural resources which have and have not been identified could be either damaged or destroyed." Defendant-Intervenors' Exh. 7 (attached as Appendix 1 to Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed (Aug. 22, 1988)). [ Footnote 2/3 ] See, e.g., May v. Department of Air Force, 777 F.2d 1012, 1016 (CA5 1985); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (CA7 1985); Maldonado v. Ramirez, 757 F.2d 48, 51 (CA3 1985); Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (CA5 1985). [ Footnote 2/4 ] See, e.g., App. 123-139 (Declaration of Jack Kelly). [ Footnote 2/5 ] The areas harmed or threatened by mining and associated activities may extend well beyond the precise location where mining occurs. See 497 U.S. 871 fn2/2|>n. 2, supra. [ Footnote 2/6 ] Five supplemental affidavits were filed. The first was submitted by Peggy Kay Peterson, in clarification of her earlier affidavit: "A substantial portion of the lands which I use . . . are identical to those lands" newly opened to mining in the South Pass-Green Mountain area. Peterson Supplemental Affidavit, App. in No. 88-5397 (CADC), p. 356. Ms. Peterson also asserted that "U.S. Energy Corporation has filed a mine permit application with the Bureau and Department (U.S. Energy Application, TFN 2 4/86), which includes a proposal to mine a significant portion of the federal lands which I use for recreational purposes and aesthetic enjoyment." Id. at 355-356. The other affiants were NWF members David Doran, Merlin McColm, Stephen Blomeke, and Will Ouellette. These individuals identified termination orders that had opened to mining particular tracts of land used by the affiants for recreation and aesthetic enjoyment. The federal parties do not concede that the supplemental affidavits established with certainty the Federation's standing; they contend that further discovery might show the affiants' allegations to be untrue. The federal parties do concede, however, that the supplemental affidavits were not facially deficient. Tr. of Oral Arg.19. [ Footnote 2/7 ] Rule 56(c) provides that, when a motion for summary judgment is filed, the "adverse party prior to the day of hearing may serve opposing affidavits." Under Rule 56(e), the district court "may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." Rule 6(d) states: "When a motion is supported by affidavit, . . . opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time." The district court's authority to permit service "at some other time" is governed in turn by Rule 6(b), which provides that, when an act is required to be performed by a specified time, the district court may, "Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1165, p. 475 (2d ed.1987) (Rule 6(b) "gives the court extensive flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is sought before or after the actual termination of the allotted time"). [ Footnote 2/8 ] The Court of Appeals' discussion of standing occurred in the context of a motion to dismiss and therefore, by itself, might not assure NWF that it had made a sufficient showing to withstand a motion for summary judgment. But the Court of Appeals, like the District Court before it, also held that the Federation's showing of injury, as reflected in the Peterson and Erman affidavits, provided an adequate basis for a preliminary injunction. As the second Court of Appeals panel concluded, "the burden of establishing irreparable harm to support a request for a preliminary injunction is, if anything, at least as great as the burden of resisting a summary judgment motion on the ground that the plaintiff cannot demonstrate 'injury-in-fact.'" National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 330, 878 F.2d 422, 432 (1989) (emphasis omitted). When the first panel affirmed the District Court's entry of a preliminary injunction, Judge Williams' separate opinion, concurring and dissenting, stated that "the specificity required for standing allegations to secure a preliminary injunction will normally be no less than that required on a motion for summary judgment." 266 U.S.App.D.C. at 264, 835 F.2d at 328. [ Footnote 2/9 ] At the hearing itself, Fred R. Disheroon, the federal parties' attorney, argued at length on other points before turning to the issue of standing. He began that portion of his argument by observing that "perhaps the court doesn't want to hear me argue standing, but I think it is imperative that I address that in the context of this case." Tr. of Motions Hearing 13 (July 2, 1988). [ Footnote 2/10 ] The supplemental affidavits were submitted as an attachment to the supplemental legal memorandum on standing requested by the District Court. At the time of their submission, NWF stated only that "NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants." Plaintiff National Wildlife Federation's Statement of Points and Authorities in Support of Its Standing To Proceed 18, n. 21 (Aug. 22, 1988). However, in its reply memorandum on the issue, NWF addressed the contention of the federal parties and the defendant-intervenor that the affidavits should be ignored as untimely filed. NWF stated that "plaintiff heretofore, has relied on the court's previous rulings on NWF's standing. In its motion for a protective order against additional discovery, NWF argued that its standing had already been proven on the basis of the affidavits of Mr. Greenwalt, Ms. Peterson, and Mr. Erman. The court agreed, and entered the requested protective order. If the court intends to reverse its prior ruling, then NWF respectfully requests that it should be given adequate opportunity to supplement the record." Plaintiff National Wildlife Federation's Reply Memorandum in Support of Its Standing To Proceed 17, n. 16 (Sept. 14, 1988). The Federation also noted that Circuit precedent permitted the filing of supplemental affidavits on standing issues, even on appeal. Ibid., citing National Wildlife Federation v. Hodel, 268 U.S.App.D.C. 15, 24, 839 F.2d 694, 703 (1988). NWF offered the further explanation that "Ms. Peterson has supplemented her affidavit to include new information regarding a mine application which has been filed by U.S. Energy Corporation that includes a proposal to mine lands within the area of South Pass/Green Mountain previously closed to mining. For the record, NWF initially was told by officials of the Bureau of Land Management that the U.S. Energy mine application did not include any lands covered by the court's preliminary injunction. Otherwise, NWF would have supplemented Ms. Peterson's affidavit earlier." Reply Memorandum, at 12-13, n. 13. Along with its Reply Memorandum, NWF submitted an additional filing entitled Plaintiff National Wildlife Federation's Memorandum in Opposition to Defendant-Intervenors' Motion To Strike Plaintiff's Supplementation of the Record (Sept. 14, 1988). That filing stated: "For the reasons stated in [the reply memorandum] at page 17, n. 16, plaintiff requests that defendant-intervenors' motion to strike be denied." (In light of this separate submission, addressed solely to the question whether the supplemental affidavits should be considered, and expressly referring to n. 16 of the reply memorandum, it is difficult to fathom the Court's assertion that NWF's request was "buried" in the Federation's filings. See ante at 497 U. S. 896 -897, n. 5.) This separate filing, in conjunction with the reply memorandum, satisfied Rule 6(b)'s requirement that the request for enlargement of time be made "upon motion." Though neither of these filings was expressly denominated a "motion," they met the requirements of Rule 7(b): they were submitted in writing, were signed by counsel, "state[d] with particularity the grounds therefor," and unambiguously "set forth the relief . . . sought." See Campos v. LeFevre, 825 F.2d 671, 676 (CA2 1987) ("[N]o particular form of words is necessary to render a filing a motion.' Any submission signed by a party that may fairly be read as a request to the district court to exercise its discretionary powers . . . should suffice"), cert. denied, 484 U.S. 1014 (1988); Smith v. Danyo, 585 F.2d 83, 86 (CA3 1978) ("Rule 7(b) requires no more than that . . . a motion `state with particularity the grounds' upon which it is based. Plainly, an affidavit which is filed to obtain an order disqualifying a judge satisfies the requirements of Rule 7(b). . . . The . . . failure to type in the word `motion' above the word `affidavit' in no way detracts from the notice which the affidavit gave of the nature of the application"). Cf. Snyder v. Smith, 736 F.2d 409, 419 (CA7) ("The Federal Rules are to be construed liberally, so that erroneous nomenclature in a motion does not bind a party at his peril"), cert. denied, 469 U.S. 1037 (1984); Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (CA9 1983) ("The court will construe [a motion], however styled, to be the type proper for the relief requested"); 2A J. Moore & J. Lucas, Moore's Federal Practice � 7.05, pp. 7-16 to 7-17 (1989) ("[I]t is the motion's substance, and not merely its linguistic form, that determines its nature and legal effect"). [ Footnote 2/11 ] Accord, Allied Chemical Corp. v. Mackay, 695 F.2d 854, 856 (CA5 1983) ("Rule 56(c) does not require an oral hearing in open court. Rather, it contemplates notice to the party opposing the motion and an adequate opportunity to respond to the movant's arguments"); Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (CA1 1986). [ Footnote 2/12 ] The District Court subsequently established a schedule for the supplemental briefing. NWF was requested to file its opening memorandum by August 22, 1988; the Government and intervenors were to file memoranda in opposition by September 1; and NWF's reply was due by September 14. Order of July 27, 1988. [ Footnote 2/13 ] The District Court mentioned these affidavits in a single footnote: "Plaintiff, in addition to its memorandum filed August 22, 1988, has submitted additional evidentiary material, including declarations from four of its members. These submissions are untimely, and in violation of our Order. We decline to consider them. See Federal Defendants' Reply to Plaintiff's Statement of Points and Authorities in Support of Its Standing to Proceed, at 1 n. 1." National Wildlife Federation v. Burford, 699 F. Supp. 327 , 328-329, n. 3 (DC 1988). [ Footnote 2/14 ] Rule 6(b), for example, which generally gives the district court broad authority to grant enlargements of time, establishes the limitation that the court "may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them." [ Footnote 2/15 ] The term "withdrawal review program" repeatedly has been used in BLM documents. See, e.g., Plaintiff's Exhs. 1, 3, 10, 11, 15, 18, 19 (filed July 15, 1985). At oral argument on the cross-motions for summary judgment, counsel for the federal parties acknowledged: "It is true, BLM referred to this review process as a land withdrawal review program." Tr. of Motion Hearing 40 (July 22, 1988). Counsel went on to say, "but I suggest that using a word, calling it a program, doesn't make a program in the sense that it is being challenged here." Ibid. That assertion, though inelegant, seems essentially correct: an agency's terminology is not decisive in determining whether an alleged illegality is systemic or site-specific. [ Footnote 2/16 ] The majority also suggests that the agency actions challenged in this suit may not be ripe for review. See ante at 497 U. S. 891 -893. Since the issue of ripeness has not been briefed or argued in this Court, nor passed on by the courts below, I need not address it. I do note, however, that, at the outset of this case, the federal parties made precisely the opposite argument, asserting that a preliminary injunction should be denied on the ground that NWF's claims were barred by laches. The federal parties contended: "The Federation offers no explanation why, despite its detailed knowledge of BLM's revocation and termination activities, it has waited so long to institute litigation." Defendants' Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction 26 (Aug. 22, 1985). I also decline to address the adequacy of the affidavit submitted by Lynn Greenwalt, since the Court of Appeals did not pass on that issue.

Here is a summary of the Lujan v. National Wildlife Federation case: The National Wildlife Federation (NWF) filed a lawsuit against the Director of the Bureau of Land Management (BLM) and other federal parties, alleging violations of the Federal Land Policy and Management Act and the National Environmental Policy Act in their administration of the BLM's land withdrawal review program. The NWF claimed that the decisions made under this program affected the status of public lands and their availability for private use, such as mining. The District Court granted the BLM's motion for summary judgment, ruling that the NWF lacked the standing to seek judicial review under the Administrative Procedure Act (APA). The Court of Appeals reversed, holding that the NWF had standing based on affidavits from its members claiming use of the lands affected by the BLM's decisions. The U.S. Supreme Court disagreed with the Court of Appeals and held that the NWF did not have standing to challenge all of the BLM's decisions under the APA. The Court found that the NWF must show that it had been affected by "agency action" and that the interests of its members were within the "zone of interests" protected by the statutes in question. The Court also clarified that a general interest in the BLM's compliance with the law was not enough to confer standing. Ultimately, the Supreme Court sent the case back to the lower courts to determine which, if any, specific decisions by the BLM had caused harm to the interests of the NWF's members, and thus conferred standing for those particular challenges.

Government Agencies

Bennett v. Spear

https://supreme.justia.com/cases/federal/us/520/154/

OCTOBER TERM, 1996 Syllabus BENNETT ET AL. v. SPEAR ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 95-813. Argued November 13, 1996-Decided March 19, 1997 The Endangered Species Act of 1973 (ESA) requires the Secretary of the Interior to specify animal species that are "threatened" or "endangered" and designate their "critical habitat," 16 U. S. C. § 1533, and requires federal agencies to ensure that any action they authorize, fund, or carry out is not likely to jeopardize a listed species or adversely modify its critical habitat, § 1536(a)(2). If an agency determines that a proposed action may adversely affect such a species, it must formally consult with the Fish and Wildlife Service, which must provide it with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat. § 1536(b)(3)(A). If the Service concludes that such action will result in jeopardy or adverse habitat modification, § 1536(a)(2), the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, § 1536(b)(3)(A). If the Biological Opinion concludes that no jeopardy or adverse habitat modification will result, or if it offers reasonable and prudent alternatives, the Service must issue a written statement (known as the Incidental Take Statement) specifying the terms and conditions under which an agency may take the species. § 1536(b)(4). After the Bureau of Reclamation notified the Service that the operation of the Klamath Irrigation Project might affect two endangered species of fish, the Service issued a Biological Opinion, concluding that the proposed long-term operation of the project was likely to jeopardize the species and identifying as a reasonable and prudent alternative the maintenance of minimum water levels on certain reservoirs. The Bureau notified the Service that it would operate the project in compliance with the Biological Opinion. Petitioners, irrigation districts receiving project water and operators of ranches in those districts, filed this action against respondents, the Service's director and regional directors and the Secretary, claiming that the jeopardy determination and imposition of minimum water levels violated § 1536, and constituted an implicit critical habitat determination for the species in violation of § 1533(b)(2)'s requirement that the designation's economic impact be considered. They also claimed that the actions violated the Administrative Procedure Act (APA), which prohibits agency actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 155 law. 5 U. S. C. § 706(2)(A). The District Court dismissed the complaint, concluding that petitioners lacked standing because they asserted "recreational, aesthetic, and commercial interests" that did not fall within the zone of interests sought to be protected by the ESA. The Court of Appeals affirmed, holding that the "zone of interests" test—which requires that a plaintiff's grievance arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit-limits the class of persons who may obtain judicial review not only under the APA, but also under the ESA's citizen-suit provision, 16 U. S. C. § 1540(g); and that only plaintiffs alleging an interest in the preservation of endangered species fall within the zone of interests protected by the ESA. Held: Petitioners have standing to seek judicial review of the Biological Opinion. pp. 161-179. (a) The Court of Appeals erred in concluding that petitioners lacked standing under the zone-of-interests test to bring their claims under the ESA's citizen-suit provision. The test is a prudential standing requirement of general application, see, e. g., Allen v. Wright, 468 U. S. 737 , 751, that applies unless expressly negated by Congress. By providing that "any person may commence a civil suit," § 1540(g)(1) negates the test. The quoted phrase is an authorization of remarkable breadth when compared with the language Congress ordinarily uses. The Court's readiness to take the term "any person" at face value is greatly augmented by the interrelated considerations that the legislation's overall subject matter is the environment and that § 1540(g)'s obvious purpose is to encourage enforcement by so-called "private attorneys general." See Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 , 210-211. The "any person" formulation applies to all § 1540(g) causes of action, including actions against the Secretary asserting overenforcement of § 1533; there is no textual basis for saying that the formulation's expansion of standing requirements applies to environmentalists alone. Pp. 161-166. (b) Three alternative grounds advanced by the Government-(1) that petitioners fail to meet Article III standing requirements; (2) that § 1540(g) does not authorize judicial review of the types of claims petitioners advanced; and (3) that judicial review is unavailable under the APA-do not support affirmance. Petitioners' complaint alleges an injury in fact that is fairly traceable to the Biological Opinion and redressable by a favorable judicial ruling and, thus, meets Article III standing requirements at this stage of the litigation. Their § 1533 claim is clearly reviewable under § 1540(g)(1)(C), which authorizes suit against the Secretary for an alleged failure to perform any nondiscretionary act or duty 156 Syllabus under § 1533. Their § 1536 claims are obviously not reviewable under subsection (C), however. Nor are they reviewable under subsection (A), which authorizes injunctive actions against any person "who is alleged to be in violation" of the ESA or its regulations. Viewed in the context of the entire statute, subsection (A)'s reference to any ESA "violation" cannot be interpreted to include the Secretary's maladministration of the Act. The § 1536 claims are nonetheless reviewable under the APA. The ESA does not preclude such review, and the claim that petitioners will suffer economic harm because of an erroneous jeopardy determination is plainly within the zone of interests protected by § 1536, the statutory provision whose violation forms the basis for the complaint, see Lujan v. National Wildlife Federation, 497 U. S. 871 . In addition, the Biological Opinion constitutes final agency action for APA purposes. It marks the consummation of the agency's decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 113. It is also an action from which "legal consequences will flow," Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U. S. 62 , 71, because the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the Bureau is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. Franklin v. Massachusetts, 505 U. S. 788 , and Dalton v. Specter, 511 U. S. 462 , distinguished. Pp. 166-179. 63 F.3d 915 , reversed and remanded. SCALIA, J., delivered the opinion for a unanimous Court. Gregory K. Wilkinson argued the cause for petitioners. With him on the briefs was William F. Schroeder. Deputy Solicitor General Kneedler argued the cause for respondents. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Schiffer, Malcolm L. Stewart, Anne S. Almy, Robert L. Klarquist, and Evelyn S. Ying. * *Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Charles W Getz TV, Assistant Attorney General, and Linus Masouredis, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Margery S. Bronster of 157 JUSTICE SCALIA delivered the opinion of the Court. This is a challenge to a biological opinion issued by the Fish and Wildlife Service in accordance with the Endangered Species Act of 1973 (ESA), 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., concerning the operation of the Klamath Irrigation Project by the Bureau of Reclamation, and the project's impact on two varieties of endangered fish. The question for decision is whether the petitioners, who have competing economic and other interests in Klamath Project water, have standing to seek judicial review of the biological opinion under the citizen-suit provision of the ESA, § 1540(g)(1), and the Administrative Procedure Act (APA), 80 Stat. 392, as amended, 5 U. S. C. § 701 et seq. I The ESA requires the Secretary of the Interior to promulgate regulations listing those species of animals that are "threatened" or "endangered" under specified criteria, and Hawaii, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, Jan Graham of Utah, and Darrell V. McGraw, Jr., of West Virginia; for the State of Texas by Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, and Javier P. Guajardo and Sam Goodhope, Special Assistant Attorneys General; for the American Farm Bureau Federation et al. by Timothy S. Bishop, Michael F. Rosenblum, John J. Rademacher, Richard L. Krause, and Nancy N. McDonough; for the American Forest & Paper Association et al. by Steven P. Quarles, Clifton S. Elgarten, Thomas R. Lundquist, and William R. Murray; for the American Homeowners Foundation et al. by Nancie G. Marzulla; for the Association of California Water Agencies et al. by Thomas W Birmingham, Clifford W Schulz, Janet K. Goldsmith, and William T. Chisum; for the National Association of Home Builders of the United States et al. by Glen Franklin Koontz, Thomas C. Jackson, and Nick Cammarota; for the Nationwide Public Projects Coalition et al. by Lawrence R. Liebesman and Kenneth S. Kamlet; for the Pacific Legal Foundation et al. by Robin L. Rivett and M. Reed Hopper; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and Craig S. Harrison. 158 to designate their "critical habitat." 16 U. S. C. § 1533. The ESA further requires each federal agency to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical." § 1536(a)(2). If an agency determines that action it proposes to take may adversely affect a listed species, it must engage in formal consultation with the Fish and Wildlife Service, as delegate of the Secretary, ibid.; 50 CFR § 402.14 (1995), after which the Service must provide the agency with a written statement (the Biological Opinion) explaining how the proposed action will affect the species or its habitat, 16 U. S. C. § 1536(b)(3)(A). If the Service concludes that the proposed action will "jeopardize the continued existence of any [listed] species or threatened species or result in the destruction or adverse modification of [critical habitat]," § 1536(a)(2), the Biological Opinion must outline any "reasonable and prudent alternatives" that the Service believes will avoid that consequence, § 1536(b)(3)(A). Additionally, if the Biological Opinion concludes that the agency action will not result in jeopardy or adverse habitat modification, or if it offers reasonable and prudent alternatives to avoid that consequence, the Service must provide the agency with a written statement (known as the Incidental Take Statement) specifying the "impact of such incidental taking on the species," any "reasonable and prudent measures that the [Service] considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions ... that must be complied with by the Federal agency ... to implement [those measures]." § 1536(b)(4). The Klamath Project, one of the oldest federal reclamation schemes, is a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. The project was undertaken by the Secretary of the Interior 159 pursuant to the Reclamation Act of 1902, 32 Stat. 388, as amended, 43 U. S. C. § 371 et seq., and the Act of Feb. 9, 1905, 33 Stat. 714, and is administered by the Bureau of Reclamation, which is under the Secretary's jurisdiction. In 1992, the Bureau notified the Service that operation of the project might affect the Lost River Sucker (Deltistes luxatus) and Shortnose Sucker (Chasmistes brevirostris), species of fish that were listed as endangered in 1988, see 53 Fed. Reg. 27130-27133 (1988). After formal consultation with the Bureau in accordance with 50 CFR § 402.14 (1995), the Service issued a Biological Opinion which concluded that the" 'longterm operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and shortnose suckers.'" App. to Pet. for Cert. 3. The Biological Opinion identified "reasonable and prudent alternatives" the Service believed would avoid jeopardy, which included the maintenance of minimum water levels on Clear Lake and Gerber reservoirs. The Bureau later notified the Service that it intended to operate the project in compliance with the Biological Opinion. Petitioners, two Oregon irrigation districts that receive Klamath Project water and the operators of two ranches within those districts, filed the present action against the director and regional director of the Service and the Secretary of the Interior. N either the Bureau nor any of its officials is named as defendant. The complaint asserts that the Bureau "has been following essentially the same procedures for storing and releasing water from Clear Lake and Gerber reservoirs throughout the twentieth century," id., at 36; that "[t]here is no scientifically or commercially available evidence indicating that the populations of endangered suckers in Clear Lake and Gerber reservoirs have declined, are declining, or will decline as a result" of the Bureau's operation of the Klamath Project, id., at 37; that "[t]here is no commercially or scientifically available evidence indicating that the restrictions on lake levels imposed in the Biological Opinion 160 will have any beneficial effect on the ... populations of suckers in Clear Lake and Gerber reservoirs," id., at 39; and that the Bureau nonetheless "will abide by the restrictions imposed by the Biological Opinion," id., at 32. Petitioners' complaint included three claims for relief that are relevant here. The first and second claims allege that the Service's jeopardy determination with respect to Clear Lake and Gerber reservoirs, and the ensuing imposition of minimum water levels, violated § 7 of the ESA, 16 U. S. C. § 1536. The third claim is that the imposition of minimum water elevations constituted an implicit determination of critical habitat for the suckers, which violated § 4 of the ESA, 16 U. S. C. § 1533(b)(2), because it failed to take into consideration the designation's economic impact.1 Each of the claims also states that the relevant action violated the AP A's prohibition of agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U. S. C. § 706(2)(A). The complaint asserts that petitioners' use of the reservoirs and related waterways for "recreational, aesthetic and commercial purposes, as well as for their primary sources of irrigation water," will be "irreparably damaged" by the actions complained of, App. to Pet. for Cert. 34, and that the restrictions on water delivery "recommended" by the Biological Opinion "adversely affect plaintiffs by substantially reducing the quantity of available irrigation water," id., at 40. In essence, petitioners claim a competing interest in the water the Biological Opinion declares necessary for the preservation of the suckers. The District Court dismissed the complaint for lack of jurisdiction. It concluded that petitioners did not have 1 Petitioners also raised a fourth claim: that the de facto designation of critical habitat violated the National Environmental Policy Act of 1969, 83 Stat. 853, as amended, 42 U. S. C. § 4332(2)(C), because it was not preceded by preparation of an environmental assessment. The Court of Appeals' dismissal of that claim has not been challenged. 161 standing because their "recreational, aesthetic, and commercial interests ... do not fall within the zone of interests sought to be protected by ESA." Id., at 28. The Court of Appeals for the Ninth Circuit affirmed. Bennett v. Plenert, 63 F.3d 915 (1995). It held that the "zone of interests" test limits the class of persons who may obtain judicial review not only under the AP A, but also under the citizen-suit provision of the ESA, 16 U. S. C. § 1540(g), and that "only plaintiffs who allege an interest in the preservation of endangered species fall within the zone of interests protected by the ESA," 63 F. 3d, at 919 (emphasis in original). We granted certiorari. 517 U. S. 1102 (1996). In this Court, petitioners raise two questions: first, whether the prudential standing rule known as the "zone of interests" test applies to claims brought under the citizensuit provision of the ESA; and second, if so, whether petitioners have standing under that test notwithstanding that the interests they seek to vindicate are economic rather than environmental. In this Court, the Government has made no effort to defend the reasoning of the Court of Appeals. Instead, it advances three alternative grounds for affirmance: (1) that petitioners fail to meet the standing requirements imposed by Article III of the Constitution; (2) that the ESA's citizen-suit provision does not authorize judicial review of the types of claims advanced by petitioners; and (3) that judicial review is unavailable under the AP A because the Biological Opinion does not constitute final agency action. II We first turn to the question the Court of Appeals found dispositive: whether petitioners lack standing by virtue of the zone-of-interests test. Although petitioners contend that their claims lie both under the ESA and the APA, we look first at the ESA because it may permit petitioners to recover their litigation costs, see 16 U. S. C. § 1540(g)(4), and because the AP A by its terms independently authorizes re- 162 view only when "there is no other adequate remedy in a court," 5 U. S. C. § 704. The question of standing "involves both constitutionallimitations on federal-court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U. S. 490 , 498 (1975) (citing Barrows v. Jackson, 346 U. S. 249 (1953)). To satisfy the "case" or "controversy" requirement of Article III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560-561 (1992); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 471-472 (1982). In addition to the immutable requirements of Article III, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Id., at 474-475. Like their constitutional counterparts, these "judicially self-imposed limits on the exercise of federal jurisdiction," Allen v. Wright, 468 U. S. 737 , 751 (1984), are "founded in concern about the proper-and properly limited-role of the courts in a democratic society," Warth, supra, at 498; but unlike their constitutional counterparts, they can be modified or abrogated by Congress, see 422 U. S., at 501. Numbered among these prudential requirements is the doctrine of particular concern in this case: that a plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit. See Allen, supra, at 751; Valley Forge, supra, at 474-475. The "zone of interests" formulation was first employed in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). There, certain data processors sought to invalidate a ruling by the Comptroller of the Currency authorizing national banks to sell data processing 163 services on the ground that it violated, inter alia, §4 of the Bank Service Corporation Act of 1962, 76 Stat. 1132, which prohibited bank service corporations from engaging in "any activity other than the performance of bank services for banks." The Court of Appeals had held that the banks' data-processing competitors were without standing to challenge the alleged violation of § 4. In reversing, we stated the applicable prudential standing requirement to be "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Processing, supra, at 153. Data Processing, and its companion case, Barlow v. Collins, 397 U. S. 159 (1970), applied the zone-of-interests test to suits under the APA, but later cases have applied it also in suits not involving review of federal administrative action, see Dennis v. Higgins, 498 U. S. 439 , 449 (1991); Boston Stock Exchange v. State Tax Comm'n, 429 U. S. 318 , 320-321, n. 3 (1977); see also Note, A Defense of the "Zone of Interests" Standing Test, 1983 Duke L. J. 447, 455-456, and nn. 40-49 (1983) (cataloging lower court decisions), and have specifically listed it among other prudential standing requirements of general application, see, e. g., Allen, supra, at 751; Valley Forge, supra, at 474-475. We have made clear, however, that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the" 'generous review provisions' " of the AP A may not do so for other purposes, Clarke v. Securities Industry Assn., 479 U. S. 388 , 400, n. 16 (1987) (quoting Data Processing, supra, at 156). Congress legislates against the background of our prudential standing doctrine, which applies unless it is expressly negated. See Block v. Community Nutrition Institute, 467 U. S. 340, 345-348 (1984). Cf. Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519 , 532-533, and n. 28 164 (1983). The first question in the present case is whether the ESA's citizen-suit provision, set forth in pertinent part in the margin,2 negates the zone-of-interests test (or, perhaps more accurately, expands the zone of interests). We think it does. The first operative portion of the provision says that "any person may commence a civil suit"-an authorization of remarkable breadth when compared with the language Con- 2 "(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf- "(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or "(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary. "The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision or regulation, or to order the Secretary to perform such act or duty, as the case may be .... "(2)(A) No action may be commenced under subparagraph (1)(A) of this section- "(i) prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation; "(ii) if the Secretary has commenced action to impose a penalty pursuant to subsection (a) of this section; or "(iii) if the United States has commenced and is diligently prosecuting a criminal action ... . to redress a violation of any such provision or regulation. "(3)(B) In any such suit under this subsection in which the United States is not a party, the Attorney General, at the request of the Secretary, may intervene on behalf of the United States as a matter of right. "(4) The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 16 U. S. C. § 1540(g). 165 gress ordinarily uses. Even in some other environmental statutes, Congress has used more restrictive formulations, such as "[any person] having an interest which is or may be adversely affected," 33 U. S. C. § 1365(g) (Clean Water Act); see also 30 U. S. C. § 1270(a) (Surface Mining Control and Reclamation Act) (same); "[a]ny person suffering legal wrong," 15 U. S. C. § 797(b)(5) (Energy Supply and Environmental Coordination Act); or "any person having a valid legal interest which is or may be adversely affected ... whenever such action constitutes a case or controversy," 42 U. S. C. § 9124(a) (Ocean Thermal Energy Conversion Act). And in contexts other than the environment, Congress has often been even more restrictive. In statutes concerning unfair trade practices and other commercial matters, for example, it has authorized suit only by "[a]ny person injured in his business or property," 7 U. S. C. § 2305(c); see also 15 U. S. C. § 72 (same), or only by "competitors, customers, or subsequent purchasers," § 298(b). Our readiness to take the term "any person" at face value is greatly augmented by two interrelated considerations: that the overall subject matter of this legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by so-called "private attorneys general" -evidenced by its elimination of the usual amount-in-controversy and diversity-ofcitizenship requirements, its provision for recovery of the costs of litigation (including even expert witness fees), and its reservation to the Government of a right of first refusal to pursue the action initially and a right to intervene later. Given these factors, we think the conclusion of expanded standing follows a fortiori from our decision in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972), which held that standing was expanded to the full extent permitted under Article III by § 810(a) of the Civil Rights Act of 1968, 82 Stat. 85, 42 U. S. C. § 3610(a) (1986 ed.), that authorized 166 "[a]ny person who claims to have been injured by a discriminatory housing practice" to sue for violations of the Act. There also we relied on textual evidence of a statutory scheme to rely on private litigation to ensure compliance with the Act. See 409 U. S., at 210-211. The statutory language here is even clearer, and the subject of the legislation makes the intent to permit enforcement by everyman even more plausible. It is true that the plaintiffs here are seeking to prevent application of environmental restrictions rather than to implement them. But the "any person" formulation applies to all the causes of action authorized by § 1540(g)-not only to actions against private violators of environmental restrictions, and not only to actions against the Secretary asserting underenforcment under § 1533, but also to actions against the Secretary asserting overenforcement under § 1533. As we shall discuss below, the citizen-suit provision does favor environmentalists in that it covers all private violations of the ESA but not all failures of the Secretary to meet his administrative responsibilities; but there is no textual basis for saying that its expansion of standing requirements applies to environmentalists alone. The Court of Appeals therefore erred in concluding that petitioners lacked standing under the zone-of-interests test to bring their claims under the ESA's citizen-suit provision. III The Government advances several alternative grounds upon which it contends we may affirm the dismissal of petitioners' suit. Because the District Court and the Court of Appeals found the zone-of-interests ground to be dispositive, these alternative grounds were not reached below. A respondent is entitled, however, to defend the judgment on any ground supported by the record, see Ponte v. Real, 471 U. S. 491 , 500 (1985); Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367 , 379, n. 5 (1996). The asserted grounds were 167 raised below, and have been fully briefed and argued here; we deem it an appropriate exercise of our discretion to consider them now rather than leave them for disposition on remand. A The Government's first contention is that petitioners' complaint fails to satisfy the standing requirements imposed by the "case" or "controversy" provision of Article III. This "irreducible constitutional minimum" of standing requires: (1) that the plaintiff have suffered an "injury in fact"-an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Defenders of Wildlife, 504 U. S., at 560-561. Petitioners allege, among other things, that they currently receive irrigation water from Clear Lake, that the Bureau "will abide by the restrictions imposed by the Biological Opinion," App. to Pet. for Cert. 32, and that "[t]he restrictions on lake levels imposed in the Biological Opinion adversely affect [petitioners] by substantially reducing the quantity of available irrigation water," id., at 40. The Government contends, first, that these allegations fail to satisfy the "injury in fact" element of Article III standing because they demonstrate only a diminution in the aggregate amount of available water, and do not necessarily establish (absent information concerning the Bureau's water allocation practices) that petitioners will receive less water. This contention overlooks, however, the proposition that each element of Article III standing "must be supported in the same way as any other matter on which the plaintiff bears the burden 168 of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation." Defenders of Wildlife, supra, at 561. Thus, while a plaintiff must "set forth" by affidavit or other evidence "specific facts" to survive a motion for summary judgment, Fed. Rule Civ. Proc. 56(e), and must ultimately support any contested facts with evidence adduced at trial, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Defenders of Wildlife, supra, at 561 (quoting Lujan v. National Wildlife Federation, 497 U. S. 871 , 889 (1990)). Given petitioners' allegation that the amount of available water will be reduced and that they will be adversely affected thereby, it is easy to presume specific facts under which petitioners will be injured-for example, the Bureau's distribution of the reduction pro rata among its customers. The complaint alleges the requisite injury in fact. The Government also contests compliance with the second and third Article III standing requirements, contending that any injury suffered by petitioners is neither "fairly traceable" to the Service's Biological Opinion, nor "redressable" by a favorable judicial ruling, because the "action agency" (the Bureau) retains ultimate responsibility for determining whether and how a proposed action shall go forward. See 50 CFR § 402.15(a) (1995) ("Following the issuance of a biological opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the Service's biological opinion"). "If petitioners have suffered injury," the Government contends, "the proximate cause of their harm is an (as yet unidentified) decision by the Bureau regarding the volume of water allocated to petitioners, not the biological opinion itself." Brief for Respondents 22. This wrongly equates injury "fairly traceable" to the defendant with injury as to 169 which the defendant's actions are the very last step in the chain of causation. While, as we have said, it does not suffice if the injury complained of is" 'thee] result [of] the independent action of some third party not before the court,'" Defenders of Wildlife, supra, at 560-561 (emphasis added) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 , 41-42 (1976)), that does not exclude injury produced by determinative or coercive effect upon the action of someone else. By the Government's own account, while the Service's Biological Opinion theoretically serves an "advisory function," 51 Fed. Reg. 19928 (1986), in reality it has a powerful coercive effect on the action agency: "The statutory scheme ... presupposes that the biological opinion will playa central role in the action agency's decisionmaking process, and that it will typically be based on an administrative record that is fully adequate for the action agency's decision insofar as ESA issues are concerned .... [A] federal agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of 'articulat[ing] in its administrative record its reasons for disagreeing with the conclusions of a biological opinion.' 51 Fed. Reg. 19,956 (1986). In the government's experience, action agencies very rarely choose to engage in conduct that the Service has concluded is likely to jeopardize the continued existence of a listed species." Brief for Respondents 20-21. What this concession omits to say, moreover, is that the action agency must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency's expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong. A Biological Opinion of the sort rendered here alters the legal regime to which the action agency is subject. When it "offers reasonable and prudent alterna- 170 tives" to the proposed action, a Biological Opinion must include a so-called "Incidental Take Statement"-a written statement specifying, among other things, those "measures that the [Service] considers necessary or appropriate to minimize [the action's impact on the affected species]" and the "terms and conditions ... that must be complied with by the Federal agency ... to implement [such] measures." 16 U. S. C. § 1536(b)(4). Any taking that is in compliance with these terms and conditions "shall not be considered to be a prohibited taking of the species concerned." § 1536(0)(2). Thus, the Biological Opinion's Incidental Take Statement constitutes a permit authorizing the action agency to "take" the endangered or threatened species so long as it respects the Service's "terms and conditions." The action agency is technically free to disregard the Biological Opinion and proceed with its proposed action, but it does so at its own peril (and that of its employees), for "any person" who knowingly "takes" an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment. See §§ 1540(a) and (b) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 and imprisonment for one year); see also Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 , 708 (1995) (upholding interpretation of the term "take" to include significant habitat degradation). The Service itself is, to put it mildly, keenly aware of the virtually determinative effect of its biological opinions. The Incidental Take Statement at issue in the present case begins by instructing the reader that any taking of a listed species is prohibited unless "such taking is in compliance with this incidental take statement," and warning that "[t]he measures described below are nondiscretionary, and must be taken by [the Bureau]." App. 92-93. Given all of this, and given petitioners' allegation that the Bureau had, until issuance of the Biological Opinion, operated the Klamath Project in the same manner throughout the 20th century, it is not 171 difficult to conclude that petitioners have met their burdenwhich is relatively modest at this stage of the litigation-of alleging that their injury is "fairly traceable" to the Service's Biological Opinion and that it will "likely" be redressedi. e., the Bureau will not impose such water level restrictions-if the Biological Opinion is set aside. B Next, the Government contends that the ESA's citizen-suit provision does not authorize judicial review of petitioners' claims. The relevant portions of that provision provide that "any person may commence a civil suit on his own behalf- "(A) to enjoin any person, including the United States and any other governmental instrumentality or agency ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or "(C) against the Secretary [of Commerce or the Interior] where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary." 16 U. S. C. § 1540(g)(1). The Government argues that judicial review is not available under subsection (A) because the Secretary is not "in violation" of the ESA, and under subsection (C) because the Secretary has not failed to perform any nondiscretionary duty under § 1533. 1 Turning first to subsection (C): that it covers only violations of § 1533 is clear and unambiguous. Petitioners' first and second claims, which assert that the Secretary has violated § 1536, are obviously not reviewable under this provision. However, as described above, the third claim alleges 172 that the Biological Opinion implicitly determines critical habitat without complying with the mandate of § 1533(b)(2) that the Secretary "tak[e] into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." This claim does come within subsection (C). The Government seeks to avoid this result by appealing to the limitation in subsection (C) that the duty sought to be enforced not be "discretionary with the Secretary." But the terms of § 1533(b)(2) are plainly those of obligation rather than discretion: "The Secretary shall designate critical habitat, and make revisions thereto, ... on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." (Emphasis added.) It is true that this is followed by the statement that, except where extinction of the species is at issue, "[t]he Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." Ibid. (emphasis added). However, the fact that the Secretary's ultimate decision is reviewable only for abuse of discretion does not alter the categorical requirement that, in arriving at his decision, he "tak[e] into consideration the economic impact, and any other relevant impact," and use "the best scientific data available." Ibid. It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking. See SEC v. Chenery Corp., 318 U. S. 80 , 94-95 (1943). Since it is the omission of these required procedures that petitioners complain of, their § 1533 claim is reviewable under § 1540(g)(1)(C). 2 Having concluded that petitioners' § 1536 claims are not reviewable under subsection (C), we are left with the ques- 173 tion whether they are reviewable under subsection (A), which authorizes injunctive actions against any person "who is alleged to be in violation" of the ESA or its implementing regulations. The Government contends that the Secretary's conduct in implementing or enforcing the ESA is not a "violation" of the ESA within the meaning of this provision. In its view, § 1540(g)(1)(A) is a means by which private parties may enforce the substantive provisions of the ESA against regulated parties-both private entities and Government agencies-but is not an alternative avenue for judicial review of the Secretary's implementation of the statute. We agree. The opposite contention is simply incompatible with the existence of § 1540(g)(1)(C), which expressly authorizes suit against the Secretary, but only to compel him to perform a nondiscretionary duty under § 1533. That provision would be superfluous-and, worse still, its careful limitation to § 1533 would be nullified-if § 1540(g)(1)(A) permitted suit against the Secretary for any "violation" of the ESA. It is the "'cardinal principle of statutory construction' ... [that] [i]t is our duty 'to give effect, if possible, to every clause and word of a statute' ... rather than to emasculate an entire section." United States v. Menasche, 348 U. S. 528 , 538 (1955) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937), and Montclair v. Ramsdell, 107 U. S. 147 , 152 (1883)). Application of that principle here clearly requires us to conclude that the term "violation" does not include the Secretary's failure to perform his duties as administrator of the ESA. Moreover, the ESA uses the term "violation" elsewhere in contexts in which it is most unlikely to refer to failure by the Secretary or other federal officers and employees to perform their duties in administering the ESA. Section 1540(a), for example, authorizes the Secretary to impose substantial civil penalties on "[a]ny person who knowingly violates ... any provision of [the ESA]," and entrusts the Secretary with the power to "remi[t] or mitigat[e]" any such penalty. We know 174 of no precedent for applying such a provision against those who administer (as opposed to those who are regulated by) a substantive law. Nor do we think it likely that the statute meant to subject the Secretary and his officers and employees to criminal liability under § 1540(b), which makes it a crime for "[a]ny person [to] knowingly violat[e] any provision of [the ESA]," or that § 1540(e)(3), which authorizes law enforcement personnel to "make arrests without a warrant for any violation of [the ESA]," was intended to authorize warrantless arrest of the Secretary or his delegates for "knowingly" failing to use the best scientific data available. Finally, interpreting the term "violation" to include any errors on the part of the Secretary in administering the ESA would effect a wholesale abrogation of the AP A's "final agency action" requirement. Any procedural default, even one that had not yet resulted in a final disposition of the matter at issue, would form the basis for a lawsuit. We are loathe to produce such an extraordinary regime without the clearest of statutory direction, which is hardly present here. Viewed in the context of the entire statute, § 1540(g) (l)(A)'s reference to any "violation" of the ESA cannot be interpreted to include the Secretary's maladministration of the ESA. Petitioners' claims are not subject to judicial review under § 1540(g)(1)(A). IV The foregoing analysis establishes that the principal statute invoked by petitioners, the ESA, does authorize review of their § 1533 claim, but does not support their claims based upon the Secretary's alleged failure to comply with § 1536. To complete our task, we must therefore inquire whether these § 1536 claims may nonetheless be brought under the Administrative Procedure Act, which authorizes a court to "set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U. S. C. § 706. 175 A No one contends (and it would not be maintainable) that the causes of action against the Secretary set forth in the ESA's citizen-suit provision are exclusive, supplanting those provided by the AP A. The AP A, by its terms, provides a right to judicial review of all "final agency action for which there is no other adequate remedy in a court," § 704, and applies universally "except to the extent that-(l) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law," § 701(a). Nothing in the ESA's citizen-suit provision expressly precludes review under the AP A, nor do we detect anything in the statutory scheme suggesting a purpose to do so. And any contention that the relevant provision of 16 U. S. C. § 1536(a)(2) is discretionary would fly in the face of its text, which uses the imperative "shall." In determining whether the petitioners have standing under the zone-of-interests test to bring their AP A claims, we look not to the terms of the ESA's citizen-suit provision, but to the substantive provisions of the ESA, the alleged violations of which serve as the gravamen of the complaint. See National Wildlife Federation, 497 U. S., at 886. The classic formulation of the zone-of-interests test is set forth in Data Processing, 397 U. S., at 153: "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." The Court of Appeals concluded that this test was not met here, since petitioners are neither directly regulated by the ESA nor seek to vindicate its overarching purpose of species preservation. That conclusion was error. Whether a plaintiff's interest is "arguably ... protected ... by the statute" within the meaning of the zone-ofinterests test is to be determined not by reference to the overall purpose of the Act in question (here, species preservation), but by reference to the particular provision of law 176 upon which the plaintiff relies. It is difficult to understand how the Ninth Circuit could have failed to see this from our cases. In Data Processing itself, for example, we did not require that the plaintiffs' suit vindicate the overall purpose of the Bank Service Corporation Act of 1962, but found it sufficient that their commercial interest was sought to be protected by the anticompetition limitation contained in § 4 of the Act-the specific provision which they alleged had been violated. See Data Processing, supra, at 155-156. As we said with the utmost clarity in National Wildlife Federation, "the plaintiff must establish that the injury he complains of ... falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." 497 U. S., at 883 (emphasis added). See also Air Courier Conference v. Postal Workers, 498 U. S. 517 , 523-524 (1991) (same). In the claims that we have found not to be covered by the ESA's citizen-suit provision, petitioners allege a violation of § 7 of the ESA, 16 U. S. C. § 1536, which requires, inter alia, that each agency "use the best scientific and commercial data available," § 1536(a)(2). Petitioners contend that the available scientific and commercial data show that the continued operation of the Klamath Project will not have a detrimental impact on the endangered suckers, that the imposition of minimum lake levels is not necessary to protect the fish, and that by issuing a Biological Opinion which makes unsubstantiated findings to the contrary the defendants have acted arbitrarily and in violation of § 1536(a)(2). The obvious purpose of the requirement that each agency "use the best scientific and commercial data available" is to ensure that the ESA not be implemented haphazardly, on the basis of speculation or surmise. While this no doubt serves to advance the ESA's overall goal of species preservation, we think it readily apparent that another objective (if not indeed the primary one) is to avoid needless economic dislocation 177 produced by agency officials zealously but unintelligently pursuing their environmental objectives. That economic consequences are an explicit concern of the ESA is evidenced by § 1536(h), which provides exemption from § 1536(a)(2)'s no-jeopardy mandate where there are no reasonable and prudent alternatives to the agency action and the benefits of the agency action clearly outweigh the benefits of any alternatives. We believe the "best scientific and commercial data" provision is similarly intended, at least in part, to prevent uneconomic (because erroneous) jeopardy determinations. Petitioners' claim that they are victims of such a mistake is plainly within the zone of interests that the provision protects. B The Government contends that petitioners may not obtain judicial review under the AP A on the theory that the Biological Opinion does not constitute "final agency action," 5 U. S. C. § 704, because it does not conclusively determine the manner in which Klamath Project water will be allocated: "Whatever the practical likelihood that the [Bureau] would adopt the reasonable and prudent alternatives (including the higher lake levels) identified by the Service, the Bureau was not legally obligated to do so. Even if the Bureau decided to adopt the higher lake levels, moreover, nothing in the biological opinion would constrain the [Bureau's] discretion as to how the available water should be allocated among potential users." Brief for Respondents 33. This confuses the question whether the Secretary's action is final with the separate question whether petitioners' harm is "fairly traceable" to the Secretary's action (a question we have already resolved against the Government, see Part III-A, supra). As a general matter, two conditions must be satisfied for agency action to be "final": First, the action must 178 mark the "consummation" of the agency's decisionmaking process, Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 113 (1948)-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow," Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U. S. 62 , 71 (1970). It is uncontested that the first requirement is met here; and the second is met because, as we have discussed above, the Biological Opinion and accompanying Incidental Take Statement alter the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. In this crucial respect the present case is different from the cases upon which the Government relies, Franklin v. Massachusetts, 505 U. S. 788 (1992), and Dalton v. Specter, 511 U. S. 462 (1994). In the former case, the agency action in question was the Secretary of Commerce's presentation to the President of a report tabulating the results of the decennial census; our holding that this did not constitute "final agency action" was premised on the observation that the report carried "no direct consequences" and served "more like a tentative recommendation than a final and binding determination." 505 U. S., at 798. And in the latter case, the agency action in question was submission to the President of base closure recommendations by the Secretary of Defense and the Defense Base Closure and Realignment Commission; our holding that this was not "final agency action" followed from the fact that the recommendations were in no way binding on the President, who had absolute discretion to accept or reject them. 511 U. S., at 469-471. Unlike the reports in Franklin and Dalton, which were purely advisory and in no way affected the legal rights of the relevant actors, the Biological Opinion at issue here has direct and appreciable legal consequences. *** 179 The Court of Appeals erred in affirming the District Court's dismissal of petitioners' claims for lack of jurisdiction. Petitioners' complaint alleges facts sufficient to meet the requirements of Article III standing, and none of their ESA claims is precluded by the zone-of-interests test. Petitioners' § 1533 claim is reviewable under the ESA's citizensuit provision, and petitioners' remaining claims are reviewable under the AP A. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

In *Bennett et al. v. Spear et al.*, the Supreme Court ruled that the Biological Opinion issued by the Fish and Wildlife Service, outlining the potential impact of the Klamath Irrigation Project on endangered fish species, constituted "final agency action" under the Administrative Procedure Act (APA). The Biological Opinion, which concluded that the project would likely jeopardize the species and proposed minimum water levels as a solution, altered the legal regime and authorized the taking of the endangered species if certain conditions were met. This decision had direct legal consequences and was not purely advisory, distinguishing it from other agency actions that were not considered "final." The Court also found that the petitioners, irrigation districts, and ranch operators had standing to challenge the Biological Opinion and that their claims fell within the zone of interests protected by the Endangered Species Act (ESA) and the APA. The case was remanded for further proceedings.

Government Agencies

Ohio Forestry Ass'n, Inc. v. Sierra Club

https://supreme.justia.com/cases/federal/us/523/726/

OCTOBER TERM, 1997 Syllabus OHIO FORESTRY ASSOCIATION, INC. v. SIERRA CLUB ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 97-16. Argued February 25, 1998-Decided May 18, 1998 Pursuant to the National Forest Management Act of 1976 (NFMA), the United States Forest Service developed a Land and Resource Management Plan (Plan) for Ohio's Wayne National Forest. Although the Plan makes logging in the forest more likely-it sets logging goals, selects the areas suited to timber production, and determines which probable methods of timber harvest are appropriate-it does not itself authorize the cutting of any trees. Before the Service can permit logging, the NFMA and applicable regulations require it to: (a) propose a particular site and specific harvesting method, (b) ensure that the project is consistent with the Plan, (c) provide affected parties with notice and an opportunity to be heard, (d) conduct an environmental analysis of the project, and (e) make a final decision to permit logging, which affected persons may challenge in administrative and court appeals. Furthermore, the Service must revise the Plan as appropriate. When the Plan was first proposed, the Sierra Club and another environmental organization (collectively Sierra Club) pursued various administrative remedies to bring about the Plan's modification, and then brought this suit challenging the Plan's lawfulness on the ground that it permits too much logging and too much clearcutting. The District Court granted the Forest Service summary judgment, but the Sixth Circuit reversed. The latter court found the dispute justiciable because, inter alia, it was "ripe for review" and held that the Plan violated the NFMA. Held: This dispute is not justiciable, because it is not ripe for court review. Pp.732-739. (a) In deciding whether an agency decision is ripe, this Court has examined the fitness of the particular issues for judicial decision and the hardship to the parties of withholding review. Abbott Laboratories v. Gardner, 387 U. S. 136 , 149. Such an examination in this case reveals that the relevant factors, taken together, foreclose court review. First, withholding review will not cause the plaintiffs significant "hardship." Ibid. The challenged Plan provisions do not create adverse effects of a strictly legal kind; for example, they do not establish a legal right to cut trees or abolish any legal authority to object to trees being cut. Cf. United States v. Los Angeles & Salt Lake R. Co., 273 U. S. 299 , 309-310. 727 Nor would delaying review cause the Sierra Club significant practical harm. Given the procedural requirements the Service must observe before it can permit logging, the Sierra Club need not bring its challenge now, but may await a later time when harm is more imminent and certain. Cf. Abbott Laboratories, 387 U. S., at 152-154. Nor has the Sierra Club pointed to any other way in which the Plan could now force it to modify its behavior to avoid future adverse consequences, as, for example, agency regulations can sometimes force immediate compliance through fear of future sanctions. Cf., e. g., id., at 152-153. Second, court review now could interfere with the system that Congress specified for the Forest Service to reach logging decisions. From that agency's perspective, immediate review could hinder its efforts to refine its policies through revision of the Plan or application of the Plan in practice. Cf., e. g., id., at 149. Here, the possibility that further consideration will actually occur before the Plan is implemented is real, not theoretical. Third, the courts would benefit from further factual development of the issues. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 ,82. Review now would require timeconsuming consideration of the details of an elaborate, technically based Plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that particular logging proposals could provide. And, depending upon the agency's future actions to revise the Plan or modify the expected implementation methods, review now may turn out to have been unnecessary. See FTC v. Standard Oil Co. of Cal., 449 U. S. 232 , 242. Finally, Congress has not specifically provided for preimplementation judicial review of such plans, unlike certain agency rules, cf., e. g., Lujan v. National Wildlife Federation, 497 U. S. 871 , 891, and forest plans are unlike environmental impact statements prepared pursuant to the National Environmental Policy Act of 1969 because claims involving such statements can never get any riper. Pp. 732-737. (b) The Court cannot consider the Sierra Club's argument that the Plan will hurt it immediately in many ways not yet mentioned. That argument makes its first appearance in this Court in the briefs on the merits and is, therefore, not fairly presented. Pp. 738-739. 105 F.3d 248 , vacated and remanded. BREYER, J., delivered the opinion for a unanimous Court. Malcolm L. Stewart argued the cause for the federal respondents in support of petitioner, under this Court's Rule 728 12.6. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Schiffer, and Deputy Solicitor General Kneedler. Steven P. Quarles argued the cause for petitioner. With him on the briefs were Clifton S. Elgarten, Thomas R. Lundquist, and William R. Murray. Frederick M. Gittes argued the cause for respondents. With him on the brief were Patti A. Goldman, Todd D. True, and Alex Levinson. * JUSTICE BREYER delivered the opinion of the Court. The Sierra Club challenges the lawfulness of a federal land and resource management plan adopted by the United States Forest Service for Ohio's Wayne National Forest on the ground that the plan permits too much logging and too much clearcutting. We conclude that the controversy is not yet ripe for judicial review. I The National Forest Management Act of 1976 (NFMA) requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 90 Stat. 2949, as renumbered and amended, 16 U. S. C. § 1604(a). The System itself is vast. It includes 155 national forests, 20 national grasslands, 8 land utilization projects, and other lands that together occupy nearly 300,000 square miles of land located in 44 States, Puerto Rico, and the Virgin Islands. § 1609(a); 36 CFR § 200.1(c)(2) (1997); Office of the *Briefs of amici curiae urging reversal were filed for the Alabama Forestry Association et al. by Charles Rothfeld; for Forest Service Employees for Environmental Ethics et al. by Michael Axline; for the Pacific Legal Foundation by Robin L. Rivett; for the Southeastern Ohio Oil & Gas Association by James S. Huggins and M. Dale Leeper; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. William V. Luneburg filed a brief for the Institute for Fisheries Resources et al. as amici curiae. 729 Federal Register, United States Government Manual 135 (1997/1998). The National Forest Service, which manages the System, develops land and resource management plans pursuant to NFMA, and uses these forest plans to "guide all natural resource management activities," 36 CFR § 219.1(b) (1997), including use of the land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U. S. C. § 1604(e)(1). In developing the plans, the Service must take both environmental and commercial goals into account. See, e. g., § 1604(g); 36 CFR § 219.1(a) (1997). This case focuses upon a plan that the Forest Service has developed for the Wayne National Forest located in southern Ohio. When the Service wrote the plan, the forest consisted of 178,000 federally owned acres (278 sq. mi.) in three forest units that are interspersed among privately owned lands, some of which the Forest Service plans to acquire over time. See Land and Resource Management Plan, Wayne National Forest, United States Department of Agriculture, Forest Service, Eastern Region (1987) 1-3,3-1, A-13 to A-17 (hereinafter Plan). The Plan permits logging to take place on 126,000 (197 sq. mi.) of the federally owned acres. Id., at 4-7, 4-180. At the same time, it sets a ceiling on the total amount of wood that can be cut-a ceiling that amounts to about 75 million board feet over 10 years, and which, the Plan projects, would lead to logging on about 8,000 acres (12.5 sq. mi.) during that decade. Id., at 4-180. According to the Plan, logging on about 5,000 (7.8 sq. mi.) of those 8,000 acres would involve clearcutting, or other forms of what the Forest Service calls "even-aged" tree harvesting. Id., at 3-5,4-180. Although the Plan sets logging goals, selects the areas of the forest that are suited to timber production, 16 U. S. C. § 1604(k), and determines which "probable methods of timber harvest" are appropriate, § 1604(f)(2), it does not itself authorize the cutting of any trees. Before the Forest Service can permit the logging, it must: (a) propose a specific area in 730 which logging will take place and the harvesting methods to be used, Plan 4-20 to 4-25; 53 Fed. Reg. 26835-26836 (1988); (b) ensure that the project is consistent with the Plan, 16 U. S. C. § 1604(i); 36 CFR § 219.10(e) (1997); (c) provide those affected by proposed logging notice and an opportunity to be heard, 106 Stat. 1419 (note following 16 U. S. C. § 1612); 36 CFR pt. 215, § 217.1(b) (1997); Plan 5-2; (d) conduct an environmental analysis pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. §4332 et seq.; Plan 4-14, to evaluate the effects of the specific project and to contemplate alternatives, 40 CFR §§ 1502.14, 1508.9(b) (1997); Plan 1-2; and (e) subsequently make a final decision to permit logging, which affected persons may challenge in an administrative appeals process and in court, see 106 Stat. 1419-1420 (note folowing 16 U. S. C. § 1612); 5 U. S. C. § 701 et seq. See also 53 Fed. Reg. 26834-26835 (1988); 58 Fed. Reg. 19370-19371 (1993). Furthermore, the statute requires the Forest Service to "revise" the Plan "as appropriate." 16 U. S. C. § 1604(a). Despite the considerable legal distance between the adoption of the Plan and the moment when a tree is cut, the Plan's promulgation nonetheless makes logging more likely in that it is a logging precondition; in its absence logging could not take place. See ibid. (requiring promulgation of forest plans); § 1604(i) (requiring all later forest uses to conform to forest plans). When the Forest Service first proposed its Plan, the Sierra Club and the Citizens Council on Conservation and Environmental Control each objected. In an effort to bring about the Plan's modification, they (collectively Sierra Club), pursued various administrative remedies. See Administrative Decision of the Chief of the Forest Service (Nov. 14, 1990), Pet. for Cert. 66a; Appeal Decision, Wayne National Forest Land and Resource Management Plan (Jan. 14, 1992), id., at 78a. The Sierra Club then brought this lawsuit in federal court, initially against the Chief of the Forest Service, the Secretary of Agriculture, the Regional Forester, and the 731 Forest Supervisor. The Ohio Forestry Association, some of whose members harvest timber from the Wayne National Forest or process wood products obtained from the forest, later intervened as a defendant. The Sierra Club's second amended complaint sets forth its legal claims. That complaint initially states facts that describe the Plan in detail and allege that erroneous analysis leads the Plan wrongly to favor logging and clearcutting. Second Amended Complaint "13-47 (hereinafter Complaint), App. 16-23. The Complaint then sets forth three claims for relief. The first claim for relief says that the "defendants in approving the plan for the Wayne [National Forest] and in directing or permitting below-cost timber sales accomplished by means of clearcutting" violated various laws including the NFMA, the NEPA, and the Administrative Procedure Act. Complaint' 49, id., at 24. The second claim says that the "defendants' actions in directing or permitting below-cost timber sales in the Wayne [National Forest] under the plan violate [their] duties as public trustees." Complaint' 52, ibid. The third claim says that, in selecting the amount of the forest suitable for timber production, the defendants followed regulations that failed properly to identify "economically unsuitable lands." Complaint" 54-58, id., at 25-26. It adds that, because the Forest Service's regulations thereby permitted the Service to place "economically unsuitable lands" in the category of land where logging could take place, the regulations violated their authorizing statute, NFMA, 16 U. S. C. § 1600 et seq., and were "arbitrary, capricious, an abuse of discretion, and not in accordance with law," pursuant to the Administrative Procedure Act, 5 U. S. C. § 701 et seq. Complaint' 60, App. 26. The Complaint finally requests as relief: (a) a declaration that the Plan "is unlawful as are the below-cost timber sales and timbering, including clearcutting, authorized by the 732 plan," (b) an "injunction prohibiting the defendants from permitting or directing further timber harvest and/or below-cost timber sales" pending Plan revision, (c) costs and attorney's fees, and (d) "such other further relief as may be appropriate." Complaint" (a)-(d), id., at 26-27. The District Court reviewed the Plan, decided that the Forest Service had acted lawfully in making the various determinations that the Sierra Club had challenged, and granted summary judgment for the Forest Service. Sierra Club v. Robertson, 845 F. Supp. 485, 503 (SD Ohio 1994). The Sierra Club appealed. The Court of Appeals for the Sixth Circuit held that the dispute was justiciable, finding both that the Sierra Club had standing to bring suit, and that since the suit was "ripe for review," there was no need to wait "until a site-specific action occurs." Sierra Club v. Thomas, 105 F.3d 248 , 250 (1997). The Court of Appeals disagreed with the District Court about the merits. It held that the Plan improperly favored clearcutting and therefore violated NFMA. Id., at 251-252. We granted certiorari to determine whether the dispute about the Plan presents a controversy that is justiciable now, and if so, whether the Plan conforms to the statutory and regulatory requirements for a forest plan. II Petitioner alleges that this suit is nonjusticiable both because the Sierra Club lacks standing to bring this case and because the issues before us-over the Plan's specifications for logging and clearcutting-are not yet ripe for adjudication. We find that the dispute is not justiciable, because it is not ripe for court review. Cf. Steel Co. v. Citizens For Better Environment, ante, at 100-101, n. 3. As this Court has previously pointed out, the ripeness requirement is designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract 733 disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U. S. 136 , 148-149 (1967). In deciding whether an agency's decision is, or is not, ripe for judicial review, the Court has examined both the "fitness of the issues for judicial decision" and the "hardship to the parties of withholding court consideration." Id., at 149. To do so in this case, we must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented. These considerations, taken together, foreclose review in the present case. First, to "withhol[d] court consideration" at present will not cause the parties significant "hardship" as this Court has come to use that term. Ibid. For one thing, the provisions of the Plan that the Sierra Club challenges do not create adverse effects of a strictly legal kind, that is, effects of a sort that traditionally would have qualified as harm. To paraphrase this Court's language in United States v. Los Angeles & Salt Lake R. Co., 273 U. S. 299 , 309-310 (1927) (opinion of Brandeis, J.), they do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut. Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances-an important consideration in light of this Court's 734 modern ripeness cases. See, e. g., Abbott Laboratories, supra, at 152-154. As we have pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court. Supra, at 729-730. The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain. Any such later challenge might also include a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i. e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging. Hence we do not find a strong reason why the Sierra Club must bring its challenge now in order to get relief. Cf. Abbott Laboratories, supra, at 152. Nor has the Sierra Club pointed to any other way in which the Plan could now force it to modify its behavior in order to avoid future adverse consequences, as, for example, agency regulations can sometimes force immediate compliance through fear of future sanctions. Cf. Abbott Laboratories, supra, at 152-153 (finding challenge ripe where plaintiffs must comply with Federal Drug Administration labeling rule at once and incur substantial economic costs or risk later serious criminal and civil penalties for unlawful drug distribution); Columbia Broadcasting System, Inc. v. United States, 316 U. S. 407 , 417-419 (1942) (finding challenge ripe where plaintiffs must comply with burdensome Federal Communications Commission rule at once or risk later loss of license and consequent serious harm). The Sierra Club does say that it will be easier, and certainly cheaper, to mount one legal challenge against the Plan now, than to pursue many challenges to each site-specific logging decision to which the Plan might eventually lead. It does not explain, however, why one initial site-specific victory (if based on the Plan's unlawfulness) could not, through 735 preclusion principles, effectively carry the day. See Lujan v. National Wildlife Federation, 497 U. S. 871 , 894 (1990). And, in any event, the Court has not considered this kind of litigation cost saving sufficient by itself to justify review in a case that would otherwise be unripe. The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of-even repetitivepostimplementation litigation. See, e. g., ibid. ("The caseby-case approach ... is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's ... forests .... But this is the traditional, and remains the normal, mode of operation of the courts"); FTC v. Standard Oil Co. of Cal., 449 U. S. 232 , 244 (1980); Renegotiation Bd. v. Bannercraft Clothing Co., 415 U. S. 1 , 24 (1974); Petroleum Exploration, Inc. v. Public Servo Comm'n, 304 U. S. 209 , 222 (1938). Second, from the agency's perspective, immediate judicial review directed at the lawfulness of logging and clearcutting could hinder agency efforts to refine its policies: (a) through revision of the Plan, e. g., in response to an appropriate proposed site-specific action that is inconsistent with the Plan, see 53 Fed. Reg. 23807, 26836 (1988), or (b) through application of the Plan in practice, e. g., in the form of site-specific proposals, which are subject to review by a court applying purely legal criteria. Cf. Abbott Laboratories, supra, at 149; Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190 , 201 (1983). Cf. Standard Oil Co., supra, at 242 (premature review "denies the agency an opportunity to correct its own mistakes and to apply its expertise"). And, here, the possibility that further consideration will actually occur before the Plan is implemented is not theoretical, but real. See, e. g., 60 Fed. Reg. 18886, 18901 (1995) (forest plans often not fully implemented), id., at 18905-18907 (discussing process for amending forest plans); 58 Fed. Reg. 19369, 19370-19371 736 (1993) (citing administrative appeals indicating that plans are merely programmatic in nature and that plan cannot foresee all effects on forest); Appeal Nos. 92-09-11-0008, 92-09-110009 (Lodging II) (successful Sierra Club administrative appeals against Wayne timber harvesting site-specific projects). Hearing the Sierra Club's challenge now could thus interfere with the system that Congress specified for the agency to reach forest logging decisions. Third, from the courts' perspective, review of the Sierra Club's claims regarding logging and clearcutting now would require time-consuming judicial consideration of the details of an elaborate, technically based plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that a particular logging proposal could provide. Thus, for example, the court below in evaluating the Sierra Club's claims had to focus upon whether the Plan as a whole was "improperly skewed," rather than focus upon whether the decision to allow clearcutting on a particular site was improper, say, because the site was better suited to another use or logging there would cumulatively result in too many trees being cut. See 105 F. 3d, at 250-251. And, of course, depending upon the agency's future actions to revise the Plan or modify the expected methods of implementation, review now may turn out to have been unnecessary. See Standard Oil Co., supra, at 242. This type of review threatens the kind of "abstract disagreements over administrative policies," Abbott Laboratories, 387 U. S., at 148, that the ripeness doctrine seeks to avoid. In this case, for example, the Court of Appeals panel disagreed about whether or not the Forest Service suffered from a kind of general "bias" in favor of timber production and clearcutting. Review where the consequences had been "reduced to more manageable proportions," and where the 737 "factual components [were] fleshed out, by some concrete action" might have led the panel majority either to demonstrate that bias and its consequences through record citation (which it did not do) or to abandon the claim. National Wildlife Federation, supra, at 891. All this is to say that further factual development would "significantly advance our ability to deal with the legal issues presented" and would "aid us in their resolution." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 82 (1978). Finally, Congress has not provided for preimplementation judicial review of forest plans. Those plans are tools for agency planning and management. The Plan is consequently unlike agency rules that Congress has specifically instructed the courts to review "pre-enforcement." Cf. Na tional Wildlife Federation, supra, at 891; 15 U. S. C. § 2618 (Toxic Substances Control Act) (providing preenforcement review of agency action); 30 U. S. C. § 1276(a) (Surface Mining Control and Reclamation Act of 1977) (same); 42 U. S. C. § 6976 (Resource Conservation and Recovery Act of 1976) (same); § 7607(b) (Clean Air Act) (same); 43 U. S. C. § 1349(c)(3) (Outer Continental Shelf Lands Act); Harrison v. PPG Industries, Inc., 446 U. S. 578 , 592-593 (1980). Nor does the Plan, which through standards guides future use of forests, resemble an environmental impact statement prepared pursuant to NEPA. That is because in this respect NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Compare 16 U. S. C. § 1604(e) (requiring that forest plans provide for multiple coordinated use of forests, including timber and wilderness) with 42 U. S. C. § 4332 (requiring that agencies prepare environmental impact statements where major agency action would significantly affect the environment). Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper. 738 III The Sierra Club makes one further important contrary argument. It says that the Plan will hurt it in many ways that we have not yet mentioned. Specifically, the Sierra Club says that the Plan will permit "many intrusive activities, such as opening trails to motorcycles or using heavy machinery," which "will go forward without any additional consideration of their impact on wilderness recreation." Brief for Respondents 34. At the same time, in areas designated for logging, "affirmative measures to promote undisturbed backcountry recreation, such as closing roads and building additional hiking trails," will not take place. Ibid. These are harms, says the Sierra Club, that will not take place at a distant future time. Rather, they will take place now. This argument suffers from the legally fatal problem that it makes its first appearance here in this Court in the briefs on the merits. The Complaint, fairly read, does not include such claims. Instead, it focuses on the amount and method of timber harvesting. The Sierra Club has not referred us to any other court documents in which it protests the Plan's approval of motorcycles or machinery, the Plan's failure to close roads or to provide for the building of trails, or other disruptions that the Plan might cause those who use the forest for hiking. As far as we can tell, prior to the argument on the merits here, the harm to which the Sierra Club objected consisted of too much, and the wrong kind of, logging. The matter is significant because the Government concedes that if the Sierra Club had previously raised these other kinds of harm, the ripeness analysis in this case with respect to those provisions of the Plan that produce the harm would be significantly different. The Government's brief in the Court of Appeals said: "If, for example, a plan incorporated a final decision to close a specific area to off-road vehicles, the plan itself 739 could result in imminent concrete injury to a party with an interest in the use of off-road vehicles in that area." Brief for Federal Appellees in No. 94-3407 (CA6), p. 20. And, at oral argument, the Solicitor General agreed that if the Sierra Club's claim was that the "plan was allowing motorcycles into a bird-watching area or something [like that], that would be immediately justiciable." Tr. of Oral Arg. 5. Thus, we believe these other claims that the Sierra Club now raises are not fairly presented here, and we cannot consider them. IV For these reasons, we find the respondents' suit not ripe for review. We vacate the judgment of the Court of Appeals, and we remand this case with instructions to dismiss. It is so ordered.

The Supreme Court found that the dispute between the Ohio Forestry Association and the Sierra Club was not justiciable as it was not ripe for court review. The Court held that withholding review would not cause significant hardship to the Sierra Club and that delaying review would not result in significant practical harm. The Court also noted that the Sierra Club's claims regarding the impact of the plan on wilderness recreation were not raised in the initial complaint and were not properly presented in the Court.

Government Agencies

National Credit Union Admin. v. First Nat. Bank & Trust Co.

https://supreme.justia.com/cases/federal/us/522/479/

OCTOBER TERM, 1997 Syllabus NATIONAL CREDIT UNION ADMINISTRATION v. FIRST NATIONAL BANK & TRUST CO. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 96-843. Argued October 6, 1997-Decided February 25,1998* The National Credit Union Administration (NCUA) interprets § 109 of the Federal Credit Union Act (FCUA)-which provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district" -to permit federal credit unions to be composed of multiple, unrelated employer groups, each having its own distinct common bond of occupation. After the NCUA approved a series of charter amendments adding several unrelated employer groups to the membership of petitioner AT&T Family Federal Credit Union (ATTF), respondents, five commercial banks and the American Bankers Association, brought this action under § 10(a) of the Administrative Procedure Act (APA). They asserted that the NCUA's decision was contrary to law because § 109 unambiguously requires that the same common bond of occupation unite each member of an occupationally defined federal credit union. The District Court dismissed the complaint, holding that respondents lacked standing to challenge the decision because their interests were not within the "zone of interests" to be protected by § 109. The Court of Appeals for the District of Columbia Circuit disagreed and reversed. On remand, the District Court entered summary judgment against respondents, applying the analysis announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , and holding that the NCUA had permissibly interpreted § 109. The Court of Appeals again reversed, concluding that the District Court had incorrectly applied Chevron. Held: 1. Respondents have prudential standing under the APA to seek federal-court review of the NCUA's interpretation of § 109. Pp. 488-499. (a) A plaintiff will have prudential standing under § 10(a) of the APA if the interest the plaintiff seeks to protect is arguably within the zone of interests to be protected or regulated by the statute in question. *Together with No. 96-847, AT&T Family Federal Credit Union et al. v. First National Bank & Trust Co. et al., also on certiorari to the same court. 480 Syllabus See, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 , 152-153. P. 488. (b) Although this Court's prior cases have not stated a clear rule for determining when a plaintiff's interest is "arguably within the zone of interests" to be protected by a statute, four of them have held that competitors of financial institutions have prudential standing to challenge agency action relaxing statutory restrictions on those institutions' activities. Data Processing, supra, at 157; Arnold Tours, Inc. v. Camp, 400 U. S. 45 , 46 (per curiam); Investment Company Institute v. Camp, 401 U. S. 617 , 621 (ICI); Clarke v. Securities Industry Assn., 479 U. S. 388 , 403. Pp. 488-492. (c) In applying the "zone of interests" test, the Court does not ask whether Congress specifically intended the statute at issue to benefit the plaintiff, see, e. g., Clarke, supra, at 399-400. Instead, it discerns the interests "arguably ... to be protected" by the statutory provision and inquires whether the plaintiff's interests affected by the agency action in question are among them, see, e. g., Data Processing, supra, at 153. By its express terms, § 109 limits membership in every federal credit union to members of definable "groups." Because federal credit unions may, as a general matter, offer banking services only to members, see, e. g., 12 U. S. C. §§ 1757(5)-(6), § 109 also restricts the markets that every federal credit union can serve. Although these markets need not be small, they unquestionably are limited. The link between § 109's regulation of membership and its limitation on the markets that can be served is unmistakable. Thus, even if it cannot be said that Congress had the specific purpose of benefiting commercial banks, one of the interests "arguably ... to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve. This interest is precisely the interest of respondents affected by the NCUA's interpretation of § 109. As competitors of federal credit unions, respondents certainly have an interest in limiting the markets that federal credit unions can serve, and the NCUA's interpretation has affected that interest by allowing federal credit unions to increase their customer base. Section 109 cannot be distinguished in this regard from the statutory provisions at issue in Clarke, ICI, Arnold Tours, and Data Processing. Pp. 492-495. (d) Respondents' interest is therefore arguably within the zone of interests to be protected by § 109. Petitioners principally argue that respondents lack standing because there is no evidence that the Congress that enacted § 109 was concerned with commercial banks' competitive interests. This argument is misplaced. To accept that argument, the Court would have to reformulate the "zone of interests" test to require that Congress have specifically intended to benefit a particular 481 class of plaintiffs before a plaintiff from that class could have standing under the APA to sue. Petitioners also mistakenly rely on Air Courier Conference v. Postal Workers, 498 U. S. 517 , 519. Unlike the plaintiffs there who were denied standing, respondents here have "competitive and direct injury," id., at 528, n. 5, as well as an interest "arguably ... to be protected" by the statute in question. Under the Court's precedents, it is irrelevant that in enacting the FCUA, Congress did not specifically intend to protect commercial banks, as is the fact that respondents' objectives in this action are not eleemosynary in nature. Pp.495-499. 2. The NCUA's interpretation of § 109-whereby a common bond of occupation must unite only the members of each unrelated employer group-is impermissible under the first step of the analysis set forth in Chevron, see 467 U. S., at 842-843, because that interpretation is contrary to the unambiguously expressed intent of Congress that the same common bond of occupation must unite each member of an occupationally defined federal credit union. Several considerations compel this conclusion. First, the NCUA's interpretation makes the statutory phrase "common bond" surplusage when applied to a federal credit union made up of multiple unrelated employer groups, because each such "group" already has its own "common bond," employment with a particular employer. If the phrase "common bond" is to be given any meaning when the employees in such groups are joined together, a different "common bond"-one extending to each and every employee considered together-must be found to unite them. Second, the interpretation violates the established canon of construction that similar language within the same statutory section must be accorded a consistent meaning. Section 109 consists of two parallel clauses: Federal credit union membership is limited "to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." The NCUA has never interpreted, and does not contend that it could interpret, the geographic limitation to permit a credit union to be composed of members from an unlimited number of unrelated geographic units. The occupational limitation must be interpreted in the same way. Finally, the NCUA's interpretation has the potential to read the words "shall be limited" out of the statute entirely. The interpretation would allow the chartering of a conglomerate credit union whose members included the employees of every company in the United States. Section 109 cannot be considered a limitation on credit union membership if at the same time it permits such a limitless result. Pp. 499-503. 90 F.3d 525 , affirmed. 482 THOMAS, J., delivered an opinion, which was for the Court except as to footnote 6. REHNQUIST, C. J., and KENNEDY and GINSBURG, JJ., joined that opinion in full, and SCALIA, J., joined except as to footnote 6. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 503. Solicitor General Waxman argued the cause for the federal petitioner. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, David C. Frederick, Douglas N. Letter, Jacob M. Lewis, Michael E. Robinson, and John K. Ianno. John G. Roberts, Jr., argued the cause for petitioner AT&T Family Federal Credit Union et al. With him on the briefs were Paul J. Lambert, Jonathan S. Franklin, and Brenda S. Furlow. Michael S. Helfer argued the cause for respondents. With him on the briefs were Louis R. Cohen, Christopher R. Lipsett, John J. Gill III, and Michael F. Crotty.t JUSTICE THOMAS delivered the opinion of the Court, except as to footnote 6. * Section 109 of the Federal Credit Union Act (FCUA), 48 Stat. 1219, 12 U. S. C. § 1759, provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within tBriefs of amici curiae urging reversal were filed for the Ad Hoc Small Employers Group et al. by Paul G. Gaston, Richard J. Dines, and Christiane Gigi Hyland; for the California Credit Union League by Thomas H. GU, Craig A. Horowitz, Wayne D. Clayton, and Joseph A. McDonald; for the Consumer Federation of America, Inc., et al. by Joseph C. Zengerle; for the National Association of Federal Credit Unions by John F. Cooney, Ronald R. Glancz, Melissa Landau Steinman, William J. Donovan, and Fred M. Haden; and for the National Association of State Credit Union Supervisors by Stanley M. Gorinson, John Longstreth, and C. Stephen Trimmier. Leonard J. Rubin filed a brief for the Independent Bankers Association of America et al. as amici curiae urging affirmance. *JUSTICE SCALIA joins this opinion, except as to footnote 6. 483 a well-defined neighborhood, community, or rural district." Since 1982, the National Credit Union Administration (NCUA), the agency charged with administering the FCUA, has interpreted § 109 to permit federal credit unions to be composed of multiple unrelated employer groups, each having its own common bond of occupation. In this action, respondents, five banks and the American Bankers Association, have challenged this interpretation on the ground that § 109 unambiguously requires that the same common bond of occupation unite every member of an occupationally defined federal credit union. We granted certiorari to answer two questions. First, do respondents have standing under the Administrative Procedure Act to seek federal-court review of the NCUA's interpretation? Second, under the analysis set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), is the NCUA's interpretation permissible? We answer the first question in the affirmative and the second question in the negative. We therefore affirm. I A In 1934, during the Great Depression, Congress enacted the FCU A, which authorizes the chartering of credit unions at the national level and provides that federal credit unions may, as a general matter, offer banking services only to their members. Section 109 of the FCUA, which has remained virtually unaltered since the FCU A's enactment, expressly restricts membership in federal credit unions. In relevant part, it provides: "Federal credit union membership shall consist of the incorporators and such other persons and incorporated and unincorporated organizations, to the extent permitted by rules and regulations prescribed by the Board, as may be elected to membership and as such shall each, subscribe to at least one share of its stock and pay the 484 initial installment thereon and a uniform entrance fee if required by the board of directors; except that Federal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759 (emphasis added). Until 1982, the NCUA and its predecessors consistently interpreted § 109 to require that the same common bond of occupation unite every member of an occupationally defined federal credit union. In 1982, however, the NCUA reversed its longstanding policy in order to permit credit unions to be composed of multiple unrelated employer groups. See IRPS 82-1,47 Fed. Reg. 16775 (1982). It thus interpreted § 109's common bond requirement to apply only to each employer group in a multiple-group credit union, rather than to every member of that credit union. See IRPS 82-3, 47 Fed. Reg. 26808 (1982). Under the NCUA's new interpretation, all of the employer groups in a multiple-group credit union had to be located "within a well-defined area," ibid., but the NCUA later revised this requirement to provide that each employer group could be located within "an area surrounding the [credit union's] home or a branch office that can be reasonably served by the [credit union] as determined by NCUA." IRPS 89-1, 54 Fed. Reg. 31170 (1989). Since 1982, therefore, the NCUA has permitted federal credit unions to be composed of wholly unrelated employer groups, each having its own distinct common bond. B After the NCUA revised its interpretation of § 109, petitioner AT&T Family Federal Credit Union (ATTF) expanded its operations considerably by adding unrelated employer groups to its membership. As a result, ATTF now has approximately 110,000 members nationwide, only 35% of 485 whom are employees of AT&T and its affiliates. See Brief for Petitioner NCUA 9. The remaining members are employees of such diverse companies as the Lee Apparel Company, the Coca-Cola Bottling Company, the Ciba-Geigy Corporation, the Duke Power Company, and the American Tobacco Company. See App. 54-79. In 1990, after the NCUA approved a series of amendments to ATTF's charter that added several such unrelated employer groups to ATTF's membership, respondents brought this action. Invoking the judicial review provisions of the Administrative Procedure Act (APA), 5 U. S. C. § 702, respondents claimed that the NCUA's approval of the charter amendments was contrary to law because the members of the new groups did not share a common bond of occupation with ATTF's existing members, as respondents alleged § 109 required. ATTF and petitioner Credit Union National Association were permitted to intervene in the action as defendants. The District Court dismissed the complaint. It held that respondents lacked prudential standing to challenge the NCUA's chartering decision because their interests were not within the "zone of interests" to be protected by § 109, as required by this Court's cases interpreting the AP A. First Nat. Bank & Trust Co. v. National Credit Union Admin., 772 F. Supp. 609 (DC 1991). The District Court rejected as irrelevant respondents' claims that the NCUA's interpretation had caused them competitive injury, stating that the legislative history of the FCUA demonstrated that it was passed "to establish a place for credit unions within the country's financial market, and specifically not to protect the competitive interest of banks." Id., at 612. The District Court also determined that respondents were not "suitable challengers" to the NCUA's interpretation, as that term had been used in prior prudential standing cases from the Court of Appeals for the District of Columbia Circuit. Ibid. 486 The Court of Appeals for the District of Columbia Circuit reversed. First Nat. Bank & Trust Co. v. National Credit Union Admin., 988 F.2d 1272 , cert. denied, 510 U. S. 907 (1993). The Court of Appeals agreed that "Congress did not, in 1934, intend to shield banks from competition from credit unions," 988 F. 2d, at 1275, and hence respondents could not be said to be "intended beneficiaries" of § 109. Relying on two of our prudential standing cases involving the financial services industry, Investment Company Institute v. Camp, 401 U. S. 617 (1971), and Clarke v. Securities Industry Assn., 479 U. S. 388 (1987), the Court of Appeals nonetheless concluded that respondents' interests were sufficiently congruent with the interests of § 109's intended beneficiaries that respondents were "suitable challengers" to the NCVA's chartering decision; therefore, their suit could proceed. See 988 F. 2d, at 1276-1278.1 On remand, the District Court applied the two-step analysis that we announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and held that the NCVA had permissibly interpreted § 109. 863 F. Supp. 9 (DC 1994). It first asked whether, in enacting § 109, Congress had spoken directly to the precise question at issue-whether the same common bond of occupation must unite members of a federal credit union composed of multiple employer groups. See id., at 12. It determined that because § 109 could plausibly be understood to permit an occupationally defined federal credit union to consist of several employer "groups," each having its own distinct common bond of occupation, Congress had not unambiguously addressed this question. See ibid. The District Court then 1 The Court of Appeals' holding that respondents had prudential standing conflicted with a decision of the United States Court of Appeals for the Fourth Circuit reached prior to this Court's decision in Clarke v. Securities Industry Assn., 479 U. S. 388 (1987). See Branch Bank & Trust Co. v. National Credit Union Administration Bd., 786 F.2d 621 (1986), cert. denied, 479 U. S. 1063 (1987). 487 stated that it was unnecessary to decide, under the second step of Chevron, whether the NCVA's interpretation was reasonable, because respondents had not "seriously argued" that the interpretation was unreasonable. See 863 F. Supp., at 13-14. Accordingly, the District Court entered summary judgment against respondents. See ibid. The Court of Appeals again reversed. 90 F.3d 525 (CADC 1996). It held that the District Court had incorrectly applied the first step of Chevron: Congress had indeed spoken directly to the precise question at issue and had unambiguously indicated that the same common bond of occupation must unite members of a federal credit union composed of multiple employer groups. See 90 F. 3d, at 527. The Court of Appeals reasoned that because the concept of a "common bond" is implicit in the term "group," the term "common bond" would be surplusage if it applied only to the members of each constituent "group" in a multiple-group federal credit union. See id., at 528. It further noted that the NCVA had not interpreted § 109's geographical limitation to allow federal credit unions to comprise groups from multiple unrelated "neighborhood[s], communit[ies], or rural district[s]" and stated that the occupational limitation should not be interpreted differently. See id., at 528-529. The NCVA's revised interpretation of § 109 was therefore impermissible.2 See id., at 529. Because of the importance of the issues presented,3 we granted certiorari. 519 U. S. 1148 (1997). 2 A panel of the Court of Appeals for the Sixth Circuit later reached a similar conclusion, with one judge dissenting. See First City Bank v. National Credit Union Administration Bd., 111 F.3d 433 (1997). 3 According to the NCUA, since 1982, thousands of federal credit unions have relied on the NCUA's revised interpretation of § 109. See Pet. for Cert. in No. 96-843, p. 14. Moreover, following the Court of Appeals' decision on the merits, the United States District Court for the District of Columbia granted a nationwide injunction prohibiting the NCUA from approving the addition of unrelated employer groups to any federal credit union. See Brief for Petitioner ATTF 14, n. 5. 488 II Respondents claim a right to judicial review of the NCVA's chartering decision under § 10(a) of the APA, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U. S. C. § 702. We have interpreted § 10(a) of the APA to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact. See, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152 (1970) (Data Processing).4 For a plaintiff to have prudential standing under the AP A, "the interest sought to be protected by the complainant [must be] arguably within the zone of interests to be protected or regulated by the statute ... in question." Id., at 153. Based on four of our prior cases finding that competitors of financial institutions have standing to challenge agency action relaxing statutory restrictions on the activities of those institutions, we hold that respondents' interest in limiting the markets that federal credit unions can serve is arguably within the zone of interests to be protected by § 109. Therefore, respondents have prudential standing under the APA to challenge the NCVA's interpretation. A Although our prior cases have not stated a clear rule for determining when a plaintiff's interest is "arguably within the zone of interests" to be protected by a statute, they none- 4 In this action, it is not disputed that respondents have suffered an injury in fact because the NCUA's interpretation allows persons who might otherwise be their customers to be members, and therefore customers, of ATTF. 489 theless establish that we should not inquire whether there has been a congressional intent to benefit the would-be plaintiff. In Data Processing, supra, the Office of the Comptroller of the Currency (Comptroller) had interpreted the National Bank Act's incidental powers clause, Rev. Stat. § 5136, 12 U. S. C. § 24 Seventh, to permit national banks to perform data processing services for other banks and bank customers. See Data Processing, supra, at 151. The plaintiffs, a data processing corporation and its trade association, alleged that this interpretation was impermissible because providing data processing services was not, as was required by the statute, "[an] incidental powe[r] ... necessary to carry on the business of banking." See 397 U. S., at 157, n. 2. In holding that the plaintiffs had standing, we stated that § 10(a) of the APA required only that "the interest sought to be protected by the complainant [be] arguably within the zone of interests to be protected or regulated by the statute ... in question." Id., at 153. In determining that the plaintiffs' interest met this requirement, we noted that although the relevant federal statutes-the National Bank Act, 12 U. S. C. § 24 Seventh, and the Bank Service Corporation Act, 76 Stat. 1132, 12 U. S. C. § 1864-did not "in terms protect a specified groupe,] ... their general policy is apparent; and those whose interests are directly affected by a broad or narrow interpretation of the Acts are easily identifiable." Data Processing, 397 U. S., at 157. "[A]s competitors of national banks which are engaging in data processing services," the plaintiffs were within that class of "aggrieved persons" entitled to judicial review of the Comptroller's interpretation. Ibid. Less than a year later, we applied the "zone of interests" test in Arnold Tours, Inc. v. Camp, 400 U. S. 45 (1970) (per curiam) (Arnold Tours). There, certain travel agencies challenged a ruling by the Comptroller, similar to the one contested in Data Processing, that permitted national banks to operate travel agencies. See 400 U. S., at 45. In holding 490 that the plaintiffs had prudential standing under the AP A, we noted that it was incorrect to view our decision in Data Processing as resting on the peculiar legislative history of § 4 of the Bank Service Corporation Act, which had been passed in part at the behest of the data processing industry. See 400 U. S., at 46. We stated explicitly that "we did not rely on any legislative history showing that Congress desired to protect data processors alone from competition." Ibid. We further explained: "In Data Processing ... [w]e held that § 4 arguably brings a competitor within the zone of interests protected by it. Nothing in the opinion limited § 4 to protecting only competitors in the data-processing field. When national banks begin to provide travel services for their customers, they compete with travel agents no less than they compete with data processors when they provide data-processing services to their customers." Ibid. (internal citations and quotation marks omitted). A year later, we decided Investment Company Institute v. Camp, 401 U. S. 617 (1971) (ICI). In that case, an investment company trade association and several individual investment companies alleged that the Comptroller had violated, inter alia, § 21 of the Glass-Steagall Act, 1932,5 by permitting national banks to establish and operate what in essence were early versions of mutual funds. We held that the plaintiffs, who alleged that they would be injured by the competition resulting from the Comptroller's action, had standing under the AP A and stated that the case was controlled by Data Processing. See 401 U. S., at 621. 5 Under § 21 of the Glass-Steagall Act, it is unlawful "[f]or any person, firm, [or] corporation ... engaged in the business of issuing ... securities, to engage at the same time to any extent whatever in the business of receiving deposits." § 21 of the Banking Act of 1933, 48 Stat. 189, 12 U. S. C. § 378(a). 491 Significantly, we found unpersuasive Justice Harlan's argument in dissent that the suit should be dismissed because "neither the language of the pertinent provisions of the Glass-Steagall Act nor the legislative history evince[d] any congressional concern for the interests of petitioners and others like them in freedom from competition." Id., at 640. Our fourth case in this vein was Clarke v. Securities Industry Assn., 479 U. S. 388 (1987) (Clarke). There, a securities dealers trade association sued the Comptroller, this time for authorizing two national banks to offer discount brokerage services both at their branch offices and at other locations inside and outside their home States. See id., at 391. The plaintiff contended that the Comptroller's action violated the McFadden Act, which permits national banks to carry on the business of banking only at authorized branches, and to open new branches only in their home States and only to the extent that state-chartered banks in that State can do so under state law. See id., at 391-392. We again held that the plaintiff had standing under the AP A. Summarizing our prior holdings, we stated that although the "zone of interests" test "denies a right of review if the plaintiff's interests are ... marginally related to or inconsistent with the purposes implicit in the statute," id., at 399, "there need be no indication of congressional purpose to benefit the would-be plaintiff," id., at 399-400 (citing ICI). We then determined that by limiting the ability of national banks to do business outside their home States, "Congress ha[d] shown a concern to keep national banks from gaining a monopoly control over credit and money." 479 U. S., at 403. The interest of the securities dealers in preventing national banks from expanding into the securities markets directly implicated this concern because offering discount brokerage services would allow national banks "access to more money, in the form of credit balances, and enhanced opportunities to lend money, viz., for margin purchases." Ibid. The case was thus analogous to Data Processing and ICI: "In those 492 cases the question was what activities banks could engage in at all; here, the question is what activities banks can engage in without regard to the limitations imposed by state branching law." 479 U. S., at 403. B Our prior cases, therefore, have consistently held that for a plaintiff's interests to be arguably within the "zone of interests" to be protected by a statute, there does not have to be an "indication of congressional purpose to benefit the would-be plaintiff." Id., at 399-400 (citing leI); see also Ar nold Tours, 400 U. S., at 46 (citing Data Processing). The proper inquiry is simply "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected ... by the statute." Data Processing, 397 U. S., at 153 (emphasis added). Hence in applying the "zone of interests" test, we do not ask whether, in enacting the statutory provision at issue, Congress specifically intended to benefit the plaintiff. Instead, we first discern the interests "arguably ... to be protected" by the statutory provision at issue; we then inquire whether the plaintiff's interests affected by the agency action in question are among them. Section 109 provides that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759. By its express terms, § 109 limits membership in every federal credit union to members of definable "groups." Because federal credit unions may, as a general matter, offer banking services only to members, see, e. g., 12 U. S. C. §§ 1757(5)-(6), § 109 also restricts the markets that every federal credit union can serve. Although these markets need not be small, they unquestionably are limited. The link between § 109's regulation of federal credit union membership and its limitation on the markets that federal credit unions can serve is unmistakable. Thus, even if it cannot be said 493 that Congress had the specific purpose of benefiting commercial banks, one of the interests "arguably ... to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve.6 This interest is precisely the interest of respondents affected by the NCVA's interpretation of § 109. As competitors of federal credit unions, respondents certainly have an interest in limiting the markets that federal credit unions can serve, and the NCVA's interpretation 6 The legislative history of § 109, upon which petitioners so heavily rely, supports this conclusion. Credit unions originated in mid-19th-century Europe as cooperative associations that were intended to provide credit to persons of small means; they were usually organized around some common theme, either geographic or associational. See General Accounting Office, Credit Unions: Reforms for Ensuring Future Soundness 24 (July 1991). Following the European example, in the 1920's many States passed statutes authorizing the chartering of credit unions, and a number of those statutes contained provisions similar to § 109's common bond requirement. See A. Burger & T. Dacin, Field of Membership: An Evolving Concept 6 (2d ed. 1992). During the Great Depression, in contrast to widespread bank failures at both the state and national level, there were no involuntary liquidations of state-chartered credit unions. See S. Rep. No. 555, 73d Cong., 2d Sess., 2 (1934). The cooperative nature of the institutions, which state-law common bond provisions reinforced, was believed to have contributed to this result. See Credit Unions: Hearing before a Subcommittee of the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 19-20, 26 (1933). A common bond provision was thus included in the District of Columbia Credit Union Act, which Congress passed in 1932; it was identical to the FCUA's common bond provision enacted two years later. When Congress enacted the FCUA, sponsors of the legislation emphasized that the cooperative nature of credit unions allowed them to make credit available to persons who otherwise would not qualify for loans. See S. Rep. No. 555, supra, at 1,3. The legislative history thus confirms that § 109 was thought to reinforce the cooperative nature of credit unions, which in turn was believed to promote their safety and soundness and allow access to credit to persons otherwise unable to borrow. Because, by its very nature, a cooperative institution must serve a limited market, the legislative history of § 109 demonstrates that one of the interests "arguably ... to be protected" by § 109 is an interest in limiting the markets that federal credit unions can serve. 494 has affected that interest by allowing federal credit unions to increase their customer base.7 Section 109 cannot be distinguished from the statutory provisions at issue in Clarke, ICI, Arnold Tours, and Data Processing. Although in Clarke the McFadden Act appeared to be designed to protect only the interest of state banks in parity of treatment with national banks, we nonetheless determined that the statute also limited "the extent to which [national] banks [could] engage in the discount brokerage business and hence limit[ed] the competitive impact on nonbank discount brokerage houses." Clarke, 479 U. S., at 403. Accordingly, although Congress did not intend specifically to protect securities dealers, one of the interests "arguably ... to be protected" by the statute was an interest in restricting national bank market power. The plaintiff securities dealers, as competitors of national banks, had that interest, and that interest had been affected by the inter- 7 Contrary to the dissent's contentions, see post, at 503, 509, our formulation does not "eviscerat[e]" or "abolis[h]" the zone of interests requirement. Nor can it be read to imply that, in order to have standing under the APA, a plaintiff must merely have an interest in enforcing the statute in question. The test we have articulated-discerning the interests "arguably ... to be protected" by the statutory provision at issue and inquiring whether the plaintiff's interests affected by the agency action in question are among them-differs only as a matter of semantics from the formulation that the dissent has accused us of "eviscerating" or "abolishing," see post, at 504 (stating that the plaintiff must establish that "the injury he complains of ... falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint" (internal quotation marks and citation omitted)). Our only disagreement with the dissent lies in the application of the "zone of interests" test. Because of the unmistakable link between § 109's express restriction on credit union membership and the limitation on the markets that federal credit unions can serve, there is objectively "some indication in the statute," post, at 517 (emphasis deleted), that respondents' interest is "arguably within the zone of interests to be protected" by § 109. Hence respondents are more than merely incidental beneficiaries of § 109's effects on competition. 495 pretation of the McFadden Act they sought to challenge, because that interpretation had allowed national banks to expand their activities and serve new customers. See ibid. Similarly, in ICI, even though in enacting the GlassSteagall Act, Congress did not intend specifically to benefit investment companies and may have sought only to protect national banks and their depositors, one of the interests "arguably ... to be protected" by the statute was an interest in restricting the ability of national banks to enter the securities business. The investment company plaintiffs, as competitors of national banks, had that interest, and that interest had been affected by the Comptroller's interpretation allowing national banks to establish mutual funds. So too, in Arnold Tours and Data Processing, although in enacting the National Bank Act and the Bank Service Corporation Act, Congress did not intend specifically to benefit travel agents and data processors and may have been concerned only with the safety and soundness of national banks, one of the interests "arguably ... to be protected" by the statutes was an interest in preventing national banks from entering other businesses' product markets. As competitors of national banks, travel agents and data processors had that interest, and that interest had been affected by the Comptroller's interpretations opening their markets to national banks. See also NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 (1995) (deciding that the Comptroller had permissibly interpreted 12 U. S. C. § 24 Seventh to allow national banks to act as agents in the sale of annuities; insurance agents' standing to challenge the interpretation not questioned). C Petitioners attempt to distinguish this action principally on the ground that there is no evidence that Congress, when 496 it enacted the FCUA, was at all concerned with the competitive interests of commercial banks, or indeed at all concerned with competition. See Brief for Petitioner ATTF 21-22. Indeed, petitioners contend that the very reason Congress passed the FCUA was that "[b]anks were simply not in the picture" as far as small borrowers were concerned, and thus Congress believed it necessary to create a new source of credit for people of modest means. See id., at 25. The difficulty with this argument is that similar arguments were made unsuccessfully in each of Data Processing, Arnold Tours, ICI, and Clarke. In Data Processing, the Comptroller argued against standing for the following reasons: "[P]etitioners do not contend that Section 24 Seventh had any purpose ... to protect the interest of potential competitors of national banks. The reason is clear: the legislative history of the Section dispels all possible doubt that its enactment in 1864 (13 Stat. 101) was for the express and sole purpose of creating a strong national banking system .... To the extent that the protection of a competitive interest was at the bottom of the enactment of Section 24 Seventh, it was the interest of national banks and not of their competitors." Brief for Comptroller of the Currency in Association of Data Processing Service Organizations, Inc. v. Camp, O. T. 1969, No. 85, pp. 19-20. Similarly, in Arnold Tours, the Comptroller contended that the position of the travel agents was "markedly different from that of the data processors," who could find in the legislative history "some manifestation of legislative concern for their competitive position." Memorandum for Comptroller of the Currency in Opposition in Arnold Tours, Inc. v. Camp, O. T. 1970, No. 602, pp. 3-4. And in ICI, the Comptroller again urged us not to find standing, because- 497 "[t]he thrust of the legislation, and the concern of the drafters, was to protect the banking public through the maintenance of a sound national banking system .... "There was no Congressional objective to protect mutual funds or their investment advisers or underwriters." Brief for Comptroller of Currency in Investment Company Institute v. Camp, O. T. 1970, No. 61, pp. 27-29 (internal quotation marks omitted). "Indeed, the Congressional attitude toward the investment bankers can only be characterized as one of distaste. For example, in discussing the private investment bankers, Senator Glass pointed out that many of them had 'unloaded millions of dollars of worthless investment securities upon the banks of this country.'" Id., at 30, n. 22 (citation omitted). Finally, in Clarke, the Comptroller contended that "[t]here is no doubt that Congress had only one type of competitive injury in mind when it passed the [McFadden] Act-the type that national and state banks might inflict upon each other." Brief for Federal Petitioner in Clarke v. Securities Industry Assn., O. T. 1985, No. 85-971, p. 24. In each case, we declined to accept the Comptroller's argument. In Data Processing, we considered it irrelevant that the statutes in question "d[id] not in terms protect a specified group," because "their general policy [was] apparent[,] and those whose interests [were] directly affected by a broad or narrow interpretation of [the statutes] [were] easily identifiable." 397 U. S., at 157. In Arnold Tours, we similarly believed it irrelevant that Congress had shown no concern for the competitive position of travel agents in enacting the statutes in question. See 400 U. S., at 46. In ICI, we were unmoved by Justice Harlan's comment in dissent that the Glass-Steagall Act was passed in spite of its positive effects on the competitive position of investment banks. See 401 U. S., at 640. And in Clarke, we did not debate whether 498 the Congress that enacted the McFadden Act was concerned about the competitive position of securities dealers. See 479 U. S., at 403. The provisions at issue in each of these cases, moreover, could be said merely to be safety-and-soundness provisions, enacted only to protect national banks and their depositors and without a concern for competitive effects. We nonetheless did not hesitate to find standing. We therefore cannot accept petitioners' argument that respondents do not have standing because there is no evidence that the Congress that enacted § 109 was concerned with the competitive interests of commercial banks. To accept that argument, we would have to reformulate the "zone of interests" test to require that Congress have specifically intended to benefit a particular class of plaintiffs before a plaintiff from that class could have standing under the APA to sue. We have refused to do this in our prior cases, and we refuse to do so today. Petitioners also mistakenly rely on our decision in Air Courier Conference v. Postal Workers, 498 U. S. 517 (1991). In Air Courier, we held that the interest of Postal Service employees in maximizing employment opportunities was not within the "zone of interests" to be protected by the postal monopoly statutes, and hence those employees did not have standing under the AP A to challenge a Postal Service regulation suspending its monopoly over certain international operations. See id., at 519. We stated that the purposes of the statute were solely to increase the revenues of the Post Office and to ensure that postal services were provided in a manner consistent with the public interest, see id., at 526527. Only those interests, therefore, and not the interests of Postal Service employees in their employment, were "arguably within the zone of interests to be protected" by the statute. Cf. Lujan v. National Wildlife Federation, 497 U. S. 871 , 883 (1990) (stating that an agency reporting company would not have prudential standing to challenge the agency's failure to comply with a statutory mandate to con- 499 duct hearings on the record). We further noted that although the statute in question regulated competition, the interests of the plaintiff employees had nothing to do with competition. See Air Courier, supra, at 528, n. 5 (stating that "[e]mployees have generally been denied standing to enforce competition laws because they lack competitive and direct injury"). In this action, not only do respondents have "competitive and direct injury," but, as the foregoing discussion makes clear, they possess an interest that is "arguably ... to be protected" by § 109. Respondents' interest in limiting the markets that credit unions can serve is "arguably within the zone of interests to be protected" by § 109. Under our precedents, it is irrelevant that in enacting the FCUA, Congress did not specifically intend to protect commercial banks. Although it is clear that respondents' objectives in this action are not eleemosynary in nature,S under our prior cases that, too, is beside the point.9 III Turning to the merits, we must judge the permissibility of the NCUA's current interpretation of § 109 by employing the analysis set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Under that analysis, we first ask whether Congress has "directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously 8The data processing companies, travel agents, investment companies, and securities dealers that challenged the Comptroller's rulings in our prior cases certainly did not bring suit to advance the noble goal of maintaining the safety and soundness of national banks, or to promote the interests of national bank depositors. 9Unlike some of our prudential standing cases, no suggestion is made in this action that Congress has sought to preclude judicial review of agency action. See, e. g., Block v. Community Nutrition Institute, 467 U. S. 340 (1984). 500 expressed intent of Congress." Id., at 842-843. If we determine that Congress has not directly spoken to the precise question at issue, we then inquire whether the agency's interpretation is reasonable. See id., at 843-844. Because we conclude that Congress has made it clear that the same common bond of occupation must unite each member of an occupationally defined federal credit union, we hold that the NCUA's contrary interpretation is impermissible under the first step of Chevron. As noted, § 109 requires that "[f]ederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." Respondents contend that because § 109 uses the article "a"-"i. e., one"in conjunction with the noun "common bond," the "natural reading" of § 109 is that all members in an occupationally defined federal credit union must be united by one common bond. See Brief for Respondents 33. Petitioners reply that because § 109 uses the plural noun "groups," it permits multiple groups, each with its own common bond, to constitute a federal credit union. See Brief for Petitioner NCUA 29-30. Like the Court of Appeals, we do not think that either of these contentions, standing alone, is conclusive. The article "a" could be thought to convey merely that one bond must unite only the members of each group in a multiple-group credit union, and not all of the members in the credit union taken together. See 90 F. 3d, at 528. Similarly, the plural word "groups" could be thought to refer not merely to multiple groups in a particular credit union, but rather to every single "group" that forms a distinct credit union under the FCUA. See ibid. Nonetheless, as the Court of Appeals correctly recognized, additional considerations compel the conclusion that the same common bond of occupation must unite all of the members of an occupationally defined federal credit union. 501 First, the NCVA's current interpretation makes the phrase "common bond" surplusage when applied to a federal credit union made up of multiple unrelated employer groups, because each "group" in such a credit union already has its own "common bond." See ibid. To use the facts of this action, the employees of AT&T and the employees of the American Tobacco Company each already had a "common bond" before being joined together as members of ATTF. The former were bonded because they worked for AT&T, and the latter were bonded because they worked for the American Tobacco Company. If the phrase "common bond" is to be given any meaning when these employees are joined together, a different "common bond"-one extending to each and every employee considered together-must be found to unite them. Such a "common bond" exists when employees of different subsidiaries of the same company are joined together in a federal credit union; it does not exist, however, when employees of unrelated companies are so joined. See ibid. Put another way, in the multiple employer group context, the NCVA has read the statute as though it merely stated that "[f]ederal credit union membership shall be limited to occupational groups," but that is simply not what the statute provides. Second, the NCVA's interpretation violates the established canon of construction that similar language contained within the same section of a statute must be accorded a consistent meaning. See Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U. S. 214 , 225 (1992). Section 109 consists of two parallel clauses: Federal credit union membership is limited "to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759 (emphasis added). The NCVA concedes that even though the second limitation permits geographically defined credit unions to have as members more than one "group," all of the groups must come from the same "neighborhood, 502 community, or rural district." See Brief for Petitioner NCUA 37. The reason that the NCUA has never interpreted, and does not contend that it could interpret, the geographical limitation to allow a credit union to be composed of members from an unlimited number of unrelated geographic units, is that to do so would render the geographicallimitation meaningless. Under established principles of statutory interpretation, we must interpret the occupational limitation in the same way. Petitioners have advanced one reason why we should interpret the occupational limitation differently. They contend that whereas the geographical limitation uses the word "within" and is thus "prepositional," the occupationallimitation uses the word "having" and is thus "participial" (and therefore less limiting). See Brief for Petitioner NCUA 31. There is, however, no reason why a participial phrase is inherently more open-ended than a prepositional one; indeed, certain participial phrases can narrow the relevant universe in an exceedingly effective manner-for example, "persons having February 29th as a wedding anniversary." Reading the two parallel clauses in the same way, we must conclude that, just as all members of a geographically defined federal credit union must be drawn from the same "neighborhood, community, or rural district," members of an occupationally defined federal credit union must be united by the same "common bond of occupation." Finally, by its terms, § 109 requires that membership in federal credit unions "shall be limited." The NCUA's interpretation-under which a common bond of occupation must unite only the members of each unrelated employer grouphas the potential to read these words out of the statute entirely. The NCUA has not contested that, under its current interpretation, it would be permissible to grant a charter to a conglomerate credit union whose members would include the employees of every company in the United States. Nor can it: Each company's employees would be a "group," and 503 each such "group" would have its own "common bond of occupation." Section 109, however, cannot be considered a limitation on credit union membership if at the same time it permits such a limitless result. For the foregoing reasons, we conclude that the NCUA's current interpretation of § 109 is contrary to the unambiguously expressed intent of Congress and is thus impermissible under the first step of Chevron. 10 The judgment of the Court of Appeals is therefore affirmed. It is so ordered. JUSTICE O'CONNOR, with whom JUSTICE STEVENS, JusTICE SOUTER, and JUSTICE BREYER join, dissenting. In determining that respondents have standing under the zone-of-interests test to challenge the National Credit Union Administration's (NCUA's) interpretation of the "common bond" provision of the Federal Credit Union Act (FCUA), 12 U. S. C. § 1759, the Court applies the test in a manner that is contrary to our decisions and, more importantly, that all but eviscerates the zone-of-interests requirement. In my view, under a proper conception of the inquiry, "the interest sought to be protected by" respondents in this action is not "arguably within the zone of interests to be protected" by the common bond provision. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 , 153 (1970). Accordingly, I respectfully dissent. I Respondents brought this suit under § 10(a) of the Administrative Procedure Act (APA), 5 U. S. C. § 702. To establish their standing to sue here, respondents must demonstrate lOWe have no need to consider § 109's legislative history, which, as both courts below found, is extremely "murky" and a "slender reed on which to place reliance." 90 F. 3d, at 530 (internal quotation marks and citation omitted). 504 O'CONNOR, J., dissenting that they are "adversely affected or aggrieved by agency action within the meaning of a relevant statute." Ibid.; see Air Courier Conference v. Postal Workers, 498 U. S. 517 , 523 (1991); Lujan v. National Wildlife Federation, 497 U. S. 871 , 882-883 (1990). The two aspects of that requirement correspond to the familiar concepts in standing doctrine of "injury in fact" under Article III of the Constitution and "zone of interests" under our prudential standing principles. See, First, respondents must show that they are "adversely affected or aggrieved," i. e., have suffered injury in fact. Air Courier, supra, at 523; National Wildlife Federation, supra, at 883. In addition, respondents must establish that the injury they assert is "within the meaning of a relevant statute," i. e., satisfies the zone-of-interests test. Air Courier, supra, at 523; National Wildlife Federation, supra, at 883, 886. Specifically, "the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him), falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." National Wildlife Federation, supra, at 883; see also Air Courier, supra, at 523-524. The "injury respondents complain of," as the Court explains, is that the NCUA's interpretation of the common bond provision "allows persons who might otherwise be their customers to be ... customers" of petitioner AT&T Family Federal Credit Union. Ante, at 488, n. 4. Put another way, the injury is a loss of respondents' customer base to a competing entity, or more generally, an injury to respondents' commercial interest as a competitor. The relevant question under the zone-of-interests test, then, is whether injury to respondents' commercial interest as a competitor "falls within the zone of interests sought to be protected by the [common bond] provision." E. g., Air Courier, supra, at 523-524. For instance, in Data Processing, where the plaintiffs-like respondents here-alleged competitive injury to 505 their commercial interest, we found that the plaintiffs had standing because "their commercial interest was sought to be protected by the ... provision which they alleged had been violated." Bennett, supra, at 176 (discussing Data Processing). The Court adopts a quite different approach to the zoneof-interests test today, eschewing any assessment of whether the common bond provision was intended to protect respondents' commercial interest. The Court begins by observing that the terms of the common bond provision-"[fJederal credit union membership shall be limited to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district," 12 U. S. C. § 1759-expressly limit membership in federal credit unions to persons belonging to certain "groups." Then, citing other statutory provisions that bar federal credit unions from serving nonmembers, see §§ 1757(5)-(6), the Court reasons that one interest sought to be protected by the common bond provision "is an interest in limiting the markets that federal credit unions can serve." Ante, at 493. The Court concludes its analysis by observing simply that respondents, "[a]s competitors of federal credit unions, ... certainly have [that] interest ... , and the NCUA's interpretation has affected that interest." Ante, at 493-494 (emphasis added). Under the Court's approach, every litigant who establishes injury in fact under Article III will automatically satisfy the zone-of-interests requirement, rendering the zone-ofinterests test ineffectual. See Air Courier, supra, at 524 ("mistak[e]" to "confiat[e] the zone-of-interests test with injury in fact"). That result stems from the Court's articulation of the relevant "interest." In stating that the common bond provision protects an "interest in limiting the markets that federal credit unions can serve," ante, at 493, the Court presumably uses the term "markets" in the sense of customer markets, as opposed to, for instance, product markets: 506 The common bond requirement and the provisions prohibiting credit unions from serving nonmembers combine to limit the customers a credit union can serve, not the services a credit union can offer. With that understanding, the Court's conclusion that respondents "have" an interest in "limiting the [customer] markets that federal credit unions can serve" means little more than that respondents "have" an interest in enforcing the statute. The common bond requirement limits a credit union's membership, and hence its customer base, to certain groups, 12 U. s. C. § 1759, and in the Court's view, it is enough to establish standing that respondents "have" an interest in limiting the customers a credit union can serve. The Court's additional observation that respondents' interest has been "affected" by the NCVA's interpretation adds little to the analysis; agency interpretation of a statutory restriction will of course affect a party who has an interest in the restriction. Indeed, a party presumably will bring suit to vindicate an interest only if the interest has been affected by the challenged action. The crux of the Court's zone-ofinterests inquiry, then, is simply that the plaintiff must "have" an interest in enforcing the pertinent statute. A party, however, will invariably have an interest in enforcing a statute when he can establish injury in fact caused by an alleged violation of that statute. An example we used in National Wildlife Federation illustrates the point. There, we hypothesized a situation involving "the failure of an agency to comply with a statutory provision requiring 'on the record' hearings." 497 U. S., at 883. That circumstance "would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings," and so the company would establish injury in fact. Ibid. But the company would not satisfy the zoneof-interests test, because "the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters." Ibid.; see Air Courier, 507 498 U. S., at 524. Under the Court's approach today, however, the reporting company would have standing under the zone-of-interests test: Because the company is injured by the failure to comply with the requirement of on-the-record hearings, the company would certainly "have" an interest in enforcing the statute. Our decision in Air Courier, likewise, cannot be squared with the Court's analysis in this action. Air Courier involved a challenge by postal employees to a decision of the Postal Service suspending its statutory monopoly over certain international mailing services. The postal employees alleged a violation of the Private Express Statutes (PES)the provisions that codify the Service's postal monopolyciting as their injury in fact that competition from private mailing companies adversely affected their employment opportunities. 498 U. S., at 524. We concluded that the postal employees did not have standing under the zone-of-interests test, because "the PES were not designed to protect postal employment or further postal job opportunities." Id., at 528. As with the example from National Wildlife Federation, though, the postal employees would have established standing under the Court's analysis in this action: The employees surely "had" an interest in enforcing the statutory monopoly, given that suspension of the monopoly caused injury to their employment opportunities. In short, requiring simply that a litigant "have" an interest in enforcing the relevant statute amounts to hardly any test at all. That is why our decisions have required instead that a party "establish that the injury he complains of ... falls within the 'zone of interests' sought to be protected by the statutory provision" in question. National Wildlife Federation, supra, at 883 (emphasis added); see Bennett, 520 U. S., at 176. In Air Courier, for instance, after noting that the asserted injury in fact was "an adverse effect on employment opportunities of postal workers," we characterized "[t]he question before us" as "whether the adverse effect on the 508 employment opportunities of postal workers ... is within the zone of interests encompassed by the PES." 498 U. S., at 524; see also National Wildlife Federation, supra, at 885886 (noting that asserted injury is to the plaintiffs' interests in "recreational use and aesthetic enjoyment," and finding those particular interests "are among the sorts of interests [the] statutes were specifically designed to protect"). Our decision last Term in Bennett v. Spear is in the same vein. There, the Fish and Wildlife Service, in an effort to preserve a particular species of fish, issued a biological opinion that had the effect of requiring the maintenance of minimum water levels in certain reservoirs. A group of ranchers and irrigation districts brought suit asserting a "competing interest in the water," alleging, in part, injury to their commercial interest in using the reservoirs for irrigation water. 520 U. S., at 160. The plaintiffs charged that the Service had violated a provision of the Endangered Species Act requiring "use [of] the best scientific and commercial data available." Id., at 176. We did not ask simply whether the plaintiffs "had" an interest in holding the Service to the "best data" requirement. Instead, we assessed whether the injury asserted by the plaintiffs fell within the zone of interests protected by the "best data" provision, and concluded that the economic interests of parties adversely affected by erroneous biological opinions are within the zone of interests protected by that statute. Id., at 176-177 (observing that one purpose of the "best data" provision "is to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives"). The same approach should lead the Court to ask in this action whether respondents' injury to their commercial interest as competitors falls within the zone of interests protected by the common bond provision. Respondents recognize that such an inquiry is mandated by our decisions. They argue that "the competitive interests of banks were 509 among Congress's concerns when it enacted the Federal Credit Union Act," and that the common bond provision was motivated by "[c]ongressional concerns that chartering credit unions could inflict an unwanted competitive injury on the commercial banking industry." Brief for Respondents 24-25. The Court instead asks simply whether respondents have an interest in enforcing the common bond provision, an approach tantamount to abolishing the zone-of-interests requirement altogether. II Contrary to the Court's suggestion, ante, at 494-495, its application of the zone-of-interests test in this action is not in concert with the approach we followed in a series of cases in which the plaintiffs, like respondents here, alleged that agency interpretation of a statute caused competitive injury to their commercial interests. In each of those cases, we focused, as in Bennett, Air Courier, and National Wildlife Federation, on whether competitive injury to the plaintiff's commercial interest fell within the zone of interests protected by the relevant statute. The earliest of the competitor standing decisions was As sociation of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970), in which we first formulated the zone-of-interests requirement. There, an association of data processors challenged a decision of the Comptroller of the Currency allowing national banks to provide data processing services. The data processors alleged violation of, among other statutes, § 4 of the Bank Service Corporation Act, 76 Stat. 1132, which provided that "[n]o bank service corporation may engage in any activity other than the performance of bank services." 397 U. S., at 154-155. We articulated the applicable test as "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute ... in question." Id., at 153. 510 O'CONNOR, J., dissenting In answering that question, we assessed whether the injury asserted by the plaintiffs was to an interest arguably within the zone of interests protected by the relevant statute. The data processors, like respondents here, asserted "economic injury" from the "competition by national banks in the business of providing data processing services." Id., at 152, 154. We concluded that the data processors' "commercial interest was sought to be protected by the anticompetition limitation contained in § 4," Bennett, supra, at 176 (discussing Data Processing), explaining that the provision "arguably brings a competitor within the zone of interests protected by it," 397 U. S., at 156. Our decision in Data Processing was soon followed by another case involving § 4 of the Bank Service Corporation Act, Arnold Tours, Inc. v. Camp, 400 U. S. 45 (1970) (per curiam). Arnold Tours was similar to Data Processing, except that the plaintiffs were a group of travel agents challenging an analogous ruling of the Comptroller authorizing national banks to provide travel services. The travel agents, like the data processors, alleged injury to their commercial interest as competitors. 400 U. S., at 45. Not surprisingly, we ruled that the travel agents had established standing, on the ground that Congress did not "desir[e] to protect data processors alone from competition" through § 4. Id., at 46. Unlike in this action, then, our decisions in Arnold Tours and Data Processing turned on the conclusion that economic injury to competitors fell within the zone of interests protected by the relevant statute. We decided Investment Company Institute v. Camp, 401 U. S. 617 (1971) (ICI), later in the same Term as Arnold Tours. The case involved a challenge by an association of investment companies to a regulation issued by the Comptroller that authorized national banks to operate mutual funds. The investment companies alleged that the regulation violated provisions of the Glass-Steagall Act, 1933, 48 Stat. 162, barring national banks from entering the business 511 of investment banking. We found that the investment companies had standing, but did not rest that determination simply on the notion that the companies had an interest in enforcing the prohibition against banks entering the investment business. Instead, we observed that, as in Data Processing, "Congress had arguably legislated against ... competition" through the Glass-Steagall Act. 401 U. S., at 620-621. The final decision in this series was Clarke v. Securities Industry Assn., 479 U. S. 388 (1987). That case involved provisions of the McFadden Act, 44 Stat. 1228, allowing a national bank to establish branch offices only in its home State, and then only to the extent that banks of the home State were permitted to have branches under state law. The statute defined a "branch" office essentially as one that offered core banking services. The Comptroller allowed two banks to establish discount brokerage offices at locations outside the allowable branching area, on the rationale that brokerage services did not constitute core banking services and that the offices therefore were not "branch" offices. Representatives of the securities industry challenged the Comptroller's action, alleging a violation of the statutory branching limitations. We held that the plaintiffs had standing under the zone-ofinterests test, but again, not simply on the ground that they had an interest in enforcing the branching limits. Instead, we found that, as in ICI, Congress had "arguably legislated against ... competition" through those provisions. 479 U. S., at 403 (internal quotation marks omitted). Specifically, Congress demonstrated "a concern to keep national banks from gaining a monopoly control over credit and money through unlimited branching." Ibid.; see also id., at 410 (STEVENS, J., concurring in part and concurring in judgment) ("The general policy against branching was based in part on a concern about the national banks' potential for becoming massive financial institutions that would establish 512 monopolies on financial services"). The Court makes no analogous finding in this action that Congress, through the common bond provision, sought to prevent credit unions from gaining "monopoly control" over the customers of banking services. It is true, as the Court emphasizes repeatedly, see ante, at 488-492, 494-498, that we did not require in this line of decisions that the statute at issue was designed to benefit the particular party bringing suit. See Clarke, supra, at 399400. In Arnold Tours and Data Processing, for instance, it was sufficient that Congress desired to protect the interests of competitors generally through § 4 of the Bank Service Corporation Act, even if Congress did not have in mind the particular interests of travel agents or data processors. See Arnold Tours, supra, at 46. In Clarke, likewise, the antibranching provisions of the McFadden Act may have been intended primarily to protect state banks, and not the securities industry, from competitive injury. Respondents thus need not establish that the common bond provision was enacted specifically to benefit commercial banks, any more than they must show that the provision was intended to benefit Lexington State Bank, Piedmont State Bank, or any of the particular banks that filed this suit. In each of the competitor standing cases, though, we found that Congress had enacted an "anticompetition limitation," see Bennett, 520 U. S., at 176 (discussing Data Processing), or, alternatively, that Congress had "legislated against ... competition," see Clarke, supra, at 403; ICI, supra, at 620621, and accordingly, that the plaintiff-competitor's "commercial interest was sought to be protected by the anticompetition limitation" at issue, Bennett, supra, at 176. We determined, in other words, that "the injury [the plaintiff] complain[ed] of ... [fell] within the zone of interests sought to be protected by the [relevant] statutory provision." Na tional Wildlife Federation, 497 U. S., at 883. The Court fails to undertake that analysis here. 513 III Applying the proper zone-of-interests inquiry to this action, I would find that competitive injury to respondents' commercial interests does not arguably fall within the zone of interests sought to be protected by the common bond provision. The terms of the statute do not suggest a concern with protecting the business interests of competitors. The common bond provision limits "[f]ederal credit union membership ... to groups having a common bond of occupation or association, or to groups within a well-defined neighborhood, community, or rural district." 12 U. S. C. § 1759. And the provision is framed as an exception to the preceding clause, which confers membership on "incorporators and such other persons and incorporated and unincorporated organizations ... as may be elected ... and as such shall each, subscribe to at least one share of its stock and pay the initial installment thereon and a uniform entrance fee." Ibid. The language suggests that the common bond requirement is an internal organizational principle concerned primarily with defining membership in a way that secures a financially sound organization. There is no indication in the text of the provision or in the surrounding language that the membership limitation was even arguably designed to protect the commercial interests of competitors. Nor is there any nontextual indication to that effect. Significantly, the operation of the common bond provision is much different from the statutes at issue in Clarke, ICI, and Data Processing. Those statutes evinced a congressional intent to legislate against competition, e. g., Clarke, supra, at 403, because they imposed direct restrictions on banks generally, specifically barring their entry into certain markets. In Data Processing and ICI, "the question was what activities banks could engage in at all," and in Clarke, "the question [was] what activities banks [could] engage in without regard to the limitations imposed by state branching law." 479 U. S., at 403. 514 The operation of the common bond provision does not likewise denote a congressional desire to legislate against competition. First, the common bond requirement does not purport to restrict credit unions from becoming large, nationwide organizations, as might be expected if the provision embodied a congressional concern with the competitive consequences of credit union growth. See Brief for Petitioner NCUA 25-26 (Navy Federal Credit Union has 1.6 million members; American Airlines Federal Credit Union has 157,000 members); see also S. Rep. No. 555, 73d Cong., 2d Sess., 2 (1934) (citing "employees of the United States Government" as a "specific group with a common bond of occupation or association"). More tellingly, although the common bond provision applies to all credit unions, the restriction operates against credit unions individually: The common bond requirement speaks only to whether a particular credit union's membership can include a given group of customers, not to whether credit unions in general can serve that group. Even if a group of would-be customers does not share the requisite bond with a particular credit union, nothing in the common bond provision prevents that same group from joining a different credit union that is within the same "neighborhood, community, or rural district" or with whose members the group shares an adequate "occupation[al] or association[al]" connection. 12 U. S. C. § 1759. Also, the group could conceivably form its own credit union. In this sense, the common bond requirement does not limit credit unions collectively from serving any customers, nor does it bar any customers from being served by credit unions. In Data Processing, ICI, and Clarke, by contrast, the statutes operated against national banks generally, prohibiting all banks from competing in a particular market: Banks in general were barred from providing a specific type of service (Data Processing and IC!), or from providing services at a particular location (Clarke). Thus, whereas in Data Proc- 515 essing customers could not obtain data processing services from any national bank, and in Clarke customers outside of the permissible branching area likewise could not obtain financial services from any national bank, in this action customers who lack an adequate bond with the members of a particular credit union can still receive financial services from a different credit union. Unlike the statutes in Data Processing, ICI, and Clarke, then, the common bond provision does not erect a competitive boundary excluding credit unions from any identifiable market. The circumstances surrounding the enactment of the FCUA also indicate that Congress did not intend to legislate against competition through the common bond provision. As the Court explains, ante, at 493, n. 6, the FCUA was enacted in the shadow of the Great Depression; Congress thought that the ability of credit unions to "come through the depression without failures, when banks have failed so notably, is a tribute to the worth of cooperative credit and indicates clearly the great potential value of rapid national credit union extension." S. Rep. No. 555, at 3-4. Credit unions were believed to enable the general public, which had been largely ignored by banks, to obtain credit at reasonable rates. See id., at 2-3; First Nat'l Bank & Trust Co. v. National Credit Union Administration, 988 F.2d 1272 , 1274 (CADC), cert. denied, 510 U. S. 907 (1993). The common bond requirement "was seen as the cement that united credit union members in a cooperative venture, and was, therefore, thought important to credit unions' continued success." 988 F. 2d, at 1276. "Congress assumed implicitly that a common bond amongst members would ensure both that those making lending decisions would know more about applicants and that borrowers would be more reluctant to default." Ibid.; see ante, at 493, n. 6; A. Burger & T. Dacin, Field of Membership: An Evolving Concept 7-8 (2d ed. 1992). The requirement of a common bond was thus meant to ensure that each credit union remains a cooperative institu- 516 tion that is economically stable and responsive to its members' needs. See 988 F. 2d, at 1276. As a principle of internal governance designed to secure the viability of individual credit unions in the interests of the membership, the common bond provision was in no way designed to impose a restriction on all credit unions in the interests of institutions that might one day become competitors. "Indeed, the very notion seems anomalous, because Congress' general purpose was to encourage the proliferation of credit unions, which were expected to provide service to those would-be customers that banks disdained." Id., at 1275; see also Branch Bank & Trust Co. v. National Credit Union Administration Bd., 786 F.2d 621 , 625-626 (CA4 1986), cert. denied, 479 U. S. 1063 (1987). That the common bond requirement would later come to be viewed by competitors as a useful tool for curbing a credit union's membership should not affect the zone-of-interests inquiry. The pertinent question under the zone-of-interests test is whether Congress intended to protect certain interests through a particular provision, not whether, irrespective of congressional intent, a provision may have the effect of protecting those interests. See Clarke, 479 U. S., at 394 (the "matter [is] basically one of interpreting congressional intent"); id., at 400; 988 F. 2d, at 1276 ("To be sure, as time passed-as credit unions flourished and competition among consumer lending institutions intensified-bankers began to see the common bond requirement as a desirable limitation on credit union expansion .... But that fact, assuming it is true, hardly serves to illuminate the intent of the Congress that first enacted the common bond requirement in 1934"). Otherwise, competitors could bring suits challenging the interpretation of a host of provisions in the FCUA that might have the unintended effect of furthering their competitive interest, such as restrictions on the loans credit unions can make or on the sums credit unions can borrow. See 12 U. S. C. §§ 1757(5), (6). 517 In this light, I read our decisions as establishing that there must at least be some indication in the statute, beyond the mere fact that its enforcement has the effect of incidentally benefiting the plaintiff, from which one can draw an inference that the plaintiff's injury arguably falls within the zone of interests sought to be protected by that statute. The provisions we construed in Clarke, ICI, and Data Processing allowed such an inference: Where Congress legislates against competition, one can properly infer that the statute is at least arguably intended to protect competitors from injury to their commercial interest, even if that is not the statute's principal objective. See Bennett, 520 U. S., at 176-177 (indicating that zone-of-interests test is satisfied if one of several statutory objectives corresponds with the interest sought to be protected by the plaintiff). Accordingly, "[t]here [was] sound reason to infer" in those cases "that Congress intended [the] class [of plaintiffs] to be relied upon to challenge agency disregard of the law." Clarke, supra, at 403 (internal quotation marks omitted). The same cannot be said of respondents in this action, because neither the terms of the common bond provision, nor the way in which the provision operates, nor the circumstances surrounding its enactment, evince a congressional desire to legislate against competition. This, then, is an action where "the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." 479 U. S., at 399. The zone-of-interests test "seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives," id., at 397, n. 12, and one can readily envision circumstances in which the interests of competitors, who have the incentive to suppress credit union expansion in all circumstances, would be at odds with the statute's general aim of supporting the growth of credit unions that are cohesive and hence financially stable. 518 The Court's attempt to distinguish Air Courier, ante, at 498-499, is instructive in this regard. The Court observes that here, unlike in Air Courier, the plaintiffs suffer "competitive and direct injury." 498 U. S., at 528, n. 5. But the lack of competitive injury was pertinent in Air Courier because the statutes alleged to have been violated-the PESwere "competition statutes that regulate the conduct of competitors." Ibid. The common bond provision, for all the noted reasons, is not a competition law, and so the mere presence of "competitive and direct injury" should not establish standing. See Hardin v. Kentucky Util. Co., 390 U. S. 1 , 5-6 (1968). Thus, while in Air Courier "the statute in question regulated competition [but] the interests of the plaintiff employees had nothing to do with competition," ante, at 499, here, the common bond provision does not regulate competition but the interests of the plaintiff have everything to do with competition. In either case, the plaintiff's injury is at best "marginally related" to the interests sought to be protected by the statute, Clarke, supra, at 399, and the most that can be said is that the provision has the incidental effect of benefiting the plaintiffs. That was not enough to establish standing in Air Courier, and it should not suffice here. IV Prudential standing principles "are 'founded in concern about the proper-and properly limited-role of the courts in a democratic society.'" Bennett, supra, at 162 (quoting Warth v. Seldin, 422 U. S. 490 , 498 (1975)). The zone-ofinterests test is an integral part of the prudential standing inquiry, and we ought to apply the test in a way that gives it content. The analysis the Court undertakes today, in my view, leaves the zone-of-interests requirement a hollow one. As with the example in National Wildlife Federation, where the reporting company suffered injury from the alleged statutory violation, but the injury to the company's commercial interest was not within the zone of interests protected by 519 the statute, here, too, respondents suffer injury from the NCVA's interpretation of the common bond requirement, but the injury to their commercial interest is not within the zone of interests protected by the provision. Applying the zoneof-interests inquiry as it has been articulated in our decisions, I conclude that respondents have failed to establish standing. I would therefore vacate the judgment of the Court of Appeals and remand the action with instructions that it be dismissed.

The National Credit Union Administration (NCUA) interpreted a federal statute to allow federal credit unions to be composed of multiple, unrelated employer groups, provided that each group had its own common bond of occupation. The case was brought by five commercial banks and the American Bankers Association, who argued that the statute required all members of an occupationally-defined federal credit union to be united by the same common bond of occupation. The Supreme Court ruled that the banks had standing to challenge the NCUA's interpretation of the statute, but ultimately upheld the NCUA's interpretation, finding that it was a permissible reading of the statute.

Government Agencies

Christensen v. Harris County

https://supreme.justia.com/cases/federal/us/529/576/

OCTOBER TERM, 1999 Syllabus CHRISTENSEN ET AL. v. HARRIS COUNTY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-1167. Argued February 23, 2000-Decided May 1,2000 The Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. § 201(0), permits States and their political subdivisions to compensate their employees for overtime work by granting them compensatory time in lieu of cash payment. If the employees do not use their accumulated compensatory time, the employer must pay cash compensation under certain circumstances. §§207(0)(3)-(4). Fearing the consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued time. Petitioners, county deputy sheriffs, sued, claiming that the FLSA does not permit an employer to compel an employee to use compensatory time in the absence of an agreement permitting the employer to do so. The District Court granted petitioners summary judgment and entered a declaratory judgment that the policy violated the FLSA. The Fifth Circuit reversed, holding that the FLSA did not speak to the issue and thus did not prohibit the county from implementing its policy. Held: Nothing in the FLSA or its implementing regulations prohibits a public employer from compelling the use of compensatory time. Petitioners' claim that § 207(0 )(5) implicitly prohibits compelled use of compensatory time in the absence of an agreement is unpersuasive. The proposition that when a statute limits a thing to be done in a particular mode, it includes a negative of any other mode, Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270, does not resolve this case in petitioners' favor. Section 207(0)(5) provides that an employee who requests to use compensatory time must be permitted to do so unless the employer's operations would be unduly disrupted. The negative inference to be drawn is only that an employer may not deny a request for a reason other than that provided in §207(0)(5). Section 207(0)(5) simply ensures that an employee receive some timely benefit for overtime work. The FLSA's nearby provisions reflect a similar concern. At bottom, the best reading of the FLSA is that it ensures liquidation of compensatory time; it says nothing about restricting an employer's efforts to re quire employees to use the time. Because the statute is silent on this issue and because the county's policy is entirely compatible with § 207(0 )(5), petitioners cannot, as § 216(b) requires, prove that the county 577 has violated § 207. Two other features of the FLSA support this interpretation: Employers are permitted to decrease the number of hours that employees work, and employers also may cash out accumulated compensatory time by paying the employee his regular hourly wage for each hour accrued. The county's policy merely involves doing both of these steps at once. A Department of Labor opinion letter taking the position that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference. They are "entitled to respect," but only to the extent that they are persuasive, Skidmore v. Swift & Co., 323 U. S. 134 , 140, which is not the case here. Chevron deference does apply to an agency interpretation contained in a regulation, but nothing in the Department of Labor's regulation even arguably requires that an employer's compelled use policy must be included in an agreement. And deference to an agency's interpretation of its regulation is warranted under Auer v. Robbins, 519 U. S. 452 , 461, only when the regulation's language is ambiguous, which is not the case here. Pp. 582-588. 158 F.3d 241 , affirmed. THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in which SCALIA, J., joined except as to Part III. SOUTER, J., filed a concurring opinion, post, p. 589. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 589. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 592. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 596. Michael T. Leibig argued the cause for petitioners. With him on the briefs were Richard H. Cobb and Murray E. Malakoff Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Waxman, Deputy Solicitor General Kneedler, Jonathan E. Nuechterlein, Allen H. Feldman, and Edward D. Sieger. 578 Michael P. Fleming argued the cause for respondents. With him on the brief were Michael A. Stafford, Bruce S. Powers, and William John Bux.* JUSTICE THOMAS delivered the opinion of the Court. Under the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. (1994 ed. and Supp. III), States and their political subdivisions may compensate their employees for overtime by granting them compensatory time or "comp time," which entitles them to take time off work with full pay. § 207(0). If the employees do not use their accumulated compensatory time, the employer is obligated to pay cash compensation under certain circumstances. §§ 207(0)(3)-(4). Fearing the fiscal consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued compensatory time. Employees of the Harris County Sheriff's Department sued, claiming that the FLSA prohibits such a policy. The Court of Appeals rejected their claim. Finding that nothing in the FLSA or its implementing regulations prohibits an employer from compelling the use of compensatory time, we affirm. I A The FLSA generally provides that hourly employees who work in excess of 40 hours per week must be compensated *Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Deborah Greenfield, James B. Coppess, and Laurence Gold; for the International Association of Fire Fighters by Thomas A. Woodley; and for the National Association of Police Organizations by Stephen R. McSpadden. Jeffrey A. Hollingsworth filed a brief for Spokane Valley Fire Protection District No.1 as amicus curiae urging affirmance. 579 for the excess hours at a rate not less than 1lf2 times their regular hourly wage. § 207(a)(1). Although this requirement did not initially apply to public-sector employers, Congress amended the FLSA to subject States and their political subdivisions to its constraints, at first on a limited basis, see Fair Labor Standards Amendments of 1966, Pub. L. 89-601, § 102(b), 80 Stat. 831 (extending the FLSA to certain categories of state and local employees), and then more broadly, see Fair Labor Standards Amendments of 1974, Pub. L. 93-259, §§ 6(a)(1)-(2), 88 Stat. 58-59 (extending the FLSA to all state and local employees, save elected officials and their staffs). States and their political subdivisions, however, did not feel the full force of this latter extension until our decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), which overruled our holding in National League of Cities v. Usery, 426 U. S. 833 (1976), that the FLSA could not constitutionally restrain traditional governmental functions. In the months following Garcia, Congress acted to mitigate the effects of applying the FLSA to States and their political subdivisions, passing the Fair Labor Standards Amendments of 1985, Pub. L. 99-150, 99 Stat. 787. See generally Moreau v. Klevenhagen, 508 U. S. 22 , 26 (1993). Those amendments permit States and their political subdivisions to compensate employees for overtime by granting them compensatory time at a rate of 1lf2 hours for every hour worked. See 29 U. S. C. § 207(0)(1). To provide this form of compensation, the employer must arrive at an agreement or understanding with employees that compensatory time will be granted instead of cash compensation.1 §207(0)(2); 29 CFR § 553.23 (1999). 1 Such an agreement or understanding need not be formally reached and memorialized in writing, but instead can be arrived at informally, such as when an employee works overtime knowing that the employer rewards overtime with compensatory time. See 29 CFR § 553.23(c)(1) (1999). 580 The FLSA expressly regulates some aspects of accrual and preservation of compensatory time. For example, the FLSA provides that an employer must honor an employee's request to use compensatory time within a "reasonable period" of time following the request, so long as the use of the compensatory time would not "unduly disrupt" the employer's operations. § 207(0)(5); 29 CFR § 553.25 (1999). The FLSA also caps the number of compensatory time hours that an employee may accrue. After an employee reaches that maximum, the employer must pay cash compensation for additional overtime hours worked. §207(0)(3)(A). In addition, the FLSA permits the employer at any time to cancel or "cash out" accrued compensatory time hours by paying the employee cash compensation for unused compensatory time. § 207(0)(3)(B); 29 CFR § 553.26(a) (1999). And the FLSA entitles the employee to cash payment for any accrued compensatory time remaining upon the termination of employment. § 207(0)(4). B Petitioners are 127 deputy sheriffs employed by respondents Harris County, Texas, and its sheriff, Tommy B. Thomas (collectively, Harris County). It is undisputed that each of the petitioners individually agreed to accept compensatory time, in lieu of cash, as compensation for overtime. As petitioners accumulated compensatory time, Harris County became concerned that it lacked the resources to pay monetary compensation to employees who worked overtime after reaching the statutory cap on compensatory time accrual and to employees who left their jobs with sizable reserves of accrued time. As a result, the county began looking for a way to reduce accumulated compensatory time. It wrote to the United States Department of Labor's Wage and Hour Division, asking "whether the Sheriff may schedule non-exempt employees to use or take compensatory time." Brief for Petitioners 18-19. The Acting Administrator of the Division replied: 581 "[I]t is our position that a public employer may schedule its nonexempt employees to use their accrued FLSA compensatory time as directed if the prior agreement specifically provides such a provision .... "Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 14, 1992), 1992 WL 845100 (Opinion Letter). After receiving the letter, Harris County implemented a policy under which the employees' supervisor sets a maximum number of compensatory hours that may be accumulated. When an employee's stock of hours approaches that maximum, the employee is advised of the maximum and is asked to take steps to reduce accumulated compensatory time. If the employee does not do so voluntarily, a supervisor may order the employee to use his compensatory time at specified times. Petitioners sued, claiming that the county's policy violates the FLSA because § 207(o)(5)-which requires that an employer reasonably accommodate employee requests to use compensatory time-provides the exclusive means of utilizing accrued time in the absence of an agreement or understanding permitting some other method. The District Court agreed, granting summary judgment for petitioners and entering a declaratory judgment that the county's policy violated the FLSA. Moreau v. Harris County, 945 F. Supp. 1067 (SD Tex. 1996). The Court of Appeals for the Fifth Circuit reversed, holding that the FLSA did not speak to the issue and thus did not prohibit the county from implementing its compensatory time policy. Moreau v. Harris County, 158 F.3d 241 (1998). Judge Dennis concurred in part and dissented in part, concluding that the employer could not compel the employee to use compensatory time unless the employee agreed to such an arrangement in advance. Id., 582 at 247-251. We granted certiorari because the Courts of Appeals are divided on the issue.2 528 U. S. 926 (1999). II Both parties, and the United States as amicus curiae, concede that nothing in the FLSA expressly prohibits a State or subdivision thereof from compelling employees to utilize accrued compensatory time. Petitioners and the United States, however, contend that the FLSA implicitly prohibits such a practice in the absence of an agreement or understanding authorizing compelled use.3 Title 29 U. S. C. § 207(0)(5) provides: "An employee ... "(A) who has accrued compensatory time off ... , and "(B) who has requested the use of such compensatory time, "shall be permitted by the employee's employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency." Petitioners and the United States rely upon the canon ex pressio unius est exclusio alterius, contending that the express grant of control to employees to use compensatory time, subject to the limitation regarding undue disruptions 2 Compare, e. g., Collins v. Lobdell, 188 F.3d 1124 , 1129-1130 (CA9 1999) (upholding employer's policy compelling compensatory time use), with Heaton v. Moore, 43 F.3d 1176 , 1180-1181 (CA8 1994) (striking down policy compelling compensatory time use), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995). 3 We granted certiorari on the question" '[w]hether a public agency governed by the compensatory time provisions of the Fair Labor Standards Act of 1938, 29 U. S. C. §207(o), may, absent a preexisting agreement, require its employees to use accrued compensatory time?'" 528 U. S. 926, 927 (1999). As such, we decide this case on the assumption that no agreement or understanding exists between the employer and employees on the issue of compelled use of compensatory time. 583 of workplace operations, implies that all other methods of spending compensatory time are precluded.4 We find this reading unpersuasive. We accept the proposition that "[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode." Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270 (1872). But that canon does not resolve this case in petitioners' favor. The "thing to be done" as defined by § 207(0)(5) is not the expenditure of compensatory time, as petitioners would have it. Instead, § 207(0)(5) is more properly read as a minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it. As such, the proper expressio unius inference is that an employer may not, at least in the absence of an agreement, deny an employee's request to use compensatory time for a reason other than that provided in § 207(0)(5). The canon's application simply does not prohibit an employer from telling an employee to take the benefits of compensatory time by scheduling time off work with full pay. In other words, viewed in the context of the overall statutory scheme, §207(0)(5) is better read not as setting forth the exclusive method by which compensatory time can be used, but as setting up a safeguard to ensure that an em- 4JUSTICE STEVENS asserts that the parties never make this argument. See post, at 593, n. 1 (dissenting opinion). Although the United States and petitioners fail to make their arguments in Latin, we believe a fair reading of the briefs reveals reliance upon the expressio unius canon. See Brief for United States as Amicus Curiae 16 ("Congress ... identified only one circumstance in which an employer may exercise some measure of control: when an employee requests the use of compensatory time, the employer must allow such use within a reasonable period of time except where the use would 'unduly disrupt' the employer's operations. 29 U. S. C. 207(0)(5). If Congress had intended for employers to exercise unilateral control over the use of compensatory time in other respects as well, it presumably would have so provided"); Reply Brief for Petitioners 4-6 (contending that the FLSA explicitly provides methods for reducing compensatory time and thus other means may not be used). 584 ployee will receive timely compensation for working overtime. Section 207(0)(5) guarantees that, at the very minimum, an employee will get to use his compensatory time (i. e., take time off work with full pay) unless doing so would disrupt the employer's operations. And it is precisely this concern over ensuring that employees can timely "liquidate" compensatory time that the Secretary of Labor identified in her own regulations governing §207(0)(5): "Compensatory time cannot be used as a means to avoid statutory overtime compensation. An employee has the right to use compensatory time earned and must not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period of his or her making a request for use of such time." 29 CFR § 553.25(b) (1999). This reading is confirmed by nearby prOVlSlons of the FLSA that reflect a similar concern for ensuring that the employee receive some timely benefit for overtime work. For example, § 207(0)(3)(A) provides that workers may not accrue more than 240 or 480 hours of compensatory time, depending upon the nature of the job. See also §207(0)(2)(B) (conditioning the employer's ability to provide compensatory time upon the employee not accruing compensatory time in excess of the § 207(0 )(3)(A) limits). Section 207(0 )(3)(A) helps guarantee that employees only accrue amounts of compensatory time that they can reasonably use. After all, an employer does not need § 207(0)(3)(A)'s protection; it is free at any time to reduce the number of hours accrued by exchanging them for cash payment, § 207(0)(3)(B), or by halting the accrual of compensatory time by paying cash compensation for overtime work, 29 CFR § 553.26(a) (1999). Thus, § 207(0)(3)(A), like § 207(0)(5), reflects a concern that employees receive some timely benefit in exchange for overtime work. Moreover, on petitioners' view, the compensa- 585 tory time exception enacted by Congress in the wake of Garcia would become a nullity when employees who refuse to use compensatory time reach the statutory maximums on accrual. Petitioners' position would convert § 207(0)(3)(A)'s shield into a sword, forcing employers to pay cash compensation instead of providing compensatory time to employees who work overtime. At bottom, we think the better reading of § 207(0)(5) is that it imposes a restriction upon an employer's efforts to prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer's efforts to require employees to use compensatory time. Because the statute is silent on this issue and because Harris County's policy is entirely compatible with § 207(0)(5), petitioners cannot, as they are required to do by 29 U. S. C. § 216(b), prove that Harris County has violated §207. Our interpretation of §207(0)(5)-one that does not prohibit employers from forcing employees to use compensatory time-finds support in two other features of the FLSA. First, employers remain free under the FLSA to decrease the number of hours that employees work. An employer may tell the employee to take off an afternoon, a day, or even an entire week. Cf. Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 , 739 (1981) ("[T]he FLSA was designed ... to ensure that each employee covered by the Act ... would be protected from the evil of overwork ... " (internal quotation marks and emphasis omitted)). Second, the FLSA explicitly permits an employer to cash out accumulated compensatory time by paying the employee his regular hourly wage for each hour accrued. § 207(0)(3)(B); 29 CFR § 553.27(a) (1999). Thus, under the FLSA an employer is free to require an employee to take time off work, and an employer is also free to use the money it would have paid in wages to cash out accrued compensatory time. The compelled use of compensatory time challenged in this case 586 merely involves doing both of these steps at once. It would make little sense to interpret § 207(0)(5) to make the combination of the two steps unlawful when each independently is lawful.5 III In an attempt to avoid the conclusion that the FLSA does not prohibit compelled use of compensatory time, petitioners and the United States contend that we should defer to the Department of Labor's opinion letter, which takes the position that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice. Specifically, they argue that the agency opinion letter is entitled to deference under our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). In Chevron, we held that a court must give 5 JUSTICE STEVENS does not dispute this argument. In fact, he expressly endorses half of it. See post, at 594, 595 (employer free to cash out compensatory time). Instead, JUSTICE STEVENS claims that we "stumbl[e]" by failing to identify "the relevant general rule" that employees have "a statutory right to compensation for overtime work payable in cash." Post, at 592. We fail to do so only because the general rule is not relevant to this case. Both parties to this case agreed that compensatory time would be provided in lieu of cash and thus § 207(a)'s general requirement of cash compensation is supplanted. Petitioners and the United States do assert that the requirement of cash compensation is relevant by analogy. They claim that an employer cannot compel compensatory time use because compensatory time should be treated like employee cash in the bank-that is, under the exclusive control of the employee. But this analogy is wholly inapt under the very terms of the FLSA. The FLSA grants significant control to the employer over accrued compensatory time. For example, the employer is free to buyout compensatory time at any time by providing cash compensation. §207(0)(3)(B); 29 CFR § 553.27(a) (1999). Additionally, an employer is free to deny any request to use compensatory time when such use would unduly disrupt the employer's operations. § 207(0 )(5)(B); 29 CFR § 553.25(d) (1999). The cash analogy is therefore directly undermined by unambiguous provisions of the statute. 587 effect to an agency's regulation containing a reasonable interpretation of an ambiguous statute. Id., at 842-844. Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of lawdo not warrant Chevron-style deference. See, e. g., Reno v. Koray, 515 U. S. 50 , 61 (1995) (internal agency guideline, which is not "subject to the rigors of the Administrative Procedur[e] Act, including public notice and comment," entitled only to "some deference" (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U. S. 244 , 256-258 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144 , 157 (1991) (interpretative rules and enforcement guidelines are "not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers"). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are "entitled to respect" under our decision in Skidmore v. Swift & Co., 323 U. S. 134 , 140 (1944), but only to the extent that those interpretations have the "power to persuade," ibid. See Arabian American Oil Co., supra, at 256-258. As explained above, we find unpersuasive the agency's interpretation of the statute at issue in this case. Of course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation. But in this case the Department of Labor's regulation does not address the issue of compelled compensatory time. The regulation provides only that "[t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing 588 out of compensatory time so long as these provisions are consistent with [§ 207(0)]." 29 CFR § 553.23(a)(2) (1999) (emphasis added). Nothing in the regulation even arguably requires that an employer's compelled use policy must be included in an agreement. The text of the regulation itself indicates that its command is permissive, not mandatory. Seeking to overcome the regulation's obvious meaning, the United States asserts that the agency's opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U. S. 452 (1997). In Auer, we held that an agency's interpretation of its own regulation is entitled to deference. Id., at 461. See also Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous-it is plainly permissive. To defer to the agency's position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of compelled compensatory time, Auer deference is unwarranted. *** As we have noted, no relevant statutory prOVISIOn expressly or implicitly prohibits Harris County from pursuing its policy of forcing employees to utilize their compensatory time. In its opinion letter siding with the petitioners, the Department of Labor opined that "it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter (emphasis added). But this view is exactly backwards. Unless the FLSA prohibits respondents from adopting its policy, petitioners cannot show that Harris County has violated the FLSA. And the FLSA contains no such prohibition. The judgment of the Court of Appeals is affirmed. It is so ordered. 589 JUSTICE SOUTER, concurring. I join the opinion of the Court on the assumption that it does not foreclose a reading of the Fair Labor Standards Act of 1938 that allows the Secretary of Labor to issue regulations limiting forced use. JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the judgment of the Court and all of its opinion except Part III, which declines to give effect to the position of the Department of Labor in this case because its opinion letter is entitled only to so-called "Skidmore deference," see Skidmore v. Swift & Co., 323 U. S. 134 , 140 (1944). Skidmore deference to authoritative agency views is an anachronism, dating from an era in which we declined to give agency interpretations (including interpretive regulations, as opposed to "legislative rules") authoritative effect. See EEOC v. Arabian American Oil Co., 499 U. S. 244 , 259 (1991) (SCALIA, J., concurring in part and concurring in judgment). This former judicial attitude accounts for that provision of the 1946 Administrative Procedure Act which exempted "interpretative rules" (since they would not be authoritative) from the notice-and-comment requirements applicable to rulemaking, see 5 U. S. C. § 553(b)(A). That era came to an end with our watershed decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 844 (1984), which established the principle that "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." * While Chevron in fact *1 do not comprehend JUSTICE BREYER'S contention, post, at 596-597 (dissenting opinion), that Skidmore deference-that special respect one gives to the interpretive views of the expert agency responsible for administering the statute-is not an anachronism because it may apply in "circumstances in which Chevron-type deference is inapplicable." Chevron- 590 Opinion of SCALIA, J. involved an interpretive regulation, the rationale of the case was not limited to that context: "'The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.'" Id., at 843, quoting Morton v. Ruiz, 415 U. S. 199, 231 (1974). Quite appropriately, therefore, we have accorded Chevron deference not only to agency regulations, but to authoritative agency positions set forth in a variety of other formats. See, e. g., INS v. Aguirre-Aguirre, 526 U. S. 415 , 425 (1999) (adjudication); NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 , 256-257 (1995) (letter of Comptroller of the Currency); Pen sion Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633 , 647-648 (1990) (decision by Pension Benefit Guaranty Corp. to restore pension benefit plan); Young v. Community Nutrition Institute, 476 U. S. 974 , 978-979 (1986) (Food and type deference can be inapplicable for only three reasons: (1) the statute is unambiguous, so there is no room for administrative interpretation; (2) no interpretation has been made by personnel of the agency responsible for administering the statute; or (3) the interpretation made by such personnel was not authoritative, in the sense that it does not represent the official position of the expert agency. All of these reasons preclude Skidmore deference as well. The specific example of the inapplicability of Chevron that JUSTICE BREYER posits, viz., "where one has doubt that Congress actually intended to delegate interpretive authority to the agency," post, at 597, appears to assume that, after finding a statute to be ambiguous, we must ask in addition, before we can invoke Chevron deference, whether Congress intended the ambiguity to be resolved by the administering agency. That is not so. Chevron establishes a presumption that ambiguities are to be resolved (within the bounds of reasonable interpretation) by the administering agency. The implausibility of Congress's leaving a highly significant issue unaddressed (and thus "delegating" its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity, see MC! Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 , 231 (1994), but once ambiguity is established the consequences of Chevron attach. 591 Drug Administration's "longstanding interpretation of the statute," reflected in no-action notice published in the Federal Register). In my view, therefore, the position that the county's action in this case was unlawful unless permitted by the terms of an agreement with the sheriff's department employees warrants Chevron deference if it represents the authoritative view of the Department of Labor. The fact that it appears in a single opinion letter signed by the Acting Administrator of the Wage and Hour Division might not alone persuade me that it occupies that status. But the Solicitor General of the United States, appearing as an amicus in this action, has filed a brief, cosigned by the Solicitor of Labor, which represents the position set forth in the opinion letter to be the position of the Secretary of Labor. That alone, even without existence of the opinion letter, would in my view entitle the position to Chevron deference. What we said in a case involving an agency's interpretation of its own regulations applies equally, in my view, to an agency's interpretation of its governing statute: "Petitioners complain that the Secretary's interpretation comes to us in the form of a legal brief; but that does not, in the circumstances of this case, make it unworthy of deference. The Secretary's position is in no sense a 'post hoc rationalizatio[n]' advanced by an agency seeking to defend past agency action against attack, Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 212 (1988). There is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question." Auer v. Robbins, 519 U. S. 452 , 462 (1997). I nonetheless join the judgment of the Court because, for the reasons set forth in Part II of its opinion, the Secretary's position does not seem to me a reasonable interpretation of the statute. 592 JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting. Because the disagreement between the parties concerns the scope of an exception to a general rule, it is appropriate to begin with a correct identification of the relevant general rule. That rule gives all employees protected by the Fair Labor Standards Act of 1938 a statutory right to compensation for overtime work payable in cash, whether they work in the private sector of the economy or the public sector. 29 U. S. C. §§ 206, 207 (1994 ed. and Supp. III). In 1985, Congress enacted an exception to that general rule that permits States and their political subdivisions to use compensatory time instead of cash as compensation for overtime. The exception, however, is not applicable unless the public employer first arrives at an agreement with its employees to substitute that type of compensation for cash. § 207(0); 29 CFR § 553.23 (1999). As I read the statute, the employer has no right to impose compensatory overtime payment upon its employees except in accordance with the terms of the agreement authorizing its use. The Court stumbles because it treats § 207's limited and conditional exception as though it were the relevant general rule. The Court begins its opinion by correctly asserting that public employers may "compensate their employees for overtime by granting them compensatory time or 'comp time,' which entitles them to take time off work with full pay." Ante, at 578. It is not until it reaches the bottom of the second page, however, that the Court acknowledges that what appeared to be the relevant general rule is really an exception from the employees' basic right to be paid in cash. Ante, at 579. In my judgment, the fact that no employer may lawfully make any use of "comp time" without a prior agreement with the affected employees is of critical importance in answering the question whether a particular method of using that form 593 of noncash compensation may be imposed on those employees without their consent. Because their consent is a condition without which the employer cannot qualify for the exception from the general rule, it seems clear to me that their agreement must encompass the way in which the compensatory time may be used. In an effort to avoid addressing this basic point, the Court mistakenly characterizes petitioners' central argument as turning upon the canon expressio unius est exclusio alterius. 1 According to the Court, petitioners and the United States as amicus curiae contend that because employees are granted the power under the Act to use their compensatory time subject solely to the employers' ability to make employees wait a "reasonable time" before using it, "all other methods of spending compensatory time are precluded." Ante, at 583. The Court concludes that expressio unius does not help petitioners because the "thing to be done" as prescribed by the statute (and because of which all other "things" are excluded) is simply a guarantee that employees will be allowed to make some use of compensatory time upon request, rather than an open-ended promise that employees will be able to choose (subject only to the "reasonable time" limitation) how to spend it. Ibid. This description of the debate misses the primary thrust of petitioners' position. They do not, as the Court implies, contend that employers generally must afford employees essentially unlimited use of accrued comp time under the statute; the point is rather that rules regarding both the avail- 1 It must be noted that neither petitioners' brief nor the brief for the United States as amicus curiae actually relies upon this canon. Indeed, the sole mention of it in either brief is in petitioners' statement of the case, in which petitioners refer in a single sentence to an argument made by the Court of Appeals for the Eighth Circuit in Heaton v. Moore, 43 F. 3d 1176 (1994) (rejecting compelled-use policy absent agreement to that effect), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995). 594 ability and the use of comp time must be contained within an agreement. The "thing to be done" under the Act is for the parties to come to terms. It is because they have not done so with respect to the use of comp time here that the county may not unilaterally force its expenditure. The Court is thus likewise mistaken in its insistence that under petitioners' reading, the comp time exception "would become a nullity" because employees could "forc[e] employers to pay cash compensation instead of providing compensatory time" for overtime work. Ante, at 585. Quite the contrary, employers can only be "forced" either to abide by the arrangements to which they have agreed, or to comply with the basic statutory requirement that overtime compensation is payable in cash. Moreover, as the Court points out, ante, at 580, 584, even absent an agreement on the way in which comp time may be used, employers may at any time require employees to "cash out" of accumulated comp time, thereby readily avoiding any forced payment of comp time employees may accrue. § 207(o)(3)(B); 29 CFR § 553.26(a) (1999). Neither can it be said that Congress somehow assumed that the right to force employees to use accumulated comp time was to be an implied term in all comp time agreements. Congress specifically contemplated that employees might well reach the statutory maximum of accrued comp time, by requiring, in § 207(o)(3)(A), that once the statutory maximum is reached, employers must compensate employees in the preferred form-cash-for every hour over the limit. Finally, it is not without significance in the present case that the Government department responsible for the statute's enforcement shares my understanding of its meaning. Indeed, the Department of Labor made its position clear to the county itself in response to a direct question posed by the county before it decided-agency advice notwithstanding-to implement its forced-use policy nonetheless. The Department of Labor explained: 595 "[A] public employer may schedule its nonexempt employees to use their accrued FLSA compensatory time as directed if the prior agreement specifically provides such a provision, and the employees have knowingly and voluntarily agreed to such provision .... "Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time." Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 14, 1992), 1992 WL 845100. The Department, it should be emphasized, does not suggest that forced-use policies are forbidden by the statute or regulations. Rather, its judgment is simply that, in accordance with the basic rule governing compensatory time set down by the statutory and regulatory scheme, such policies may be pursued solely according to the parties' agreement. Because there is no reason to believe that the Department's opinion was anything but thoroughly considered and consistently observed, it unquestionably merits our respect. See Skidmore v. Swift & Co., 323 U. S. 134 , 140 (1944).2 In the end, I do not understand why it should be any more difficult for the parties to come to an agreement on this term of employment than on the antecedent question whether compensatory time may be used at all. State employers enjoy substantial bargaining power in negotiations with their employees; by regulation, agreements governing the availability and use of compensatory time can be essentially as informal as the parties wish. See 29 CFR § 553.23(c) (1999). And, as we have said, employers retain the ability to "cash out" of accrued leave at any time. That simple step is, after all, the method that the Department of Labor years ago suggested the county should pursue here, and that would 2 I should add that I fully agree with JUSTICE BREYER'S comments on Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). See post, at 596-597 (dissenting opinion). 596 achieve precisely the outcome the county has all along claimed it wants. I respectfully dissent. JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting. JUSTICE SCALIA may well be right that the position of the Department of Labor, set forth in both brief and letter, is an "authoritative" agency view that warrants deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Ante, at 590 (opinion concurring in part and concurring in judgment). But I do not object to the majority's citing Skidmore v. Swift & Co., 323 U. S. 134 (1944), instead. And I do disagree with JUSTICE SCALIA'S statement that what he calls "Skidmore deference" is "an anachronism." Ante, at 589. Skidmore made clear that courts may pay particular attention to the views of an expert agency where they represent "specialized experience," 323 U. S., at 139, even if they do not constitute an exercise of delegated lawmaking authority. The Court held that the "rulings, interpretations and opinions of" an agency, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Id., at 140; see also Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 157 (1991). As Justice Jackson wrote for the Court, those views may possess the "power to persuade," even where they lack the "power to control." Skidmore, supra, at 140. Chevron made no relevant change. It simply focused upon an additional, separate legal reason for deferring to certain agency determinations, namely, that Congress had delegated to the agency the legal authority to make those determinations. See Chevron, supra, at 843-844. And, to the extent there may be circumstances in which Chevron-type 597 deference is inapplicable-e. g., where one has doubt that Congress actually intended to delegate interpretive authority to the agency (an "ambiguity" that Chevron does not presumptively leave to agency resolution)-I believe that Skidmore nonetheless retains legal vitality. If statutes are to serve the human purposes that called them into being, courts will have to continue to pay particular attention in appropriate cases to the experience-based views of expert agencies. I agree with JUSTICE STEVENS that, when "thoroughly considered and consistently observed," an agency's views, particularly in a rather technical case such as this one, "meri[t] our respect." Ante, at 595 (dissenting opinion). And, of course, I also agree with JUSTICE STEVENS that, for the reasons he sets forth, ante, at 592-594, the Labor Department's position in this matter is eminently reasonable, hence persuasive, whether one views that decision through Chevron's lens, through Skidmore's, or through both.

The Supreme Court held that the Fair Labor Standards Act (FLSA) does not prohibit public employers from compelling employees to use their accumulated compensatory time, as long as it doesn't disrupt the employer's operations. The Court interpreted the FLSA as ensuring liquidation of compensatory time without restricting employers from requiring employees to use it. The county's policy was compatible with the FLSA, and the employees could not prove a violation. The Court also noted that employers can decrease work hours and cash out compensatory time, so the county's policy was a combination of these permitted actions.

Government Agencies

FDA v. Brown & Williamson Tobacco Corp.

https://supreme.justia.com/cases/federal/us/529/120/

OCTOBER TERM, 1999 Syllabus FOOD AND DRUG ADMINISTRATION ET AL. v. BROWN & WILLIAMSON TOBACCO CORP. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-1152. Argued December 1, 1999-Decided March 21, 2000 The Food, Drug, and Cosmetic Act (FDCA or Act), 21 U. S. C. § 301 et seq., grants the Food and Drug Administration (FDA), as the designee of the Secretary of Health and Human Services (HHS), the authority to regulate, among other items, "drugs" and "devices," §§ 321(g)-(h), 393. In 1996, the FDA asserted jurisdiction to regulate tobacco products, concluding that, under the FDCA, nicotine is a "drug" and cigarettes and smokeless tobacco are "devices" that deliver nicotine to the body. Pursuant to this authority, the FDA promulgated regulations governing tobacco products' promotion, labeling, and accessibility to children and adolescents. The FDA found that tobacco use is the Nation's leading cause of premature death, resulting in more than 400,000 deaths annually, and that most adult smokers begin when they are minors. The regulations therefore aim to reduce tobacco use by minors so as to substantially reduce the prevalence of addiction in future generations, and thus the incidence of tobacco-related death and disease. Respondents, a group of tobacco manufacturers, retailers, and advertisers, filed this suit challenging the FDA's regulations. They moved for summary judgment on the ground, inter alia, that the FDA lacked jurisdiction to regulate tobacco products as customarily marketed, that is, without manufacturer claims of therapeutic benefit. The District Court upheld the FDA's authority, but the Fourth Circuit reversed, holding that Congress has not granted the FDA jurisdiction to regulate tobacco products. The court concluded that construing the FDCA to include tobacco products would lead to several internal inconsistencies in the Act. It also found that evidence external to the FDCA-that the FDA consistently stated before 1995 that it lacked jurisdiction over tobacco, that Congress has enacted several tobacco-specific statutes fully cognizant of the FDA's position, and that Congress has considered and rejected many bills that would have given the agency such authority-confirms this conclusion. Held: Reading the FDCA as a whole, as well as in conjunction with Congress' subsequent tobacco-specific legislation, it is plain that Congress has not given the FDA the authority to regulate tobacco products as customarily marketed. Pp. 131-161. 121 (a) Because this case involves an agency's construction of a statute it administers, the Court's analysis is governed by Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , under which a reviewing court must first ask whether Congress has directly spoken to the precise question at issue, id., at 842. If so, the court must give effect to Congress' unambiguously expressed intent. E. g., id., at 843. If not, the court must defer to the agency's construction of the statute so long as it is permissible. See, e. g., INS v. Aguirre-Aguirre, 526 U. S. 415 , 424. In determining whether Congress has specifically addressed the question at issue, the court should not confine itself to examining a particular statutory provision in isolation. Rather, it must place the provision in context, interpreting the statute to create a symmetrical and coherent regulatory scheme. Gustafson v. Alloyd Co., 513 U. S. 561 , 569. In addition, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See, e. g., United States v. Estate of Romani, 523 U. S. 517 , 530-531. Finally, the court must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 , 231. Pp. 131-133. (b) Considering the FDCA as a whole, it is clear that Congress intended to exclude tobacco products from the FDA's jurisdiction. A fundamental precept of the FDCA is that any product regulated by the FDA that remains on the market must be safe and effective for its intended use. See, e. g., § 393(b)(2). That is, the potential for inflicting death or physical injury must be offset by the possibility of therapeutic benefit. United States v. Rutherford, 442 U. S. 544 , 556. In its rulemaking proceeding, the FDA quite exhaustively documented that tobacco products are unsafe, dangerous, and cause great pain and suffering from illness. These findings logically imply that, if tobacco products were "devices" under the FDCA, the FDA would be required to remove them from the market under the FDCA's misbranding, see, e. g., § 331(a), and device classification, see, e. g., § 360e(d)(2)(A), provisions. In fact, based on such provisions, the FDA itself has previously asserted that if tobacco products were within its jurisdiction, they would have to be removed from the market because it would be impossible to prove they were safe for their intended use. Congress, however, has foreclosed a ban of such products, choosing instead to create a distinct regulatory scheme focusing on the labeling and advertising of cigarettes and smokeless tobacco. Its express policy is to protect commerce and the national economy while informing consumers about any adverse health effects. 122 See 15 U. S. C. § 1331. Thus, an FDA ban would plainly contradict congressional intent. Apparently recognizing this dilemma, the FDA has concluded that tobacco products are actually "safe" under the FDCA because banning them would cause a greater harm to public health than leaving them on the market. But this safety determination-focusing on the relative harms caused by alternative remedial measures-is not a substitute for those required by the FDCA. Various provisions in the Act require the agency to determine that, at least for some consumers, the product's therapeutic benefits outweigh the risks of illness or serious injury. This the FDA cannot do, because tobacco products are unsafe for obtaining any therapeutic benefit. The inescapable conclusion is that there is no room for tobacco products within the FDCA's regulatory scheme. If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit. Pp. 133-143. (c) The history of tobacco-specific legislation also demonstrates that Congress has spoken directly to the FDA's authority to regulate tobacco products. Since 1965, Congress has enacted six separate statutes addressing the problem of tobacco use and human health. Those statutes, among other things, require that health warnings appear on all packaging and in all print and outdoor advertisements, see 15 U. S. C. §§ 1331, 1333, 4402; prohibit the advertisement of tobacco products through any electronic communication medium regulated by the Federal Communications Commission, see §§ 1335, 4402(f); require the Secretary of HHS to report every three years to Congress on research findings concerning tobacco's addictive property, 42 U. S. C. § 290aa-2(b)(2); and make States' receipt of certain federal block grants contingent on their prohibiting any tobacco product manufacturer, retailer, or distributor from selling or distributing any such product to individuals under age 18, § 300x-26(a)(1). This tobacco-specific legislation has created a specific regulatory scheme for addressing the problem of tobacco and health. And it was adopted against the backdrop of the FDA consistently and resolutely stating that it was without authority under the FDCA to regulate tobacco products as customarily marketed. In fact, Congress several times considered and rejected bills that would have given the FDA such authority. Indeed, Congress' actions in this area have evidenced a clear intent to preclude a meaningful policymaking role for any administrative agency. Further, Congress' tobacco legislation prohibits any additional regulation of tobacco product labeling with respect to tobacco's health consequences, a central aspect of regulation under the FDCA. Under these circumstances, it is evident that Congress has ratified the FDA's previous, long-held position that it lacks jurisdiction to regulate tobacco products as customarily marketed. Congress has 123 created a distinct scheme for addressing the subject, and that scheme excludes any role for FDA regulation. Pp. 143-159. (d) Finally, the Court's inquiry is shaped, at least in some measure, by the nature of the question presented. Chevron deference is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. See 467 U. S., at 844. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. This is hardly an ordinary case. Contrary to the agency's position from its inception until 1995, the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy. In fact, the FDA contends that, were it to determine that tobacco products provide no "reasonable assurance of safety," it would have the authority to ban cigarettes and smokeless tobacco entirely. It is highly unlikely that Congress would leave the determination as to whether the sale of tobacco products would be regulated, or even banned, to the FDA's discretion in so cryptic a fashion. See MC! Telecommunications, supra, at 231. Given tobacco's unique political history, as well as the breadth of the authority that the FDA has asserted, the Court is obliged to defer not to the agency's expansive construction of the statute, but to Congress' consistent judgment to deny the FDA this power. pp. 159-161. (e) No matter how important, conspicuous, and controversial the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress. Courts must take care not to extend a statute's scope beyond the point where Congress indicated it would stop. E. g., United States v. Article of Drug ... Bacto-Unidisk, 394 U. S. 784 , 800. P. 161. 153 F.3d 155 , affirmed. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined, post, p. 161. Solicitor General Waxman argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Schultz, Irving L. Gornstein, Eugene Thirolf, Douglas Letter, Gerald C. Kell, Chris- 124 tine N. Kohl, Margaret Jane Porter, Karen E. Schifter, and Patricia J. Kaeding. Richard M. Cooper argued the cause for respondents. With him on the brief for respondent R. J. Reynolds Tobacco Co. was Steven M. Umin. Andrew S. Krulwich, Bert W Rein, Thomas W Kirby, and Michael L. Robinson filed a brief for respondent Brown & Williamson Tobacco Corp. Larry B. Sitton filed a brief for respondents United States Tobacco Co. et al. William C. MacLeod filed a brief for respondents National Association of Convenience Stores et al. Peter T. Grossi, Jr., Arthur N. Levine, Jeff Richman, Richard A. Merrill, and Herbert Dym filed a brief for respondents Philip Morris Inc. et al. * *Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Mike Hatch, Attorney General of Minnesota, James S. Alexander, Assistant Attorney General, Louise H. Renne, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, John Cornyn of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of Wisconsin, and Gay Woodhouse of Wyoming; for Action on Smoking and Health by John F. Banzhaf III and Kathleen E. Scheg; for the American Cancer Society, Inc., by Russell E. Brooks, David R. Gelfand, Charles W Westland, and William J. Dalton; for the American 125 JUSTICE O'CONNOR delivered the opinion of the Court. This case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use. In 1996, the Food and Drug Administration (FDA), after having expressly disavowed any such authority since its inception, asserted jurisdiction to regulate tobacco products. See 61 Fed. Reg. 44619-45318. The FDA concluded that nicotine is a "drug" within the meaning of the Food, Drug, and Cosmetic Act (FDCA or Act), 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq., and that cigarettes and smokeless tobacco are "combination products" that deliver nicotine to the body. 61 Fed. Reg. 44397 (1996). Pursuant to this authority, it promulgated regulations intended to reduce tobacco consumption among children and adolescents. Id., at 4461544618. The agency believed that, because most tobacco consumers begin their use before reaching the age of 18, curbing tobacco use by minors could substantially reduce the prevalence of addiction in future generations and thus the incidence of tobacco-related death and disease. Id., at 44398-44399. Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority "in a manner that is inconsistent with the administrative structure that Congress enacted into law." ETSI Pipeline Project v. Missouri, 484 U. S. 495 , 517 (1988). And although agencies are generally entitled to deference in the interpretation of statutes that they administer, a reviewing "court, as well as the agency, must give effect to the unam- College of Chest Physicians by Raymond D. Cotton; and for Public Citizen, Inc., et al. by Allison M. Zieve, Alan B. Morrison, and David C. Vladeck. Briefs of amici curiae urging affirmance were filed for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper; for the Product Liability Advisory Council, Inc., by Kenneth S. Geller; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. 126 biguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842-843 (1984). In this case, we believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products. Such authority is inconsistent with the intent that Congress has expressed in the FDCA's overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA. In light of this clear intent, the FDA's assertion of jurisdiction is impermissible. I The FDCA grants the FDA, as the designee of the Secretary of Health and Human Services (HHS), the authority to regulate, among other items, "drugs" and "devices." See 21 U. S. C. §§ 321(g)-(h), 393 (1994 ed. and Supp. III). The Act defines "drug" to include "articles (other than food) intended to affect the structure or any function of the body." 21 U. S. C. § 321(g)(1)(C). It defines "device," in part, as "an instrument, apparatus, implement, machine, contrivance, ... or other similar or related article, including any component, part, or accessory, which is ... intended to affect the structure or any function of the body." § 321(h). The Act also grants the FDA the authority to regulate so-called "combination products," which "constitute a combination of a drug, device, or biological product." § 353(g)(1). The FDA has construed this provision as giving it the discretion to regulate combination products as drugs, as devices, or as both. See 61 Fed. Reg. 44400 (1996). On August 11, 1995, the FDA published a proposed rule concerning the sale of cigarettes and smokeless tobacco to children and adolescents. 60 Fed. Reg. 41314-41787. The rule, which included several restrictions on the sale, distribution, and advertisement of tobacco products, was designed to reduce the availability and attractiveness of tobacco products to young people. Id., at 41314. A public comment period followed, during which the FDA received over 700,000 sub- 127 missions, more than "at any other time in its history on any other subject." 61 Fed. Reg. 44418 (1996). On August 28, 1996, the FDA issued a final rule entitled "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents." Id., at 44396. The FDA determined that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices," and therefore it had jurisdiction under the FDCA to regulate tobacco products as customarily marketed-that is, without manufacturer claims of therapeutic benefit. Id., at 44397, 44402. First, the FDA found that tobacco products "'affect the structure or any function of the body''' because nicotine "has significant pharmacological effects." Id., at 44631. Specifically, nicotine "exerts psychoactive, or mood-altering, effects on the brain" that cause and sustain addiction, have both tranquilizing and stimulating effects, and control weight. Id., at 44631-44632. Second, the FDA determined that these effects were "intended" under the FDCA because they "are so widely known and foreseeable that [they] may be deemed to have been intended by the manufacturers," id., at 44687; consumers use tobacco products "predominantly or nearly exclusively" to obtain these effects, id., at 44807; and the statements, research, and actions of manufacturers revealed that they "have 'designed' cigarettes to provide pharmacologically active doses of nicotine to consumers," id., at 44849. Finally, the agency concluded that cigarettes and smokeless tobacco are "combination products" because, in addition to containing nicotine, they include device components that deliver a controlled amount of nicotine to the body, id., at 45208-45216. Having resolved the jurisdictional question, the FDA next explained the policy justifications for its regulations, detailing the deleterious health effects associated with tobacco use. It found that tobacco consumption was "the single leading cause of preventable death in the United States." Id., at 44398. According to the FDA, "[m]ore than 400,000 128 people die each year from tobacco-related illnesses, such as cancer, respiratory illnesses, and heart disease." Ibid. The agency also determined that the only way to reduce the amount of tobacco-related illness and mortality was to reduce the level of addiction, a goal that could be accomplished only by preventing children and adolescents from starting to use tobacco. Id., at 44398-44399. The FDA found that 82% of adult smokers had their first cigarette before the age of 18, and more than half had already become regular smokers by that age. Id., at 44398. It also found that children were beginning to smoke at a younger age, that the prevalence of youth smoking had recently increased, and that similar problems existed with respect to smokeless tobacco. Id., at 44398-44399. The FDA accordingly concluded that if "the number of children and adolescents who begin tobacco use can be substantially diminished, tobacco-related illness can be correspondingly reduced because data suggest that anyone who does not begin smoking in childhood or adolescence is unlikely ever to begin." Id., at 44399. Based on these findings, the FDA promulgated regulations concerning tobacco products' promotion, labeling, and accessibility to children and adolescents. See id., at 44615-44618. The access regulations prohibit the sale of cigarettes or smokeless tobacco to persons younger than 18; require retailers to verify through photo identification the age of all purchasers younger than 27; prohibit the sale of cigarettes in quantities smaller than 20; prohibit the distribution of free samples; and prohibit sales through self-service displays and vending machines except in adult-only locations. Id., at 44616-44617. The promotion regulations require that any print advertising appear in a black-and-white, text-only format unless the publication in which it appears is read almost exclusively by adults; prohibit outdoor advertising within 1,000 feet of any public playground or school; prohibit the distribution of any promotional items, such as T-shirts or hats, bearing the manufacturer's brand name; and prohibit a 129 manufacturer from sponsoring any athletic, musical, artistic, or other social or cultural event using its brand name. Id., at 44617-44618. The labeling regulation requires that the statement, "A Nicotine-Delivery Device for Persons 18 or Older," appear on all tobacco product packages. Id., at 44617. The FDA promulgated these regulations pursuant to its authority to regulate "restricted devices." See 21 U. S. C. § 360j(e). The FDA construed § 353(g)(1) as giving it the discretion to regulate "combination products" using the Act's drug authorities, device authorities, or both, depending on "how the public health goals of the act can be best accomplished." 61 Fed. Reg. 44403 (1996). Given the greater flexibility in the FDCA for the regulation of devices, the FDA determined that "the device authorities provide the most appropriate basis for regulating cigarettes and smokeless tobacco." Id., at 44404. Under 21 U. S. C. § 360j(e), the agency may "require that a device be restricted to sale, distribution, or use ... upon such other conditions as [the FDA] may prescribe in such regulation, if, because of its potentiality for harmful effect or the collateral measures necessary to its use, [the FDA] determines that there cannot otherwise be reasonable assurance of its safety and effectiveness." The FDA reasoned that its regulations fell within the authority granted by § 360j(e) because they related to the sale or distribution of tobacco products and were necessary for providing a reasonable assurance of safety. 61 Fed. Reg. 44405-44407 (1996). Respondents, a group of tobacco manufacturers, retailers, and advertisers, filed suit in United States District Court for the Middle District of North Carolina challenging the regulations. See Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (1997). They moved for summary judgment on the grounds that the FDA lacked jurisdiction to regulate tobacco products as customarily marketed, the regulations exceeded the FDA's authority under 21 U. S. C. § 360j(e), and the advertis- 130 ing restrictions violated the First Amendment. Second Brief in Support of Plaintiffs' Motion for Summary Judgment in No. 2:95CV00591 (MDNC), in 3 Rec. in No. 97-1604 (CA4), Tab No. 40; Third Brief in Support of Plaintiffs' Motion for Summary Judgment in No. 2:95CV00591 (MDNC), in 3 Rec. in No. 97-1604 (CA4), Tab No. 42. The District Court granted respondents' motion in part and denied it in part. 966 F. Supp., at 1400. The court held that the FDCA authorizes the FDA to regulate tobacco products as customarily marketed and that the FDA's access and labeling regulations are permissible, but it also found that the agency's advertising and promotion restrictions exceed its authority under § 360j(e). Id., at 1380-1400. The court stayed implementation of the regulations it found valid (except the prohibition on the sale of tobacco products to minors) and certified its order for immediate interlocutory appeal. Id., at 1400-140l. The Court of Appeals for the Fourth Circuit reversed, holding that Congress has not granted the FDA jurisdiction to regulate tobacco products. See 153 F.3d 155 (1998). Examining the FDCA as a whole, the court concluded that the FDA's regulation of tobacco products would create a number of internal inconsistencies. Id., at 162-167. Various provisions of the Act require the agency to determine that any regulated product is "safe" before it can be sold or allowed to remain on the market, yet the FDA found in its rulemaking proceeding that tobacco products are "dangerous" and "unsafe." Id., at 164-167. Thus, the FDA would apparently have to ban tobacco products, a result the court found clearly contrary to congressional intent. Ibid. This apparent anomaly, the Court of Appeals concluded, demonstrates that Congress did not intend to give the FDA authority to regulate tobacco. Id., at 167. The court also found that evidence external to the FDCA confirms this conclusion. Importantly, the FDA consistently stated before 1995 that it lacked jurisdiction over tobacco, and Congress has enacted 131 several tobacco-specific statutes fully cognizant of the FDA's position. See id., at 168-176. In fact, the court reasoned, Congress has considered and rejected many bills that would have given the agency such authority. See id., at 170-171. This, along with the absence of any intent by the enacting Congress in 1938 to subject tobacco products to regulation under the FDCA, demonstrates that Congress intended to withhold such authority from the FDA. Id., at 167-176. Having resolved the jurisdictional question against the agency, the Court of Appeals did not address whether the regulations exceed the FDA's authority under 21 U. S. C. § 360j(e) or violate the First Amendment. See 153 F. 3d, at 176, n. 29. We granted the federal parties' petition for certiorari, 526 U. S. 1086 (1999), to determine whether the FDA has authority under the FDCA to regulate tobacco products as customarily marketed. II The FDA's assertion of jurisdiction to regulate tobacco products is founded on its conclusions that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices." Again, the FDA found that tobacco products are "intended" to deliver the pharmacological effects of satisfying addiction, stimulation and tranquilization, and weight control because those effects are foreseeable to any reasonable manufacturer, consumers use tobacco products to obtain those effects, and tobacco manufacturers have designed their products to produce those effects. 61 Fed. Reg. 44632-44633 (1996). As an initial matter, respondents take issue with the FDA's reading of "intended," arguing that it is a term of art that refers exclusively to claims made by the manufacturer or vendor about the product. See Brief for Respondent Brown & Williamson Tobacco Corp. 6. That is, a product is not a drug or device under the FDCA unless the manufacturer or vendor makes some express claim concerning the product's therapeutic benefits. See id., at 6-7. We 132 need not resolve this question, however, because assuming, arguendo, that a product can be "intended to affect the structure or any function of the body" absent claims of therapeutic or medical benefit, the FDA's claim to jurisdiction contravenes the clear intent of Congress. A threshold issue is the appropriate framework for analyzing the FDA's assertion of authority to regulate tobacco products. Because this case involves an administrative agency's construction of a statute that it administers, our analysis is governed by Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Under Chevron, a reviewing court must first ask "whether Congress has directly spoken to the precise question at issue." Id., at 842. If Congress has done so, the inquiry is at an end; the court "must give effect to the unambiguously expressed intent of Congress." Id., at 843; see also United States v. Haggar Apparel Co., 526 U. S. 380 , 392 (1999); Holly Farms Corp. v. NLRB, 517 U. S. 392 , 398 (1996). But if Congress has not specifically addressed the question, a reviewing court must respect the agency's construction of the statute so long as it is permissible. See INS v. Aguirre-Aguirre, 526 U. S. 415 , 424 (1999); Auer v. Robbins, 519 U. S. 452 , 457 (1997). Such deference is justified because "[t]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones," Chevron, supra, at 866, and because of the agency's greater familiarity with the everchanging facts and circumstances surrounding the subjects regulated, see Rust v. Sullivan, 500 U. S. 173 , 187 (1991). In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning-or ambiguity-of certain words or phrases may only become evident when placed in context. See Brown v. Gardner, 513 U. S. 115 , 118 (1994) ("Ambiguity is a creature not of definitional possibilities but of statutory 133 context"). It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U. S. 803 , 809 (1989). A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 U. S. 561 , 569 (1995), and "fit, if possible, all parts into an harmonious whole," FTC v. Mandel Brothers, Inc., 359 U. S. 385 , 389 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States v. Estate of Romani, 523 U. S. 517 , 530-531 (1998); United States v. Fausto, 484 U. S. 439 , 453 (1988). In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 , 231 (1994). With these principles in mind, we find that Congress has directly spoken to the issue here and precluded the FDA's jurisdiction to regulate tobacco products. A Viewing the FDCA as a whole, it is evident that one of the Act's core objectives is to ensure that any product regulated by the FDA is "safe" and "effective" for its intended use. See 21 U. S. C. § 393(b)(2) (1994 ed., Supp. III) (defining the FDA's mission); More Information for Better Patient Care: Hearing before the Senate Committee on Labor and Human Resources, 104th Cong., 2d Sess., 83 (1996) (statement of FDA Deputy Comm'r Schultz) ("A fundamental precept of drug and device regulation in this country is that these products must be proven safe and effective before they can be sold"). This essential purpose pervades the FDCA. For instance, 21 U. S. C. § 393(b)(2) (1994 ed., Supp. III) defines 134 the FDA's "[m]ission" to include "protect[ing] the public health by ensuring that ... drugs are safe and effective" and that "there is reasonable assurance of the safety and effectiveness of devices intended for human use." The FDCA requires pre market approval of any new drug, with some limited exceptions, and states that the FDA "shall issue an order refusing to approve the application" of a new drug if it is not safe and effective for its intended purpose. §§ 355(d)(1)-(2), (4)-(5). If the FDA discovers after approval that a drug is unsafe or ineffective, it "shall, after due notice and opportunity for hearing to the applicant, withdraw approval" of the drug. 21 U. S. C. §§ 355(e)(1)-(3). The Act also requires the FDA to classify all devices into one of three categories. § 360c(b)(1). Regardless of which category the FDA chooses, there must be a "reasonable assurance of the safety and effectiveness of the device." 21 U. S. C. §§ 360c(a)(1)(A)(i), (B), (C) (1994 ed. and Supp. III); 61 Fed. Reg. 44412 (1996). Even the "restricted device" provision pursuant to which the FDA promulgated the regulations at issue here authorizes the agency to place conditions on the sale or distribution of a device specifically when "there cannot otherwise be reasonable assurance of its safety and effectiveness." 21 U. S. C. § 360j(e). Thus, the Act generally requires the FDA to prevent the marketing of any drug or device where the "potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit." United States v. Rutherford, 442 U. S. 544 , 556 (1979). In its rulemaking proceeding, the FDA quite exhaustively documented that "tobacco products are unsafe," "dangerous," and "cause great pain and suffering from illness." 61 Fed. Reg. 44412 (1996). It found that the consumption of tobacco products presents "extraordinary health risks," and that "tobacco use is the single leading cause of preventable death in the United States." Id., at 44398. It stated that "[m]ore than 400,000 people die each year from tobaccorelated illnesses, such as cancer, respiratory illnesses, and 135 heart disease, often suffering long and painful deaths," and that "[t]obacco alone kills more people each year in the United States than acquired immunodeficiency syndrome (AIDS), car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined." Ibid. Indeed, the FDA characterized smoking as "a pediatric disease," id., at 44421, because "one out of every three young people who become regular smokers ... will die prematurely as a result," id., at 44399. These findings logically imply that, if tobacco products were "devices" under the FDCA, the FDA would be required to remove them from the market. Consider, first, the FDCA's provisions concerning the misbranding of drugs or devices. The Act prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded." 21 U. S. C. § 331(a). In light of the FDA's findings, two distinct FDCA provisions would render cigarettes and smokeless tobacco misbranded devices. First, § 352(j) deems a drug or device misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." The FDA's findings make clear that tobacco products are "dangerous to health" when used in the manner prescribed. Second, a drug or device is misbranded under the Act "[u]nless its labeling bears ... adequate directions for use ... in such manner and form, as are necessary for the protection of users," except where such directions are "not necessary for the protection of the public health." § 352(f)(1). Given the FDA's conclusions concerning the health consequences of tobacco use, there are no directions that could adequately protect consumers. That is, there are no directions that could make tobacco products safe for obtaining their intended effects. Thus, were tobacco products within the FDA's jurisdiction, the Act would deem them misbranded devices that could not be introduced into interstate 136 commerce. Contrary to the dissent's contention, the Act admits no remedial discretion once it is evident that the device is misbranded. Second, the FDCA requires the FDA to place all devices that it regulates into one of three classifications. See § 360c(b)(1). The agency relies on a device's classification in determining the degree of control and regulation necessary to ensure that there is "a reasonable assurance of safety and effectiveness." 61 Fed. Reg. 44412 (1996). The FDA has yet to classify tobacco products. Instead, the regulations at issue here represent so-called "general controls," which the Act entitles the agency to impose in advance of classification. See id., at 44404-44405. Although the FDCA prescribes no deadline for device classification, the FDA has stated that it will classify tobacco products "in a future rulemaking" as required by the Act. Id., at 44412. Given the FDA's findings regarding the health consequences of tobacco use, the agency would have to place cigarettes and smokeless tobacco in Class III because, even after the application of the Act's available controls, they would "presen[t] a potential unreasonable risk of illness or injury." 21 U. S. C. § 360c(a)(1)(C). As Class III devices, tobacco products would be subject to the FDCA's pre market approval process. See 21 U. S. C. § 360c(a)(1)(C) (1994 ed., Supp. III); 21 U. S. C. § 360e; 61 Fed. Reg. 44412 (1996). Under these provisions, the FDA would be prohibited from approving an application for premarket approval without "a showing of reasonable assurance that such device is safe under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof." 21 U. S. C. § 360e(d)(2)(A). In view of the FDA's conclusions regarding the health effects of tobacco use, the agency would have no basis for finding any such reasonable assurance of safety. Thus, once the FDA fulfilled its statutory obligation to classify tobacco products, it could not allow them to be marketed. 137 The FDCA's misbranding and device classification provisions therefore make evident that were the FDA to regulate cigarettes and smokeless tobacco, the Act would require the agency to ban them. In fact, based on these provisions, the FDA itself has previously taken the position that if tobacco products were within its jurisdiction, "they would have to be removed from the market because it would be impossible to prove they were safe for their intended us[e]." Public Health Cigarette Amendments of 1971: Hearings before the Commerce Subcommittee on S. 1454, 92d Cong., 2d Sess., 239 (1972) (hereinafter 1972 Hearings) (statement of FDA Comm'r Charles Edwards). See also Cigarette Labeling and Advertising: Hearings before the House Committee on Interstate and Foreign Commerce, 88th Cong., 2d Sess., 18 (1964) (hereinafter 1964 Hearings) (statement of Dept. of Health, Education, and Welfare (HEW) Secretary Anthony Celebrezze that proposed amendments to the FDCA that would have given the FDA jurisdiction over "smoking product[s]" "might well completely outlaw at least cigarettes"). Congress, however, has foreclosed the removal of tobacco products from the market. A provision of the United States Code currently in force states that "[t]he marketing of tobacco constitutes one of the greatest basic industries of the United States with ramifying activities which directly affect interstate and foreign commerce at every point, and stable conditions therein are necessary to the general welfare." 7 U. S. C. § 1311(a). More importantly, Congress has directly addressed the problem of tobacco and health through legislation on six occasions since 1965. See Federal Cigarette Labeling and Advertising Act (FCLAA), Pub. L. 89-92, 79 Stat. 282; Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222,84 Stat. 87; Alcohol and Drug Abuse Amendments of 1983, Pub. L. 98-24, 97 Stat. 175; Comprehensive Smoking Education Act, Pub. L. 98-474, 98 Stat. 2200; Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub. L. 99-252, 100 Stat. 30; Alcohol, Drug Abuse, and Mental 138 Health Administration Reorganization Act, Pub. L. 102-321, § 202, 106 Stat. 394. When Congress enacted these statutes, the adverse health consequences of tobacco use were well known, as were nicotine's pharmacological effects. See, e. g., U. S. Dept. of Health, Education, and Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health 25-40, 69-75 (1964) (hereinafter 1964 Surgeon General's Report) (concluding that cigarette smoking causes lung cancer, coronary artery disease, and chronic bronchitis and emphysema, and that nicotine has various pharmacological effects, including stimulation, tranquilization, and appetite suppression); U. S. Dept. of Health and Human Services, Public Health Service, Health Consequences of Smoking for Women 7-12 (1980) (finding that mortality rates for lung cancer, chronic lung disease, and coronary heart disease are increased for both women and men smokers, and that smoking during pregnancy is associated with significant adverse health effects on the unborn fetus and newborn child); U. S. Dept. of Health and Human Services, Public Health Service, Why People Smoke Cigarettes (1983), in Smoking Prevention Education Act, Hearings on H. R. 1824 before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 98th Cong., 1st Sess., 32-37 (1983) (hereinafter 1983 House Hearings) (stating that smoking is "the most widespread example of drug dependence in our country," and that cigarettes "affect the chemistry of the brain and nervous system"); U. S. Dept. of Health and Human Services, Public Health Service, The Health Consequences of Smoking: Nicotine Addiction 6-9, 145-239 (1988) (hereinafter 1988 Surgeon General's Report) (concluding that tobacco products are addicting in much the same way as heroin and cocaine, and that nicotine is the drug that causes addiction). Nonetheless, Congress stopped well short of ordering a ban. Instead, it has generally regulated the labeling and advertisement of tobacco products, expressly providing that it is the policy of Congress that "commerce and the national 139 economy may be ... protected to the maximum extent consistent with" consumers "be[ing] adequately informed about any adverse health effects." 15 U. S. C. § 1331. Congress' decisions to regulate labeling and advertising and to adopt the express policy of protecting "commerce and the national economy ... to the maximum extent" reveal its intent that tobacco products remain on the market. Indeed, the collective premise of these statutes is that cigarettes and smokeless tobacco will continue to be sold in the United States. A ban of tobacco products by the FDA would therefore plainly contradict congressional policy. The FDA apparently recognized this dilemma and concluded, somewhat ironically, that tobacco products are actually "safe" within the meaning of the FDCA. In promulgating its regulations, the agency conceded that "tobacco products are unsafe, as that term is conventionally understood." 61 Fed. Reg. 44412 (1996). Nonetheless, the FDA reasoned that, in determining whether a device is safe under the Act, it must consider "not only the risks presented by a product but also any of the countervailing effects of use of that product, including the consequences of not permitting the product to be marketed." Id., at 44412-44413. Applying this standard, the FDA found that, because of the high level of addiction among tobacco users, a ban would likely be "dangerous." Id., at 44413. In particular, current tobacco users could suffer from extreme withdrawal, the health care system and available pharmaceuticals might not be able to meet the treatment demands of those suffering from withdrawal, and a black market offering cigarettes even more dangerous than those currently sold legally would likely develop. Ibid. The FDA therefore concluded that, "while taking cigarettes and smokeless tobacco off the market could prevent some people from becoming addicted and reduce death and disease for others, the record does not establish that such a ban is the appropriate public health response under the act." Id., at 44398. 140 It may well be, as the FDA asserts, that "these factors must be considered when developing a regulatory scheme that achieves the best public health result for these products." Id., at 44413. But the FDA's judgment that leaving tobacco products on the market "is more effective in achieving public health goals than a ban," ibid., is no substitute for the specific safety determinations required by the FDCA's various operative provisions. Several provisions in the Act require the FDA to determine that the product itselfis safe as used by consumers. That is, the product's probable therapeutic benefits must outweigh its risk of harm. See United States v. Rutherford, 442 U. S., at 555 ("[T]he Commissioner generally considers a drug safe when the expected therapeutic gain justifies the risk entailed by its use"). In contrast, the FDA's conception of safety would allow the agency, with respect to each provision of the FDCA that requires the agency to determine a product's "safety" or "dangerousness," to compare the aggregate health effects of alternative administrative actions. This is a qualitatively different inquiry. Thus, although the FDA has concluded that a ban would be "dangerous," it has not concluded that tobacco products are "safe" as that term is used throughout the Act. Consider 21 U. S. C. § 360c(a)(2), which specifies those factors that the FDA may consider in determining the safety and effectiveness of a device for purposes of classification, performance standards, and premarket approval. For all devices regulated by the FDA, there must at least be a "reasonable assurance of the safety and effectiveness of the device." See 21 U. S. C. §§ 360c(a)(1)(A)(i), (B), (C) (1994 ed. and Supp. III); 61 Fed. Reg. 44412 (1996). Title 21 U. S. C. § 360c(a)(2) provides that "the safety and effectiveness of a device are to be determined- "(A) with respect to the persons for whose use the device is represented or intended, 141 "(B) with respect to the conditions of use prescribed, recommended, or suggested in the labeling of the device, and "(C) weighing any probable benefit to health from the use of the device against any probable risk of injury or illness from such use." A straightforward reading of this provision dictates that the FDA must weigh the probable therapeutic benefits of the device to the consumer against the probable risk of injury. Applied to tobacco products, the inquiry is whether their purported benefits-satisfying addiction, stimulation and sedation, and weight control-outweigh the risks to health from their use. To accommodate the FDA's conception of safety, however, one must read "any probable benefit to health" to include the benefit to public health stemming from adult consumers' continued use of tobacco products, even though the reduction of tobacco use is the raison d'etre of the regulations. In other words, the FDA is forced to contend that the very evil it seeks to combat is a "benefit to health." This is implausible. The FDA's conception of safety is also incompatible with the FDCA's misbranding provision. Again, § 352(j) provides that a product is "misbranded" if "it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." According to the FDA's understanding, a product would be "dangerous to health," and therefore misbranded under § 352(j), when, in comparison to leaving the product on the market, a ban would not produce "adverse health consequences" in aggregate. Quite simply, these are different inquiries. Although banning a particular product might be detrimental to public health in aggregate, the product could still be "dangerous to health" when used as directed. Section 352(j) focuses on dangers to the consumer from use of the product, not those stemming from the agency's remedial measures. 142 Consequently, the analogy made by the FDA and the dissent to highly toxic drugs used in the treatment of various cancers is unpersuasive. See 61 Fed. Reg. 44413 (1996); post, at 177 (opinion of BREYER, J.). Although "dangerous" in some sense, these drugs are safe within the meaning of the Act because, for certain patients, the therapeutic benefits outweigh the risk of harm. Accordingly, such drugs cannot properly be described as "dangerous to health" under 21 U. S. C. § 352(j). The same is not true for tobacco products. As the FDA has documented in great detail, cigarettes and smokeless tobacco are an unsafe means to obtaining any pharmacological effect. The dissent contends that our conclusion means that "the FDCA requires the FDA to ban outright 'dangerous' drugs or devices," post, at 174, and that this is a "perverse" reading of the statute, post, at 174, 180. This misunderstands our holding. The FDA, consistent with the FDCA, may clearly regulate many "dangerous" products without banning them. Indeed, virtually every drug or device poses dangers under certain conditions. What the FDA may not do is conclude that a drug or device cannot be used safely for any therapeutic purpose and yet, at the same time, allow that product to remain on the market. Such regulation is incompatible with the FDCA's core objective of ensuring that every drug or device is safe and effective. Considering the FDCA as a whole, it is clear that Congress intended to exclude tobacco products from the FDA's jurisdiction. A fundamental precept of the FDCA is that any product regulated by the FDA-but not banned-must be safe for its intended use. Various provisions of the Act make clear that this refers to the safety of using the product to obtain its intended effects, not the public health ramifications of alternative administrative actions by the FDA. That is, the FDA must determine that there is a reasonable assurance that the product's therapeutic benefits outweigh the risk of harm to the consumer. According to this stand- 143 ard, the FDA has concluded that, although tobacco products might be effective in delivering certain pharmacological effects, they are "unsafe" and "dangerous" when used for these purposes. Consequently, if tobacco products were within the FDA's jurisdiction, the Act would require the FDA to remove them from the market entirely. But a ban would contradict Congress' clear intent as expressed in its more recent, tobacco-specific legislation. The inescapable conclusion is that there is no room for tobacco products within the FDCA's regulatory scheme. If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit. B In determining whether Congress has spoken directly to the FDA's authority to regulate tobacco, we must also consider in greater detail the tobacco-specific legislation that Congress has enacted over the past 35 years. At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings. The "classic judicial task of reconciling many laws enacted over time, and getting them to 'make sense' in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute." United States v. Fausto, 484 U. S., at 453. This is particularly so where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand. As we recognized recently in United States v. Estate of Romani, "a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended." 523 U. S., at 530-531. Congress has enacted six separate pieces of legislation since 1965 addressing the problem of tobacco use and human health. See supra, at 137-138. Those statutes, among other things, require that health warnings appear on all packaging and in all print and outdoor advertisements, see 144 15 U. S. C. §§ 1331, 1333, 4402; prohibit the advertisement of tobacco products through "any medium of electronic communication" subject to regulation by the Federal Communications Commission (FCC), see §§ 1335, 4402(f); require the Secretary of HHS to report every three years to Congress on research findings concerning "the addictive property of tobacco," 42 U. S. C. § 290aa-2(b)(2); and make States' receipt of certain federal block grants contingent on their making it unlawful "for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18," § 300x-26(a)(1). In adopting each statute, Congress has acted against the backdrop of the FDA's consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco absent claims of therapeutic benefit by the manufacturer. In fact, on several occasions over this period, and after the health consequences of tobacco use and nicotine's pharmacological effects had become well known, Congress considered and rejected bills that would have granted the FDA such jurisdiction. Under these circumstances, it is evident that Congress' tobacco-specific statutes have effectively ratified the FDA's long-held position that it lacks jurisdiction under the FDCA to regulate tobacco products. Congress has created a distinct regulatory scheme to address the problem of tobacco and health, and that scheme, as presently constructed, precludes any role for the FDA. On January 11, 1964, the Surgeon General released the report of the Advisory Committee on Smoking and Health. That report documented the deleterious health effects of smoking in great detail, concluding, in relevant part, "that cigarette smoking contributes substantially to mortality from certain specific diseases and to the overall death rate." 1964 Surgeon General's Report 31. It also identified the pharmacological effects of nicotine, including "stimulation," "tranquilization," and "suppression of appetite." Id., at 7475. Seven days after the report's release, the Federal Trade 145 Commission (FTC) issued a notice of proposed rulemaking, see 29 Fed. Reg. 530-532 (1964), and in June 1964, the FTC promulgated a final rule requiring cigarette manufacturers "to disclose, clearly and prominently, in all advertising and on every pack, box, carton or other container ... that cigarette smoking is dangerous to health and may cause death from cancer and other diseases," id., at 8325. The rule was to become effective January 1, 1965, but, on a request from Congress, the FTC postponed enforcement for six months. See Cipollone v. Liggett Group, Inc., 505 U. S. 504 , 513-514 (1992). In response to the Surgeon General's report and the FTC's proposed rule, Congress convened hearings to consider legislation addressing "the tobacco problem." 1964 Hearings 1. During those deliberations, FDA representatives testified before Congress that the agency lacked jurisdiction under the FDCA to regulate tobacco products. Surgeon General Terry was asked during hearings in 1964 whether HEW had the "authority to brand or label the packages of cigarettes or to control the advertising there." Id., at 56. The Surgeon General stated that "we do not have such authority in existing laws governing the ... Food and Drug Administration." Ibid. Similarly, FDA Deputy Commissioner Rankin testified in 1965 that "[t]he Food and Drug Administration has no jurisdiction under the Food, Drug, and Cosmetic Act over tobacco, unless it bears drug claims." Cigarette Labeling and Advertising-1965: Hearings on H. R. 2248 before the House Committee on Interstate and Foreign Commerce, 89th Cong., 1st Sess., 193 (hereinafter 1965 Hearings). See also Letter to Directors of Bureaus, Divisions and Directors of Districts from FDA Bureau of Enforcement (May 24, 1963), in 1972 Hearings 240 ("[T]obacco marketed for chewing or smoking without accompanying therapeutic claims, does not meet the definitions in the Food, Drug, and Cosmetic Act for food, drug, device or cosmetic"). In fact, HEW Secretary Celebrezze urged Congress not to amend the FDCA to cover 146 "smoking products" because, in light of the findings in the Surgeon General's report, such a "provision might well completely outlaw at least cigarettes. This would be contrary to what, we understand, is intended or what, in the light of our experience with the 18th amendment, would be acceptable to the American people." 1964 Hearings 18. The FDA's disavowal of jurisdiction was consistent with the position that it had taken since the agency's inception. As the FDA concedes, it never asserted authority to regulate tobacco products as customarily marketed until it promulgated the regulations at issue here. See Brief for Petitioners 37; see also Brief for Appellee (FDA) in Action on Smoking and Health v. Harris, 655 F.2d 236 (CADC 1980), in 9 Rec. in No. 97-1604 (CA4), Tab No.4, pp. 14-15 ("In the 73 years since the enactment of the original Food and Drug Act, and in the 41 years since the promulgation of the modern Food, Drug, and Cosmetic Act, the FDA has repeatedly informed Congress that cigarettes are beyond the scope of the statute absent health claims establishing a therapeutic intent on behalf of the manufacturer or vendor"). The FDA's position was also consistent with Congress' specific intent when it enacted the FDCA. Before the Act's adoption in 1938, the FDA's predecessor agency, the Bureau of Chemistry, announced that it lacked authority to regulate tobacco products under the Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, unless they were marketed with therapeutic claims. See U. S. Dept. of Agriculture, Bureau of Chemistry, 13 Service and Regulatory Announcements 24 (Apr. 1914) (Feb. 1914 Announcements ~ 13, Opinion of Chief of Bureau C. L. Alsberg). In 1929, Congress considered and rejected a bill "[t]o amend the Food and Drugs Act of June 30, 1906, by extending its provisions to tobacco and tobacco products." S. 1468, 71st Cong., 1st Sess., 1. See also 71 Congo Rec. 2589 (1929) (remarks of Sen. Smoot). And, as the FDA admits, there is no evidence in the text of the FDCA or its legislative history that Congress in 1938 even considered 147 the applicability of the Act to tobacco products. See Brief for Petitioners 22, n. 4. Given the economic and political significance of the tobacco industry at the time, it is extremely unlikely that Congress could have intended to place tobacco within the ambit of the FDCA absent any discussion of the matter. Of course, whether the Congress that enacted the FDCA specifically intended the Act to cover tobacco products is not determinative; "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 79 (1998); see also TVA v. Hill, 437 U. S. 153 , 185 (1978) ("It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated"). Nonetheless, this intent is certainly relevant to understanding the basis for the FDA's representations to Congress and the background against which Congress enacted subsequent tobacco-specific legislation. Moreover, before enacting the FCLAA in 1965, Congress considered and rejected several proposals to give the FDA the authority to regulate tobacco. In April 1963, Representative Udall introduced a bill "[t]o amend the Federal Food, Drug, and Cosmetic Act so as to make that Act applicable to smoking products." H. R. 5973, 88th Cong., 1st Sess., 1. Two months later, Senator Moss introduced an identical bill in the Senate. S. 1682, 88th Cong., 1st Sess. (1963). In discussing his proposal on the Senate floor, Senator Moss explained that "this amendment simply places smoking products under FDA jurisdiction, along with foods, drugs, and cosmetics." 109 Congo Rec. 10322 (1963). In December 1963, Representative Rhodes introduced another bill that would have amended the FDCA "by striking out 'food, drug, device, or cosmetic, each place where it appears therein and inserting in lieu thereof 'food, drug, device, cosmetic, or smoking product.'" H. R. 9512, 88th Cong., 1st Sess., § 3 (1963). And in January 1965, five months before passage of 148 the FCLAA, Representative Udall again introduced a bill to amend the FDCA "to make that Act applicable to smoking products." H. R. 2248, 89th Cong., 1st Sess., 1. None of these proposals became law. Congress ultimately decided in 1965 to subject tobacco products to the less extensive regulatory scheme of the FCLAA, which created a "comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health." Pub. L. 89-92, § 2, 79 Stat. 282. The FCLAA rejected any regulation of advertising, but it required the warning, "Caution: Cigarette Smoking May Be Hazardous to Your Health," to appear on all cigarette packages. Id., § 4, 79 Stat. 283. In the FCLAA's "Declaration of Policy," Congress stated that its objective was to balance the goals of ensuring that "the public may be adequately informed that cigarette smoking may be hazardous to health" and protecting "commerce and the national economy ... to the maximum extent." Id., § 2, 79 Stat. 282 (codified at 15 U. S. C. § 1331). Not only did Congress reject the proposals to grant the FDA jurisdiction, but it explicitly pre-empted any other regulation of cigarette labeling: "No statement relating to smoking and health, other than the statement required by ... this Act, shall be required on any cigarette package." Pub. L. 89-92, § 5(a), 79 Stat. 283. The regulation of product labeling, however, is an integral aspect of the FDCA, both as it existed in 1965 and today. The labeling requirements currently imposed by the FDCA, which are essentially identical to those in force in 1965, require the FDA to regulate the labeling of drugs and devices to protect the safety of consumers. See 21 U. S. C. § 352; 21 U. S. C. § 352 (1964 ed. and Supp. IV). As discussed earlier, the Act requires that all products bear "adequate directions for use ... as are necessary for the protection of users," 21 U. S. C. § 352(f)(1); 21 u. S. C. § 352(f)(1) (1964 ed.); requires that all products provide "adequate warnings against use in those pathological 149 conditions or by children where its use may be dangerous to health," 21 U. S. C. § 352(f)(2); 21 u. S. C. § 352(f)(2) (1964 ed.); and deems a product misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof," 21 U. S. C. § 352(j); 21 u. S. C. § 352(j) (1964 ed.). In this sense, the FCLAA was-and remains-incompatible with FDA regulation of tobacco products. This is not to say that the FCLAA's pre-emption provision by itself necessarily foreclosed FDA jurisdiction. See Cipollone v. Liggett Group, Inc., 505 U. S., at 518-519. But it is an important factor in assessing whether Congress ratified the agency's position-that is, whether Congress adopted a regulatory approach to the problem of tobacco and health that contemplated no role for the FDA. Further, the FCLAA evidences Congress' intent to preclude any administrative agency from exercising significant policymaking authority on the subject of smoking and health. In addition to prohibiting any additional requirements for cigarette labeling, the FCLAA provided that "[n]o statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." Pub. L. 8992, § 5(b), 79 Stat. 283. Thus, in reaction to the FTC's attempt to regulate cigarette labeling and advertising, Congress enacted a statute reserving exclusive control over both subjects to itself. Subsequent tobacco-specific legislation followed a similar pattern. By the FCLAA's own terms, the prohibition on any additional cigarette labeling or advertising regulations relating to smoking and health was to expire July 1, 1969. See § 10, 79 Stat. 284. In anticipation of the provision's expiration, both the FCC and the FTC proposed rules governing the advertisement of cigarettes. See 34 Fed. Reg. 1959 (1969) (FCC proposed rule to "ban the broadcast of cigarette commercials by radio and television stations"); id., at 7917 150 (FTC proposed rule requiring manufacturers to disclose on all packaging and in all print advertising" 'that cigarette smoking is dangerous to health and may cause death from cancer, coronary heart disease, chronic bronchitis, pulmonary emphysema, and other diseases' "). After debating the proper role for administrative agencies in the regulation of tobacco, see generally Cigarette Labeling and Advertising1969: Hearings before the House Committee on Interstate and Foreign Commerce, 91st Cong., 1st Sess., pt. 2 (1969), Congress amended the FCLAA by banning cigarette advertisements "on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission" and strengthening the warning required to appear on cigarette packages. Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, §§ 4, 6, 84 Stat. 88-89. Importantly, Congress extended indefinitely the prohibition on any other regulation of cigarette labeling with respect to smoking and health (again despite the importance of labeling regulation under the FDCA). § 5(a), 84 Stat. 88 (codified at 15 U. S. C. § 1334(a)). Moreover, it expressly forbade the FTC from taking any action on its pending rule until July 1, 1971, and it required the FTC, if it decided to proceed with its rule thereafter, to notify Congress at least six months in advance of the rule's becoming effective. § 7(a), 84 Stat. 89. As the chairman of the House committee in which the bill originated stated, "the Congress-the body elected by the peoplemust make the policy determinations involved in this legislation-and not some agency made up of appointed officials." 116 Congo Rec. 7920 (1970) (remarks of Rep. Staggers). Four years later, after Congress had transferred the authority to regulate substances covered by the Hazardous Substances Act (HSA) from the FDA to the Consumer Products Safety Commission (CPSC), the American Public Health Association, joined by Senator Moss, petitioned the CPSC to regulate cigarettes yielding more than 21 milligrams of tar. See Action on Smoking and Health v. Harris, 655 F.2d 236 , 151 241 (CADC 1980); R. Kluger, Ashes to Ashes 375-376 (1996). After the CPSC determined that it lacked authority under the HSA to regulate cigarettes, a District Court held that the HSA did, in fact, grant the CPSC such jurisdiction and ordered it to reexamine the petition. See American Public Health Association v. Consumer Product Safety Commission, [1972-1975 Transfer Binder] CCH Consumer Prod. Safety Guide ~ 75,081 (DC 1975), vacated as moot, No. 75-1863 (CADC 1976). Before the CPSC could take any action, however, Congress mooted the issue by adopting legislation that eliminated the agency's authority to regulate "tobacco and tobacco products." Consumer Product Safety Commission Improvements Act of 1976, Pub. L. 94-284, § 3(c), 90 Stat. 503 (codified at 15 U. S. C. § 1261(f)(2)). Senator Moss acknowledged that the "legislation, in effect, reverse[d]" the District Court's decision, 121 Congo Rec. 23563 (1975), and the FDA later observed that the episode was "particularly" "indicative of the policy of Congress to limit the regulatory authority over cigarettes by Federal Agencies," Letter to Action on Smoking and Health (ASH) Executive Director Banzhaf from FDA Comm'r Goyan (Nov. 25, 1980), App. 59. A separate statement in the Senate Report underscored that the legislation's purpose was to "unmistakably reaffirm the clear mandate of the Congress that the basic regulation of tobacco and tobacco products is governed by the legislation dealing with the subject, ... and that any further regulation in this sensitive and complex area must be reserved for specific Congressional action." S. Rep. No. 94-251, p. 43 (1975) (additional views of Sens. Hartke, Hollings, Ford, Stevens, and Beall). Meanwhile, the FDA continued to maintain that it lacked jurisdiction under the FDCA to regulate tobacco products as customarily marketed. In 1972, FDA Commissioner Edwards testified before Congress that "cigarettes recommended for smoking pleasure are beyond the Federal Food, Drug, and Cosmetic Act." 1972 Hearings 239, 242. He fur- 152 ther stated that the FDA believed that the Public Health Cigarette Smoking Act "demonstrates that the regulation of cigarettes is to be the domain of Congress," and that "labeling or banning cigarettes is a step that can be take[n] only by the Congress. Any such move by FDA would be inconsistent with the clear congressional intent." Ibid. In 1977, ASH filed a citizen petition requesting that the FDA regulate cigarettes, citing many of the same grounds that motivated the FDA's rulemaking here. See Citizen Petition, No. 77P-0185 (May 26, 1977), 10 Rec. in No. 97-1604 (CA4), Tab No. 22, pp. 1-10. ASH asserted that nicotine was highly addictive and had strong physiological effects on the body; that those effects were "intended" because consumers use tobacco products precisely to obtain those effects; and that tobacco causes thousands of premature deaths annually. Ibid. In denying ASH's petition, FDA Commissioner Kennedy stated that "[t]he interpretation of the Act by FDA consistently has been that cigarettes are not a drug unless health claims are made by the vendors." Letter to ASH Executive Director Banzhaf (Dec. 5, 1977), App. 47. After the matter proceeded to litigation, the FDA argued in its brief to the Court of Appeals that "cigarettes are not comprehended within the statutory definition of the term 'drug' absent objective evidence that vendors represent or intend that their products be used as a drug." Brief for Appellee in Action on Smoking and Health v. Harris, 655 F. 2d 236 (CADC 1980), 9 Rec. in No. 97-1604 (CA4), Tab No.4, at 27-28. The FDA also contended that Congress had "long been aware that the FDA does not consider cigarettes to be within its regulatory authority in the absence of health claims made on behalf of the manufacturer or vendor," and that, because "Congress has never acted to disturb the agency's interpretation," it had "acquiesced in the FDA's interpretation of the statutory limits on its authority to regulate cigarettes." Id., at 23, 27, n. 23. The Court of Appeals upheld the FDA's position, concluding that "[i]f the statute 153 requires expansion, that is the job of Congress." Action on Smoking and Health v. Harris, 655 F. 2d, at 243. In 1980, the FDA also denied a request by ASH to commence rulemaking proceedings to establish the agency's jurisdiction to regulate cigarettes as devices. See Letter to ASH Executive Director Banzhaf from FDA Comm'r Goyan (Nov. 25, 1980), App. 50-51. The agency stated that "[i]nsofar as rulemaking would relate to cigarettes or attached filters as customarily marketed, we have concluded that FDA has no jurisdiction under section 201(h) of the Act [21 U. S. C. § 321(h)]." Id., at 67. In 1983, Congress again considered legislation on the subject of smoking and health. HHS Assistant Secretary Brandt testified that, in addition to being "a major cause of cancer," smoking is a "major cause of heart disease" and other serious illnesses, and can result in "unfavorable pregnancy outcomes." 1983 House Hearings 19-20. He also stated that it was "well-established that cigarette smoking is a drug dependence, and that smoking is addictive for many people." Id., at 20. Nonetheless, Assistant Secretary Brandt maintained that "the issue of regulation of tobacco ... is something that Congress has reserved to itself, and we do not within the Department have the authority to regulate nor are we seeking such authority." Id., at 74. He also testified before the Senate, stating that, despite the evidence of tobacco's health effects and addictiveness, the Department's view was that "Congress has assumed the responsibility of regulating ... cigarettes." Smoking Prevention and Education Act: Hearings on S. 772 before the Senate Committee on Labor and Human Resources, 98th Cong., 1st Sess., 56 (1983) (hereinafter 1983 Senate Hearings). Against this backdrop, Congress enacted three additional tobacco-specific statutes over the next four years that incrementally expanded its regulatory scheme for tobacco products. In 1983, Congress adopted the Alcohol and Drug Abuse Amendments, Pub. L. 98-24, 97 Stat. 175 (codified at 154 42 U. S. C. § 290aa et seq.), which require the Secretary of HHS to report to Congress every three years on the "addictive property of tobacco" and to include recommendations for action that the Secretary may deem appropriate. A year later, Congress enacted the Comprehensive Smoking Education Act, Pub. L. 98-474, 98 Stat. 2200, which amended the FCLAA by again modifying the prescribed warning. Notably, during debate on the Senate floor, Senator Hawkins argued that the FCLAA was necessary in part because "[u]nder the Food, Drug and Cosmetic Act, the Congress exempted tobacco products." 130 Congo Rec. 26953 (1984). And in 1986, Congress enacted the Comprehensive Smokeless Tobacco Health Education Act of 1986 (CSTHEA), Pub. L. 99-252, 100 Stat. 30 (codified at 15 U. S. C. § 4401 et seq.), which essentially extended the regulatory provisions of the FCLAA to smokeless tobacco products. Like the FCLAA, the CSTHEA provided that "[n]o statement relating to the use of smokeless tobacco products and health, other than the statements required by [the Act], shall be required by any Federal agency to appear on any package ... of a smokeless tobacco product." § 7(a), 100 Stat. 34 (codified at 15 U. S. C. § 4406(a)). Thus, as with cigarettes, Congress reserved for itself an aspect of smokeless tobacco regulation that is particularly important to the FDCA's regulatory scheme. In 1988, the Surgeon General released a report summarizing the abundant scientific literature demonstrating that "[c]igarettes and other forms of tobacco are addicting," and that "nicotine is psychoactive" and "causes physical dependence characterized by a withdrawal syndrome that usually accompanies nicotine abstinence." 1988 Surgeon General's Report 14. The report further concluded that the "pharmacologic and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine." Id., at 15. In the same year, FDA Commissioner Young stated before Congress that "it doesn't look like it is possible to regulate [tobacco] under the 155 Food, Drug and Cosmetic Act even though smoking, I think, has been widely recognized as being harmful to human health." Rural Development, Agriculture, and Related Agencies Appropriations for 1989: Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., 409 (1988). At the same hearing, the FDA's General Counsel testified that "what is fairly important in FDA law is whether a product has a therapeutic purpose," and "[c]igarettes themselves are not used for a therapeutic purpose as that concept is ordinarily understood." Id., at 410. Between 1987 and 1989, Congress considered three more bills that would have amended the FDCA to grant the FDA jurisdiction to regulate tobacco products. See H. R. 3294, 100th Cong., 1st Sess. (1987); H. R. 1494, 101st Cong., 1st Sess. (1989); S. 769, 101st Cong., 1st Sess. (1989). As before, Congress rejected the proposals. In 1992, Congress instead adopted the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act, Pub. L. 102-321, § 202, 106 Stat. 394 (codified at 42 U. S. C. § 300x et seq.), which creates incentives for States to regulate the retail sale of tobacco products by making States' receipt of certain block grants contingent on their prohibiting the sale of tobacco products to minors. Taken together, these actions by Congress over the past 35 years preclude an interpretation of the FDCA that grants the FDA jurisdiction to regulate tobacco products. We do not rely on Congress' failure to act-its consideration and rejection of bills that would have given the FDA this authority-in reaching this conclusion. Indeed, this is not a case of simple inaction by Congress that purportedly represents its acquiescence in an agency's position. To the contrary, Congress has enacted several statutes addressing the particular subject of tobacco and health, creating a distinct regulatory scheme for cigarettes and smokeless tobacco. In doing so, Congress has been aware of tobacco's health hazards and its pharmacological effects. It has also enacted this legisla- 156 tion against the background of the FDA repeatedly and consistently asserting that it lacks jurisdiction under the FDCA to regulate tobacco products as customarily marketed. Further, Congress has persistently acted to preclude a meaningful role for any administrative agency in making policy on the subject of tobacco and health. Moreover, the substance of Congress' regulatory scheme is, in an important respect, incompatible with FDA jurisdiction. Although the supervision of product labeling to protect consumer health is a substantial component of the FDA's regulation of drugs and devices, see 21 U. S. C. § 352 (1994 ed. and Supp. III), the FCLAA and the CSTHEA explicitly prohibit any federal agency from imposing any health-related labeling requirements on cigarettes or smokeless tobacco products, see 15 U. S. C. §§ 1334(a), 4406(a). Under these circumstances, it is clear that Congress' tobacco-specific legislation has effectively ratified the FDA's previous position that it lacks jurisdiction to regulate tobacco. As in Bob Jones Univ. v. United States, 461 U. S. 574 (1983), "[i]t is hardly conceivable that Congress-and in this setting, any Member of Congress-was not abundantly aware of what was going on." Id., at 600-601. Congress has affirmatively acted to address the issue of tobacco and health, relying on the representations of the FDA that it had no authority to regulate tobacco. It has created a distinct scheme to regulate the sale of tobacco products, focused on labeling and advertising, and premised on the belief that the FDA lacks such jurisdiction under the FDCA. As a result, Congress' tobacco-specific statutes preclude the FDA from regulating tobacco products as customarily marketed. Although the dissent takes issue with our discussion of the FDA's change in position, post, at 186-189, our conclusion does not rely on the fact that the FDA's assertion of jurisdiction represents a sharp break with its prior interpretation of the FDCA. Certainly, an agency's initial interpretation of a statute that it is charged with administering is not "carved 157 in stone." Chevron, 467 U. S., at 863; see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 742 (1996). As we recognized in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983), agencies "must be given ample latitude to 'adapt their rules and policies to the demands of changing circumstances.''' Id., at 42 (quoting Permian Basin Area Rate Cases, 390 U. S. 747 , 784 (1968)). The consistency of the FDA's prior position is significant in this case for a different reason: It provides important context to Congress' enactment of its tobacco-specific legislation. When the FDA repeatedly informed Congress that the FDCA does not grant it the authority to regulate tobacco products, its statements were consistent with the agency's unwavering position since its inception, and with the position that its predecessor agency had first taken in 1914. Although not crucial, the consistency of the FDA's prior position bolsters the conclusion that when Congress created a distinct regulatory scheme addressing the subject of tobacco and health, it understood that the FDA is without jurisdiction to regulate tobacco products and ratified that position. The dissent also argues that the proper inference to be drawn from Congress' tobacco-specific legislation is "critically ambivalent." Post, at 182. We disagree. In that series of statutes, Congress crafted a specific legislative response to the problem of tobacco and health, and it did so with the understanding, based on repeated assertions by the FDA, that the agency has no authority under the FDCA to regulate tobacco products. Moreover, Congress expressly pre-empted any other regulation of the labeling of tobacco products concerning their health consequences, even though the oversight of labeling is central to the FDCA's regulatory scheme. And in addressing the subject, Congress consistently evidenced its intent to preclude any federal agency from exercising significant policymaking authority in the area. Under these circumstances, we believe the appro- 158 priate inference-that Congress intended to ratify the FDA's prior position that it lacks jurisdiction-is unmistakable. The dissent alternatively argues that, even if Congress' subsequent tobacco-specific legislation did, in fact, ratify the FDA's position, that position was merely a contingent disavowal of jurisdiction. Specifically, the dissent contends that "the FDA's traditional view was largely premised on a perceived inability to prove the necessary statutory 'intent' requirement." Post, at 189-190. A fair reading of the FDA's representations prior to 1995, however, demonstrates that the agency's position was essentially unconditional. See, e. g., 1972 Hearings 239, 242 (statement of Comm'r Edwards) ("[R]egulation of cigarettes is to be the domain of Congress," and "[a]ny such move by FDA would be inconsistent with the clear congressional intent"); 1983 House Hearings 74 (statement of Assistant Secretary Brandt) ("[T]he issue of regulation of tobacco ... is something that Congress has reserved to itself"); 1983 Senate Hearings 56 (statement of Assistant Secretary Brandt) ("Congress has assumed the responsibility of regulating ... cigarettes"); Brief for Appellee in Action on Smoking and Health v. Harris, 655 F. 2d 236 (CADC 1980), 9 Rec. in No. 97-1604 (CA4), Tab No.4, at 27, n. 23 (because "Congress has never acted to disturb the agency's interpretation," it "acquiesced in the FDA's interpretation"). To the extent the agency's position could be characterized as equivocal, it was only with respect to the well-established exception of when the manufacturer makes express claims of therapeutic benefit. See, e. g., 1965 Hearings 193 (statement of Deputy Comm'r Rankin) ("The Food and Drug Administration has no jurisdiction under the Food, Drug, and Cosmetic Act over tobacco, unless it bears drug claims"); Letter to ASH Executive Director Banzhaf from FDA Comm'r Kennedy (Dec. 5, 1977), App. 47 ("The interpretation of the Act by FDA consistently has been that cigarettes are not a drug unless health claims are made by the vendors"); Letter to ASH Executive Director Banzhaf from 159 FDA Comm'r Goyan (Nov. 25, 1980), id., at 67 ("Insofar as rulemaking would relate to cigarettes or attached filters as customarily marketed, we have concluded that FDA has no jurisdiction"). Thus, what Congress ratified was the FDA's plain and resolute position that the FDCA gives the agency no authority to regulate tobacco products as customarily marketed. C Finally, our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under Chevron to an agency's construction of a statute that it administers is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. See Chevron, supra, at 844. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. Cf. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration"). This is hardly an ordinary case. Contrary to its representations to Congress since 1914, the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy. In fact, the FDA contends that, were it to determine that tobacco products provide no "reasonable assurance of safety," it would have the authority to ban cigarettes and smokeless tobacco entirely. See Brief for Petitioners 35-36; Reply Brief for Petitioners 14. Owing to its unique place in American history and society, tobacco has its own unique political history. Congress, for better or for worse, has created a distinct regulatory scheme for tobacco products, squarely rejected proposals to 160 give the FDA jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising significant policymaking authority in the area. Given this history and the breadth of the authority that the FDA has asserted, we are obliged to defer not to the agency's expansive construction of the statute, but to Congress' consistent judgment to deny the FDA this power. Our decision in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 (1994), is instructive. That case involved the proper construction of the term "modify" in § 203(b) of the Communications Act of 1934. The FCC contended that, because the Act gave it the discretion to "modify any requirement" imposed under the statute, it therefore possessed the authority to render voluntary the otherwise mandatory requirement that long distance carriers file their rates. Id., at 225. We rejected the FCC's construction, finding "not the slightest doubt" that Congress had directly spoken to the question. Id., at 228. In reasoning even more apt here, we concluded that "[i]t is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rateregulated to agency discretion-and even more unlikely that it would achieve that through such a subtle device as permission to 'modify' rate-filing requirements." Id., at 231. As in MCI, we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion. To find that the FDA has the authority to regulate tobacco products, one must not only adopt an extremely strained understanding of "safety" as it is used throughout the Act-a concept central to the FDCA's regulatory scheme-but also ignore the plain implication of Congress' subsequent tobaccospecific legislation. It is therefore clear, based on the FDCA's overall regulatory scheme and the subsequent tobacco legislation, that Congress has directly spoken to the 161 question at issue and precluded the FDA from regulating tobacco products. *** By no means do we question the seriousness of the problem that the FDA has sought to address. The agency has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States. Nonetheless, no matter how "important, conspicuous, and controversial" the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, post, at 190, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress. And" '[i]n our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop.'" United States v. Article of Drug ... Bacto-Unidisk, 394 U. S. 784 , 800 (1969) (quoting 62 Cases of Jam v. United States, 340 U. S. 593, 600 (1951)). Reading the FDCA as a whole, as well as in conjunction with Congress' subsequent tobaccospecific legislation, it is plain that Congress has not given the FDA the authority that it seeks to exercise here. For these reasons, the judgment of the Court of Appeals for the Fourth Circuit is affirmed. It is so ordered. JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting. The Food and Drug Administration (FDA) has the authority to regulate "articles (other than food) intended to affect the structure or any function of the body .... " Federal Food, Drug, and Cosmetic Act (FDCA), 21 U. S. C. § 321(g)(1)(C). Unlike the majority, I believe that tobacco products fit within this statutory language. 162 In its own interpretation, the majority nowhere denies the following two salient points. First, tobacco products (including cigarettes) fall within the scope of this statutory definition, read literally. Cigarettes achieve their moodstabilizing effects through the interaction of the chemical nicotine and the cells of the central nervous system. Both cigarette manufacturers and smokers alike know of, and desire, that chemically induced result. Hence, cigarettes are "intended to affect" the body's "structure" and "function," in the literal sense of these words. Second, the statute's basic purpose-the protection of public health-supports the inclusion of cigarettes within its scope. See United States v. Article of Drug ... BactoUnidisk, 394 U. S. 784 , 798 (1969) (FDCA "is to be given a liberal construction consistent with [its] overriding purpose to protect the public health" (emphasis added)). Unregulated tobacco use causes "[m]ore than 400,000 people [to] die each year from tobacco-related illnesses, such as cancer, respiratory illnesses, and heart disease." 61 Fed. Reg. 44398 (1996). Indeed, tobacco products kill more people in this country every year "than ... AIDS ... , car accidents, alcohol, homicides, illegal drugs, suicides, and fires, com bined." Ibid. (emphasis added). Despite the FDCA's literal language and general purpose (both of which support the FDA's finding that cigarettes come within its statutory authority), the majority nonetheless reads the statute as excluding tobacco products for two basic reasons: (1) the FDCA does not "fit" the case of tobacco because the statute requires the FDA to prohibit dangerous drugs or devices (like cigarettes) outright, and the agency concedes that simply banning the sale of cigarettes is not a proper remedy, ante, at 139-141; and (2) Congress has enacted other statutes, which, when viewed in light of the FDA's long history of denying 163 tobacco-related jurisdiction and considered together with Congress' failure explicitly to grant the agency tobacco-specific authority, demonstrate that Congress did not intend for the FDA to exercise jurisdiction over tobacco, ante, at 155-156. In my view, neither of these propositions is valid. Rather, the FDCA does not significantly limit the FDA's remedial alternatives. See infra, at 174-181. And the later statutes do not tell the FDA it cannot exercise jurisdiction, but simply leave FDA jurisdictional law where Congress found it. See infra, at 181-186; cf. Food and Drug Administration Modernization Act of 1997, 111 Stat. 2380 (codified at note following 21 U. S. C. § 321 (1994 ed., Supp. III)) (statute "shall" not "be construed to affect the question of whether" the FDA "has any authority to regulate any tobacco product"). The bulk of the opinion that follows will explain the basis for these latter conclusions. In short, I believe that the most important indicia of statutory meaning-language and purpose-along with the FDCA's legislative history (described briefly in Part I) are sufficient to establish that the FDA has authority to regulate tobacco. The statute-specific arguments against jurisdiction that the tobacco companies and the majority rely upon (discussed in Part II) are based on erroneous assumptions and, thus, do not defeat the jurisdiction-supporting thrust of the FDCA's language and purpose. The inferences that the majority draws from later legislative history are not persuasive, since (as I point out in Part III) one can just as easily infer from the later laws that Congress did not intend to affect the FDA's tobacco-related authority at all. And the fact that the FDA changed its mind about the scope of its own jurisdiction is legally insignificant because (as Part IV establishes) the agency's reasons for changing course are fully justified. Finally, as I explain in Part V, the degree of accountability that likely will attach to the FDA's action in this case should alleviate any concern 164 that Congress, rather than an administrative agency, ought to make this important regulatory decision. I Before 1938, the federal Pure Food and Drug Act con- tained only two jurisdictional definitions of "drug": "[1] medicines and preparations recognized in the United States Pharmacopoeia or National Formulary ... and [2] any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease." Act of June 30, 1906, ch. 3915, § 6, 34 Stat. 769. In 1938, Congress added a third definition, relevant here: "(3) articles (other than food) intended to affect the structure or any function of the body .... " Act of June 25, 1938, ch. 675, § 201(g), 52 Stat. 1041 (codified at 21 U. S. C. § 321(g)(1)(C)). It also added a similar definition in respect to a "device." See § 201(h), 52 Stat. 1041 (codified at 21 U. S. C. § 321(h)). As I have mentioned, the literal language of the third definition and the FDCA's general purpose both strongly support a projurisdiction reading of the statute. See supra, at 161-162. The statute's history offers further support. The FDA drafted the new language, and it testified before Congress that the third definition would expand the FDCA's jurisdictional scope significantly. See Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 15-16 (1933), reprinted in 1 FDA, Legislative History of the Federal Food, Drug, and Cosmetic Act and Its Amendments 107-108 (1979) (hereinafter Leg. Hist.). Indeed, "[t]he purpose" of the new definition was to "make possible the regulation of a great many products that have been found on the market that cannot be alleged to be treatments for diseased conditions." Id., at 108. While the drafters focused specifically upon the need to give the FDA jurisdiction 165 over "slenderizing" products such as "anti fat remedies," ibid., they were aware that, in doing so, they had created what was "admittedly an inclusive, a wide definition," id., at 107. And that broad language was included deliberately, so that jurisdiction could be had over "all substances and preparations, other than food, and all devices intended to affect the structure or any function of the body .... " Ibid. (emphasis added); see also Hearings on S. 2800 before the Senate Committee on Commerce, 73d Cong., 2d Sess., 516 (1934), reprinted in 2 Leg. Hist. 519 (statement of then-FDA Chief Walter Campbell acknowledging that "[t]his definition of 'drugs' is all-inclusive"). After studying the FDCA's history, experts have written that the statute "is a purposefully broad delegation of discretionary powers by Congress," 1 J. O'Reilly, Food and Drug Administration § 6.01, p. 6-1 (2d ed. 1995) (hereinafter O'Reilly), and that, in a sense, the FDCA "must be regarded as a constitution" that "establish[es] general principles" and "permit[s] implementation within broad parameters" so that the FDA can "implement these objectives through the most effective and efficient controls that can be devised." Hutt, Philosophy of Regulation Under the Federal Food, Drug and Cosmetic Act, 28 Food Drug Co sm. L. J. 177, 178-179 (1973) (emphasis added). This Court, too, has said that the "historical expansion of the definition of drug, and the creation of a parallel concept of devices, clearly show ... that Congress fully intended that the Act's coverage be as broad as its literal language indicates-and equally clearly, broader than any strict medical definition might otherwise allow." Bacto-Unidisk, 394 U. S., at 798. That Congress would grant the FDA such broad jurisdictional authority should surprise no one. In 1938, the President and much of Congress believed that federal administrative agencies needed broad authority and would exercise that authority wisely-a view embodied in much Second New 166 Deal legislation. Cf. Gray v. Powell, 314 U. S. 402 , 411-412 (1941) (Congress "could have legislated specifically" but decided "to delegate that function to those whose experience in a particular field gave promise of a better informed, more equitable" determination). Thus, at around the same time that it added the relevant language to the FDCA, Congress enacted laws granting other administrative agencies even broader powers to regulate much of the Nation's transportation and communication. See, e. g., Civil Aeronautics Act of 1938, ch. 601, § 401(d)(1), 52 Stat. 987 (Civil Aeronautics Board to regulate airlines within confines of highly general "public convenience and necessity" standard); Motor Carrier Act of 1935, ch. 498, § 204(a)(1), 49 Stat. 546 (Interstate Commerce Commission to establish "reasonable requirements" for trucking); Communications Act of 1934, ch. 652, § 201(a), 48 Stat. 1070 (Federal Communications Commission (FCC) to regulate radio, later television, within confines of even broader "public interest" standard). Why would the 1938 New Deal Congress suddenly have hesitated to delegate to so well established an agency as the FDA all of the discretionary authority that a straightforward reading of the relevant statutory language implies? Nor is it surprising that such a statutory delegation of power could lead after many years to an assertion of jurisdiction that the 1938 legislators might not have expected. Such a possibility is inherent in the very nature of a broad delegation. In 1938, it may well have seemed unlikely that the FDA would ever bring cigarette manufacturers within the FDCA's statutory language by proving that cigarettes produce chemical changes in the body and that the makers "intended" their product chemically to affect the body's "structure" or "function." Or, back then, it may have seemed unlikely that, even assuming such proof, the FDA actually would exercise its discretion to regulate so popular a product. See R. Kluger, Ashes to Ashes 105 (1997) (in the 1930's "Americans were in love with smoking ... "). 167 But it should not have seemed unlikely that, assuming the FDA decided to regulate and proved the particular jurisdictional prerequisites, the courts would rule such a jurisdictional assertion fully authorized. Cf. United States v. Southwestern Cable Co., 392 U. S. 157 , 172 (1968) (reading Communications Act of 1934 as authorizing FCC jurisdiction to regulate cable systems while noting that "Congress could not in 1934 have foreseen the development of" advanced communications systems). After all, this Court has read more narrowly phrased statutes to grant what might have seemed even more unlikely assertions of agency jurisdiction. See, e. g., Permian Basin Area Rate Cases, 390 U. S. 747, 774-777 (1968) (statutory authority to regulate interstate "transportation" of natural gas includes authority to regulate "prices" charged by field producers); Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672 , 677-684 (1954) (independent gas producer subject to regulation despite Natural Gas Act's express exemption of gathering and production facilities). I shall not pursue these general matters further, for neither the companies nor the majority denies that the FDCA's literal language, its general purpose, and its particular legislative history favor the FDA's present jurisdictional view. Rather, they have made several specific arguments in support of one basic contention: Even if the statutory delegation is broad, it is not broad enough to include tobacco. I now turn to each of those arguments. II A The tobacco companies contend that the FDCA's words cannot possibly be read to mean what they literally say. The statute defines "device," for example, as "an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article ... intended to affect the structure or any function of the body ... " 21 168 u. S. C. § 321(h). Taken literally, this definition might include everything from room air conditioners to thermal pajamas. The companies argue that, to avoid such a result, the meaning of "drug" or "device" should be confined to medical or therapeutic products, narrowly defined. See Brief for Respondent United States Tobacco Co. 8-9. The companies may well be right that the statute should not be read to cover room air conditioners and winter underwear. But I do not agree that we must accept their proposed limitation. For one thing, such a cramped reading contravenes the established purpose of the statutory language. See Bacto-Unidisk, 394 U. S., at 798 (third definition is "clearly, broader than any strict medical definition"); 1 Leg. Hist. 108 (definition covers products "that cannot be alleged to be treatments for diseased conditions"). For another, the companies' restriction would render the other two "drug" definitions superfluous. See 21 U. S. C. §§ 321(g)(1)(A), (g)(l)(B) (covering articles in the leading pharmacology compendia and those "intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease"). Most importantly, the statute's language itself supplies a different, more suitable, limitation: that a "drug" must be a chemical agent. The FDCA's "device" definition states that an article which affects the structure or function of the body is a "device" only if it "does not achieve its primary intended purposes through chemical action within ... the body," and "is not dependent upon being metabolized for the achievement of its primary intended purposes." § 321(h) (emphasis added). One can readily infer from this language that at least an article that does achieve its primary purpose through chemical action within the body and that is dependent upon being metabolized is a "drug," provided that it otherwise falls within the scope of the "drug" definition. And one need not hypothesize about air conditioners or thermal 169 pajamas to recognize that the chemical nicotine, an important tobacco ingredient, meets this test. Although I now oversimplify, the FDA has determined that once nicotine enters the body, the blood carries it almost immediately to the brain. See 61 Fed. Reg. 44698-44699 (1966). Nicotine then binds to receptors on the surface of brain cells, setting off a series of chemical reactions that alter one's mood and produce feelings of sedation and stimulation. See id., at 44699, 44739. Nicotine also increases the number of nicotinic receptors on the brain's surface, and alters its normal electrical activity. See id., at 44739. And nicotine stimulates the transmission of a natural chemical that "rewards" the body with pleasurable sensations (dopamine), causing nicotine addiction. See id., at 44700, 4472144722. The upshot is that nicotine stabilizes mood, suppresses appetite, tranquilizes, and satisfies a physical craving that nicotine itself has helped to create-all through chemical action within the body after being metabolized. This physiology-and not simply smoker psychologyhelps to explain why as many as 75% of adult smokers believe that smoking "reduce[s] nervous irritation," 60 Fed. Reg. 41579 (1995); why 73% of young people (10- to 22-yearoIds) who begin smoking say they do so for "relaxation," 61 Fed. Reg. 44814 (1996); and why less than 3% of smokers succeed in quitting each year, although 70% want to quit, id., at 44704. That chemistry also helps to explain the Surgeon General's findings that smokers believe "smoking [makes them] feel better" and smoke more "in situations involving negative mood." Id., at 44814. And, for present purposes, that chemistry demonstrates that nicotine affects the "structure" and "function" of the body in a manner that is quite similar to the effects of other regulated substances. See id., at 44667 (FDA regulates Valium, NoDoz, weight-loss products). Indeed, addiction, sedation, stimulation, and weight loss are precisely the kinds of product effects that the FDA typically reviews and controls. And, since the nicotine in cigarettes 170 plainly is not a "food," its chemical effects suffice to establish that it is as a "drug" (and the cigarette that delivers it a drug-delivery "device") for the purpose of the FDCA. B The tobacco companies' principal definitional argument focuses upon the statutory word "intended." See 21 U. S. C. § 321(g)(1)(C). The companies say that "intended" in this context is a term of art. See Brief for Respondent Brown & Williamson Tobacco Corp. 2. They assert that the statutory word "intended" means that the product's maker has made an express claim about the effect that its product will have on the body. Ibid. Indeed, according to the companies, the FDA's inability to prove that cigarette manufacturers make such claims is precisely why that agency historically has said it lacked the statutory power to regulate tobacco. See id., at 19-20. The FDCA, however, does not use the word "claimed"; it uses the word "intended." And the FDA long ago issued regulations that say the relevant "intent" can be shown not only by a manufacturer's "expressions," but also "by the circumstances surrounding the distribution of the article." 41 Fed. Reg. 6896 (1976) (codified at 21 CFR § 801.4 (1999)); see also 41 Fed. Reg. 6896 (1976) ("objective intent" shown if "article is, with the knowledge [of its makers], offered and used" for a particular purpose). Thus, even in the absence of express claims, the FDA has regulated products that affect the body if the manufacturer wants, and knows, that consumers so use the product. See, e. g., 60 Fed. Reg. 41527-41531 (1995) (describing agency's regulation of topical hormones, sunscreens, fluoride, tanning lamps, thyroid in food supplements, novelty condoms-all marketed without express claims); see also 1 O'Reilly § 13.04, at 13-15 ("Sometimes the very nature of the material makes it a drug ... "). Courts ordinarily reverse an agency interpretation of this kind only if Congress has clearly answered the interpretive 171 question or if the agency's interpretation is unreasonable. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842-843 (1984). The companies, in an effort to argue the former, point to language in the legislative history tying the word "intended" to a technical concept called "intended use." But nothing in Congress' discussion either of "intended" or "intended use" suggests that an express claim (which often shows intent) is always necessary. Indeed, the primary statement to which the companies direct our attention says only that a manufacturer can determine what kind of regulation applies-"food" or "drug"-because, "through his representations in connection with its sale, [the manufacturer] can determine" whether an article is to be used as a "food," as a "drug," or as "both." S. Rep. No. 361, 74th Cong., 1st Sess., 4 (1935), reprinted in 3 Leg. Hist. 696. Nor is the FDA's "objective intent" interpretation unreasonable. It falls well within the established scope of the ordinary meaning of the word "intended." See Agnew v. United States, 165 U. S. 36 , 53 (1897) (intent encompasses the known consequences of an act). And the companies acknowledge that the FDA can regulate a drug-like substance in the ordinary circumstance, i. e., where the manufacturer makes an express claim, so it is not unreasonable to conclude that the agency retains such power where a product's effects on the body are so well known (say, like those of aspirin or calamine lotion), that there is no need for express representations because the product speaks for itself. The companies also cannot deny that the evidence of their intent is sufficient to satisfy the statutory word "intended" as the FDA long has interpreted it. In the first place, there was once a time when they actually did make express advertising claims regarding tobacco's mood-stabilizing and weight-reducing properties-and historical representations can portend present expectations. In the late 1920's, for example, the American Tobacco Company urged weightconscious smokers to "'Reach for a Lucky instead of a 172 sweet.'" Kluger, Ashes to Ashes, at 77-78. The advertisements of R J Reynolds (RJR) emphasized mood stability by depicting a pilot remarking that "'It Takes Steady Nerves to Fly the Mail at Night .... That's why I smoke Camels. And I smoke plenty!'" Id., at 86. RJR also advertised the stimulating quality of cigarettes, stating in one instance that "'You get a Lift with a Camel,'" and, in another, that Camels are "'A Harmless Restoration of the Flow of Natural Body Energy.'" Id., at 87. And claims of medical proof of mildness (and of other beneficial effects) once were commonplace. See, e. g., id., at 93 (Brown & Williamson advertised Koolbrand mentholated cigarettes as "a tonic to hot, tired throats"); id., at 101, 131 (Philip Morris contended that "'[r]ecognized laboratory tests have conclusively proven the advantage of Phillip [sic] Morris"'); id., at 88 (RJR proclaimed "'For Digestion's sake, smoke Camels! ... Camels make mealtime more pleasant-digestion is stimulated-alkalinity increased' "). Although in recent decades cigarette manufacturers have stopped making express health claims in their advertising, consumers have come to understand what the companies no longer need to express-that through chemical action cigarettes stabilize mood, sedate, stimulate, and help suppress appetite. Second, even though the companies refused to acknowledge publicly (until only very recently) that the nicotine in cigarettes has chemically induced, and habit-forming, effects, see, e. g., Regulation of Tobacco Products (Part 1): Hearings before the House Subcommittee on Health and the Environment, 103d Cong., 2d Sess., 628 (1994) (hereinafter 1994 Hearings) (heads of seven major tobacco companies testified under oath that they believed "nicotine is not addictive" (emphasis added)), the FDA recently has gained access to solid, documentary evidence proving that cigarette manufacturers have long known tobacco produces these effects within the body through the metabolizing of chemicals, and that they 173 have long wanted their products to produce those effects in this way. For example, in 1972, a tobacco-industry scientist explained that" '[s]moke is beyond question the most optimized vehicle of nicotine,'" and "'the cigarette is the most optimized dispenser of smoke.'" 61 Fed. Reg. 44856 (1996) (emphasis deleted). That same scientist urged company executives to "'[t]hink of the cigarette pack as a storage container for a day's supply of nicotine .... Think of the cigarette as a dispenser for a dose unit of nicotine [and] [t]hink of a puff of smoke as the vehicle of nicotine.'" Ibid. (Philip Morris) (emphasis deleted). That same year, other tobacco industry researchers told their superiors that " 'in different situations and at different dose levels, nicotine appears to act as a stimulant, depressant, tranquilizer, psychic energizer, appetite reducer, anti-fatigue agent, or energizer .... Therefore, [tobacco] products may, in a sense, compete with a variety of other products with certain types of drug action.'" Id., at 44669 (RJR) (emphasis deleted). A draft report prepared by authorities at Philip Morris said that nicotine "'is a physiologically active, nitrogen containing substance [similar to] quinine, cocaine, atropine and morphine. [And] [w]hile each of these [other] substances can be used to affect human physiology, nicotine has a particularly broad range of influence.'" Id., at 44668-44669. And a 1980 manufacturer's study stated that " 'the pharmacological response of smokers to nicotine is believed to be responsible for an individual's smoking 174 behaviour, providing the motivation for and the degree of satisfaction required by the smoker.'" Id., at 44936 (Brown & Williamson). With such evidence, the FDA has more than sufficiently established that the companies "intend" their products to "affect" the body within the meaning of the FDCA. C The majority nonetheless reaches the "inescapable conclusion" that the language and structure of the FDCA as a whole "simply do not fit" the kind of public health problem that tobacco creates. Ante, at 143. That is because, in the majority's view, the FDCA requires the FDA to ban outright "dangerous" drugs or devices (such as cigarettes); yet, the FDA concedes that an immediate and total cigarette-sale ban is inappropriate. Ibid. This argument is curious because it leads with similarly "inescapable" force to precisely the opposite conclusion, namely, that the FDA does have jurisdiction but that it must ban cigarettes. More importantly, the argument fails to take into account the fact that a statute interpreted as requiring the FDA to pick a more dangerous over a less dangerous remedy would be a perverse statute, causing, rather than preventing, unnecessary harm whenever a total ban is likely the more dangerous response. And one can at least imagine such circumstances. Suppose, for example, that a commonly used, mildly addictive sleeping pill (or, say, a kind of popular contact lens), plainly within the FDA's jurisdiction, turned out to pose serious health risks for certain consumers. Suppose further that many of those addicted consumers would ignore an immediate total ban, turning to a potentially more dangerous black-market substitute, while a less draconian remedy (say, adequate notice) would wean them gradually away to a safer product. Would the FDCA still force the FDA to impose 175 the more dangerous remedy? For the following reasons, I think not. First, the statute's language does not restrict the FDA's remedial powers in this way. The FDCA permits the FDA to regulate a "combination product"-i. e., a "device" (such as a cigarette) that contains a "drug" (such as nicotine)under its "device" provisions. 21 U. S. C. § 353(g)(1). And the FDCA's "device" provisions explicitly grant the FDA wide remedial discretion. For example, where the FDA cannot "otherwise" obtain "reasonable assurance" of a device's "safety and effectiveness," the agency may restrict by regulation a product's "sale, distribution, or use" upon "such ... conditions as the Secretary may prescribe." § 360j(e)(1) (emphasis added). And the statutory section that most clearly addresses the FDA's power to ban (entitled "Banned devices") says that, where a device presents "an unreasonable and substantial risk of illness or injury," the Secretary "may" -not must-"initiate a proceeding ... to make such device a banned device." § 360f(a) (emphasis added). The Court points to other statutory subsections which it believes require the FDA to ban a drug or device entirely, even where an outright ban risks more harm than other regulatory responses. See ante, at 135-136. But the cited provisions do no such thing. It is true, as the majority contends, that "the FDCA requires the FDA to place all devices" in "one of three classifications" and that Class III devices require "pre market approval." Ante, at 136. But it is not the case that the FDA must place cigarettes in Class III because tobacco itself "presents a potential unreasonable risk of illness or injury." 21 U. S. C. § 360c(a)(1)(C). In fact, Class III applies only where regulation cannot otherwise "provide reasonable assurance of ... safety." §§ 360c(a) (l)(A), (B) (placing a device in Class I or Class II when regulation can provide that assurance). Thus, the statute plainly allows the FDA to consider the relative, overall "safety" of 176 a device in light of its regulatory alternatives, and where the FDA has chosen the least dangerous path, i. e., the safest path, then it can-and does-provide a "reasonable assurance" of "safety" within the meaning of the statute. A good football helmet provides a reasonable assurance of safety for the player even if the sport itself is still dangerous. And the safest regulatory choice by definition offers a "reasonable" assurance of safety in a world where the other alternatives are yet more dangerous. In any event, it is not entirely clear from the statute's text that a Class III categorization would require the FDA affirmatively to withdraw from the market dangerous devices, such as cigarettes, which are already widely distributed. See, e. g., § 360f(a) (when a device presents an "unreasonable and substantial risk of illness or injury," the Secretary "may" make it "a banned device"); § 360h(a) (when a device "presents an unreasonable risk of substantial harm to the public health," the Secretary "may" require "notification"); § 360h(b) (when a defective device creates an "unreasonable risk" of harm, the Secretary "may" order "[r]epair, replacement, or refund"); cf. 2 O'Reilly § 18.08, at 18-29 (point of Class III "pre market approval" is to allow "careful scientific review" of each "truly new" device "before it is exposed" to users (emphasis added)). Noting that the FDCA requires banning a "misbranded" drug, the majority also points to 21 U. S. C. § 352(j), which deems a drug or device "misbranded" if "it is dangerous to health when used" as "prescribed, recommended, or suggested in the labeling." See ante, at 135. In addition, the majority mentions § 352(f)(1), which calls a drug or device "misbranded" unless "its labeling bears ... adequate directions for use" as "are necessary for the protection of users." Ibid. But this "misbranding" language is not determinative, for it permits the FDA to conclude that a drug or device is not "dangerous to health" and that it does have "adequate" 177 directions when regulated so as to render it as harmless as possible. And surely the agency can determine that a substance is comparatively "safe" (not "dangerous") whenever it would be less dangerous to make the product available (subject to regulatory requirements) than suddenly to withdraw it from the market. Any other interpretation risks substantial harm of the sort that my sleeping pill example illustrates. See supra, at 174-175. And nothing in the statute prevents the agency from adopting a view of "safety" that would avoid such harm. Indeed, the FDA already seems to have taken this position when permitting distribution of toxic drugs, such as poisons used for chemotherapy, that are dangerous for the user but are not deemed "dangerous to health" in the relevant sense. See 61 Fed. Reg. 44413 (1996). The tobacco companies point to another statutory provision which says that if a device "would cause serious, adverse health consequences or death, the Secretary shall issue" a cease distribution order. 21 U. S. C. § 360h(e)(1) (emphasis added). But that word "shall" in this context cannot mean that the Secretary must resort to the recall remedy whenever a device would have serious, adverse health effects. Rather, that language must mean that the Secretary "shall issue" a cease distribution order in compliance with the section's procedural requirements if the Secretary chooses in her discretion to use that particular subsection's recall remedy. Otherwise, the subsection would trump and make meaningless the same section's provision of other lesser remedies such as simple "notice" (which the Secretary similarly can impose if, but only if, she finds that the device "presents an unreasonable risk of substantial harm to the public"). § 360h(a)(1). And reading the statute to compel the FDA to "recall" every dangerous device likewise would conflict with that same subsection's statement that the recall remedy "shall be in addition to [the other] remedies provided" in the statute. § 360h(e)(3) (emphasis added). 178 The statute's language, then, permits the agency to choose remedies consistent with its basic purpose-the overall protection of public health. The second reason the FDCA does not require the FDA to select the more dangerous remedy, see supra, at 175, is that, despite the majority's assertions to the contrary, the statute does not distinguish among the kinds of health effects that the agency may take into account when assessing safety. The Court insists that the statute only permits the agency to take into account the health risks and benefits of the "product itself' as used by individual consumers, ante, at 140, and, thus, that the FDA is prohibited from considering that a ban on smoking would lead many smokers to suffer severe withdrawal symptoms or to buy possibly stronger, more dangerous, black market cigarettes-considerations that the majority calls "the aggregate health effects of alternative administrative actions." Ibid. But the FDCA expressly permits the FDA to take account of comparative safety in precisely this manner. See, e. g., 21 U. S. C. § 360h(e)(2)(B)(i)(II) (no device recall if "risk of recal[l]" presents "a greater health risk than" no recall); § 360h(a) (notification "unless" notification "would present a greater danger" than "no such notification"). Moreover, one cannot distinguish in this context between a "specific" health risk incurred by an individual and an "aggregate" risk to a group. All relevant risk is, at bottom, risk to an individual; all relevant risk attaches to "the product itself"; and all relevant risk is "aggregate" in the sense that the agency aggregates health effects in order to determine risk to the individual consumer. If unregulated smoking will kill 4 individuals out of a typical group of 1,000 people, if regulated smoking will kill lout of 1,000, and if a smoking ban (because of the black market) will kill 2 out of 1,000; then these three possibilities mean that in each group four, one, and two individuals, on average, will die respectively. And the risk to each individual consumer is 4/1,000, 179 1/1,000, and 2/1,000 respectively. A "specific" risk to an individual consumer and "aggregate" risks are two sides of the same coin; each calls attention to the same set of facts. While there may be a theoretical distinction between the risk of the product itself and the risk related to the presence or absence of an intervening voluntary act (e. g., the search for a replacement on the black market), the majority does not rely upon any such distinction, and the FDA's history of regulating "replacement" drugs such as methadone shows that it has long taken likely actual alternative consumer behavior into account. I concede that, as a matter of logic, one could consider the FDA's "safety" evaluation to be different from its choice of remedies. But to read the statute to forbid the agency from taking account of the realities of consumer behavior either in assessing safety or in choosing a remedy could increase the risks of harm-doubling the risk of death to each "individual user" in my example above. Why would Congress insist that the FDA ignore such realities, even if the consequent harm would occur only unusually, say, where the FDA evaluates a product (a sleeping pill; a cigarette; a contact lens) that is already on the market, potentially habit forming, or popular? I can find no satisfactory answer to this question. And that, I imagine, is why the statute itself says nothing about any of the distinctions that the Court has tried to draw. See 21 U. S. C. § 360c(a)(2) (instructing FDA to determine the safety and effectiveness of a "device" in part by weighing "any probable benefit to health ... against any probable risk of injury or illness ... " (emphasis added)). Third, experience counsels against an overly rigid interpretation of the FDCA that is divorced from the statute's overall health-protecting purposes. A different set of words, added to the FDCA in 1958 by the Delaney Amendment, provides that "no [food] additive shall be deemed to be safe if it is found [after appropriate tests] to induce cancer when ingested by man or animal." § 348(c)(3). The FDA 180 once interpreted this language as requiring it to ban any food additive, no matter how small the amount, that appeared in any food product if that additive was ever found to induce cancer in any animal, no matter how large a dose needed to induce the appearance of a single carcinogenic cell. See H. R. Rep. No. 95-658, p. 7 (1977) (discussing agency's view). The FDA believed that the statute's ban mandate was absolute and prevented it from establishing a level of "safe use" or even to judge whether "the benefits of continued use outweigh the risks involved." Id., at 5. This interpretationwhich in principle could have required the ban of everything from herbal teas to mushrooms-actually led the FDA to ban saccharine, see 42 Fed. Reg. 19996 (1977), though this extremely controversial regulatory response never took effect because Congress enacted, and has continually renewed, a law postponing the ban. See Saccharin Study and Labeling Act, Pub. L. 95-203, § 3, 91 Stat. 1452; e. g., Pub. L. 102142, Tit. VI, 105 Stat. 910. The Court's interpretation of the statutory language before us risks Delaney-type consequences with even less linguistic reason. Even worse, the view the Court advances undermines the FDCA's overall health-protecting purpose by placing the FDA in the strange dilemma of either banning completely a potentially dangerous drug or device or doing nothing at all. Saying that I have misunderstood its conclusion, the majority maintains that the FDA "may clearly regulate many 'dangerous' products without banning them." Ante, at 142. But it then adds that the FDA must banrather than otherwise regulate-a drug or device that "cannot be used safely for any therapeutic purpose." Ibid. If I misunderstand, it is only because this linchpin of the majority's conclusion remains unexplained. Why must a widely used but unsafe device be withdrawn from the market when that particular remedy threatens the health of many and is thus more dangerous than another regulatory response? It is, indeed, a perverse interpretation that reads the FDCA 181 to require the ban of a device that has no "safe" therapeutic purpose where a ban is the most dangerous remedial alternative. In my view, where linguistically permissible, we should interpret the FDCA in light of Congress' overall desire to protect health. That purpose requires a flexible interpretation that both permits the FDA to take into account the realities of human behavior and allows it, in appropriate cases, to choose from its arsenal of statutory remedies. A statute so interpreted easily "fit[s]" this, and other, drug- and device-related health problems. III In the majority's view, laws enacted since 1965 require us to deny jurisdiction, whatever the FDCA might mean in their absence. But why? Do those laws contain language barring FDA jurisdiction? The majority must concede that they do not. Do they contain provisions that are inconsistent with the FDA's exercise of jurisdiction? With one exception, see infra, at 184-185, the majority points to no such provision. Do they somehow repeal the principles of law (discussed in Part II, supra) that otherwise would lead to the conclusion that the FDA has jurisdiction in this area? The companies themselves deny making any such claim. See Tr. of Oral Arg. 27 (denying reliance on doctrine of "partial repeal"). Perhaps the later laws "shape" and "focus" what the 1938 Congress meant a generation earlier. Ante, at 143. But this Court has warned against using the views of a later Congress to construe a statute enacted many years before. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633 , 650 (1990) (later history is a " 'hazardous basis for inferring the intent of an earlier' Congress" (quoting United States v. Price, 361 U. S. 304 , 313 (1960))). And, while the majority suggests that the subsequent history "control[s] our construction" of the FDCA, see ante, at 143 (citation and internal quotation marks omitted), this Court 182 expressly has held that such subsequent views are not "controlling." Haynes v. United States, 390 U. S. 85 , 87-88, n. 4 (1968); accord, Southwestern Cable Co., 392 U. S., at 170 (such views have" 'very little, if any, significance' "); see also Sullivan v. Finkelstein, 496 U. S. 617 , 632 (1990) (SCALIA, J., concurring) ("Arguments based on subsequent legislative history ... should not be taken seriously, not even in a footnote"). Regardless, the later statutes do not support the majority's conclusion. That is because, whatever individual Members of Congress after 1964 may have assumed about the FDA's jurisdiction, the laws they enacted did not embody any such "no jurisdiction" assumption. And one cannot automatically infer an antijurisdiction intent, as the majority does, for the later statutes are both (and similarly) consistent with quite a different congressional desire, namely, the intent to proceed without interfering with whatever authority the FDA otherwise may have possessed. See, e. g., Cigarette Labeling and Advertising-1965: Hearings on H. R. 2248 et al. before the House Committee on Interstate and Foreign Commerce, 89th Cong., 1st Sess., 19 (1965) (hereinafter 1965 Hearings) (statement of Rep. Fino that the proposed legislation would not "erode" agency authority). As I demonstrate below, the subsequent legislative history is critically ambivalent, for it can be read either as (a) "ratif[ying]" a no-jurisdiction assumption, see ante, at 158, or as (b) leaving the jurisdictional question just where Congress found it. And the fact that both inferences are "equally tenable," Pension Benefit Guaranty Corp., supra, at 650 (citation and internal quotation marks omitted); Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 , 672 (1987) (SCALIA, J., dissenting), prevents the majority from drawing from the later statutes the firm, antijurisdiction implication that it needs. Consider, for example, Congress' failure to provide the FDA with express authority to regulate tobacco-a circum- 183 stance that the majority finds significant. See ante, at 144, 147-148, 155. But cf. Southwestern Cable Co., supra, at 170 (failed requests do not prove agency "did not already possess" authority). In fact, Congress both failed to grant express authority to the FDA when the FDA denied it had jurisdiction over tobacco and failed to take that authority expressly away when the agency later asserted jurisdiction. See, e. g., S. 1262, 104th Cong., 1st Sess., § 906 (1995) (failed bill seeking to amend FDCA to say that "[n]othing in this Act or any other Act shall provide the [FDA] with any authority to regulate in any manner tobacco or tobacco products"); see also H. R. 516, 105th Cong., 1st Sess., § 2 (1997) (similar); H. R. Res. 980, reprinted in 142 Congo Rec. 5018 (1996) (Georgia legislators unsuccessfully requested that Congress "rescind any action giving the FDA authority" over tobacco); H. R. 2283, 104th Cong., 1st Sess. (1995) (failed bill "[t]o prohibit the [FDA] regulation of the sale or use of tobacco"); H. R. 2414, 104th Cong., 1st Sess., § 2(a) (1995) (similar). Consequently, the defeat of various different proposed jurisdictional changes proves nothing. This history shows only that Congress could not muster the votes necessary either to grant or to deny the FDA the relevant authority. It neither favors nor disfavors the majority's position. The majority also mentions the speed with which Congress acted to take jurisdiction away from other agencies once they tried to assert it. See ante, at 145, 149-151. But such a congressional response again proves nothing. On the one hand, the speedy reply might suggest that Congress somehow resented agency assertions of jurisdiction in an area it desired to reserve for itself-a consideration that supports the majority. On the other hand, Congress' quick reaction with respect to other agencies' regulatory efforts contrasts dramatically with its failure to enact any responsive law (at any speed) after the FDA asserted jurisdiction over tobacco more than three years ago. And that contrast supports the opposite conclusion. 184 In addition, at least one post-1938 statute reveals quite a different congressional intent than the majority infers. See note following 21 U. S. C. § 321 (1994 ed., Supp. III) (FDA Modernization Act of 1997) (law "shall [not] be construed to affect the question of whether the [FDA] has any authority to regulate any tobacco product," and "[s]uch authority, if any, shall be exercised under the [FDCA] as in effect on the day before the date of [this] enactment"). Consequently, it appears that the only interpretation that can reconcile all of the subsequent statutes is the inference that Congress did not intend, either explicitly or implicitly, for its later laws to answer the question of the scope of the FDA's jurisdictional authority. See 143 Congo Rec. S8860 (Sept. 5, 1997) (the Modernization Act will "not interfere or substantially negatively affect any of the FDA tobacco authority"). The majority's historical perspective also appears to be shaped by language in the Federal Cigarette Labeling and Advertising Act (FCLAA), 79 Stat. 282, 15 U. S. C. § 1331 et seq. See ante, at 148-149. The FCLAA requires manufacturers to place on cigarette packages, etc., health warnings such as the following: "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy." 15 U. S. C. § 1333(a). The FCLAA has an express pre-emption provision which says that "[n]o statement relating to smoking and health, other than the statement required by [this Act], shall be required on any cigarette package." § 1334(a). This preemption clause plainly prohibits the FDA from requiring on "any cigarette package" any other "statement relating to smoking and health," but no one contends that the FDA has failed to abide by this prohibition. See, e. g., 61 Fed. Reg. 44399 (1996) (describing the other regulatory prescriptions). Rather, the question is whether the FCLAA's pre-emption 185 provision does more. Does it forbid the FDA to regulate at all? This Court has already answered that question expressly and in the negative. See Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992). Cipollone held that the FCLAA's preemption provision does not bar state or federal regulation outside the provision's literal scope. Id., at 518. And it described the pre-emption provision as "merely prohibit[ing] state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels .... " Ibid. This negative answer is fully consistent with Congress' intentions in regard to the pre-emption language. When Congress enacted the FCLAA, it focused upon the regulatory efforts of the Federal Trade Commission (FTC), not the FDA. See 1965 Hearings 1-2. And the Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, § 7(c), 84 Stat. 89, expressly amended the FCLAA to provide that "[n]othing in this Act shall be construed to affirm or deny the [FTC's] holding that it has the authority to issue trade regulation rules" for tobacco. See also H. R. Conf. Rep. No. 91-897, p. 7 (1970) (statement of House Managers) (we have "no intention to resolve the question as to whether" the FTC could regulate tobacco in a different way); see also 116 Congo Rec. 7921 (1970) (statement of Rep. Satterfield) (same). Why would one read the FCLAA's pre-emption clause-a provision that Congress intended to limit even in respect to the agency directly at issue-so broadly that it would bar a different agency from engaging in any other cigarette regulation at all? The answer is that the Court need not, and should not, do so. And, inasmuch as the Court already has declined to view the FCLAA as pre-empting the entire field of tobacco regulation, I cannot accept that that same law bars the FDA's regulatory efforts here. When the FCLAA's narrow pre-emption provision is set aside, the majority's conclusion that Congress clearly intended for its tobacco-related statutes to be the exclusive 186 "response" to "the problem of tobacco and health," ante, at 157, is based on legislative silence. Notwithstanding the views voiced by various legislators, Congress itself has addressed expressly the issue of the FDA's tobacco-related authority only once-and, as I have said, its statement was that the statute was not to "be construed to affect the question of whether the [FDA] has any authority to regulate any tobacco product." Note following 21 U. S. C. § 321 (1994 ed., Supp. III). The proper inference to be drawn from all of the post-1965 statutes, then, is one that interprets Congress' general legislative silence consistently with this statement. IV I now turn to the final historical fact that the majority views as a factor in its interpretation of the subsequent legislative history: the FDA's former denials of its tobaccorelated authority. Until the early 1990's, the FDA expressly maintained that the 1938 statute did not give it the power that it now seeks to assert. It then changed its mind. The majority agrees with me that the FDA's change of positions does not make a significant legal difference. See ante, at 156-157; see also Chevron, 467 U. S., at 863 ("An initial agency interpretation is not instantly carved in stone"); accord, Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 742 (1996) ("[C]hange is not invalidating"). Nevertheless, it labels those denials "important context" for drawing an inference about Congress' intent. Ante, at 157. In my view, the FDA's change of policy, like the subsequent statutes themselves, does nothing to advance the majority's position. When it denied jurisdiction to regulate cigarettes, the FDA consistently stated why that was so. In 1963, for example, FDA administrators wrote that cigarettes did not satisfy the relevant FDCA definitions-in particular, the "intent" requirement-because cigarette makers did not sell their product with accompanying "therapeutic claims." 187 Letter to Directors of Bureaus, Divisions and Directors of Districts from FDA Bureau of Enforcement (May 24, 1963), in Public Health Cigarette Amendments of 1971: Hearings on S. 1454 before the Consumer Subcommittee of the Senate Committee on Commerce, 92d Cong., 2d Sess., 240 (1972) (hereinafter FDA Enforcement Letter). And subsequent FDA Commissioners made roughly the same assertion. One pointed to the fact that the manufacturers only "recommended" cigarettes "for smoking pleasure." Two others reiterated the evidentiary need for "health claims." Yet another stressed the importance of proving "intent," adding that "[w]e have not had sufficient evidence" of "intent with regard to nicotine." See, respectively, id., at 239 (Comm'r Edwards); Letter of Dec. 5, 1977, App. 47 (Comm'r Kennedy); 1965 Hearings 193 (Comm'r Rankin); 1994 Hearings 28 (Comm'r Kessler). Tobacco company counsel also testified that the FDA lacked jurisdiction because jurisdiction "depends on ... intended use," which in turn "depends, in general, on the claims and representations made by the manufacturer." Health Consequences of Smoking: Nicotine Addiction, Hearing before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 100th Cong., 2d Sess., 288 (1988) (testimony of Richard Cooper) (emphasis added). Other agency statements occasionally referred to additional problems. Commissioner Kessler, for example, said that the "enormous social consequences" flowing from a decision to regulate tobacco counseled in favor of obtaining specific congressional "guidance." 1994 Hearings 69; see also ante, at 153 (quoting statement of Health and Human Services Secretary Brandt to the effect that Congress wanted to make the relevant jurisdictional decision). But a fair reading of the FDA's denials suggests that the overwhelming problem was one of proving the requisite manufacturer intent. See Action on Smoking and Health v. Harris, 655 F.2d 236 , 238 239 (CADC 1980) (FDA "comments" reveal its "understand- 188 ing" that "the crux of FDA jurisdiction over drugs lay in manufacturers' representations as revelatory of their intent"). What changed? For one thing, the FDA obtained evidence sufficient to prove the necessary "intent" despite the absence of specific "claims." See supra, at 172-174. This evidence, which first became available in the early 1990's, permitted the agency to demonstrate that the tobacco companies knew nicotine achieved appetite-suppressing, mood-stabilizing, and habituating effects through chemical (not psychological) means, even at a time when the companies were publicly denying such knowledge. Moreover, scientific evidence of adverse health effects mounted, until, in the late 1980's, a consensus on the seriousness of the matter became firm. That is not to say that concern about smoking's adverse health effects is a new phenomenon. See, e. g., Higginson, A New Counterblast, in Out-door Papers 179, 194 (1863) (characterizing tobacco as "'a narcotic poison of the most active class' "). It is to say, however, that convincing epidemiological evidence began to appear mid-20th century; that the first Surgeon General's Report documenting the adverse health effects appeared in 1964; and that the Surgeon General's Report establishing nicotine's addictive effects appeared in 1988. At each stage, the health conclusions were the subject of controversy, diminishing somewhat over time, until recently-and only recently-has it become clear that there is a wide consensus about the health problem. See 61 Fed. Reg. 44701-44706 (1996). Finally, administration policy changed. Earlier administrations may have hesitated to assert jurisdiction for the reasons prior Commissioners expressed. See supra, at 186-187 and this page. Commissioners of the current administration simply took a different regulatory attitude. Nothing in the law prevents the FDA from changing its policy for such reasons. By the mid-1990's, the evidence 189 needed to prove objective intent-even without an express claim-had been found. The emerging scientific consensus about tobacco's adverse, chemically induced, health effects may have convinced the agency that it should spend its resources on this important regulatory effort. As for the change of administrations, I agree with then-JusTIcE REHNQUIST'S statement in a different case, where he wrote: "The agency's changed view ... seems to be related to the election of a new President of a different political party. It is readily apparent that the responsible members of one administration may consider public resistance and uncertainties to be more important than do their counterparts in a previous administration. A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 ,59 (1983) (concurring in part and dissenting in part). V One might nonetheless claim that, even if my interpretation of the FDCA and later statutes gets the words right, it lacks a sense of their "music." See Helvering v. Gregory, 69 F. 2d 809, 810-811 (CA2 1934) (L. Hand, J.) ("[T]he meaning of a [statute] may be more than that of the separate words, as a melody is more than the notes ... "). Such a claim might rest on either of two grounds. First, one might claim that, despite the FDA's legal right to change its mind, its original statements played a critical part in the enactment of the later statutes and now should play a critical part in their interpretation. But the FDA's 190 traditional view was largely premised on a perceived inability to prove the necessary statutory "intent" requirement. See, e. g., FDA Enforcement Letter 240 ("The statutory basis for the exclusion of tobacco products from FDA's jurisdiction is the fact that tobacco marketed for chewing or smoking without accompanying therapeutic claims, does not meet the definitions ... for food, drug, device or cosmetic"). The statement, "we cannot assert jurisdiction over substance X unless it is treated as a food," would not bar jurisdiction if the agency later establishes that substance X is, and is intended to be, eaten. The FDA's denials of tobacco-related authority sufficiently resemble this kind of statement that they should not make the critical interpretive difference. Second, one might claim that courts, when interpreting statutes, should assume in close cases that a decision with "enormous social consequences," 1994 Hearings 69, should be made by democratically elected Members of Congress rather than by unelected agency administrators. Cf. Kent v. Dulles, 357 U. S. 116 , 129 (1958) (assuming Congress did not want to delegate the power to make rules interfering with exercise of basic human liberties). If there is such a background canon of interpretation, however, I do not believe it controls the outcome here. Insofar as the decision to regulate tobacco reflects the policy of an administration, it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility. And the very importance of the decision taken here, as well as its attendant publicity, means that the public is likely to be aware of it and to hold those officials politically accountable. Presidents, just like Members of Congress, are elected by the public. Indeed, the President and Vice President are the only public officials whom the entire Nation elects. I do not believe that an administrative agency decision of this magnitude-one that is important, conspicuous, and controversial-can escape the kind of public scrutiny that is essential in any de- 191 mocracy. And such a review will take place whether it is the Congress or the Executive Branch that makes the relevant decision. *** According to the FDA, only 2.5% of smokers successfully stop smoking each year, even though 70% say they want to quit and 34% actually make an attempt to do so. See 61 Fed. Reg. 44704 (1996) (citing Centers for Disease Control and Prevention, Cigarette Smoking Among Adults-United States, 1993; 43 Morbidity and Mortality Weekly Report 929 (Dec. 23, 1994)). The fact that only a handful of those who try to quit smoking actually succeed illustrates a certain reality-the reality that the nicotine in cigarettes creates a powerful physiological addiction flowing from chemically induced changes in the brain. The FDA has found that the makers of cigarettes "intend" these physical effects. Hence, nicotine is a "drug"; the cigarette that delivers nicotine to the body is a "device"; and the FDCA's language, read in light of its basic purpose, permits the FDA to assert the disease-preventing jurisdiction that the agency now claims. The majority finds that cigarettes are so dangerous that the FDCA would require them to be banned (a result the majority believes Congress would not have desired); thus, it concludes that the FDA has no tobacco-related authority. I disagree that the statute would require a cigarette ban. But even if I am wrong about the ban, the statute would restrict only the agency's choice of remedies, not its jurisdiction. The majority also believes that subsequently enacted statutes deprive the FDA of jurisdiction. But the later laws say next to nothing about the FDA's tobacco-related authority. Previous FDA disclaimers of jurisdiction may have helped to form the legislative atmosphere out of which Congress' own tobacco-specific statutes emerged. But a legislative atmosphere is not a law, unless it is embodied in a statutory word or phrase. And the relevant words and phrases here reveal 192 nothing more than an intent not to change the jurisdictional status quo. The upshot is that the Court today holds that a regulatory statute aimed at unsafe drugs and devices does not authorize regulation of a drug (nicotine) and a device (a cigarette) that the Court itself finds unsafe. Far more than most, this particular drug and device risks the life-threatening harms that administrative regulation seeks to rectify. The majority's conclusion is counterintuitive. And, for the reasons set forth, I believe that the law does not require it. Consequently, I dissent.

The Food and Drug Administration (FDA) asserted jurisdiction to regulate tobacco products, classifying nicotine as a "drug" and cigarettes as "devices" under the Food, Drug, and Cosmetic Act (FDCA). The FDA introduced regulations to reduce tobacco use, particularly among minors, to decrease addiction and tobacco-related deaths. A group of tobacco manufacturers challenged the FDA's regulations, arguing that the FDA lacked jurisdiction to regulate tobacco products as customarily marketed. The Fourth Circuit Court agreed, holding that Congress had not granted the FDA jurisdiction over tobacco products. The Supreme Court upheld this decision, finding that the FDCA, read as a whole and in conjunction with subsequent tobacco-specific legislation, did not grant the FDA authority to regulate tobacco products as customarily marketed.

Government Agencies

Norton v. Southern Utah Wilderness Alliance

https://supreme.justia.com/cases/federal/us/542/55/

OPINION OF THE COURT NORTON V. SOUTHERN UTAH WILDERNESS ALLIANCE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-101 GALE NORTON, SECRETARY OF THE INTERIOR, et al., PETITIONERS v. SOUTHERN UTAH WILDERNESS ALLIANCE et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 14, 2004]    Justice Scalia delivered the opinion of the Court.    In this case, we must decide whether the authority of a federal court under the Administrative Procedure Act (APA) to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U. S. C. §706(1), extends to the review of the United States Bureau of Land Management’s stewardship of public lands under certain statutory provisions and its own planning documents. I    Almost half the State of Utah, about 23 million acres, is federal land administered by the Bureau of Land Management (BLM), an agency within the Department of Interior. For nearly 30 years, BLM’s management of public lands has been governed by the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U. S. C. §1701 et seq. , which “established a policy in favor of retaining public lands for multiple use management.” Lujan v. National Wildlife Federation, 497 U. S. 871 , 877 (1990). “Multiple use management” is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.” 43 U. S. C. §1702(c). A second management goal, “sustained yield,” requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future. §1702(h). To these ends, FLPMA establishes a dual regime of inventory and planning. Sections 1711 and 1712, respectively, provide for a comprehensive, ongoing inventory of federal lands, and for a land use planning process that “project[s]” “present and future use,” §1701(a)(2), given the lands’ inventoried characteristics.    Of course not all uses are compatible. Congress made the judgment that some lands should be set aside as wilderness at the expense of commercial and recreational uses. A pre-FLPMA enactment, the Wilderness Act of 1964, 78 Stat. 890, provides that designated wilderness areas, subject to certain exceptions, “shall [have] no commercial enterprise and no permanent road,” no motorized vehicles, and no manmade structures. 16 U. S. C. §1133(c). The designation of a wilderness area can be made only by Act of Congress, see 43 U. S. C. §1782(b).    Pursuant to §1782, the Secretary of the Interior has identified so-called “wilderness study areas” (WSAs), roadless lands of 5,000 acres or more that possess “wilderness characteristics,” as determined in the Secretary’s land inventory. §1782(a); see 16 U. S. C. §1131(c). As the name suggests, WSAs (as well as certain wild lands identified prior to the passage of FLPMA) have been subjected to further examination and public comment in order to evaluate their suitability for designation as wilderness. In 1991, out of 3.3 million acres in Utah that had been identified for study, 2 million were recommended as suitable for wilderness designation. 1 U. S. Dept. of Interior, BLM, Utah Statewide Wilderness Study Report 3 (Oct. 1991). This recommendation was forwarded to Congress, which has not yet acted upon it. Until Congress acts one way or the other, FLPMA provides that “the Secretary shall continue to manage such lands . . . in a manner so as not to impair the suitability of such areas for preservation as wilderness.” 43 U. S. C. §1782(c). This nonimpairment mandate applies to all WSAs identified under §1782, including lands considered unsuitable by the Secretary. See §§1782(a), (b); App. 64 (BLM Interim Management Policy for Lands Under Wilderness Review).    Aside from identification of WSAs, the main tool that BLM employs to balance wilderness protection against other uses is a land use plan—what BLM regulations call a “resource management plan.” 43 CFR §1601.0–5(k) (2003). Land use plans, adopted after notice and comment, are “designed to guide and control future management actions,” §1601.0–2. See 43 U. S. C. §1712; 43 CFR §1610.2 (2003). Generally, a land use plan describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps. §1601.0–5(k). Under FLPMA, “[t]he Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans … when they are available.” 43 U. S. C. §1732(a).    Protection of wilderness has come into increasing conflict with another element of multiple use, recreational use of so-called off-road vehicles (ORVs), which include vehicles primarily designed for off-road use, such as lightweight, four-wheel “all-terrain vehicles,” and vehicles capable of such use, such as sport utility vehicles. See 43 CFR §8340.0–5(a) (2003). According to the United States Forest Service’s most recent estimates, some 42 million Americans participate in off-road travel each year, more than double the number two decades ago. H. Cordell, Outdoor Recreation for 21st Century America 40 (2004). United States sales of all-terrain vehicles alone have roughly doubled in the past five years, reaching almost 900,000 in 2003. See Tanz, Making Tracks, Making Enemies, N. Y. Times, Jan. 2, 2004, p. F1, col. 5; Discover Today’s Motorcycling, Motorcycle Industry Council, Press Release, Feb. 13, 2004, http://www.motorcycles.org (all Internet materials as visited June 4, 2004, and available in Clerk of Court’s case file). The use of ORVs on federal land has negative environmental consequences, including soil disruption and compaction, harassment of animals, and annoyance of wilderness lovers. See Brief for Natural Resources Defense Council et al. as Amici Curiae 4–7, and studies cited therein. Thus, BLM faces a classic land use dilemma of sharply inconsistent uses, in a context of scarce resources and congressional silence with respect to wilderness designation.    In 1999, respondents Southern Utah Wilderness Alliance and other organizations (collectively SUWA) filed this action in the United States District Court for Utah against petitioners BLM, its Director, and the Secretary. In its second amended complaint, SUWA sought declaratory and injunctive relief for BLM’s failure to act to protect public lands in Utah from damage caused by ORV use. SUWA made three claims that are relevant here: (1) that BLM had violated its nonimpairment obligation under §1782(a) by allowing degradation in certain WSAs; (2) that BLM had failed to implement provisions in its land use plans relating to ORV use; (3) that BLM had failed to take a “hard look” at whether, pursuant to the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. §4321 et seq ., it should undertake supplemental environmental analyses for areas in which ORV use had increased. SUWA contended that it could sue to remedy these three failures to act pursuant to the APA’s provision of a cause of action to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U. S. C. §706(1).    The District Court entered a dismissal with respect to the three claims. A divided panel of the Tenth Circuit reversed. 301 F. 3d 1217 (2002). The majority acknowledged that under §706(1), “federal courts may order agencies to act only where the agency fails to carry out a mandatory, nondiscretionary duty.” Id. , at 1226. It concluded, however, that BLM’s nonimpairment obligation was just such a duty, and therefore BLM could be compelled to comply. Under similar reasoning, it reversed the dismissal with respect to the land use plan claim; and likewise reversed dismissal of the NEPA claim. We granted certiorari. 540 U. S. 980 (2003). II    All three claims at issue here involve assertions that BLM failed to take action with respect to ORV use that it was required to take. Failures to act are sometimes remediable under the APA, but not always. We begin by considering what limits the APA places upon judicial review of agency inaction.    The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U. S. C. §702. Where no other statute provides a private right of action, the “agency action” complained of must be “ final agency action.” §704 (emphasis added). “Agency action” is defined in §551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act. ” (Emphasis added.) The APA provides relief for a failure to act in §706(1): “The reviewing court shall … compel agency action unlawfully withheld or unreasonably delayed.”    Sections 702, 704, and 706(1) all insist upon an “agency action,” either as the action complained of (in §§702 and 704) or as the action to be compelled (in §706(1)). The definition of that term begins with a list of five categories of decisions made or outcomes implemented by an agency—“agency rule, order, license, sanction [or] relief.” §551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear: “an agency statement of … future effect designed to implement, interpret, or prescribe law or policy” (rule); “a final disposition … in a matter other than rule making” (order); a “permit … or other form of permission” (license); a “prohibition … or taking [of] other compulsory or restrictive action” (sanction); or a “grant of money, assistance, license, authority,” etc., or “recognition of a claim, right, immunity,” etc., or “taking of other action on the application or petition of, and beneficial to, a person” (relief). §§551(4), (6), (8), (10), (11).    The terms following those five categories of agency action are not defined in the APA: “or the equivalent or denial thereof, or failure to act.” §551(13). But an “equivalent … thereof” must also be discrete (or it would not be equivalent), and a “denial thereof” must be the denial of a discrete listed action (and perhaps denial of a discrete equivalent).    The final term in the definition, “failure to act,” is in our view properly understood as a failure to take an agency action —that is, a failure to take one of the agency actions (including their equivalents) earlier defined in §551(13). Moreover, even without this equation of “act” with “agency action” the interpretive canon of ejusdem generis would attribute to the last item (“failure to act”) the same characteristic of discreteness shared by all the preceding items. See, e.g., Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371 , 384–385 (2003). A “failure to act” is not the same thing as a “denial.” The latter is the agency’s act of saying no to a request; the former is simply the omission of an action without formally rejecting a request—for example, the failure to promulgate a rule or take some decision by a statutory deadline. The important point is that a “failure to act” is properly understood to be limited, as are the other items in §551(13), to a discrete action.    A second point central to the analysis of the present case is that the only agency action that can be compelled under the APA is action legally required . This limitation appears in §706(1)’s authorization for courts to “compel agency action unlawfully withheld.”[ Footnote 1 ] In this regard the APA carried forward the traditional practice prior to its passage, when judicial review was achieved through use of the so-called prerogative writs—principally writs of mandamus under the All Writs Act, now codified at 28 U. S. C. §1651(a). The mandamus remedy was normally limited to enforcement of “a specific, unequivocal command,” ICC v. New York, N. H. & H. R. Co., 287 U. S. 178 , 204 (1932), the ordering of a “ ‘precise, definite act … about which [an official] had no discretion whatever,’ ” United States ex rel. Dunlap v. Black, 128 U. S. 40 , 46 (1888) (quoting Kendall v. United States ex rel. Stokes, 12 Pet. 524, 613 (1838)). See also ICC v. United States ex rel. Humboldt S. S. Co., 224 U. S. 474 , 484 (1912). As described in the Attorney General’s Manual on the APA, a document whose reasoning we have often found persuasive, see, e.g., Darby v. Cisneros, 509 U. S. 137 , 148, n. 10 (1993); Chrysler Corp. v. Brown, 441 U. S. 281 , 302, n. 31 (1979); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519 , 546 (1978), §706(1) empowers a court only to compel an agency “to perform a ministerial or non-discretionary act,” or “to take action upon a matter, without directing how it shall act.” Attorney General’s Manual on the Administrative Procedure Act 108 (1947) (emphasis added). See also L. Jaffe, Judicial Control of Administrative Action 372 (1965); K. Davis, Administrative Law §257, p. 925 (1951).    Thus, a claim under §706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take . These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990). There we considered a challenge to BLM’s land withdrawal review program, couched as unlawful agency “action” that the plaintiffs wished to have “set aside” under §706(2).[ Footnote 2 ] Id. , at 879. We concluded that the program was not an “agency action”:    “[R]espondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular ‘agency action’ that causes it harm.” Id. , at 891 (emphasis in original). The plaintiffs in National Wildlife Federation would have fared no better if they had characterized the agency’s alleged “failure to revise land use plans in proper fashion” and “failure to consider multiple use,” ibid ., in terms of “agency action unlawfully withheld” under §706(1), rather than agency action “not in accordance with law” under §706(2).    The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U. S. C. §251(d)(1), which required the Federal Communications Commission “to establish regulations to implement” interconnection requirements “[w]ithin 6 months” of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations. III A    With these principles in mind, we turn to SUWA’s first claim, that by permitting ORV use in certain WSAs, BLM violated its mandate to “continue to manage [WSAs] … in a manner so as not to impair the suitability of such areas for preservation as wilderness,” 43 U. S. C. §1782(c). SUWA relies not only upon §1782(c) but also upon a provision of BLM’s Interim Management Policy for Lands Under Wilderness Review, which interprets the nonimpairment mandate to require BLM to manage WSAs so as to prevent them from being “degraded so far, compared with the area’s values for other purposes, as to significantly constrain the Congress’s prerogative to either designate [it] as wilderness or release it for other uses.” App. 65.    Section 1782(c) is mandatory as to the object to be achieved, but it leaves BLM a great deal of discretion in deciding how to achieve it. It assuredly does not mandate, with the clarity necessary to support judicial action under §706(1), the total exclusion of ORV use.    SUWA argues that §1782 does contain a categorical imperative, namely the command to comply with the nonimpairment mandate. It contends that a federal court could simply enter a general order compelling compliance with that mandate, without suggesting any particular manner of compliance. It relies upon the language from the Attorney General’s Manual quoted earlier, that a court can “take action upon a matter, without directing how [the agency] shall act,” and upon language in a case cited by the Manual noting that “mandamus will lie … even though the act required involves the exercise of judgment and discretion.” Safeway Stores v. Brown , 138 F. 2d 278, 280 (Emerg. Ct. App. 1943). The action referred to in these excerpts, however, is discrete agency action, as we have discussed above. General deficiencies in compliance, unlike the failure to issue a ruling that was discussed in Safeway Stores , lack the specificity requisite for agency action.    The principal purpose of the APA limitations we have discussed—and of the traditional limitations upon mandamus from which they were derived—is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved—which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. To take just a few examples from federal resources management, a plaintiff might allege that the Secretary had failed to “manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance,” or to “manage the [New Orleans Jazz National] [H]istorical [P]ark in such a manner as will preserve and perpetuate knowledge and understanding of the history of jazz,” or to “manage the [Steens Mountain] Cooperative Management and Protection Area for the benefit of present and future generations.” 16 U. S. C. §§1333(a), 410bbb–2(a)(1), 460nnn–12(b). The prospect of pervasive oversight by federal courts over the manner and pace of agency compliance with such congressional directives is not contemplated by the APA. B    SUWA’s second claim is that BLM failed to comply with certain provisions in its land use plans, thus contravening the requirement that “[t]he Secretary shall manage the public lands … in accordance with the land use plans … when they are available.” 43 U. S. C. §1732(a); see also 43 CFR §1610.5–3(a) (2003) (“All future resource management authorizations and actions … and subsequent more detailed or specific planning, shall conform to the approved plan”). The relevant count in SUWA’s second amended complaint alleged that BLM had violated a variety of commitments in its land use plans, but over the course of the litigation these have been reduced to two, one relating to the 1991 resource management plan for the San Rafael area, and the other to various aspects of the 1990 ORV implementation plan for the Henry Mountains area.    The actions contemplated by the first of these alleged commitments (completion of a route designation plan in the San Rafael area), and by one aspect of the second (creation of “use supervision files” for designated areas in the Henry Mountains area) have already been completed,[ Footnote 3 ] and these claims are therefore moot. There remains the claim, with respect to the Henry Mountains plan, that “in light of damage from ORVs in the Factory Butte area,” a sub-area of Henry Mountains open to ORV use, “the [plan] obligated BLM to conduct an intensive ORV monitoring program.” Brief for SUWA 7–8. This claim is based upon the plan’s statement that the Factory Butte area “will be monitored and closed if warranted.” App. 140. SUWA does not contest BLM’s assertion in the court below that informal monitoring has taken place for some years, see Brief for Appellee Secretary of Interior et al. in No. 01–4009 (CA10), p. 23, but it demands continuing implementation of a monitoring program . By this it apparently means to insist upon adherence to the plan’s general discussion of “Use Supervision and Monitoring” in designated areas, App. 148–149, which (in addition to calling for the use supervision files that have already been created) provides that “[r]esource damage will be documented and recommendations made for corrective action,” “[m]onitoring in open areas will focus on determining damage which may necessitate a change in designation,” and “emphasis on use supervision will be placed on [limited and closed areas].” Id., at 149. SUWA acknowledges that a monitoring program has recently been commenced . Brief for SUWA 12. In light, however, of the continuing action that existence of a “program” contemplates, and in light of BLM’s contention that the program cannot be compelled under §706(1), this claim cannot be considered moot.    The statutory directive that BLM manage “in accordance with” land use plans, and the regulatory requirement that authorizations and actions “conform to” those plans, prevent BLM from taking actions inconsistent with the provisions of a land use plan. Unless and until the plan is amended, such actions can be set aside as contrary to law pursuant to 5 U. S. C. §706(2). The claim presently under discussion, however, would have us go further, and conclude that a statement in a plan that BLM “will” take this, that, or the other action, is a binding commitment that can be compelled under §706(1). In our view it is not—at least absent clear indication of binding commitment in the terms of the plan.    FLPMA describes land use plans as tools by which “present and future use is projected .” 43 U. S. C. §1701(a)(2) (emphasis added). The implementing regulations make clear that land use plans are a preliminary step in the overall process of managing public lands— “designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.” 43 CFR §1601.0–2 (2003). The statute and regulations confirm that a land use plan is not ordinarily the medium for affirmative decisions that implement the agency’s “project[ions].”[ Footnote 4 ] Title 43 U. S. C. §1712(e) provides that “[t]he Secretary may issue management decisions to implement land use plans”—the decisions, that is, are distinct from the plan itself. Picking up the same theme, the regulation defining a land use plan declares that a plan “is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.” 43 CFR §1601.0–5(k) (2003). The BLM’s Land Use Planning Handbook specifies that land use plans are normally not used to make site-specific implementation decisions. See Handbook II–2.    Plans also receive a different agency review process from implementation decisions. Appeal to the Department’s Board of Land Appeals is available for “a specific action being proposed to implement some portion of a resource management plan or amendment.” 43 CFR §1610.5–3(b). However, the Board, which reviews “decisions rendered by Departmental officials relating to … [t]he use and disposition of public lands and their resources,” §4.1(b)(3)(i), does not review the approval of a plan, since it regards a plan as a policy determination, not an implementation decision. See, e.g., Wilderness Society , 109 I. B. L. A. 175, 178 (1989); Wilderness Society , 90 I. B. L. A. 221, 224 (1986); see also Handbook II–2, IV–3. Plans are protested to the BLM director, not appealed.    The San Rafael plan provides an apt illustration of the immense scope of projected activity that a land use plan can embrace. Over 100 pages in length, it presents a comprehensive management framework for 1.5 million acres of BLM-administered land. Twenty categories of resource management are separately discussed, including mineral extraction, wilderness protection, livestock grazing, preservation of cultural resources, and recreation. The plan lays out an ambitious agenda for the preparation of additional, more detailed plans and specific next steps for implementation. Its introduction notes that “[a]n [ORV] implementation plan is scheduled to be prepared within 1 year following approval of the [San Rafael plan].” San Rafael Plan 9. Similarly “scheduled for preparation” are activity plans for certain environmentally sensitive areas, “along with allotment management plans, habitat management plans, a fire management plan, recreation management plans …, cultural resource management plans for selected sites, watershed activity plans, and the wild and scenic river management plan.” Ibid . The projected schedule set forth in the plan shows “[a]nticipated [i]mplementation” of some future plans within one year, others within three years, and still others, such as certain recreation and cultural resource management plans, at a pace of “one study per fiscal year.” Id. , at 95–102.    Quite unlike a specific statutory command requiring an agency to promulgate regulations by a certain date, a land use plan is generally a statement of priorities; it guides and constrains actions, but does not (at least in the usual case) prescribe them. It would be unreasonable to think that either Congress or the agency intended otherwise, since land use plans nationwide would commit the agency to actions far in the future, for which funds have not yet been appropriated. Some plans make explicit that implementation of their programmatic content is subject to budgetary constraints. See Brief for Petitioners 42–43, and n. 18 (quoting from such plans). While the Henry Mountains plan does not contain such a specification, we think it must reasonably be implied. A statement by BLM about what it plans to do, at some point, provided it has the funds and there are not more pressing priorities, cannot be plucked out of context and made a basis for suit under §706(1).    Of course, an action called for in a plan may be compelled when the plan merely reiterates duties the agency is already obligated to perform, or perhaps when language in the plan itself creates a commitment binding on the agency. But allowing general enforcement of plan terms would lead to pervasive interference with BLM’s own ordering of priorities. For example, a judicial decree compelling immediate preparation of all of the detailed plans called for in the San Rafael plan would divert BLM’s energies from other projects throughout the country that are in fact more pressing. And while such a decree might please the environmental plaintiffs in the present case, it would ultimately operate to the detriment of sound environmental management. Its predictable consequence would be much vaguer plans from BLM in the future—making coordination with other agencies more difficult, and depriving the public of important information concerning the agency’s long-range intentions.    We therefore hold that the Henry Mountains plan’s statements to the effect that BLM will conduct “use supervision and monitoring” in designated areas—like other “will do” projections of agency action set forth in land use plans—are not a legally binding commitment enforceable under §706(1). That being so, we find it unnecessary to consider whether the action envisioned by the statements is sufficiently discrete to be amenable to compulsion under the APA.[ Footnote 5 ] IV    Finally, we turn to SUWA’s contention that BLM failed to fulfill certain obligations under NEPA. Before addressing whether a NEPA-required duty is actionable under the APA, we must decide whether NEPA creates an obligation in the first place. NEPA requires a federal agency to prepare an environmental impact statement (EIS) as part of any “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U. S. C. §4332(2)(C). Often an initial EIS is sufficient, but in certain circumstances an EIS must be supplemented. See Marsh v. Oregon Natural Resources Council, 490 U. S. 360 , 370–374 (1989). A regulation of the Council on Environmental Quality requires supplementation where “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 CFR §1502.9(c)(1)(ii) (2003). In Marsh , we interpreted §4332 in light of this regulation to require an agency to take a “hard look” at the new information to assess whether supplementation might be necessary. 490 U. S., at 385; see id. , at 378–385.    SUWA argues that evidence of increased ORV use is “significant new circumstances or information” that requires a “hard look.” We disagree. As we noted in Marsh , supplementation is necessary only if “there remains ‘major Federal actio[n]’ to occur,” as that term is used in §4332(2)(C). 490 U. S., at 374. In Marsh , that condition was met: the dam construction project that gave rise to environmental review was not yet completed. Here, by contrast, although the “ [a]pproval of a [land use plan]” is a “major Federal action” requiring an EIS, 43 CFR §1601.0–6 (2003) (emphasis added), that action is completed when the plan is approved. The land use plan is the “proposed action” contemplated by the regulation. There is no ongoing “major Federal action” that could require supplementation (though BLM is required to perform additional NEPA analyses if a plan is amended or revised, see §§1610.5–5, 5–6). * * *    The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Of course §706(1) also authorizes courts to “compel agency action … unreasonably delayed”—but a delay cannot be unreasonable with respect to action that is not required. Footnote 2 Title 5 U. S. C. §706(2) provides, in relevant part: “The reviewing court shall— …    “(2) hold unlawful and set aside agency action … found to be—    “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law … .” Footnote 3 See U. S. Dept. of Interior, BLM, San Rafael Route Designation Plan (2003), http://www.ut.blm.gov/sanrafaelohv/wtheplan.htm; 3 App. to Brief for Appellants in No. 01–4009 (CA10), p. 771 (declaration of manager for relevant BLM field office, noting the establishment of monitoring files for the Henry Mountains area); Brief for SUWA 12 (acknowledging completion of these actions).    It is arguable that the complaint sought not merely creation but continuing maintenance of use supervision files, in which case (for the reasons set forth with respect to the ORV monitoring program later in text) that claim would not be moot. If so, what we say below with regard to the merits of the ORV monitoring claim would apply equally to the use supervision file claim. Footnote 4 The exceptions “are normally limited to those required by regulation, such as designating [ORV] areas, roads, and trails (see 43 CFR 8342).” U. S. Dept. of Interior, BLM, Land Use Planning Handbook II–2 (2000) (hereinafter Handbook). See, e.g., U. S. Dept. of Interior, BLM, San Rafael Final Resource Management Plan 63 (1991) (hereinafter San Rafael Plan) (available at http://www.ut.blm.gov/planning/ OTHERS/SRARMP-ROD%20MAY%201991.pdf). Footnote 5 We express no view as to whether a court could, under §706(1), enforce a duty to monitor ORV use imposed by a BLM regulation, see 43 CFR §8342.3 (2003). That question is not before us.

In Norton v. Southern Utah Wilderness Alliance (2004), the Supreme Court ruled that the Bureau of Land Management (BLM) was not required to take action to address off-road vehicle (ORV) use on public lands in Utah. The Court found that while the BLM had a duty to manage and protect these lands, the specific actions requested by the Southern Utah Wilderness Alliance were not required by the applicable statutes and regulations. The Court also held that the BLM's approval of a land-use plan was a "major federal action" under the National Environmental Policy Act (NEPA), but that supplementation of the plan was not necessary unless there were significant new circumstances or ongoing major federal actions.

Government Agencies

Barnhart v. Walton

https://supreme.justia.com/cases/federal/us/535/212/

OCTOBER TERM, 2001 Syllabus BARNHART, COMMISSIONER OF SOCIAL SECURITY v. WALTON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1937. Argued January 16, 2002-Decided March 27, 2002 The Social Security Act authorizes payment of Title II disability insurance benefits and Title XVI Supplemental Security Income to individuals who have an "inability to engage in any substantial gainful activity by reason of any medically determinable ... impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U. S. C. §423(d)(1)(A) (emphasis added); accord, § 1382c(a)(3)(A). The Social Security Administration (Agency) denied benefits to respondent Walton, finding that his "inability" to engage in substantial gainful activity lasted only 11 months. The District Court affirmed, but the Fourth Circuit reversed, holding that the 12-month duration requirement modifies "impairment" not "inability," that the statute leaves no doubt that no similar duration requirement relates to an "inability," and that therefore Walton was entitled to benefits despite Agency regulations restricting them to those unable to work for 12 months. The court decided further that Walton qualified for benefits because, prior to his return to work, his "inability" would have been "expected" to last 12 months. It conceded that the Agency had made Walton's actual return to work within 12 months of his onset date and before the Agency's decision date determinative on this point, 20 CFR §§ 404. 1520(b), 1592(d)(2), but found that the regulations conflicted with the statute. It noted that Walton's work simply counted as part of a 9-month trial work period during which persons "entitled" to Title II benefits may work without loss of benefits, 42 U. S. C. § 422(c). Held: The Agency's interpretations of the statute fall within its lawful interpretative authority. pp. 217-225. (a) The Agency's reading of the term "inability" is reasonable. The statute requires both an "inability" to engage in any substantial gainful activity and an "impairment" providing "reason" for the "inability," adding that the "impairment" must last or be expected to last not less than 12 months. The Agency has determined in both its formal regulations and its interpretation of those regulations that the "inability" must last the same amount of time. Courts grant considerable leeway to an agency's interpretation of its own regulations, and the Agency has properly interpreted its regulation here. Thus, this Court must decide 213 (1) whether the statute unambiguously forbids that interpretation, and if not, (2) whether the interpretation exceeds permissible bounds. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. First, the Act does not unambiguously forbid the regulation. That the statute's 12-month phrase modifies only "impairment" shows only that the provision says nothing explicitly about the "inability's" duration. Such silence normally creates, but does not resolve, ambiguity. Second, the Agency's construction is permissible. It supplies a duration requirement, which the statute demands, in a way that consistently reconciles the statutory "impairment" and "inability" language. The Agency's regulations also reflect the Agency's own longstanding interpretation, which should be accorded particular deference, North Haven Bd. of Ed. v. Bell, 456 U. S. 512 , 522, n. 12. Finally, Congress has frequently amended or reenacted the relevant provisions without change. Walton's claim that Title II's 5-month waiting period for entitlement protects against a claimant with a chronic, but only briefly disabling, disease shows, at most, that the Agency could have chosen other reasonable time periods. Moreover, Title XVI has no such period, yet Walton offers no explanation why its identical definitional language should be interpreted differently in a closely related context. Walton's argument that the Agency's interpretation should be disregarded because its formal regulations were only recently enacted is also rejected. E. g., Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 741. And the Agency's longstanding interpretation is not automatically deprived of the judicial deference otherwise its due because it was previously reached through means less formal than notice-and-comment rulemaking. Chevron, supra, at 843. Pp. 217-222. (b) Also consistent with the statute is the Agency's regulation providing that "[y]ou are not entitled to a trial work period" if "you perform work ... within 12 months of the onset of the impairment ... and before the date of any ... decision finding ... you ... disabled," 20 CFR § 404.1592(d)(2) (emphasis added). The statute is ambiguous, and the regulation treats a pre-Agency-decision actual return to work as if it were determinative of the "can be expected to last" question. The statute's complexity, the vast number of claims it engenders, and the consequent need for agency expertise and administrative experience lead the Court to read the statute as delegating to the Agency considerable authority to fill in matters of detail related to its administration. See Schweiker v. Gray Panthers, 453 U. S. 34 , 43-44. The interpretation at issue is such a matter. pp. 222-225. 235 F.3d 184 , reversed. 214 BREYER, J., delivered the opinion of the Court, Parts I and III of which were unanimous, and Part II of which was joined by REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 226. Jeffrey A. Lamken argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, John C. Hoyle, and Mark S. Davies. Kathryn L. Pryor argued the cause for respondent. With her on the brief was James W Speer. * JUSTICE BREYER delivered the opinion of the Court. The Social Security Act authorizes payment of disability insurance benefits and Supplemental Security Income to individuals with disabilities. See 49 Stat. 622, as amended, 42 U. S. C. § 401 et seq. (1994 ed. and Supp. V) (Title II disability insurance benefits); § 1381 et seq. (Title XVI supplemental security income). For both types of benefits the Act defines the key term "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." § 423(d)(1)(A) (1994 ed.) (Title II) (emphasis added); accord, § 1382c(a)(3)(A) (1994 ed., Supp. V) (Title XVI). This case presents two questions about the Social Security Administration's interpretation of this definition. First, the Social Security Administration (which we shall call the Agency) reads the term "inability" as including a "12 month" requirement. In its view, the "inability" (to engage in any substantial gainful activity) must last, or must be ex- * Rochelle Bobroff, Michael Schuster, and Robert E. Rains filed a brief for AARP et al. as amici curiae urging affirmance. 215 pected to last, for at least 12 months. Second, the Agency reads the term "expected to last" as applicable only when the "inability" has not yet lasted 12 months. In the case of a later Agency determination-where the "inability" did not last 12 months-the Agency will automatically assume that the claimant failed to meet the duration requirement. It will not look back to decide hypothetically whether, despite the claimant's actual return to work before 12 months expired, the "inability" nonetheless might have been expected to last that long. The Court of Appeals for the Fourth Circuit held both these interpretations of the statute unlawful. We hold, to the contrary, that both fall within the Agency's lawful interpretive authority. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Consequently, we reverse. I In 1996 Cleveland Walton, the respondent, applied for both Title II disability insurance benefits and Title XVI Supplemental Security Income. The Agency found that (1) by October 31, 1994, Walton had developed a serious mental illness involving both schizophrenia and associated depression; (2) the illness caused him then to lose his job as a full-time teacher; (3) by mid-1995 he began to work again part time as a cashier; and (4) by December 1995 he was working as a cashier full time. The Agency concluded that Walton's mental illness had prevented him from engaging in any significant work, i. e., from "engag[ing] in any substantial gainful activity," for 11 months-from October 31, 1994 (when he lost his teaching job) until the end of September 1995 (when he earned income sufficient to rise to the level of "substantial gainful activity"). See 20 CFR §§ 404.1574, 416.974 (2001). And because the statute demanded an "inability to engage in any substantial gainful activity" lasting 12, not 11, months, Walton was not entitled to benefits. 216 Walton sought court review. The District Court affirmed the Agency's decision, but the Court of Appeals for the Fourth Circuit reversed. Walton v. Apfel, 235 F.3d 184 , 186-187 (2000). The court said that the statute's 12-month duration requirement modifies the word "impairment," not the word "inability." Id., at 189. It added that the statute's "language ... leaves no doubt" that there is no similar "duration requirement" related to an "inability" (to engage in substantial gainful activity). Ibid. It concluded that, because the statute's language "speaks clearly" and is "unambiguous," Walton was entitled to receive benefits despite agency regulations restricting benefits to those unable to work for a 12-month period. Ibid. The court went on to decide that, in any event, Walton qualified because, prior to Walton's return to work, one would have "expected" his "inability" to last 12 months. Id., at 189-190. It conceded that the Agency had made Walton's actual return to work determinative on this point. See 20 CFR §§ 404.1520(b), 1592(d)(2) (2001). But it found unlawful the Agency regulations that gave the Agency the benefit of hindsight-on the ground that they conflicted with the statute's clear command. 235 F. 3d, at 190. For either reason, the Fourth Circuit concluded, Walton became "entitled" to Title II benefits no later than April 1995, five months after the onset of his illness. See 42 U. S. C. §§ 423(a)(1)(D)(i), 423(a)(1)(D)(ii) (providing for a 5-month "waiting period" before a claimant is "entitled" to benefits), 423(c)(2)(A) (1994 ed.). It added that Walton's later work as a cashier was legally beside the point. That work simply counted as part of a 9-month "trial work period," which the statute grants to those "entitled" to Title II benefits, and which it permits them to perform without loss of benefits. § 422(c). The Government sought certiorari. It pointed out that the Fourth Circuit's first holding conflicts with those of other Circuits, compare 235 F. 3d, at 189-190, with Titus v. Sulli- 217 van, 4 F.3d 590 , 594-595 (CA8 1993), and Alexander v. Richardson, 451 F.2d 1185 (CAlO 1971). It added that the Fourth Circuit's views were contrary to well-settled law and would create additional Social Security costs of $80 billion over 10 years. We granted the writ. We now reverse. II The statutory definition of "disability" has two parts. First, it requires a certain kind of "inability," namely, an "inability to engage in any substantial gainful activity." Second, it requires an "impairment," namely, a "physical or mental impairment," which provides "reason" for the "inability." The statute adds that the "impairment" must be one that "has lasted or can be expected to last ... not less than 12 months." But what about the "inability"? Must it also last (or be expected to last) for the same amount of time? The Agency has answered this question in the affirmative. Acting pursuant to statutory rulemaking authority, 42 U. S. C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), it has promulgated formal regulations that state that a claimant is not disabled "regardless of [his] medical condition," if he is doing "substantial gainful activity." 20 CFR § 404.1520(b) (2001). And the Agency has interpreted this regulation to mean that the claimant is not disabled if "within 12 months after the onset of an impairment ... the impairment no longer prevents substantial gainful activity." 65 Fed. Reg. 42774 (2000). Courts grant an agency's interpretation of its own regulations considerable legal leeway. Auer v. Robbins, 519 U. S. 452, 461 (1997); Udall v. Tallman, 380 U. S. 1 , 16-17 (1965). And no one here denies that the Agency has properly interpreted its own regulation. Consequently, the legal question before us is whether the Agency's interpretation of the statute is lawful. This Court has previously said that, if the statute speaks clearly "to the precise question at issue," we "must give effect to the unambiguously expressed intent of Congress." Chevron, 467 218 u. S., at 842-843. If, however, the statute "is silent or ambiguous with respect to the specific issue," we must sustain the Agency's interpretation if it is "based on a permissible construction" of the Act. Id., at 843. Hence we must decide (1) whether the statute unambiguously forbids the Agency's interpretation, and, if not, (2) whether the interpretation, for other reasons, exceeds the bounds of the permissible. Ibid.; see also United States v. Mead Corp., 533 U. S. 218 , 227 (2001). First, the statute does not unambiguously forbid the regulation. The Fourth Circuit believed the contrary primarily for a linguistic reason. It pointed out that, linguistically speaking, the statute's "12-month" phrase modifies only the word "impairment," not the word "inability." And to that extent we agree. After all, the statute, in parallel phrasing, uses the words "which can be expected to result in death." And that structurally parallel phrase makes sense in reference to an "impairment," but makes no sense in reference to the "inability." Nonetheless, this linguistic point is insufficient. It shows that the particular statutory provision says nothing explicitly about the "inability's" duration. But such silence, after all, normally creates ambiguity. It does not resolve it. Moreover, a nearby provision of the statute says that an "individual shall be determined to be under a disability only if his ... impairment ... [is] of such severity that he is not only unable to do his previous work but cannot ... engage in any other kind of substantial gainful work which exists in the national economy." 42 U. S. C. § 423(d)(2)(A) (Title II); accord, § 1382c(a)(3)(B) (Title XVI). In other words, the statute, in the two provisions, specifies that the "impairment" must last 12 months and also be severe enough to prevent the claimant from engaging in virtually any "substantial gainful work." The statute, we con- 219 cede, nowhere explicitly says that the "impairment" must be that severe (i. e., severe enough to prevent "substantial gainful work") for 12 months. But that is a fair inference from the language. See Brief for AARP et al. as Amici Curiae 13 (conceding that an impairment must remain of "disabling severity" for 12 months). At the very least the statute is ambiguous in that respect. And, if so, then it is an equally fair inference that the "inability" must last 12 months. That is because the latter statement (i. e., that the claimant must be unable to "engage in any substantial gainful activity" for a year) is the virtual equivalent of the former statement (i. e., that the "impairment" must remain severe enough to prevent the claimant from engaging in "substantial gainful work" for a year). It simply rephrases the same point in a slightly different way. Second, the Agency's construction is "permissible." The interpretation makes considerable sense in terms of the statute's basic objectives. The statute demands some duration requirement. No one claims that the statute would permit an individual with a chronic illness-say, high blood pressure-to qualify for benefits if that illness, while itself lasting for a year, were to permit a claimant to return to work after only a week, or perhaps even a day, away from the job. The Agency's interpretation supplies a duration requirement, which the statute demands, while doing so in a way that consistently reconciles the statutory "impairment" and "inability" language. In addition, the Agency's regulations reflect the Agency's own longstanding interpretation. See Social Security Ruling 82-52, p. 106 (cum. ed. 1982) ("In considering 'duration,' it is the inability to engage in [substantial gainful activity] that must last the required 12-month period"); Disability Insurance State Manual § 316 (Sept. 9, 1965), Government Lodging, Tab C, § 316 ("Duration of impairment refers to that period of time during which an individual is continuously unable to engage in substantial gainful activity because 220 of" an impairment); OASI Disability Insurance Letter No. 39 (Jan. 22, 1957), id., Tab A, p. 1 (duration requirement refers to the "expected duration of the medical impairment" at a "level of severity sufficient to preclude" substantial gainful activity"). And this Court will normally accord particular deference to an agency interpretation of "longstanding" duration. North Haven Bd. of Ed. v. Bell, 456 U. S. 512 , 522, Finally, Congress has frequently amended or reenacted the relevant provisions without change. E. g., Social Security Amendments of 1965, § 303(a)(1), 79 Stat. 366; see also S. Rep. No. 404, 89th Cong., 1st Sess., pt. I, pp. 98-99 (1965) ("[T]he committee's bill ... provide[s] for the payment of disability benefits for an insured worker who has been or can be expected to be totally disabled throughout a continuous period of 12 calendar months" (emphasis added)); id., at 98 (rejecting effort to provide benefits to those with "shortterm, temporary disabilit[ies]," defined as inability to work for six months); H. R. Rep. No. 92-231, p. 56 (1971) ("No benefit is payable, however, unless the disability is expected to last (or has lasted) at least 12 consecutive months" (emphasis added)); S. Rep. No. 744, 90th Cong., 1st Sess., 49 (1967) ("The committee also believes ... that an individual who does substantial gainful work despite an impairment or impairments that otherwise might be considered disabling is not disabled for purposes of establishing a period of disability"). These circumstances provide further evidence-if more is needed-that Congress intended the Agency's interpretation, or at least understood the interpretation as statutorily permissible. Commodity Futures Trading Comm'n Walton points in reply to Title II language stating that a claimant who is "under a disability ... shall be entitled to a ... benefit ... beginning with the first month after" a "waiting period" of "five consecutive calendar months ... throughout which" he "has been under a disa- 221 bility." 42 U. S. C. §§ 423(a)(1)(D)(i), 423(c)(2)(A). He adds that this 5-month "waiting period" assures a lengthy period of time during which the applicant (who must be "under a disability" throughout) has been unable to work. And it thereby provides ironclad protection against the claimant who suffers a chronic, but only briefly disabling, disease, such as the claimant who suffers high blood pressure in our earlier example. See supra, at 219. This claim does not help Walton, however, for it shows, at most, that the Agency might have chosen other reasonable time periods-a matter not disputed. Regardless, Walton's "waiting period" argument could work only in respect to Title II, not Title XVI. Title XVI has no waiting period, though it uses identical definitional language. And Walton does not explain why we should interpret the same statutory words differently in closely related contexts. See Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332 , 342 (1994) (" '[I]dentical words used in different parts of the same act are intended to have the same meaning'" (quoting Sorenson v. Secretary of Treasury, 475 U. S. 851 , 860 (1986) (some internal quotation marks omitted)). Walton also asks us to disregard the Agency's interpretation of its formal regulations on the ground that the Agency only recently enacted those regulations, perhaps in response to this litigation. We have previously rejected similar arguments. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 741 (1996); United States v. Morton, 467 U. S. 822 , 835836, n. 21 (1984). Regardless, the Agency's interpretation is one of long standing. See supra, at 220. And the fact that the Agency previously reached its interpretation through means less formal than "notice and comment" rulemaking, see 5 U. S. C. § 553, does not automatically deprive that interpretation of the judicial deference otherwise its due. Cf. Chevron, 467 U. S., at 843 (stating, without delineation of means, that the "'power of an administrative agency to administer a congres- 222 sionally created ... program necessarily requires the formulation of policy'" (quoting Morton v. Ruiz, 415 U. S. 199 , 231 (1974))). If this Court's opinion in Christensen v. Harris County, 529 U. S. 576 (2000), suggested an absolute rule to the contrary, our later opinion in United States v. Mead Corp., 533 U. S. 218 (2001), denied the suggestion. Id., at 230-231 ("[T]he want of" notice and comment "does not decide the case"). Indeed, Mead pointed to instances in which the Court has applied Chevron deference to agency interpretations that did not emerge out of notice-and-comment rulemaking. 533 U. S., at 230-231 (citing NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 , 256257 (1995)). It indicated that whether a court should give such deference depends in significant part upon the interpretive method used and the nature of the question at issue. 533 U. S., at 229-231. And it discussed at length why Chevron did not require deference in the circumstances there present-a discussion that would have been superfluous had the presence or absence of notice-and-comment rulemaking been dispositive. 533 U. S., at 231-234. In this case, the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time all indicate that Chevron provides the appropriate legal lens through which to view the legality of the Agency interpretation here at issue. See United States v. Mead Corp., supra; cf. also 1 K. Davis & R. Pierce, Administrative Law Treatise §§ 1.7,3.3 (3d ed. 1994). For these reasons, we find the Agency's interpretation lawful. III Walton's second claim is more complex. For purposes of making that claim, Walton assumes what we have just decided, namely, that the statute's "12 month" duration require- 223 ments apply to both the "impairment" and the "inability" to work requirements. Walton also concedes that he returned to work after 11 months. But Walton claims that his work from month 11 to month 12 does not count against him because it is part of a "trial work" period that the statute grants to those "entitled" to Title II benefits. See 42 U. S. C. § 422(c). And Walton adds, he was "entitle[d]" to benefits because-even though he returned to work after 11 months-his "impairment" and his "inability" to work were nonetheless "expected to last" for at least "12 months" before he returned to work. To illustrate Walton's argument, we simplify the actual circumstances. We imagine: (1) On January 1, Year One, Walton developed (a) a severe impairment, which (b) made him unable to work; (2) Eleven (not twelve) months later, on December 1, Year One, Walton returned to work; (3) On July 1, Year Two, the Agency adjudicated, and denied, Walton's claim for benefits. Walton argues that, even though he returned to work after 11 months, had the Agency looked at the matter, not ex post, but as if it were looking prior to his return to work, the Agency would have had to conclude that both his "impairment" and his "inability" to work "can be expected to last for a continuous period of not less than 12 months." § 423(d)(1)(A). He consequently satisfied the 12month duration requirement and became "entitled" to benefits before he returned to work; he was in turn entitled to a "trial work" period; and his subsequent work as a cashier, being "trial work," should not count against him. The Agency's regulations plainly reject this view of the statute. They say, "You are not entitled to a trial work period" if "you perform work ... within 12 months of the onset of the impairment(s) ... and before the date of any notice of determination or decision finding ... you ... disabled." 20 CFR § 404. 1592(d)(2) (2001). This regulation means that the Agency, deciding before the end of Year One, might have found that Walton's impairment (or inability to work) "can 224 be expected to last" for 12 months. But the Agency, deciding after Year One in which Walton in fact returned to work, would not ask whether his impairment (or inability to work) could have been expected to last 12 months. The legal question is whether this Agency regulation is consistent with the statute. The Court of Appeals, accepting Walton's view, concluded that it is not. It said that the Agency's rules-permitting the use of hindsight when reviewing claims-are inconsistent with the statute's plain language, 235 F. 3d, at 191. And, here, other courts have agreed. See Salamalekis v. Commissioner of Soc. Sec., 221 F.3d 828 (CA6 2000); Newton v. Chater, 92 F.3d 688 (CA8 1996); Walker v. Secretary of Health and Human Servs., 943 F. 2d 1257 (CAlO 1991); McDonald v. Bowen, 818 F.2d 559 (CA71986). Nonetheless, we believe that Agency regulation is lawful. See Chevron, supra, at 843. The statute is ambiguous. It says nothing about how the Agency, when it adjudicates a matter after Year One, is to treat an earlier return to work. Its language "can be expected to last" 12 months, 42 U. S. C. § 423(d)(1)(A), simply does not say as of what time the law measures the "expectation." Indeed, from a linguistic perspective, the phrase "can be expected" foresees a decisionmaker who is looking into the future, not a decisionmaker who is in the future, looking back into the past in order to see what then "was," "could be," or "could have been" expected. And read in context, the purpose of the phrase "can be expected to last" might be one of permitting the Agency to award benefits before 12 months have expired, not one of denying the Agency the benefit of hindsight. See 65 Fed. Reg., at 42780; cf. also S. Rep. No. 404, at 99. At the same time, the Agency's regulation seems a reasonable, hence permissible, interpretation of the statute. In effect it treats a pre-Agency-decision actual return to work, e. g., Walton's return in December Year One, as if it were determinative of the expectation question. With Year Two's hindsight, Walton's "inability" to work "can" not "be 225 expected to last 12 months." And use of that hindsight avoids the need for the Year Two decisionmaker in effect to answer a highly unwieldy question in what grammarians might call the pluperfect future tense. Of course, administrators and judges are capable of answering hypothetical questions of this kind. But here the question concerns what must be a contrary-to-fact speculation about the future. It is a speculation that, however often raised, would rarely prove easy to resolve. And the statute's purpose does not demand its resolution. Indeed, one might ask why, other things being equal, a claimant who returns to work too early ordinarily to qualify for benefits nonetheless should qualify if, but only if, that return was a kind of medical surprise. Of course, as Walton says, such a rule would help encourage (or at least not discourage) a claimant's early return to work. See generally S. Rep. No. 1856, 86th Cong., 2d Sess., 15-16 (1960). But the statute does not demand that the Agency make of this desirable end an overriding interpretive principle. And the Agency has recognized and addressed the problem of work disincentives in other ways. See, e. g., 20 CFR §§ 404.1574(c), 404.1575(d) (2001). The statute's complexity, the vast number of claims that it engenders, and the consequent need for agency expertise and administrative experience lead us to read the statute as delegating to the Agency considerable authority to fill in, through interpretation, matters of detail related to its administration. See Schweiker v. Gray Panthers, 453 U. S. 34 , 43-44 (1981). The interpretation at issue here is such a matter. The statute's language is ambiguous. And the Agency's interpretation is reasonable. We conclude that the Agency's regulation is lawful. *** The judgment of the Fourth Circuit is Reversed. 226 Opinion of SCALIA, J. JUSTICE SCALIA, concurring in part and concurring in the judgment. I join all but Part II of the Court's opinion. I agree that deference is owed to regulations of the Social Security Administration (SSA) interpreting the definition of "disability," 42 U. S. C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (1994 ed. and Supp. V). See 65 Fed. Reg. 42774 (2000). As the Court acknowledges, the recency of these regulations is irrelevant, see ante, at 220-221 (citing Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 741 (1996); United States v. Morton, 467 U. S. 822 , 835-836, n. 21 (1984)). I would therefore not go on, as the Court does, ante, at 219222, to address the SSA's prior interpretation of the definition of "disability" in a 1982 Social Security Ruling, a 1965 Disability Insurance State Manual, and a 1957 OASI Disability Insurance Letter. I do not believe, to begin with, that "particular deference" is owed "to an agency interpretation of 'longstanding' duration," ante, at 220. That notion is an anachronism-a relic of the pre-Chevron days, when there was thought to be only one "correct" interpretation of a statutory text. A "longstanding" agency interpretation, particularly one that dated back to the very origins of the statute, was more likely to reflect the single correct meaning. See, e. g., Watt v. Alaska, 451 U. S. 259 , 272-273 (1981). But once it is accepted, as it was in Chevron, that there is a range of permissible interpretations, and that the agency is free to move from one to another, so long as the most recent interpretation is reasonable its antiquity should make no difference. Cf. Rust v. Sullivan, 500 U. S. 173 , 186-187 (1991); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 863-864 (1984). If, however, the Court does wish to credit the SSA's earlier interpretations-both for the purpose of giving the agency's position "particular deference" and for the purpose of relying upon congressional reenactment with presumed knowledge 227 of the agency position, see ante, at 219-220-then I think the Court should state why those interpretations were authoritative enough (or whatever-else-enough Mead requires) to qualify for deference. See United States v. Mead Corp., 533 U. S. 218 (2001). I of course agree that more than noticeand-comment rulemaking qualifies, see ante, at 221-222, but that concession alone does not validate the Social Security Ruling, the Disability Insurance State Manual, and the OASI Disability Insurance Letter. (Only the latter two, I might point out, antedate the congressional reenactments upon which the Court relies.) The SSA's recently enacted regulations emerged from notice-and-comment rulemaking and merit deference. No more need be said.

The Social Security Administration (SSA) denied benefits to respondent Walton, who had been unable to work for 11 months due to a medical impairment. The Fourth Circuit reversed, holding that the SSA's interpretation of the Social Security Act, which requires a duration of 12 months of inability to work for benefits, conflicted with the statute. The Supreme Court reversed, finding that the Agency's interpretation falls within its lawful interpretative authority. The Court granted leeway to the Agency's interpretation of its regulations and found that the statute does not unambiguously forbid the Agency's interpretation. Justice Scalia concurred in part and concurred in the judgment, agreeing that deference is owed to the SSA's regulations but disagreeing with the Court's reliance on the SSA's prior interpretations. He argued that the "longstanding" agency interpretation is irrelevant once it is accepted that there is a range of permissible interpretations and that the agency is free to move between them.

Government Agencies

U.S. v. Mead Corp.

https://supreme.justia.com/cases/federal/us/533/218/

OCTOBER TERM, 2000 Syllabus UNITED STATES v. MEAD CORP. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 99-1434. Argued November 8, 2000-Decided June 18,2001 The Harmonized Tariff Schedule of the United States authorizes the United States Customs Service to classify and fix the rate of duty on imports, under rules and regulations issued by the Secretary of the Treasury. As relevant here, the Secretary provides for tariff rulings before the entry of goods by regulations authorizing "ruling letters" setting tariff classifications for particular imports. Any of the 46 portof-entry Customs offices and the Customs Headquarters Office may issue such letters. Respondent imports "day planners," three-ring binders with pages for daily schedules, phone numbers and addresses, a calendar, and suchlike. After classifying the planners as duty free for several years, Customs Headquarters issued a ruling letter classifying them as bound diaries subject to tariff. Mead filed suit in the Court of International Trade, which granted the Government summary judgment. In reversing, the Federal Circuit found that ruling letters should not be treated like Customs regulations, which receive the highest level of deference under Chevron US. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , because they are not preceded by notice and comment as under the Administrative Procedure Act (APA), do not carry the force of law, and are not intended to clarify importers's rights and obligations beyond the specific case. The court gave no deference at all to the ruling letter at issue. Held: Administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of such authority. Such delegation may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of comparable congressional intent. A Customs ruling letter has no claim to Chevron deference, but, under Skidmore v. Swift & Co., 323 U. S. 134, it is eligible to claim respect according to its persuasiveness. Pp. 227-239. (a) When Congress has explicitly left a gap for an agency to fill, there has been an express delegation of authority to the agency to elucidate a 219 specific statutory prOVISIon by regulation, and any ensuing regulation is binding unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Even in the absence of an express delegation of authority on a particular question, agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they may influence courts facing questions the agencies have already answered. The weight accorded to an administrative judgment "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, supra, at 140. In Chevron, this Court identified a category of interpretive choices distinguished by an additional reason for judicial deference, recognizing that Congress engages not only in express, but also in implicit, delegation of specific interpretive authority. It can be apparent from the agency's generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when addressing ambiguity in the statute or fills in a space in the enacted law, even one about which Congress did not have intent as to a particular result. When circumstances implying such an expectation exist, a reviewing court must accept the agency's position if Congress has not previously spoken to the point at issue and the agency's interpretation is reasonable. A very good indicator of delegation meriting Chevron treatment is express congressional authorizations to engage in the rulemaking or adjudication process that produces the regulations or rulings for which deference is claimed. Thus, the overwhelming number of cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication. Although the fact that the tariff classification at issue was not a product of such formal process does not alone bar Chevron's application, cf., e. g., NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 , 256-257, 263, there are ample reasons to deny Chevron deference here. Pp. 227-231. (b) There is no indication on the statute's face that Congress meant to delegate authority to Customs to issue classification rulings with the force of law. Also, it is difficult to see in agency practice any indication that Customs set out with a lawmaking pretense in mind, for it does not generally engage in notice-and-comment practice and a letter's binding character as a ruling stops short of third parties. Indeed, any suggestion that rulings intended to have the force of law are being churned out at a rate of 10,000 a year at 46 offices is self-refuting. Nor 220 Syllabus do statutory amendments effective after this case arose reveal a new congressional objective of treating classification decisions generally as rulemaking with force of law or suggest any intent to create a Chevron patchwork of classification rules, some with force of law, some without. In sum, classification rulings are best treated like "interpretations contained in policy statements, agency manuals, and enforcement guidelines," Christensen v. Harris County, 529 U. S. 576 , 587, and thus beyond the Chevron pale. Pp.231-234. (c) This does not mean, however, that the letters are due no deference. Chevron did not eliminate Skidmore's holding that an agency's interpretation may merit some deference whatever its form, given the "specialized experience and broader investigations and information" available to the agency, 323 U. S., at 139, and given the value of uniformity in its administrative and judicial understandings of what a national law requires, id., at 140. There is room at least to raise a Skidmore claim here, where the regulatory scheme is highly detailed, and Customs can bring the benefit of specialized experience to bear on this case's questions. The classification ruling may at least seek a respect proportional to its "power to persuade," ibid., and may claim the merit of its writer's thoroughness, logic and expertness, its fit with prior interpretations, and any other sources of weight. Underlying this Court's position is a choice about the best way to deal with the great variety of ways in which the laws invest the Government's administrative arms with discretion, and with procedures for exercising it, in giving meaning to Acts of Congress. The Court said nothing in Chevron to eliminate Skidmore's recognition of various justifications for deference depending on statutory circumstances and agency action. Judicial responses to such action must continue to differentiate between the two cases. Any Skidmore assessment here ought to be made in the first instance by the lower courts. Pp. 234-239. 185 F.3d 1304 , vacated and remanded. SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 239. Kent L. Jones argued the cause for the United States. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor 221 General Wallace, William Kanter, Bruce G. Forrest, and Neal S. Wolin. J. Peter Coll, Jr., argued the cause for respondent. With him on the brief were Kristen Bancroft and Sidney H. Kuflik.* JUSTICE SOUTER delivered the opinion of the Court. The question is whether a tariff classification ruling by the United States Customs Service deserves judicial deference. The Federal Circuit rejected Customs's invocation of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), in support of such a ruling, to which it gave no deference. We agree that a tariff classification has no claim to judicial deference under Chevron, there being no indication that Congress intended such a ruling to carry the force of law, but we hold that under Skidmore v. Swift & Co., 323 U. S. 134 (1944), the ruling is eligible to claim respect according to its persuasiveness. I A Imports are taxed under the Harmonized Tariff Schedule of the United States (HTSUS), 19 U. S. C. § 1202. Title 19 U. S. C. § 1500(b) provides that Customs "shall, under rules *Briefs of amici curiae urging affirmance were filed for the American Association of Exporters and Importers by Peter Buck Feller, Daniel G. Jarcho, and Michael J. Haungs; for Cargill, Inc., et al. by John M. Peterson, Michael K. Tomenga, George W Thompson, and Curtis W Knauss; for the Customs and International Trade Bar Association by Sidney N. Weiss and David Serko; for Filofax Inc. by Charles H. Bayar; for the Joint Industry Group et al. by William D. Outman II and Bruce N. Shulman; and for the Tax Executives Institute, Inc., by Timothy J. McCormally and Mary L. Fahey. Briefs of amici curiae were filed for the United States Association of Importers of Textiles and Apparel et al. by Walter E. Dellinger and Ronald W Gerdes; and for Professor Thomas W. Merrill, pro se. 222 and regulations prescribed by the Secretary [of the Treasury,] ... fix the final classification and rate of duty applicable to ... merchandise" under the HTSDS. Section 1502(a) provides that "[t]he Secretary of the Treasury shall establish and promulgate such rules and regulations not inconsistent with the law (including regulations establishing procedures for the issuance of binding rulings prior to the entry of the merchandise concerned), and may disseminate such information as may be necessary to secure a just, impartial, and uniform appraisement of imported merchandise and the classification and assessment of duties thereon at the various ports of entry." 1 See also § 1624 (general delegation to Secretary to issue rules and regulations for the admission of goods). The Secretary provides for tariff rulings before the entry of goods by regulations authorizing "ruling letters" setting tariff classifications for particular imports. 19 CFR § 177.8 (2000). A ruling letter "represents the official position of the Customs Service with respect to the particular transaction or issue described therein and is binding on all Customs Service personnel in accordance with the provisions of this section until modified or revoked. In the absence of a change of practice or other modification or revocation which affects the principle of the ruling set forth in the ruling letter, that principle may be cited as authority in the disposition of transactions involving the same circumstances." § 177.9(a). 1 The statutory term "ruling" is defined by regulation as "a written statement ... that interprets and applies the provisions of the Customs and related laws to a specific set of facts." 19 CFR § 177.1(d)(1) (2000). 223 After the transaction that gives it birth, a ruling letter is to "be applied only with respect to transactions involving articles identical to the sample submitted with the ruling request or to articles whose description is identical to the description set forth in the ruling letter." § 177.9(b)(2). As a general matter, such a letter is "subject to modification or revocation without notice to any person, except the person to whom the letter was addressed," § 177.9(c), and the regulations consequently provide that "no other person should rely on the ruling letter or assume that the principles of that ruling will be applied in connection with any transaction other than the one described in the letter," ibid. Since ruling letters respond to transactions of the moment, they are not subject to notice and comment before being issued, may be published but need only be made "available for public inspection," 19 U. S. C. § 1625(a), and, at the time this action arose, could be modified without notice and comment under most circumstances, 19 CFR § 177.10(c) (2000).2 A broader notice-and-comment requirement for modification of prior rulings was added by statute in 1993, Pub. L. 103-182, § 623, 107 Stat. 2186, codified at 19 U. S. C. § 1625(c), and took effect after this case arose.3 2The opinion of the Federal Circuit in this case noted that § 177.10(c) provides some notice-and-comment procedures for rulings that have the "'effect of changing a practice.''' 185 F.3d 1304 , 1307, n. 1 (1999). The appeals court noted that this case does not involve such a ruling, and specifically excluded such rulings from the reach of its holding. Ibid. 3 As amended by legislation effective after Customs modified its classification ruling in this case, 19 U. S. C. § 1625(c) provides that a ruling or decision that would "modify ... or revoke a prior interpretive ruling or decision which has been in effect for at least 60 days" or would "have the effect of modifying the treatment previously accorded by the Customs Service to substantially identical transactions" shall be "published in the Customs Bulletin. The Secretary shall give interested parties an opportunity to submit, during not less than the 30-day period after the date of such publication, comments on the correctness of the proposed ruling or 224 Any of the 464 port-of-entry 5 Customs offices may issue ruling letters, and so may the Customs Headquarters Office, in providing "[a]dvice or guidance as to the interpretation or proper application of the Customs and related laws with respect to a specific Customs transaction [which] may be requested by Customs Service field offices ... at any time, whether the transaction is prospective, current, or completed," 19 CFR § 177.11(a) (2000). Most ruling letters contain little or no reasoning, but simply describe goods and state the appropriate category and tariff. A few letters, like the Headquarters ruling at issue here, set out a rationale in some detail. B Respondent, the Mead Corporation, imports "day planners," three-ring binders with pages having room for notes of daily schedules and phone numbers and addresses, together with a calendar and suchlike. The tariff schedule on point falls under the HTSUS heading for "[r]egisters, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles," HTSUS subheading 4820.10, which comprises two subcategories. Items in the first, "[d]iaries, notebooks and address books, bound; memorandum pads, letter pads and similar articles," were subject to a tariff of 4.0% at the time in controversy. 185 F.3d 1304 , 1305 (CA Fed. 1999) (citing subheading 4820.10.20); see also App. to Pet. for Cert. 46a. Objects in the second, covering "[o]ther" items, were free decision. After consideration of any comments received, the Secretary shall publish a final ruling or decision in the Customs Bulletin within 30 days after the closing of the comment period. The final ruling or decision shall become effective 60 days after the date of its publication." 4 Brief for Customs and International Trade Bar Association as Amicus Curiae 5 (CITBA Brief). 5 I. e., "a Customs location having a full range of cargo processing functions, including inspections, entry, collections, and verification." 19 CFR § lOLl (2000). 225 of duty. HTSUS subheading 4820.10.40; see also App. to Pet. for Cert. 46a. Between 1989 and 1993, Customs repeatedly treated day planners under the "other" HTSUS subheading. In January 1993, however, Customs changed its position, and issued a Headquarters ruling letter classifying Mead's day planners as "Diaries ... , bound" subject to tariff under subheading 4820.10.20. That letter was short on explanation, App. to Brief in Opposition 4a-6a, but after Mead's protest, Customs Headquarters issued a new letter, carefully reasoned but never published, reaching the same conclusion, App. to Pet. for Cert. 28a-47a. This letter considered two definitions of "diary" from the Oxford English Dictionary, the first covering a daily journal of the past day's events, the second a book including" 'printed dates for daily memoranda and jottings; also ... calendars .... '" Id., at 33a-34a (quoting Oxford English Dictionary 321 (Compact ed. 1982)). Customs concluded that "diary" was not confined to the first, in part because the broader definition reflects commercial usage and hence the "commercial identity of these items in the marketplace." App. to Pet. for Cert. 34a. As for the definition of "bound," Customs concluded that HTSUS was not referring to "bookbinding," but to a less exact sort of fastening described in the Harmonized Commodity Description and Coding System Explanatory Notes to Heading 4820, which spoke of binding by "'reinforcements or fittings of metal, plastics, etc.'" Id., at 45a. Customs rejected Mead's further protest of the second Headquarters ruling letter, and Mead filed suit in the Court of International Trade (CIT). The CIT granted the Government's motion for summary judgment, adopting Customs's reasoning without saying anything about deference. 17 F. Supp. 2d 1004 (1998). Mead then went to the United States Court of Appeals for the Federal Circuit. While the case was pending there this Court decided United States v. Haggar Apparel Co., 526 226 u. S. 380 (1999), holding that Customs regulations receive the deference described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The appeals court requested briefing on the impact of Haggar, and the Government argued that classification rulings, like Customs regulations, deserve Chevron deference. The Federal Circuit, however, reversed the CIT and held that Customs classification rulings should not get Chevron deference, owing to differences from the regulations at issue in Haggar. Rulings are not preceded by notice and comment as under the Administrative Procedure Act (AP A), 5 U. S. C. § 553, they "do not carry the force of law and are not, like regulations, intended to clarify the rights and obligations of importers beyond the specific case under review." 185 F. 3d, at 1307. The appeals court thought classification rulings had a weaker Chevron claim even than Internal Revenue Service interpretive rulings, to which that court gives no deference; unlike rulings by the IRS, Customs rulings issue from many locations and need not be published. 185 F. 3d, at 1307-1308. The Court of Appeals accordingly gave no deference at all to the ruling classifying the Mead day planners and rejected the agency's reasoning as to both "diary" and "bound." It thought that planners were not diaries because they had no space for "relatively extensive notations about events, observations, feelings, or thoughts" in the past. Id., at 1310. And it concluded that diaries "bound" in subheading 4810.10.20 presupposed "unbound" diaries, such that treating ring-fastened diaries as "bound" would leave the "unbound diary" an empty category. Id., at 1311. We granted certiorari, 530 U. S. 1202 (2000), in order to consider the limits of Chevron deference owed to administrative practice in applying a statute. We hold that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make 227 rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. The Customs ruling at issue here fails to qualify, although the possibility that it deserves some deference under Skidmore leads us to vacate and remand. II A When Congress has "explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation," Chevron, 467 U. S., at 843-844, and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.6 See id., at 844; United States v. Morton, 467 U. S. 822, 834 (1984); APA, 5 U. S. C. §§ 706(2)(A), (D). But whether or not they enjoy any express delegation of authority on a particular question, agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered. "[T]he well-reasoned views of the agencies implementing a statute 'constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,'" Bragdon v. Abbott, 524 U. S. 624 , 642 (1998) (quoting Skidmore, 323 U. S., at 139-140), and "[w]e have long recognized that considerable weight should be accorded to an executive department's 6 Assuming in each case, of course, that the agency's exercise of authority is constitutional, see 5 U. S. C. § 706(2)(B), and does not exceed its jurisdiction, see § 706(2)(C). 228 construction of a statutory scheme it is entrusted to administer .... " Chevron, supra, at 844 (footnote omitted); see also Ford Motor Credit Co. v. Milhollin, 444 U. S. 555 , 565 (1980); Zenith Radio Corp. v. United States, 437 U. S. 443 , 450 (1978). The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care,7 its consistency,S formality,9 and relative expertness,lO and to the persuasiveness of the agency's position, see Skidmore, supra, at 139-140. The approach has produced a spectrum of judicial responses, from great respect at one end, see, e. g., Aluminum Co. of America v. Central Lincoln Peoples' Util. Dist., 467 U. S. 380 , 389-390 (1984) (" 'substantial deference'" to administrative construction), to near indifference at the other, see, e. g., Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 212-213 (1988) (interpretation advanced for the first time in a litigation brief). Justice Jackson summed things up in Skidmore v. Swift & Co.: "The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." 323 U. S., at 140. 7 See, e. g., General Elec. Co. v. Gilbert, 429 U. S. 125 , 142 (1976) (courts consider the "'thoroughness evident in [the agency's] consideration'" (quoting Skidmore v. Swift & Co., 323 U. S. 134 , 140 (1944))). 8 See, e. g., Good Samaritan Hospital v. Shalala, 508 U. S. 402 , 417 (1993) ("[T]he consistency of an agency's position is a factor in assessing the weight that position is due"). 9 See, e. g., Reno v. Koray, 515 U. S. 50 , 61 (1995) (internal agency guideline that is not "subject to the rigors of the [APA], including public notice and comment," is entitled only to "some deference" (internal quotation marks omitted)). 10 See, e. g., Aluminum Co. of America v. Central Lincoln Peoples' Util. Dist., 467 U. S. 380 , 390 (1984). 229 Since 1984, we have identified a category of interpretive choices distinguished by an additional reason for judicial deference. This Court in Chevron recognized that Congress not only engages in express delegation of specific interpretive authority, but that "[s]ometimes the legislative delegation to an agency on a particular question is implicit." 467 U. S., at 844. Congress, that is, may not have expressly delegated authority or responsibility to implement a particular provision or fill a particular gap. Yet it can still be apparent from the agency's generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about which "Congress did not actually have an intent" as to a particular result. Id., at 845. When circumstances implying such an expectation exist, a reviewing court has no business rejecting an agency's exercise of its generally conferred authority to resolve a particular statutory ambiguity simply because the agency's chosen resolution seems unwise, see id., at 845-846, but is obliged to accept the agency's position if Congress has not previously spoken to the point at issue and the agency's interpretation is reasonable, see id., at 842-845; cf. 5 U. S. C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"). We have recognized a very good indicator of delegation meriting Chevron treatment in express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed. See, e. g., EEOC v. Arabian American Oil Co., 499 U. S. 244 , 257 (1991) (no Chevron deference to agency guideline where congressional delegation did not include the power to "'promulgate rules or regulations' " (quoting General Elec. Co. v. Gilbert, 429 U. S. 125 , 141 230 (1976))); see also Christensen v. Harris County, 529 U. S. 576 , 596-597 (2000) (BREYER, J., dissenting) (where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency, Chevron is "inapplicable"). It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force.ll Cf. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 741 (1996) (APA notice and comment "designed to assure due deliberation"). Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.12 That said, and as sig- 11 See Merrill & Hickman, Chevron's Domain, 89 Geo. L. J. 833, 872 (2001) ("[I]f Chevron rests on a presumption about congressional intent, then Chevron should apply only where Congress would want Chevron to apply. In delineating the types of delegations of agency authority that trigger Chevron deference, it is therefore important to determine whether a plausible case can be made that Congress would want such a delegation to mean that agencies enjoy primary interpretational authority"). 12 For rulemaking cases, see, e. g., Shalala v. Illinois Council on Long Term Care, Inc., 529 U. S. 1 ,20-21 (2000); United States v. Haggar Apparel Co., 526 U. S. 380 (1999); AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 (1999); Atlantic Mut. Ins. Co. v. Commissioner, 523 U. S. 382 (1998); Regions Hospital v. Shalala, 522 U. S. 448 (1998); United States v. O'Hagan, 521 U. S. 642 (1997); Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 (1996); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687 (1995); ICC v. Transcon Lines, 513 U. S. 138 (1995); PUD No.1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994); Good Samaritan Hospital v. Shalala, supra; American Hospital Assn. v. NLRB, 499 U. S. 606 (1991); Sullivan v. Everhart, 494 U. S. 83 (1990); Sullivan v. Zebley, 493 U. S. 521 (1990); Massachusetts v. Morash, 490 U. S. 107 (1989); K mart Corp. v. Cartier, Inc., 486 U. S. 281 (1988); Atkins v. Rivera, 477 U. S. 154 (1986); United States v. Fulton, 475 U. S. 657 (1986); United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 (1985). For adjudication cases, see, e. g., INS v. Aguirre-Aguirre, 526 U. S. 415 , 423-425 (1999); Federal Employees v. Department of Interior, 526 U. S. 231 nificant as notice-and-comment is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded, see, e. g., NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 , 256-257, 263 (1995).13 The fact that the tariff classification here was not a product of such formal process does not alone, therefore, bar the application of Chevron. There are, nonetheless, ample reasons to deny Chevron deference here. The authorization for classification rulings, and Customs's practice in making them, present a case far removed not only from notice-and-comment process, but from any other circumstances reasonably suggesting that Congress ever thought of classification rulings as deserving the deference claimed for them here. B No matter which angle we choose for viewing the Customs ruling letter in this case, it fails to qualify under Chevron. On the face of the statute, to begin with, the terms of the congressional delegation give no indication that Congress meant to delegate authority to Customs to issue classifica- 86,98-99 (1999); Holly Farms Corp. v. NLRB, 517 U. S. 392 (1996); ABF Freight System, Inc. v. NLRB, 510 U. S. 317 , 324-325 (1994); National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 , 417-418 (1992); Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117 , 128 (1991); Fort Stewart Schools v. FLRA, 495 U. S. 641 , 644-645 (1990); Department of Treasury, IRS v. FLRA, 494 U. S. 922 (1990). 13 In NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S., at 256-257 (internal quotation marks omitted), we quoted longstanding precedent concluding that "[t]he Comptroller of the Currency is charged with the enforcement of banking laws to an extent that warrants the invocation of [the rule of deference] with respect to his deliberative conclusions as to the meaning of these laws." See also 1 M. Malloy, Banking Law and Regulation § 1.3.1, p. 1.41 (1996) (stating that the Comptroller is given "personal authority" under the National Bank Act). 232 tion rulings with the force of law. We are not, of course, here making any global statement about Customs's authority, for it is true that the general rulemaking power conferred on Customs, see 19 U. S. C. § 1624, authorizes some regulation with the force of law, or "legal norms," as we put it in Haggar, 526 U. S., at 391.14 It is true as well that Congress had classification rulings in mind when it explicitly authorized, in a parenthetical, the issuance of "regulations establishing procedures for the issuance of binding rulings prior to the entry of the merchandise concerned," 19 U. S. C. § 1502(a).15 The reference to binding classifications does not, however, bespeak the legislative type of activity that would naturally bind more than the parties to the ruling, once the goods classified are admitted into this country. And though the statute's direction to disseminate "information" necessary to "secure" uniformity, ibid., seems to assume that a ruling may be precedent in later transactions, precedential value alone does not add up to Chevron entitlement; interpretive rules may sometimes function as precedents, see Strauss, The Rulemaking Continuum, 41 Duke L. J. 1463, 1472-1473 (1992), and they enjoy no Chevron status as a class. In any event, any precedential claim of a classification ruling is counterbalanced by the provision for independent review of Customs classifications by the CIT, see 28 U. S. C. §§ 2638-2640; the scheme for CIT review includes a provision that treats classification rulings on par with the Secretary's rulings on "valuation, rate of duty, marking, restricted mer- 14 Cf. Adams Fruit Co. v. Barrett, 494 U. S. 638 , 649-650 (1990) (although Congress required the Secretary of Labor to promulgate standards implementing certain provisions of the Migrant and Seasonal Agricultural Worker Protection Act, and "agency determinations within the scope of delegated authority are entitled to deference," the Secretary's interpretation of the Act's enforcement provisions is not entitled to Chevron deference because "[n]o such delegation regarding [those] provisions is evident in the statute"). 15The ruling in question here, however, does not fall within that category. 233 chandise, entry requirements, drawbacks, vessel repairs, or similar matters," § 1581(h); see § 2639(b). It is hard to imagine a congressional understanding more at odds with the Chevron regime.16 It is difficult, in fact, to see in the agency practice itself any indication that Customs ever set out with a lawmaking pretense in mind when it undertook to make classifications like these. Customs does not generally engage in noticeand-comment practice when issuing them, and their treatment by the agency makes it clear that a letter's binding character as a ruling stops short of third parties; Customs has regarded a classification as conclusive only as between itself and the importer to whom it was issued, 19 CFR § 177.9(c) (2000), and even then only until Customs has given advance notice of intended change, §§ 177.9(a), (c). Other importers are in fact warned against assuming any right of detrimental reliance. § 177.9(c). Indeed, to claim that classifications have legal force is to ignore the reality that 46 different Customs offices issue 10,000 to 15,000 of them each year, see Brief for Respondent 5; CITBA Brief 6 (citing Treasury Advisory Committee on the Commercial Operations of the United States Customs Service, Report of the COAC Subcommittee on OR&R, Exhs. 1, 3 (Jan. 26, 2000) (reprinted in App. to CITBA Brief 20a-21a)). Any suggestion that rulings intended to have the force of law are being churned out at a rate of 10,000 a year at an agency's 46 scattered offices is simply self-refuting. Although the circumstances are less startling here, with a Headquarters letter in issue, none of the relevant statutes recognizes this category of rulings as separate or different from others; there is thus no indication that a 16 Although Customs's decision "is presumed to be correct" on review, 28 U. S. C. § 2639(a)(1), the crT "may consider any new ground" even if not raised below, § 2638, and "shall make its determinations upon the basis of the record made before the court," rather than that developed by Customs, § 2640(a); see generally Haggar Apparel, 526 U. S., at 391. 234 more potent delegation might have been understood as going to Headquarters even when Headquarters provides developed reasoning, as it did in this instance. Nor do the amendments to the statute made effective after this case arose disturb our conclusion. The new law requires Customs to provide notice-and-comment procedures only when modifying or revoking a prior classification ruling or modifying the treatment accorded to substantially identical transactions, 19 U. S. C. § 1625(c); and under its regulations, Customs sees itself obliged to provide notice-andcomment procedures only when "changing a practice" so as to produce a tariff increase, or in the imposition of a restriction or prohibition, or when Customs Headquarters determines that "the matter is of sufficient importance to involve the interests of domestic industry," 19 CFR §§ 177.10(c)(1), (2) (2000). The statutory changes reveal no new congressional objective of treating classification decisions generally as rulemaking with force of law, nor do they suggest any intent to create a Chevron patchwork of classification rulings, some with force of law, some without. In sum, classification rulings are best treated like "interpretations contained in policy statements, agency manuals, and enforcement guidelines." Christensen, 529 U. S., at 587. They are beyond the Chevron pale. C To agree with the Court of Appeals that Customs ruling letters do not fall within Chevron is not, however, to place them outside the pale of any deference whatever. Chevron did nothing to eliminate Skidmore's holding that an agency's interpretation may merit some deference whatever its form, given the "specialized experience and broader investigations and information" available to the agency, 323 U. S., at 139, and given the value of uniformity in its administrative and judicial understandings of what a national law requires, id., at 140. See generally Metropolitan Stevedore Co. v. 235 Rambo, 521 U. S. 121 , 136 (1997) (reasonable agency interpretations carry "at least some added persuasive force" where Chevron is inapplicable); Reno v. Koray, 515 U. S. 50 , 61 (1995) (according "some deference" to an interpretive rule that "do[es] not require notice and comment"); Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144 , 157 (1991) ("some weight" is due to informal interpretations though not "the same deference as norms that derive from the exercise of ... delegated lawmaking powers"). There is room at least to raise a Skidmore claim here, where the regulatory scheme is highly detailed, and Customs can bring the benefit of specialized experience to bear on the subtle questions in this case: whether the daily planner with room for brief daily entries falls under "diaries," when diaries are grouped with "notebooks and address books, bound; memorandum pads, letter pads and similar articles," HTSUS subheading 4820.10.20; and whether a planner with a ring binding should qualify as "bound," when a binding may be typified by a book, but also may have "reinforcements or fittings of metal, plastics, etc.," Harmonized Commodity Description and Coding System Explanatory Notes to Heading 4820, p. 687 (cited in Customs Headquarters letter, App. to Pet. for Cert. 45a. A classification ruling in this situation may therefore at least seek a respect proportional to its "power to persuade," Skidmore, supra, at 140; see also Christensen, 529 U. S., at 587; id., at 595 (STEVENS, J., dissenting); id., at 596-597 (BREYER, J., dissenting). Such a ruling may surely claim the merit of its writer's thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight. D Underlying the position we take here, like the position expressed by JUSTICE SCALIA in dissent, is a choice about the best way to deal with an inescapable feature of the 236 body of congressional legislation authorizing administrative action. That feature is the great variety of ways in which the laws invest the Government's administrative arms with discretion, and with procedures for exercising it, in giving meaning to Acts of Congress. Implementation of a statute may occur in formal adjudication or the choice to defend against judicial challenge; it may occur in a central board or office or in dozens of enforcement agencies dotted across the country; its institutional lawmaking may be confined to the resolution of minute detail or extend to legislative rulemaking on matters intentionally left by Congress to be worked out at the agency level. Although we all accept the position that the Judiciary should defer to at least some of this multifarious administrative action, we have to decide how to take account of the great range of its variety. If the primary objective is to simplify the judicial process of giving or withholding deference, then the diversity of statutes authorizing discretionary administrative action must be declared irrelevant or minimized. If, on the other hand, it is simply implausible that Congress intended such a broad range of statutory authority to produce only two varieties of administrative action, demanding either Chevron deference or none at all, then the breadth of the spectrum of possible agency action must be taken into account. JUSTICE SCALIA'S first priority over the years has been to limit and simplify. The Court's choice has been to tailor deference to variety.17 This accept- 17 Compare Christensen v. Harris County, 529 U. S. 576 , 587 (2000) ("Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference"), and EEOC v. Arabian American Oil Co., 499 U. S. 244 , 257258 (1991) (applying Skidmore analysis where Congress did not confer upon the agency authority to promulgate rules or regulations), with Christensen, supra, at 589-591 (SCALIA, J., concurring in part and concurring in judgment) (urging Chevron treatment); EEOC v. Arabian American Oil Co., supra, at 259-260 (SCALIA, J., concurring in part and concurring 237 ance of the range of statutory variation has led the Court to recognize more than one variety of judicial deference, just as the Court has recognized a variety of indicators that Congress would expect Chevron deference.18 Our respective choices are repeated today. JUSTICE SCALIA would pose the question of deference as an eitheror choice. On his view that Chevron rendered Skidmore anachronistic, when courts owe any deference it is Chevron deference that they owe, post, at 250. Whether courts do owe deference in a given case turns, for him, on whether the agency action (if reasonable) is "authoritative," post, at 257. The character of the authoritative derives, in turn, not from breadth of delegation or the agency's procedure in implementing it, but is defined as the "official" position of an agency, ibid., and may ultimately be a function of administrative persistence alone, ante, at 258. The Court, on the other hand, said nothing in Chevron to eliminate Skidmore's recognition of various justifications for deference depending on statutory circumstances and agency action; Chevron was simply a case recognizing that even without express authority to fill a specific statutory gap, circumstances pointing to implicit congressional delegation present a particularly insistent call for deference. Indeed, in holding here that Chevron left Skidmore intact and applicable where statutory circumstances indicate no intent to delegate general authority to make rules with force of law, or where such authority was not invoked, we hold nothing more than we said last Term in response to the particular in judgment) (urging Chevron treatment); see also INS v. CardozaFonseca, 480 U. S. 421 ,453-455 (1987) (SCALIA, J., concurring in judgment) (urging broader application of Chevron). 18 It is, of course, true that the limit of Chevron deference is not marked by a hard-edged rule. But Chevron itself is a good example showing when Chevron deference is warranted, while this is a good case showing when it is not. Judges in other, perhaps harder, cases will make reasoned choices between the two examples, the way courts have always done. 238 statutory circumstances in Christensen, to which JUSTICE SCALIA then took exception, see 529 U. S., at 589, just as he does again today. We think, in sum, that JUSTICE SCALIA'S efforts to simplify ultimately run afoul of Congress's indications that different statutes present different reasons for considering respect for the exercise of administrative authority or deference to it. Without being at odds with congressional intent much of the time, we believe that judicial responses to administrative action must continue to differentiate between Chevron and Skidmore, and that continued recognition of Skidmore is necessary for just the reasons Justice Jackson gave when that case was decided.19 *** Since the Skidmore assessment called for here ought to be made in the first instance by the Court of Appeals for the 19 Surely Justice Jackson's practical criteria, along with Chevron's concern with congressional understanding, provide more reliable guideposts than conclusory references to the "authoritative" or "official." Even if those terms provided a true criterion, there would have to be something wrong with a standard that accorded the status of substantive law to everyone of 10,000 "official" customs classifications rulings turned out each year from over 46 offices placed around the country at the Nation's entryways. JUSTICE SCALIA tries to avoid that result by limiting what is "authoritative" or "official" to a pronouncement that expresses the "judgment of central agency management, approved at the highest levels," as distinct from the pronouncements of "underlings," post, at 259, n. 6. But that analysis would not entitle a Headquarters ruling to Chevron deference; the "highest level" at Customs is the source of the regulation at issue in Haggar, the Commissioner of Customs with the approval of the Secretary of the Treasury. 526 U. S., at 386. The Commissioner did not issue the Headquarters ruling. What JUSTICE SCALIA has in mind here is that because the Secretary approved the Government's position in its brief to this Court, Chevron deference is due. But if that is so, Chevron deference was not called for until sometime after the litigation began, when central management at the highest level decided to defend the ruling, and the deference is not to the classification ruling as such but to the brief. This explains why the Court has not accepted JUSTICE SCALIA'S position. 239 Federal Circuit or the CIT, we go no further than to vacate the judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, dissenting. Today's opinion makes an avulsive change in judicial review of federal administrative action. Whereas previously a reasonable agency application of an ambiguous statutory provision had to be sustained so long as it represented the agency's authoritative interpretation, henceforth such an application can be set aside unless "it appears that Congress delegated authority to the agency generally to make rules carrying the force of law," as by giving an agency "power to engage in adjudication or notice-and-comment rulemaking, or ... some other [procedure] indicati[ng] comparable congressional intent," and "the agency interpretation claiming deference was promulgated in the exercise of that authority." Ante, at 226-227.1 What was previously a general presumption of authority in agencies to resolve ambiguity in the statutes they have been authorized to enforce has been changed to a presumption of no such authority, which must be overcome by affirmative legislative intent to the contrary. And whereas previously, when agency authority to resolve ambiguity did not exist the court was free to give the statute what it considered the best interpretation, henceforth the court must supposedly give the agency view some indeterminate amount of so-called Skidmore deference. Skidmore v. Swift & Co., 323 U. S. 134 (1944). We will be sorting out the consequences of the Mead doctrine, which has today replaced the Chevron doctrine, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), for years to come. I would adhere to our established jurisprudence, 1 It is not entirely clear whether the formulation newly minted by the Court today extends to both formal and informal adjudication, or simply the former. Cf., e. g., ante, at 230. 240 defer to the reasonable interpretation the Customs Service has given to the statute it is charged with enforcing, and reverse the judgment of the Court of Appeals. I Only five years ago, the Court described the Chevron doctrine as follows: "We accord deference to agencies under Chevron ... because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows," Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 740-741 (1996) (citing Chevron, supra, at 843-844). Today the Court collapses this doctrine, announcing instead a presumption that agency discretion does not exist unless the statute, expressly or impliedly, says so. While the Court disclaims any hardand-fast rule for determining the existence of discretionconferring intent, it asserts that "a very good indicator [is] express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed," ante, at 229. Only when agencies act through "adjudication[,] notice-and-comment rulemaking, or ... some other [procedure] indicati[ng] comparable congressional intent [whatever that means]" is Chevron deference applicable-because these "relatively formal administrative procedure[s] [designed] to foster ... fairness and deliberation" bespeak (according to the Court) congressional willingness to have the agency, rather than the courts, resolve statutory ambiguities. Ante, at 227, 230. Once it is determined that Chevron deference is not in order, the uncertainty is not at an end-and indeed is just beginning. Litigants cannot then assume that the statutory question is one for the courts to determine, accord- 241 ing to traditional interpretive principles and by their own judicial lights. No, the Court now resurrects, in full force, the pre-Chevron doctrine of Skidmore deference, see Skidmore, supra, whereby "[t]he fair measure of deference to an agency administering its own statute ... var[ies] with circumstances," including "the degree of the agency's care, its consistency, formality, and relative expertness, and ... the persuasiveness of the agency's position," ante, at 228 (footnotes omitted). The Court has largely replaced Chevron, in other words, with that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect): th'ol' "totality of the circumstances" test. The Court's new doctrine is neither sound in principle nor sustainable in practice. A As to principle: The doctrine of Chevron-that all authoritative agency interpretations of statutes they are charged with administering deserve deference-was rooted in a legal presumption of congressional intent, important to the division of powers between the Second and Third Branches. When, Chevron said, Congress leaves an ambiguity in a statute that is to be administered by an executive agency, it is presumed that Congress meant to give the agency discretion, within the limits of reasonable interpretation, as to how the ambiguity is to be resolved. By committing enforcement of the statute to an agency rather than the courts, Congress committed its initial and primary interpretation to that branch as well. There is some question whether Chevron was faithful to the text of the Administrative Procedure Act (APA), which it did not even bother to cite.2 But it was in accord with the 2 Title 5 U. S. C. § 706 provides that, in reviewing agency action, the court shall "decide all relevant questions of law"-which would seem to mean that all statutory ambiguities are to be resolved judicially. See 242 origins of federal-court judicial review. Judicial control of federal executive officers was principally exercised through the prerogative writ of mandamus. See L. Jaffe, Judicial Control of Administrative Action 166, 176-177 (1965). That writ generally would not issue unless the executive officer was acting plainly beyond the scope of his authority. "The questions mooted before the Secretary and decided by him were whether the fund is a tribal fund, whether the tribe is still existing and whether the distribution of the annuities is to be confined to members of the tribe .... These are all questions of law the solution of which requires a construction of the act of 1889 and other related acts. A reading of these acts shows that they fall short of plainly requiring that any of the questions be answered in the negative and that in some aspects they give color to the affirmative answers of the Secretary. That the construction of the acts insofar as they have a bearing on the first and third questions is sufficiently uncertain to involve the exercise of judgment and discretion is rather plain .... "From what has been said it follows that the case is not one in which mandamus will lie." Wilbur v. United States ex rel. Kadrie, 281 U. S. 206 , 221-222 (1930). Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 Am. U. Admin. L. J. 1, 9-11 (1996). It could be argued, however, that the legal presumption identified by Chevron left as the only "questio[n] of law" whether the agency's interpretation had gone beyond the scope of discretion that the statutory ambiguity conferred. Today's opinion, of course, is no more observant of the APA's text than Chevron was-and indeed is even more difficult to reconcile with it. Since the opinion relies upon actual congressional intent to suspend § 706, rather than upon a legal presumption against which § 706 was presumably enacted, it runs head-on into the provision of the APA which specifies that the Act's requirements (including the requirement that judges shall "decide all relevant questions of law") cannot be amended except expressly. See §559. 243 Statutory ambiguities, in other words, were left to reasonable resolution by the Executive. The basis in principle for to day's new doctrine can be described as follows: The background rule is that ambiguity in legislative instructions to agencies is to be resolved not by the agencies but by the judges. Specific congressional intent to depart from this rule must be found-and while there is no single touchstone for such intent it can generally be found when Congress has authorized the agency to act through (what the Court says is) relatively formal procedures such as informal rulemaking and formal (and informal?) adjudication, and when the agency in fact employs such procedures. The Court's background rule is contradicted by the origins of judicial review of administrative action. But in addition, the Court's principal criterion of congressional intent to supplant its background rule seems to me quite implausible. There is no necessary connection between the formality of procedure and the power of the entity administering the procedure to resolve authoritatively questions of law. The most formal of the procedures the Court refers to-formal adjudication-is modeled after the process used in trial courts, which of course are not generally accorded deference on questions of law. The purpose of such a procedure is to produce a closed record for determination and review of the facts-which implies nothing about the power of the agency subjected to the procedure to resolve authoritatively questions of law. As for informal rulemaking: While formal adjudication procedures are prescribed (either by statute or by the Constitution), see 5 U. S. C. §§ 554, 556; Wong Yang Sung v. Mc Grath, 339 U. S. 33 , 50 (1950), informal rulemaking is more typically authorized but not required. Agencies with such authority are free to give guidance through rulemaking, but they may proceed to administer their statute case-bycase, "making law" as they implement their program (not necessarily through formal adjudication). See NLRB v. Bell 244 Aerospace Co., 416 U. S. 267 , 290-295 (1974); SEC v. Chenery Corp., 332 U. S. 194 , 202-203 (1947). Is it likely-or indeed even plausible-that Congress meant, when such an agency chooses rulemaking, to accord the administrators of that agency, and their successors, the flexibility of interpreting the ambiguous statute now one way, and later another; but, when such an agency chooses case-by-case administration, to eliminate all future agency discretion by having that same ambiguity resolved authoritatively (and forever) by the courts? 3 Surely that makes no sense. It is also the case that certain significant categories of rules-those involving grant and benefit programs, for example, are exempt from the requirements of informal rulemaking. See 5 U. S. C. § 553(a)(2). Under the Court's novel theory, when an agency takes advantage of that exemption its rules will be deprived of Chevron deference, i. e., authoritative effect. Was this either the plausible intent of the APA rulemaking exemption, or the plausible intent of the Congress that established the grant or benefit program? Some decisions that are neither informal rulemaking nor formal adjudication are required to be made personally by a Cabinet Secretary, without any prescribed procedures. See, e. g., United States v. Giordano, 416 U. S. 505 , 508 (1974) (involving application of 18 U. S. C. § 2516 (1970 ed.), requiring wiretap applications to be authorized by "[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General"); D. C. Federation of Civic Assns. v. Volpe, 459 F.2d 1231 , 1248-1249 (CADC 1971) (involving application of 23 U. S. C. § 138 (1970 ed.) requiring the Secretary of Transportation to determine that there is "no feasible and prudent alternative to the use of" publicly owned parkland for a federally funded highway), cert. denied, 405 U. S. 1030 (1972). Is it conceivable that decisions 3 See infra, at 247-250. 245 specifically committed to these high-level officers are meant to be accorded no deference, while decisions by an administrative law judge left in place without further discretionary agency review, see 5 U. s. C. § 557(b), are authoritative? This seems to me quite absurd, and not at all in accord with any plausible actual intent of Congress. B As for the practical effects of the new rule: 1 The principal effect will be protracted confusion. As noted above, the one test for Chevron deference that the Court enunciates is wonderfully imprecise: whether "Congress delegated authority to the agency generally to make rules carrying the force of law, ... as by ... adjudication[,] notice-and-comment rulemaking, or ... some other [procedure] indicati[ng] comparable congressional intent." But even this description does not do justice to the utter flabbiness of the Court's criterion, since, in order to maintain the fiction that the new test is really just the old one, applied consistently throughout our case law, the Court must make a virtually open-ended exception to its already imprecise guidance: In the present case, it tells us, the absence of notice-and-comment rulemaking (and "[who knows?] [of] some other [procedure] indicati[ng] comparable congressional intent") is not enough to decide the question of Chevron deference, "for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded." Ante, at 226-227, 231. The opinion then goes on to consider a grab bag of other factors-including the factor that used to be the sole criterion for Chevron deference: whether the interpretation represented the authoritative position of the agency, see ante, 246 at 231-234. It is hard to know what the lower courts are to make of today's guidance. 2 Another practical effect of to day's opinion will be an artificially induced increase in informal rulemaking. Buy stock in the GPO. Since informal rulemaking and formal adjudication are the only more-or-Iess safe harbors from the storm that the Court has unleashed; and since formal adjudication is not an option but must be mandated by statute or constitutional command; informal rulemaking-which the Court was once careful to make voluntary unless required by statute, see Bell Aerospace, supra, and Chenery, supra will now become a virtual necessity. As I have described, the Court's safe harbor requires not merely that the agency have been given rulemaking authority, but also that the agency have employed rulemaking as the means of resolving the statutory ambiguity. (It is hard to understand why that should be so. Surely the mere conferral of rulemaking authority demonstrates-if one accepts the Court's logic-a congressional intent to allow the agency to resolve ambiguities. And given that intent, what difference does it make that the agency chooses instead to use another perfectly permissible means for that purpose?) Moreover, the majority's approach will have a perverse effect on the rules that do emerge, given the principle (which the Court leaves untouched today) that judges must defer to reasonable agency interpretations of their own regulations. See, e. g., United States v. Cleveland Indians Baseball Co., 532 U. S. 200 , 220 (2001) ("We need not decide whether the [informal] Revenue Rulings themselves are entitled to deference[, ... because] the Rulings simply reflect the agency's longstanding interpretation of its own regulations"). Agencies will now have high incentive to rush out barebones, ambiguous rules construing statutory ambiguities, which they can then in turn further clarify through informal rulings entitled to judicial respect. 247 3 Worst of all, the majority's approach will lead to the ossification of large portions of our statutory law. Where Chevron applies, statutory ambiguities remain ambiguities subject to the agency's ongoing clarification. They create a space, so to speak, for the exercise of continuing agency discretion. As Chevron itself held, the Environmental Protection Agency can interpret "stationary source" to mean a single smokestack, can later replace that interpretation with the "bubble concept" embracing an entire plant, and if that proves undesirable can return again to the original interpretation. 467 U. S., at 853-859, 865-866. For the indeterminately large number of statutes taken out of Chevron by to day's decision, however, ambiguity (and hence flexibility) will cease with the first judicial resolution. Skidmore deference gives the agency's current position some vague and uncertain amount of respect, but it does not, like Chevron, leave the matter within the control of the Executive Branch for the future. Once the court has spoken, it becomes un lawful for the agency to take a contradictory position; the statute now says what the court has prescribed. See Neal v. United States, 516 U. S. 284 , 295 (1996); Lechmere, Inc. v. NLRB, 502 U. S. 527 , 536-537 (1992); Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116 , 131 (1990). It will be bad enough when this ossification occurs as a result of judicial determination (under to day's new principles) that there is no affirmative indication of congressional intent to "delegate"; but it will be positively bizarre when it occurs simply because of an agency's failure to act by rulemaking (rather than informal adjudication) before the issue is presented to the courts. One might respond that such ossification would not result if the agency were simply to readopt its interpretation, after a court reviewing it under Skidmore had rejected it, by repromulgating it through one of the Chevron-eligible procedural formats approved by the Court today. Approving this 248 procedure would be a landmark abdication of judicial power. It is worlds apart from Chevron proper, where the court does not purport to give the statute a judicial interpretationexcept in identifying the scope of the statutory ambiguity, as to which the court's judgment is final and irreversible. (Under Chevron proper, when the agency's authoritative interpretation comes within the scope of that ambiguity-and the court therefore approves it-the agency will not be "overruling" the court's decision when it later decides that a different interpretation (still within the scope of the ambiguity) is preferable.) By contrast, under this view, the reviewing court will not be holding the agency's authoritative interpretation within the scope of the ambiguity; but will be holding that the agency has not used the "delegationconferring" procedures, and that the court must therefore interpret the statute on its own-but subject to reversal if and when the agency uses the proper procedures. One is reminded of Justice Jackson's words in Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 , 113 (1948): "The court below considered that after it reviewed the Board's order its judgment would be submitted to the President, that his power to disapprove would apply after as well as before the court acts, and hence that there would be no chance of a deadlock and no conflict of function. But if the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government." I know of no case, in the entire history of the federal courts, in which we have allowed a judicial interpretation of a statute to be set aside by an agency-or have allowed a 249 lower court to render an interpretation of a statute subject to correction by an agency. As recently as 1996, we rejected an attempt to do precisely that. In Chapman v. United States, 500 U. S. 453 (1991), we had held that the weight of the blotter paper bearing the lysergic acid diethylamide (LSD) must be counted for purposes of determining whether the quantity crossed the 10-gram threshold of 21 U. S. C. § 841(b)(1)(A)(v) imposing a minimum sentence of 10 years. At that time the United States Sentencing Commission applied a similar approach under the Sentencing Guidelines, but had taken no position regarding the meaning of the statutory provision. The Commission later changed its Guidelines approach, and, according to the petitioner in Neal v. United States, 516 U. S. 284 (1996), made clear its view that the statute bore that meaning as well. The petitioner argued that we should defer to that new approach. We would have none of it. "Were we, for argument's sake, to adopt petitioner's view that the Commission intended the commentary as an interpretation of § 841(b)(1), and that the last sentence of the commentary states the Commission's view that the dose-based method is consistent with the term 'mixture or substance' in the statute, he still would not prevail. The Commission's dose-based method cannot be squared with Chapman .... In these circumstances, we need not decide what, if any, deference is owed the Commission in order to reject its alleged contrary interpretation. Once we have determined a statute's meaning, we adhere to our ruling under the doctrine of stare decisis, and we assess an agency's later interpretation of the statute against that settled law." Id., at 294-295 (citations omitted). There is, in short, no way to avoid the ossification of federal law that to day's opinion sets in motion. What a court says is the law after according Skidmore deference will be the 250 law forever, beyond the power of the agency to change even through rulemaking. 4 And finally, the majority's approach compounds the confusion it creates by breathing new life into the anachronism of Skidmore, which sets forth a sliding scale of deference owed an agency's interpretation of a statute that is dependent "upon the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control"; in this way, the appropriate measure of deference will be accorded the "body of experience and informed judgment" that such interpretations often embody, 323 U. S., at 140. Justice Jackson's eloquence notwithstanding, the rule of Skidmore deference is an empty truism and a trifling statement of the obvious: A judge should take into account the well-considered views of expert observers. It was possible to live with the indeterminacy of Skidmore deference in earlier times. But in an era when federal statutory law administered by federal agencies is pervasive, and when the ambiguities (intended or unintended) that those statutes contain are innumerable, totality-of-thecircumstances Skidmore deference is a recipe for uncertainty, unpredictability, and endless litigation. To condemn a vast body of agency action to that regime (all except rulemaking, formal (and informal?) adjudication, and whatever else might now and then be included within to day's intentionally vague formulation of affirmative congressional intent to "delegate") is irresponsible. II The Court's pretense that to day's opinion is nothing more than application of our prior case law does not withstand analysis. It is, to be sure, impossible to demonstrate that any of our cases contradicts the rule of decision that the 251 Court prescribes, because the Court prescribes none. More precisely, it at one and the same time (1) renders meaningless its newly announced requirement that there be an affirmative congressional intent to have ambiguities resolved by the administering agency, and (2) ensures that no prior decision can possibly be cited which contradicts that requirement, by simply announcing that all prior decisions according Chevron deference exemplify the multifarious ways in which that congressional intent can be manifested: "[A]s significant as notice-and-comment is in pointing to Chevron authority, the want of that procedure here does not decide the case, for we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded," ante, at 230-231.4 4 As a sole, teasing example of those "sometimes" the Court cites Na tionsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 (1995), explaining in a footnote that our "longstanding precedent" evinced a tradition of great deference to the "'deliberative conclusions'" of the Comptroller of the Currency as to the meaning of the banking laws the Comptroller is charged with enforcing. Ante, at 231, n. 13. How it is that a tradition of great judicial deference to the agency head provides affirmative indication of congressional intent to delegate authority to resolve statutory ambiguities challenges the intellect and the imagination. If the point is that Congress must have been aware of that tradition of great deference when it enacted the law at issue, the same could be said of the Customs Service, and indeed of all agencies. See, e. g., 4 K. Davis, Administrative Law Treatise § 30.08, pp. 237-238 (1958) (describing the "great weight" accorded the "determination[s]" of the Federal Trade Commission (quoting FTC v. Cement Institute, 333 U. S. 683 , 720 (1948)); Report of the Attorney General's Committee on Administrative Procedure, S. Doc. No.8, 77th Cong., 1st Sess., 90-91 (1941). Indeed, since our opinion in Chevron Congress must have been aware that we would defer to all authoritative agency resolutions of statutory ambiguities. Needless to say, NationsBank itself makes no mention of any such affirmative indication, because it was never the law. The many other cases that contradict the Court's new rule will presumably be explained, like NationsBank, as other "modes" of displaying affirmative congressional intent. If a tradition of judicial deference can be called that with a straight face, what cannot be? 252 The principles central to to day's opinion have no antecedent in our jurisprudence. Chevron, the case that the opinion purportedly explicates, made no mention of the "relatively formal administrative procedure[s]," ante, at 230, that the Court today finds the best indication of an affirmative intent by Congress to have ambiguities resolved by the administering agency. Which is not so remarkable, since Chevron made no mention of any need to find such an affirmative intent; it said that in the event of statutory ambiguity agency authority to clarify was to be presumed. And our cases have followed that prescription. Six years ago, we unanimously accorded Chevron deference to an interpretation of the National Bank Act, 12 U. S. C. § 24 Seventh (1988 ed. and Supp. V), contained in a letter to a private party from a Senior Deputy Comptroller of the Currency. See NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 , 255, 257 (1995). We did so because the letter represented (and no one contested) that it set forth the official position of the Comptroller of the Currency, see id., at 263. Several cases decided virtually in the wake of Chevron, which the Court conveniently ignores, demonstrate that Congress could not (if it was reading our opinions) have acted in reliance on a background assumption that Chevron deference would generally be accorded only to agency interpretations arrived at through formal adjudication, notice-andcomment rulemaking, or other procedures assuring "fairness and deliberation," ante, at 230. In FDIC v. Philadelphia Gear Corp., 476 U. S. 426 , 438-439 (1986), we accorded Chevron deference to the Federal Deposit Insurance Corporation's interpretation of the statutory term "deposit" reflected in a course of unstructured administrative actions, and gave particular weight to the agency's "contemporaneous understanding" reflected in the response given by an FDIC official to a question asked at a meeting of FDIC and bank officials. It was clear that the position reflected 253 the official position of the agency, and that was enough to command Chevron deference. In Young v. Community Nutrition Institute, 476 U. S. 974 (1986), the statutory ambiguity at issue pertained to a provision that "the Secretary [of Health and Human Services] shall promulgate regulations limiting the quantity [of any poisonous or deleterious substance added to any food] to such extent as he finds necessary for the protection of public health." The Secretary had regularly interpreted the phrase "to such extent as he finds necessary" as conferring discretion not to issue a rule, rather than merely discretion regarding the quantity that the rule would permit. This interpretation was not, of course, reflected in any formal adjudication, and had not been the subject of any informal rulemaking-it was the Secretary's understanding consistently applied in the course of the Department's practice. We accorded it Chevron deference, as unquestionably we should have. And in Mead Corp. v. Tilley, 490 U. S. 714 (1989), a private suit by retirees against their former employer under the Employee Retirement Income Security Act of 1974 (ERISA), we accorded Chevron deference to the Pension Benefit Guaranty Corporation's interpretation of § 4044(a) of ERISA, 29 U. S. C. § 1344(a) (1982 ed. and Supp. V), that was reflected only in an amicus brief to this Court and in several opinion letters issued without benefit of any prescribed procedures. See 490 U. S., at 722. I could continue to enumerate cases according Chevron deference to agency interpretations not arrived at through formal proceedings-for example, Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633 , 642-643, 647-648 (1990) (according Chevron deference to the PBGC's interpretation of the requirements for its restoring a terminated plan under § 4047 of ERISA, 29 U. S. C. § 1347 (1988 ed.), which interpretation was reflected in nothing more than the agency's act of issuing a notice of restoration). Suffice it to say that many cases flatly contradict the theory of Chevron set forth in to day's opinion, and with one exception 254 not a single case can be found with language that supports the theory. That exception, a very recent one, deserves extended discussion. In Christensen v. Harris County, 529 U. S. 576 (2000), the Court said the following: "[W]e confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron-style deference." Id., at 587. This statement was dictum, unnecessary to the Court's holding. Since the Court went on to find that the Secretary of Labor's position "ma[de] little sense" given the text and structure of the statute, id., at 585-586, Chevron deference could not have been accorded no matter what the conditions for its application. See 529 U. S., at 591 (SCALIA, J., concurring in part and concurring in judgment). It was, moreover, dictum unsupported by the precedent that the Court cited. The Christensen majority followed its above-quoted dictum with a string citation of three cases, none of which sustains its point. In Reno v. Koray, 515 U. S. 50 (1995), we had no occasion to consider what level of deference was owed the Bureau of Prisons' interpretation of 18 U. S. C. § 3585(b) set forth in an internal agency guideline, because our opinion made clear that we would have independently arrived at the same interpretation on our own, see 515 U. S., at 57-60. And although part of one sentence in Koray might be read to suggest that the Bureau's "Program Statemen[t]" should be accorded a measure of deference less than that mandated by Chevron, this aside is ultimately inconclusive, 255 since the sentence ends by observing that the statement was "a 'permissible construction of the statute'" under Chevron. 515 U. S., at 61 (quoting Chevron, 467 U. S., at 843). In the second case cited, EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991), it was again unnecessary to our holding whether the agency's interpretation of the statute warranted Chevron deference, since the "longstanding ... 'canon of [statutory] construction'" disfavoring extraterritoriality, 499 U. S., at 248, would have required the same result even if Chevron applied. See 499 U. S., at 260 (SCALIA, J., concurring in part and concurring in judgment). While the opinion did purport to accord the Equal Employment Opportunity Commission's informally promulgated interpretation only Skidmore deference, it did so because the Court thought itself bound by its pre-Chevron, EEOC-specific decision in General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), which noted that "'Congress, in enacting Title VII, did not'" intend to give the EEOC substantive authority to resolve statutory ambiguities, Arabian American Oil, supra, at 257 (quoting Gilbert, supra, at 141). Lastly, in Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144 (1991), the question of the level of deference owed the Secretary of Labor's interpretation of the Occupational Safety and Health Act of 1970, 84 Stat. 1590, as amended, 29 U. S. C. § 651 et seq., was neither presented by the case nor considered in our opinion. The only question before the Court was which of two competing interpretations of 29 CFR § 1910.1029 (1990)-the Secretary's or the Occupational Safety and Health Review Commission's-should have been deferred to by the court below. See 499 U. S., at 150. The dicta the Christensen Court cited, 529 U. S., at 587 (citing 499 U. S., at 157), opined on the measure of deference owed the Secretary's interpretation, not of the statute, but of his own regulations, see generally Manning, Constitutional Structure 256 and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). To make matters worse, the arguments marshaled by Christensen in support of its dictum-its observation that "interpretations contained in policy statements, agency manuals, and enforcement guidelines, all ... lack the force of law," and its citation of 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994), 529 U. S., at 587-are not only unpersuasive but bear scant resemblance to the reasoning of to day's opinion. Davis and Pierce, and Professor Robert Anthony upon whom they rely, see Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. on Reg. 1 (1990), do indeed set forth the argument I have criticized above, that congressional authorization of informal rulemaking or formal (and perhaps even informal) adjudication somehow bespeaks a congressional intent to "delegate" power to resolve statutory ambiguities. But their analysis does not permit the broad add-ons that the Court's opinion contains-"some other [procedure] indicati[ng] comparable congressional intent," ante, at 227, and "we have sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded," ante, at 231. III To decide the present case, I would adhere to the original formulation of Chevron. "'The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress,'" 467 U. S., at 843 (quoting Morton v. Ruiz, 415 U. S. 199, 231 (1974)). We accordingly presume-and our precedents have made clear to Congress that we presumethat, absent some clear textual indication to the contrary, "Congress, when it left ambiguity in a statute meant for im- 257 plementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows," Smiley, 517 U. S., at 740-741 (citing Chevron, supra, at 843-844). Chevron sets forth an across-the-board presumption, which operates as a background rule of law against which Congress legislates: Ambiguity means Congress intended agency discretion. Any resolution of the ambiguity by the administering agency that is authoritative-that represents the official position of the agency-must be accepted by the courts if it is reasonable. Nothing in the statute at issue here displays an intent to modify the background presumption on which Chevron deference is based. The Court points, ante, at 233, n. 16, to 28 U. S. C. § 2640(a), which provides that, in reviewing the ruling by the Customs Service, the Court of International Trade (CIT) "shall make its determinations upon the basis of the record made before the court." But records are made to determine the facts, not the law. All this provision means is that new evidence may be introduced at the CIT stage; it says nothing about whether the CIT must respect the Customs Service's authoritative interpretation of the law. More significant than § 2640(a), insofar as the CIT's obligation to defer to the Customs Service's legal interpretations is concerned, is § 2639(a)(1), which requires the CIT to accord a "presum[ption of] correct[ness]" to the Customs Service's decision. Another provision cited by the Court, ante, at 233, n. 16, is § 2638, which provides that the CIT, "by rule, may consider any new ground in support" of the challenge to the Customs Service's ruling. Once again, it is impossible to see how this has any connection to the degree of deference the CIT must accord the Customs Service's interpretation of its statute. Such "new ground[s]" may be intervening or newly discovered facts, or some intervening 258 law or regulation that might render the Customs Service's ruling unsound.5 There is no doubt that the Customs Service's interpretation represents the authoritative view of the agency. Although the actual ruling letter was signed by only the Director of the Commercial Rulings Branch of Customs Headquarters' Office of Regulations and Rulings, see Pet. for Cert. 47a, the Solicitor General of the United States has filed a brief, cosigned by the General Counsel of the Department of the Treasury, that represents the position set forth in the ruling letter to be the official position of the Customs Service. Cf. Christensen, 529 U. S., at 591 (SCALIA, J., concurring in part and concurring in judgment). No one contends that it is merely a "post hoc rationalizatio[n]" or an "agency litigating positio[n] wholly unsupported by regulations, rulings, or administrative practice," Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 212 (1988).6 5 The Court also states that "[i]t is hard to imagine" that Congress would have intended courts to defer to classification rulings since "the scheme for CIT review includes a provision that treats classification rulings on par with the Secretary's rulings on 'valuation, rate of duty, marking, restricted merchandise, entry requirements, drawbacks, vessel repairs, or similar matters,'" ante, at 232-233 (quoting 28 U. S. C. § 1581(h), and citing § 2639(b)). I fail to see why this is hard to imagine at all. If anything, the fact that "the scheme for CIT review ... treats classification rulings on par with the Secretary's rulings on" such important matters as "'valuation, rate of duty, ... restricted merchandise [and] entry requirements,' " ante, at 232-233, which often require interpretation of the Nation's customs and tariff statutes, only strengthens the case for according Chevron deference to whatever statutory interpretations (as opposed to factual determinations) such rulings embody. In other words, the Court's point is wrong-indeed, the Court's point cuts deeply into its own case-unless the Court believes that the Secretary's personal rulings on the legal criteria for imposing particular rates of duty, or for determining restricted merchandise, are entitled to no deference. 6 The Court's parting shot, that "there would have to be something wrong with a standard that accorded the status of substantive law to everyone of 10,000 'official' customs classifications rulings turned out each year from over 46 offices placed around the country at the Nation's entryways," ante, at 238, n. 19, misses the mark. I do not disagree. The 259 There is also no doubt that the Customs Service's interpretation is a reasonable one, whether or not judges would consider it the best. I will not belabor this point, since the Court evidently agrees: An interpretation that was unreasonable would not merit the remand that the Court decrees for consideration of Skidmore deference. IV Finally, and least importantly, even were I to accept the Court's revised version of Chevron as a correct statement "authoritativeness" of an agency interpretation does not turn upon whether it has been enunciated by someone who is actually employed by the agency. It must represent the judgment of central agency management, approved at the highest levels. I would find that condition to have been satisfied when, a ruling having been attacked in court, the general counsel of the agency has determined that it should be defended. If one thinks that that does not impart sufficient authoritativeness, then surely the line has been crossed when, as here, the General Counsel of the agency and the Solicitor General of the United States have assured this Court that the position represents the agency's authoritative view. (Contrary to the Court's suggestion, there would be nothing bizarre about the fact that this latter approach would entitle the ruling to deference here, though it would not have been entitled to deference in the lower courts. Affirmation of the official agency position before this court-if that is thought necessary-is no different from the agency's issuing a new rule after the Court of Appeals determination. It establishes a new legal basis for the decision, which this Court must take into account (or remand for that purpose), even though the Court of Appeals could not. See Thorpe v. Housing Authority of Durham, 393 U. S. 268 , 282 (1969); see also United States v. Schooner Peggy, 1 Cranch 103 (1801).) The authoritativeness of the agency ruling may not be a bright-line standard-but it is infinitely brighter than the line the Court asks us to draw today, between a statute such as the one at issue in NationsBank that (according to the Court) does display an "affirmative intent" to "delegate" interpretive authority, and innumerable indistinguishable statutes that (according to the Court) do not. And, most important of all, it is a line that focuses attention on the right question: not whether Congress "affirmatively intended" to delegate interpretive authority (if it entrusted administration of the statute to an agency, it did, because that is how our system works); but whether it is truly the agency's considered view, or just the opinions of some underlings, that are at issue. 260 of the law, I would still accord deference to the tariff classification ruling at issue in this case. For the case is indistinguishable, in that regard, from NationsBank of N. c., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251 (1995), which the Court acknowledges as an instance in which Chevron deference is warranted notwithstanding the absence of formal adjudication, notice-and-comment rulemaking, or comparable "administrative formality," ante, at 231. Here, as in NationsBank, there is a tradition of great deference to the opinions of the agency head, ante, at 231, n. 13. Just two Terms ago, we observed: "As early as 1809, Chief Justice Marshall noted in a customs case that '[i]f the question had been doubtful, the court would have respected the uniform construction which it is understood has been given by the treasury department of the United States upon similar questions.' United States v. Vowell, 5 Cranch 368, 372. See also P. Reed, The Role of Federal Courts in U. S. Customs & International Trade Law 289 (1997) ('Consistent with the Chevron methodology, and as has long been the rule in customs cases, customs regulations are sustained if they represent reasonable interpretations of the statute'); cf. Zenith Radio Corp. v. United States, 437 U. S. 443 , 450 (1978) (deferring to the Treasury Department's 'longstanding and consistent administrative interpretation' of the countervailing duty provision of the Tariff Act." United States v. Haggar Apparel Co., 526 U. S. 380 , 393 (1999). And here, as in NationsBank, the agency interpretation in question is officially that of the agency head. Consequently, even on the Court's own terms, the Customs ruling at issue in this case should be given Chevron deference. *** 261 For the reasons stated, I respectfully dissent from the Court's judgment. I would uphold the Customs Service's construction of Subheading 4820.10.20 of the Harmonized Tariff Schedule of the United States, 19 U. S. C. § 1202, and would reverse the contrary decision of the Court of Appeals. I dissent even more vigorously from the reasoning that produces the Court's judgment, and that makes today's decision one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action. Its consequences will be enormous, and almost uniformly bad.

The case of United States v. Mead Corp. (2001) concerns the classification and tariff rates of imported goods, specifically "day planners," by the US Customs Service. The Court of Appeals ruled that Customs' ruling letters should not be given the same deference as regulations and that the letter in question was not entitled to any deference. The Supreme Court held that an agency's interpretation of a statute is eligible for Chevron deference when Congress has delegated authority to the agency to make rules carrying the force of law and the interpretation was promulgated under that authority. In this case, Customs ruling letters do not qualify for Chevron deference but may be considered persuasive under Skidmore v. Swift & Co.

Government Agencies

Salinas v. Railroad Retirement Board

https://supreme.justia.com/cases/federal/us/592/19-199/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 19–199 _________________ MANFREDO M. SALINAS, PETITIONER v. UNITED STATES RAILROAD RETIREMENT BOARD on writ of certiorari to the united states court of appeals for the fifth circuit [February 3, 2021] Justice Sotomayor delivered the opinion of the Court. The Railroad Retirement Act of 1974 (RRA), 50Stat. 307, as restated and amended, 45 U. S. C. §231 et seq. , establishes a system of disability, retirement, and survivor benefits for railroad employees. That system is administered by the U. S. Railroad Retirement Board (Board). The Board denied benefits to petitioner Manfredo M. Salinas, a former railroad employee, when he applied in 2006, but it later granted him benefits when he reapplied in 2013. Salinas then requested that the Board reopen its decision to deny his 2006 application, but the Board declined. This case asks whether the Board’s refusal to reopen the prior denial of benefits is subject to judicial review. The Court holds that it is. I A The RRA provides long-term benefits to railroad employees who have accrued enough years of service and who have either reached a certain age or become disabled. See 45 U. S. C. §§231a(a)(1), (b). It also provides benefits for eligible employees’ spouses and survivors under certain conditions. §§231a(c)–(d). These benefits complement those provided by another statute, the Railroad Unemployment Insurance Act (RUIA), 52Stat. 1094, 45 U. S. C. §351 et seq ., which covers short-term periods of unemployment and sickness. See §352. This case concerns benefits under the RRA only. Both statutes, however, are relevant, as discussed below. To administer benefits under the RRA, the Board has implemented a multistep system of administrative review. First, an individual applies for benefits and receives an initial decision from the appropriate division of the Board, such as the Disability Benefits Division. 20 CFR §260.1(a) (2020). If the individual is dissatisfied, she may seek reconsideration from the Board’s Reconsideration Section. §260.3(a). If denied again, she may appeal to the Board’s Bureau of Hearings and Appeals (Bureau). §260.5(a). Lastly, the applicant may take a final appeal to the Board itself. §260.9(a). This four-step sequence is the primary form of administrative review for benefits determinations. Applicants have a right to seek each of the above levels of review within 60 days. See, e.g., 45 U. S. C. §231f(b)(3); 20 CFR §260.9(b). Once an applicant completes the review process, or the deadline for seeking further review passes, the benefits determination becomes “final” under the Board’s regulations. See 20 CFR §261.1(b). After a determination becomes final, an applicant can request that the Board reopen it. See §261.1(a). “Reopening . . . means a conscious determination on the part of the agency to reconsider an otherwise final decision for purposes of revising that decision.” §261.1(c) (emphasis deleted). Whether to grant reopening is ultimately discretionary. See §261.11. The Board, however, has established substantive criteria to guide its discretion. For example, as relevant here, a decision may be reopened “[w]ithin four years of the date of the notice of such decision, if there is new and material evidence.” §261.2(b). B Salinas is a former carpenter and assistant foreman for the Union Pacific Railroad. During his 15-year railroad career, he suffered two serious injuries on the job. In 1989, a co-worker dropped a sledge hammer from an overhead bridge, hitting Salinas on the top of his hardhat. Then, in 1993, a wooden railroad tie fell from a truck and struck Salinas in the head. As a result, Salinas underwent two spinal fusion surgeries. After receiving treatment, Salinas continued to experience pain, anxiety, and depression. He began seeking RRA disability benefits in 1992. His first two applications were denied, and he did not seek reconsideration of either. On February 28, 2006, Salinas filed his third application for RRA benefits. The Board denied Salinas’ application on August 28, 2006, concluding that his impairments were not severe enough to qualify for relief. After missing the deadline for seeking reconsideration, Salinas sent a letter to the Board requesting that it reconsider its decision “even though the 60 days had passed.” Record 207. Salinas noted, among other things, that he had “more medical records to provide.” Ibid. The Reconsideration Section denied Salinas’ request, finding that he had failed to demonstrate good cause for his late filing. See 20 CFR §260.3(c). Salinas did not appeal. Seven years later, on December 26, 2013, Salinas filed his fourth application for RRA benefits. This time, his application was granted. Although Salinas was deemed disabled as of October 9, 2010, his benefits began on December 1, 2012, 12 months prior to the date on which he filed his successful application. Under the RRA, disability benefits begin on the latest of several alternative start dates, and Salinas’ application-based start date was later than his disability onset date. See Record 8; 45 U. S. C. §231d(a)(ii); 20 CFR §218.9(c). Salinas timely sought reconsideration of the amount and start date of his benefits. The Reconsideration Section denied relief, and Salinas appealed to the Bureau. On appeal, Salinas argued that his 2006 application should be reopened because the Board had not considered certain medical records in existence at the time when it denied him benefits. Salinas submitted the records as part of his appeal. On August 26, 2016, the Bureau denied Salinas’ request to reopen the 2006 decision. The Bureau concluded that Salinas had failed to seek reopening based on “new and material evidence” within four years of the decision at issue, as required by regulation. 20 CFR §261.2(b). Salinas appealed to the Board, which affirmed the Bureau’s decision on the ground that Salinas had not met the criteria for reopening under §261.2. The Board notified Salinas that he could seek judicial review of the Board’s decision within one year. Salinas filed a timely pro se petition for review with the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the petition for lack of jurisdiction. 765 Fed. Appx. 79, 80–81 (2019) ( per curiam ). In a previous decision, the Fifth Circuit had joined the majority of Circuits in holding that federal courts cannot review the Board’s refusal to reopen a prior benefits determination. See Roberts v. Railroad Retirement Bd. , 346 F.3d 139 , 141 (2003). The Fifth Circuit noted a longstanding split among the Circuits on this issue. 765 Fed. Appx., at 80–81 (citing cases). We granted certiorari to resolve the conflict among the Courts of Appeals. 589 U. S. ___ (2020). II Section 231g of the RRA provides that, except for the deadline for seeking review, “[d]ecisions of the Board determining the rights or liabilities of any person” under the RRA “shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the Railroad Unemployment Insurance Act.” 45 U. S. C. §231g. In other words, §231g makes judicial review available under the RRA to the same extent that review is available under the RUIA.[ 1 ] This case, therefore, turns on the RUIA’s judicial review provision, 45 U. S. C. §355(f ). Section 355(f ) provides: “Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act . . . , of which claimant is a member, or any base-year employer of the claimant, or any other party aggrieved by a final decision under subsection (c) of this section, may . . . obtain a review of any final decision of the Board.”[ 2 ] To qualify for judicial review under this provision, the Board’s refusal to reopen its denial of Salinas’ 2006 application must constitute “any final decision of the Board.” It does. A The text of §355(f ) starts our analysis. The phrase “any final decision” is broad, and it reflects Congress’ intent to define the scope of review “expansively.” Smith v. Berryhill , 587 U. S. ___, ___ (2019) (slip op., at 6) (internal quotation marks and brackets omitted). The phrase “denotes some kind of terminal event,” such as the “final stage of review.” Id., at ___–___ (slip op., at 6–7). Similar language in the Administrative Procedure Act has been interpreted to refer to an agency action that “both (1) mark[s] the consummation of the agency’s decisionmaking process and (2) is one by which rights or obligations have been determined, or from which legal consequences will flow.” Id ., at ___ (slip op., at 9) (quoting Bennett v. Spear , 520 U.S. 154 , 177–178 (1997); internal quotation marks omitted). The Board’s refusal to reopen the prior denial of benefits satisfies these criteria. First, the decision was the “terminal event” in the Board’s administrative review process. Smith , 587 U. S., at ___ (slip op., at 6). After first requesting reopening before the Bureau, Salinas exhausted further agency review by appealing to the Board itself. Salinas’ only recourse thereafter was to seek judicial review. Second, the Board’s decision was one “ ‘by which rights or obligations have been determined, or from which legal consequences will flow.’ ” Army Corps of Engineers v. Hawkes Co. , 578 U.S. 590, 597 (2016). The Board has defined reopening as “a conscious determination . . . to reconsider an otherwise final decision for purposes of revising that decision.” 20 CFR §261.1(c). Reopening therefore entails substantive changes that affect benefits and obligations under the RRA. Consistent with its substantive nature, the decision to grant or deny reopening is guided by objective criteria, including whether “there is new and material evidence or there was adjudicative error not consistent with the evidence of record at the time of adjudication.” §261.2(b). If reopening is granted, any revision the Board makes may be reviewed in the same manner as a primary determination of benefits; otherwise, the revision is “binding.” §§261.7, 261.8. In light of these features, a decision about reopening fits within the meaning of “any final decision” as that phrase is used in §355(f ). The Board disagrees because it interprets the phrase “any final decision” to mean “any final decision under §355(c).” The Board’s argument goes like this: Section 355(f ) authorizes four parties to seek judicial review: (1) a claimant for benefits, (2) a claimant’s railway labor organization, (3) a claimant’s base-year employer, and (4) “any other party aggrieved by a final decision under subsection (c) of this section.” 45 U. S. C. §355(f ). The phrase “any other” means that, in order to obtain judicial review, each of the enumerated parties must be “aggrieved by a final decision under subsection (c).” This implies, in turn, that each party may seek judicial review of only the decision “under subsection (c)” by which it was aggrieved. A denial of reopening is not a decision “under subsection (c)” because it is not a determination granting or denying benefits. See §§355(c)(1)–(4). Thus, the Board argues, reopening decisions are not subject to judicial review. The Board’s interpretation is inconsistent with the text of §355(f ). Congress conspicuously chose the broad language “any final decision,” without tying that phrase to the earlier reference to “a final decision under subsection (c).” This omission is especially notable because Congress used such limiting references elsewhere in §355. Under §355(c)(5), Congress established rules for “[f]inal decision[s] of the Board in the cases provided for in the preceding three paragraphs” (in other words, under §§355(c)(2)–(4)). 45 U. S. C. §355(c)(5). In the same paragraph, Congress authorized any properly interested and notified party to obtain judicial review of “any such decision by which he claims to be aggrieved.” 45 U. S. C. §355(c)(5). By using the language “such” and “by which he claims to be aggrieved,” Congress clearly referred to the particular type of decision described earlier in §355(c)(5), thus limiting judicial review to final decisions “provided for” in §§355(c)(2)–(4). This type of limiting language is absent from §355(f ). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States , 464 U.S. 16 , 23 (1983) (internal quotation marks and brackets omitted). Section 355(f ) authorizes judicial review of “any” final decision, not “such” final decision “under subsection (c).” The Board’s denial of reopening qualifies for review under the language Congress chose.[ 3 ] B To the extent there is ambiguity in the meaning of “any final decision,” it must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC , 575 U.S. 480, 486 (2015) (internal quotation marks omitted). This default rule is “ ‘well-settled,’ ” and Congress is presumed to legislate with it in mind. Kucana v. Holder , 558 U.S. 233 , 252 (2010). To rebut the presumption, the Board bears a “heavy burden” of showing that the statute’s “language or structure” forecloses judicial review. Mach Mining , 575 U. S., at 486 (internal quotation marks omitted). The Board has not met its burden. The Board argues that various cross-references within §355 indicate that §355(f ) covers only decisions made under §355(c). For instance, §355(c)(7) provides for review solely “pursuant to this subsection and subsection (f ).” 45 U. S. C. §355(c)(7); see also §355(c)(5). Meanwhile, §355(f ) requires that “all administrative remedies within the Board,” including review under §355(c), must be exhausted before a party can seek judicial review. Finally, §355(g) provides that “[f]indings of fact and conclusions of law of the Board in the determination of any claim for benefits or refund” and “the determination of any other matter pursuant to subsection (c)” shall be reviewed exclusively under §355(f ). In the Board’s view, these cross-references prove that §§355(f ) and 355(c) are coextensive. The structure of §355 shows that §355(c) feeds exclusively into §355(f ), but nothing in the statute suggests that the exclusivity runs the other way. To the contrary, several clues indicate that §355(f ) encompasses decisions beyond those described in §355(c). For example, §355(g) lists three types of decisions that are subject to review exclusively under §355(f ): determinations of claims for benefits or refunds, determinations of other matters under §355(c), and determinations that unexpended funds in the railroad unemployment insurance account may be used to pay benefits or refunds. See 45 U. S. C. §§355(g), 351(p), 360(a). The Board concedes that the third type of decision falls outside §355(c). See Brief for Respondent 22, n. 4.[ 4 ] In addition, the Board’s own regulations appear to presume that judicial review is available for decisions not covered by §355(c), such as the Board’s determinations of employers’ contribution rates. See 20 CFR §345.307(c). Given these indications that §355(f ) is broader than §355(c), the Board’s structural argument does not overcome the plain meaning of “any final decision” and the presumption in favor of judicial review. C The Board’s remaining arguments also fall short. First, the Board argues that this Court’s precedent holds that reopening decisions are not subject to judicial review. In Califano v. Sanders , 430 U.S. 99 (1977), this Court concluded that §405(g) of the Social Security Act, which authorizes judicial review of “ ‘any final decision of the Secretary made after a hearing,’ ” does not apply to refusals to reopen a prior benefits determination. Id., at 102 (quoting 42 U. S. C. §405(g)). As it is under the RRA, the opportunity to seek reopening in Califano was “a second look that the agency had made available to claimants as a matter of grace” after the deadline for appealing an initial benefits determination had passed. Smith , 587 U. S., at ___ (slip op., at 12). Given this similarity, many courts have applied Califano to the type of decision at issue here. See, e.g., Roberts , 346 F. 3d, at 141; Harris v. Railroad Retirement Bd. , 198 F.3d 139 , 142 (CA4 1999); Abbruzzese v. Railroad Retirement Bd. , 63 F.3d 972 , 974 (CA10 1995). A key textual difference in the respective judicial review provisions, however, distinguishes Califano from this case. Section 405(g) of the Social Security Act provides that reviewable decisions must be “made after a hearing,” whereas §355(f ) of the RRA contains no such limitation. Compare 42 U. S. C. §405(g) with 45 U. S. C. §355(f ). Section 405(g)’s hearing requirement was a significant basis for Califano ’s conclusion that judicial review was unavailable, as “a petition to reopen a prior final decision may be denied without a hearing.” 430 U. S., at 108; see also ibid. (explaining that §405(g) “clearly limits judicial review to a particular type of agency action”). The other considerations identified in Califano , including the fact that reopening was made available only by regulation, corroborated the Court’s interpretation of this important textual limit. Ibid. ; see also Smith , 587 U. S., at ___ (slip op., at 8). Section 355(f ), by contrast, contains no such express limitation, and the Board’s decision fits within the provision’s plain language. Second, the Board argues that §355(f ) should be interpreted in light of §231g’s reference to decisions “determining the rights or liabilities of any person.” See 45 U. S. C. §231g. The denial of reopening does not qualify for judicial review, the Board claims, because it is simply a “refusal to make a new determination” of rights or liabilities, like the decision this Court addressed in Your Home Visiting Nurse Services, Inc. v. Shalala , 525 U.S. 449 (1999). Id., at 453 (emphasis deleted). In Your Home , this Court concluded that an agency intermediary’s refusal to reopen a prior Medicare reimbursement determination was not subject to further administrative review because it was not a “ ‘final determination . . . as to the amount of total program reimbursement due.’ ” Ibid . (quoting 42 U. S. C. §1395 oo (a)(1)(A)(i)). The agency argued that the denial of reopening was not itself a determination “as to the amount,” but rather a refusal to make such a determination. Ibid. This Court concluded that the agency’s interpretation was reasonable, and thus entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). Your Home , 525 U. S., at 453. The Court noted that the agency’s interpretation was also “the more natural” reading of the statute and was “further confirmed” by two considerations from Califano : The right to seek reopening existed only by regulation, and permitting review would undermine the ordinary deadlines for appealing the intermediary’s reimbursement decisions. 525 U. S., at 453–454. The Board argues that its decision here should be viewed in the same way. The Board’s argument is unpersuasive for several reasons. First, the statute in Your Home defined the scope of internal agency review and thus did not implicate the presumption in favor of judicial review. To the contrary, the Court ultimately deferred to the agency’s interpretation precluding review under Chevron . See 525 U. S., at 453. No such deference is due here because the scope of judicial review is “hardly the kind of question that the Court presumes that Congress implicitly delegated to an agency.” Smith , 587 U. S., at ___ (slip op., at 14). Second, the statute at issue in Your Home was narrower than §231g because it focused on a particular type of determination: one “as to the amount of total program reimbursement due the provider.” See 42 U. S. C. §1395 oo (a)(1)(A)(i). Section 231g, in contrast, broadly authorizes judicial review of “[d]ecisions . . . determining the rights or liabilities of any person under [the RRA].” This broader language, as well as §231g’s express direction that “all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the [RUIA],” indicates that §231g simply incorporates §355(f ) into the RRA. As the Board stated during oral argument, §231g “effectively piggybacks” on §355(f ). Tr. of Oral Arg. 46. Every Court of Appeals to interpret these statutes has reached the same conclusion. See supra, at 5, n. 1. Thus, the key language governing judicial review under both statutes is the phrase “any final decision.” Finally, the Board argues that the opportunity to seek reopening is a matter of administrative grace, and such solicitous discretion should not be discouraged by allowing judicial review. But the fact that the Board could decline to offer reopening does not mean that, having chosen to provide it, the Board may avoid the plain text of §355(f ). See Hawkes Co. , 578 U. S., at 602 (“[S]uch a ‘count your blessings’ argument is not an adequate rejoinder to the assertion of a right to judicial review”). Whether the availability of judicial review will affect how the Board exercises its discretion is a question properly reserved for Congress. It is also worth noting that judicial review of reopening decisions will be limited. The Board’s decision to grant or deny reopening, while guided by substantive criteria, is ultimately discretionary and therefore subject to reversal only for abuse of discretion. See 20 CFR §261.11; Stovic , 826 F. 3d, at 506; Szostak v. Railroad Retirement Bd. , 370 F.2d 253, 254 (CA2 1966) (Friendly, J., for the court). Most decisions will be upheld under this deferential standard. See ICC v. Locomotive Engineers , 482 U.S. 270 , 288 (1987) (Stevens, J., concurring). Judicial review plays a modest, but important, role in guarding against decisions that are arbitrary, inconsistent with the standards set by the Board’s own regulations, or otherwise contrary to law. *  *  * We hold that the Board’s refusal to reopen a prior benefits determination is a “final decision” within the meaning of §355(f ), and therefore subject to judicial review. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Every Court of Appeals to interpret these statutes has reached the same conclusion. See Stovic v. Railroad Retirement Bd ., 826 F.3d 500, 502 (CADC 2016) (Kavanaugh, J., for the court); Cunningham v. Railroad Retirement Bd ., 392 F.3d 567 , 571 (CA3 2004); Roberts v. Railroad Retirement Bd ., 346 F.3d 139 , 140 (CA5 2003); Rivera v. Railroad Retirement Bd ., 262 F.3d 1005 , 1008 (CA9 2001); Harris v. Railroad Retirement Bd ., 198 F.3d 139 , 141 (CA4 1999); Abbruzzese v. Railroad Retirement Bd ., 63 F.3d 972 , 974 , n. 4 (CA10 1995); Clifford v. Railroad Retirement Bd ., 3 F.3d 536 , 538, n. 4 (CA1 1993); Linquist v. Bowen , 813 F.2d 884, 888 (CA8 1987); Steebe v. Railroad Retirement Bd ., 708 F.2d 250, 252 (CA7 1983); Railroad Concrete Crosstie Corp. v. Railroad Retirement Bd ., 709 F.2d 1404, 1406, n. 2 (CA11 1983); Szostak v. Railroad Retirement Bd ., 370 F.2d 253, 254 (CA2 1966) (interpreting §231g’s predecessor provision); accord, Brief for Petitioner 15; Brief for Respondent 12. 2 “[S]ubsection (c),” i.e., 45 U. S. C. §355(c), governs administrative review of benefits determinations under the RUIA. It addresses decisions awarding or denying benefits, including “initial determination[s],” as well as decisions about the recovery of improperly awarded benefits. 45 U. S. C. §§355(c)(1)–(4). 3 The Court need not resolve the parties’ dispute about whether each type of party listed in §355(f ) must be “aggrieved by a final decision under subsection (c),” or whether that phrase modifies only the closest antecedent. Either way, Salinas is a proper party because he qualifies as both a “claimant” and a “claimant . . . aggrieved by a final decision under subsection (c).” Salinas has filed four separate applications for benefits under the RRA, and he claims to have been aggrieved by the Board’s decision on each, including the Board’s allegedly incorrect assessment of the benefits he is owed based on his 2013 application. 4 The Board argues that §355(g) merely precludes review of the Board’s fund decisions by the Comptroller General, who ordinarily makes determinations related to the charging and settling of government accounts. See Brief for Respondent 22, n. 4. That purpose, however, could have been accomplished without also indicating that review is available “as provided in subsection (f ).” 45 U. S. C. §355(g). Indeed, the RUIA does exactly this with respect to determinations about the use of funds from an administrative expense account. See §361(c) (providing simply that the Board’s determinations “shall not be subject to review in any manner”). Ultimately, we need not resolve whether the Board’s fund decisions are subject to judicial review. The point is that the Board’s structural interpretation is subject to doubt, and therefore does not overcome the presumption in favor of judicial review. SUPREME COURT OF THE UNITED STATES _________________ No. 19–199 _________________ MANFREDO M. SALINAS, PETITIONER v. UNITED STATES RAILROAD RETIREMENT BOARD on writ of certiorari to the united states court of appeals for the fifth circuit [February 3, 2021] Justice Thomas, with whom Justice Alito, Justice Gorsuch and Justice Barrett join, dissenting. The Court may well correctly interpret the judicial review provision located in the Railroad Unemployment Insurance Act (RUIA). See 45 U. S. C. §355(f). But this case concerns the judicial review provision located in the Railroad Retirement Act (RRA). See 45 U. S. C. §231g. And though the RRA references the RUIA to explain how to obtain judicial review, it defines separately what may be reviewed—the key issue here. The RRA provides that “[d]ecisions of the Board determining the rights or liabilities of any person under this subchapter shall be subject to judicial review in the same manner, subject to the same limitations, and all provisions of law shall apply in the same manner as though the decision were a determination of corresponding rights or liabilities under the [RUIA].” Ibid. This language directs courts to assess questions about reviewability in three steps. First, resolve whether the Board’s decision determined rights or liabilities. Second, locate the rights or liabilities under the RUIA, if any, that correspond to the ones determined by the Board. And third, decide whether and how a determination of those parallel rights or liabilities would be reviewed under the RUIA. The majority bypasses this structure entirely by overlooking the question whether the Board’s decision here determined any right or liability at all. It did not. A “right” is “[a] power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage.” Black’s Law Dictionary 1189 (5th ed. 1979). Similarly, a “liability” is “an obligation one is bound in law or justice to perform.” Id., at 823. The Board here did not assess a legal obligation or claim. As the majority points out, the Board decided only the “ultimately discretionary” matter of whether to reopen the 2006 decision. Ante, at 13. Neither the RRA nor the RUIA provides any statutory right to reopen a proceeding. And the regulations that create reopening procedures make clear that no one has a right to that proceeding; the Board has plenary authority to “direct that any decision, which is otherwise subject to reopening under this part, shall not be reopened.” 20 CFR §261.11 (2020). Nor did the Board’s decision determine any underlying statutory entitlement to benefits, as petitioner contends. The most recent reopening decision did not address the merits of the 2006 decision. On the contrary, it briefly explained that petitioner failed to meet any of the threshold regulatory requirements to obtain a reopening in the first place. As we unanimously said in a similar context, the “more natural” understanding of a reopening denial like this one is that it was simply “the refusal to make a new determination.” Your Home Visiting Nurse Services, Inc. v. Shalala , 525 U.S. 449 , 453 (1999). The majority skirts this analysis by noting that the statute at issue in Your Home was narrower than the RRA. In Your Home , the statute involved determinations of “program reimbursement” amounts, 42 U. S. C. §1395 oo (a)(1) (A)(i), whereas the statute here provides review for determinations of “rights or liabilities,” 45 U. S. C. §231g. But that distinction is irrelevant. The reasoning in Your Home was simply that the refusal to reopen a determination “is not a final determination . . . but rather the refusal to make a new determination.” 525 U. S., at 453 (internal quotation marks omitted). So too here.[ 1 ] The majority also tries to sidestep text and precedent by invoking the presumption in favor of judicial review of administrative action that this Court sometimes applies. But we have explained that this presumption is nothing more than a default rule that gives way to “a statute’s language or structure.” Mach Mining, LLC v. EEOC , 575 U.S. 480, 486 (2015); see also Block v. Community Nutrition Institute , 467 U.S. 340 , 351 (1984) (explaining that the presumption is “overcome. . . whenever the congressional intent to preclude judicial review is fairly discernible in the statutory scheme” (internal quotation marks omitted)). Here, §231g limits judicial review to Board decisions determining rights or liabilities. The statutory language alone controls the outcome. Any presumption is further undercut because petitioner had full opportunity to seek judicial review of the 2006 decision that did determine his rights. Congress gave petitioner 90 days to file a petition for review in a court of appeals. §355(f). Petitioner simply did not take advantage of it. To require a court to review a reopening denial now—15 years after the statutory time for review expired—transforms a default presumption into a tool to “frustrate the statutory purpose of imposing a [time] limit on judicial review.” Your Home , 525 U. S., at 454. The presumption of judicial review is not a presumption of infinite judicial review. See Califano v. Sanders , 430 U.S. 99 , 108 (1977) (rejecting “an interpretation that would allow a claimant judicial review simply by filing—and being denied—a petition to reopen his claim”). We should not so readily allow a court-created presumption to overcome statutory time limits. The majority opinion is doubly incorrect because it creates a new form of judicial review in a context where it is not clear how it can be exercised. What standards a court could use to review Board decisions denying reopening remain elusive. There are no statutory cues to guide review—indeed, it is not altogether clear that the Board has authority to reopen its final decisions. See 45 U. S. C. §355(g). And the regulations that provide review give the Board discretion to deny reopening whenever it “deem[s] proper,” even if a case “is otherwise subject to reopening. 20 CFR §261.11. The “impossibility of devising an adequate standard of review” for these sorts of decisions is yet another reason to conclude that no review is warranted. ICC v. Locomotive Engineers , 482 U.S. 270 , 282 (1987); cf. 5 U. S. C. §701(a)(2) (extending judicial review, “except to the extent that . . . agency action is committed to agency discretion by law”).[ 2 ] Were courts to try to impose standards governing when the Board can deny reopening, the unintended effect may be to discourage the Board from offering reopenings in the first place. I would not distort the RRA’s judicial review provision to force courts to review a decision where no standards of review are evident. Instead of reckoning with these serious questions, the majority interprets §231g to say nothing more than that the RUIA’s judicial review provision applies. Ante , at 5. But that interpretive gloss ignores the words Congress chose. Only Board decisions “determining the rights or liabilities of any person” under the RRA are subject to judicial review. 45 U. S. C. §231g. Because the Board’s decision below did not determine any right or liability, the RRA does not provide for judicial review. I respectfully dissent. Notes 1 That the Court noted the best reading of the statute also happened to be a reasonable one under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), does not undermine its logic. 2 Our precedent suggests that even if judicial review is generally precluded, it may still remain available for “the adjudication of colorable constitutional claims.” Califano v. Sanders , 430 U.S. 99 , 109 (1977). But we need not decide whether this exception applies because neither side contends that the Board decided such an issue below.

The Railroad Retirement Board's refusal to reopen a prior denial of benefits to a former railroad employee is subject to judicial review. The Court holds that the employee, who was granted benefits upon reapplying, has the right to seek judicial review of the Board's decision not to reopen its previous denial. However, Justice Alito dissents, arguing that the Board's decision did not determine any right or liability and, therefore, should not be subject to judicial review.

Government Agencies

National Cable & Telecommunications Ass'n v. Brand X Internet Services

https://supreme.justia.com/cases/federal/us/545/967/

OPINION OF THE COURT NATIONAL CABLE & TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-277 AND 04-281 NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, et al., PETITIONERS 04–277 v. BRAND X INTERNET SERVICES et al. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES, PETITIONERS 04–281   v. BRAND X INTERNET SERVICES et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 2005] Justice Thomas delivered the opinion of the Court.    Title II of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. §151 et seq. , subjects all providers of “telecommunications servic[e]” to mandatory common-carrier regulation, §153(44). In the order under review, the Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide “telecommunications servic[e]” as the Communications Act defines that term, and hence are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), and the Administrative Procedure Act, 5 U. S. C. §555 et seq. We hold that it is. I    The traditional means by which consumers in the United States access the network of interconnected computers that make up the Internet is through “dial-up” connections provided over local telephone facilities. See 345 F. 3d 1120, 1123–1124 (CA9 2003) (cases below); In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities , 17 FCC Rcd. 4798, 4802–4803, ¶9 (2002) (hereinafter Declaratory Ruling ). Using these connections, consumers access the Internet by making calls with computer modems through the telephone wires owned by local phone companies. See Verizon Communications Inc. v. FCC, 535 U. S. 467 , 489–490 (2002) (describing the physical structure of a local telephone exchange). Internet service providers (ISPs), in turn, link those calls to the Internet network, not only by providing a physical connection, but also by offering consumers the ability to translate raw Internet data into information they may both view on their personal computers and transmit to other computers connected to the Internet. See In re Federal-State Joint Board on Universal Service , 13 FCC Rcd. 11501, 11531, ¶63 (1998) (hereinafter Universal Service Report ); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law 988 (2d ed. 1999) (hereinafter Huber); 345 F. 3d, at 1123–1124. Technological limitations of local telephone wires, however, retard the speed at which data from the Internet may be transmitted through end users’ dial-up connections. Dial-up connections are therefore known as “narrowband,” or slower speed, connections.    “Broadband” Internet service, by contrast, transmits data at much higher speeds. There are two principal kinds of broadband Internet service: cable modem service and Digital Subscriber Line (DSL) service. Cable modem service transmits data between the Internet and users’ computers via the network of television cable lines owned by cable companies. See id. , at 1124. DSL service provides high-speed access using the local telephone wires owned by local telephone companies. See WorldCom, Inc. v. FCC , 246 F. 3d 690, 692 (CADC 2001) (describing DSL technology). Cable companies and telephone companies can either provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease their transmission facilities to independent ISPs that then use the facilities to provide consumers with Internet access. Other ways of transmitting high-speed Internet data into homes, including terrestrial- and satellite-based wireless networks, are also emerging. Declaratory Ruling 4802, ¶6. II    At issue in these cases is the proper regulatory classification under the Communications Act of broadband cable Internet service. The Act, as amended by the Telecommunications Act of 1996, 110 Stat. 56, defines two categories of regulated entities relevant to these cases: telecommunications carriers and information-service providers. The Act regulates telecommunications carriers, but not information-service providers, as common carriers. Telecommunications carriers, for example, must charge just and reasonable, nondiscriminatory rates to their customers, 47 U. S. C. §§201–209, design their systems so that other carriers can interconnect with their communications networks, §251(a)(1), and contribute to the federal “universal service” fund, §254(d). These provisions are mandatory, but the Commission must forbear from applying them if it determines that the public interest requires it. §§160(a), (b). Information-service providers, by contrast, are not subject to mandatory common-carrier regulation under Title II, though the Commission has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications, see §§151–161.    These two statutory classifications originated in the late 1970’s, as the Commission developed rules to regulate data-processing services offered over telephone wires. That regime, the “ Computer II ” rules, distinguished between “basic” service (like telephone service) and “enhanced” service (computer-processing service offered over telephone lines). In re Amendment of Section 64.702 of the Commission’s Rules and Regulations (Second Computer Inquiry) , 77 F. C. C. 2d 384, 417–423, ¶¶86–101 (1980) (hereinafter Computer II Order ). The Computer II rules defined both basic and enhanced services by reference to how the consumer perceives the service being offered.    In particular, the Commission defined “basic service” as “a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.” Id. , at 420, ¶96. By “pure” or “transparent” transmission, the Commission meant a communications path that enabled the consumer to transmit an ordinary-language message to another point, with no computer processing or storage of the information, other than the processing or storage needed to convert the message into electronic form and then back into ordinary language for purposes of transmitting it over the network—such as via a telephone or a facsimile. Id. , at 419–420, ¶¶94–95. Basic service was subject to common-carrier regulation. Id. , at 428, ¶114.    “[E]nhanced service,” however, was service in which “computer processing applications [were] used to act on the content, code, protocol, and other aspects of the subscriber’s information,” such as voice and data storage services, id. , at 420–421, ¶97, as well as “protocol conversion” ( i.e. , ability to communicate between networks that employ different data-transmission formats), id. , at 421–422, ¶99. By contrast to basic service, the Commission decided not to subject providers of enhanced service, even enhanced service offered via transmission wires, to Title II common-carrier regulation. Id. , at 428–432, ¶¶115–123. The Commission explained that it was unwise to subject enhanced service to common-carrier regulation given the “fast-moving, competitive market” in which they were offered. Id. , at 434, ¶129.    The definitions of the terms “telecommunications service” and “information service” established by the 1996 Act are similar to the Computer II basic- and enhanced-service classifications. “Telecommunications service”—the analog to basic service—is “the offering of telecommunications for a fee directly to the public … regardless of the facilities used.” 47 U. S. C. §153(46). “Telecommunications” is “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” §153(43). “Telecommunications carrier[s]”—those subjected to mandatory Title II common-carrier regulation—are defined as “provider[s] of telecommunications services.” §153(44). And “information service”—the analog to enhanced service—is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications … .” §153(20).    In September 2000, the Commission initiated a rulemaking proceeding to, among other things, apply these classifications to cable companies that offer broadband Internet service directly to consumers. In March 2002, that rulemaking culminated in the Declaratory Ruling under review in these cases. In the Declaratory Ruling , the Commission concluded that broadband Internet service provided by cable companies is an “information service” but not a “telecommunications service” under the Act, and therefore not subject to mandatory Title II common-carrier regulation. In support of this conclusion, the Commission relied heavily on its Universal Service Report . See Declaratory Ruling 4821–4822, ¶¶36–37 (citing Universal Service Report or Report ). The Universal Service Report classified “non-facilities-based” ISPs—those that do not own the transmission facilities they use to connect the end user to the Internet—solely as information-service providers. See Universal Service Report 11533, ¶67. Unlike those ISPs, cable companies own the cable lines they use to provide Internet access. Nevertheless, in the Declaratory Ruling , the Commission found no basis in the statutory definitions for treating cable companies differently from non-facilities-based ISPs: Both offer “a single, integrated service that enables the subscriber to utilize Internet access service … and to realize the benefits of a comprehensive service offering.” Declaratory Ruling 4823, ¶38. Because Internet access provides a capability for manipulating and storing information, the Commission concluded that it was an information service. Ibid .    The integrated nature of Internet access and the high-speed wire used to provide Internet access led the Commission to conclude that cable companies providing Internet access are not telecommunications providers. This conclusion, the Commission reasoned, followed from the logic of the Universal Service Report . The Report had concluded that, though Internet service “involves data transport elements” because “an Internet access provider must enable the movement of information between customers’ own computers and distant computers with which those customers seek to interact,” it also “offers end users information-service capabilities inextricably intertwined with data transport.” Universal Service Report 11539–11540, ¶80. ISPs, therefore, were not “offering … telecommunications … directly to the public,” §153(46), and so were not properly classified as telecommunications carriers, see id., at 11540, ¶81. In other words, the Commission reasoned that consumers use their cable modems not to transmit information “transparently,” such as by using a telephone, but instead to obtain Internet access.    The Commission applied this same reasoning to cable companies offering broadband Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not “offe[r] telecommunications service to the end user, but rather … merely us[e] telecommunications to provide end users with cable modem service.” Declaratory Ruling 4824, ¶41. Though the Commission declined to apply mandatory Title II common-carrier regulation to cable companies, it invited comment on whether under its Title I jurisdiction it should require cable companies to offer other ISPs access to their facilities on common-carrier terms. Id. , at 4839, ¶72. Numerous parties petitioned for judicial review, challenging the Commission’s conclusion that cable modem service was not telecommunications service. By judicial lottery, the Court of Appeals for the Ninth Circuit was selected as the venue for the challenge.    The Court of Appeals granted the petitions in part, vacated the Declaratory Ruling in part, and remanded to the Commission for further proceedings. In particular, the Court of Appeals vacated the ruling to the extent it concluded that cable modem service was not “telecommunications service” under the Communications Act. It held that the Commission could not permissibly construe the Communications Act to exempt cable companies providing Internet service from Title II regulation. See 345 F. 3d, at 1132. Rather than analyzing the permissibility of that construction under the deferential framework of Chevron , 467 U. S. 837 , however, the Court of Appeals grounded its holding in the stare decisis effect of AT&T Corp. v. Portland , 216 F. 3d 871 (CA9 2000). See 345 F. 3d, at 1128–1132. Portland held that cable modem service was a “telecommunications service,” though the court in that case was not reviewing an administrative proceeding and the Commission was not a party to the case. See 216 F. 3d, at 877–880. Nevertheless, Portland ’s holding, the Court of Appeals reasoned, overrode the contrary interpretation reached by the Commission in the Declaratory Ruling . See 345 F. 3d, at 1130–1131.    We granted certiorari to settle the important questions of federal law that these cases present. 543 U. S. __ (2004). III    We first consider whether we should apply Chevron ’s framework to the Commission’s interpretation of the term “telecommunications service.” We conclude that we should. We also conclude that the Court of Appeals should have done the same, instead of following the contrary construction it adopted in Portland . A    In Chevron , this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps, the Court explained, involves difficult policy choices that agencies are better equipped to make than courts. 467 U. S., at 865–866. If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation. Id. , at 843–844, and n. 11.    The Chevron framework governs our review of the Commission’s construction. Congress has delegated to the Commission the authority to “execute and enforce” the Communications Act, §151, and to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions” of the Act, §201(b); AT&T Corp. v. Iowa Utilities Bd., 525 U. S. 366 , 377–378 (1999). These provisions give the Commission the authority to promulgate binding legal rules; the Commission issued the order under review in the exercise of that authority; and no one questions that the order is within the Commission’s jurisdiction. See Household Credit Services, Inc. v. Pfennig, 541 U. S. 232 , 238–239 (2004); United States v. Mead Corp., 533 U. S. 218 , 231–234 (2001); Christensen v. Harris County, 529 U. S. 576 , 586–588 (2000). Hence, as we have in the past, we apply the Chevron framework to the Commission’s interpretation of the Communications Act. See National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U. S. 327 , 333–339 (2002); Verizon, 535 U. S., at 501–502.    Some of the respondents dispute this conclusion, on the ground that the Commission’s interpretation is inconsistent with its past practice. We reject this argument. Agency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework. Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 , 46–57 (1983). For if the agency adequately explains the reasons for a reversal of policy, “change is not invalidating, since the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.” Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735 , 742 (1996); see also Rust v. Sullivan, 500 U. S. 173 , 186–187 (1991); Barnhart v. Walton, 535 U. S. 212 , 226 (2002) (Scalia, J., concurring in part and concurring in judgment). “An initial agency interpretation is not instantly carved in stone. On the contrary, the agency … must consider varying interpretations and the wisdom of its policy on a continuing basis,” Chevron , supra , at 863–864, for example, in response to changed factual circumstances, or a change in administrations, see State Farm , supra , at 59 (Rehnquist, J., concurring in part and dissenting in part). That is no doubt why in Chevron itself, this Court deferred to an agency interpretation that was a recent reversal of agency policy. See 467 U. S., at 857–858. We therefore have no difficulty concluding that Chevron applies. B    The Court of Appeals declined to apply Chevron because it thought the Commission’s interpretation of the Communications Act foreclosed by the conflicting construction of the Act it had adopted in Portland , supra . See 345 F. 3d, at 1127–1132. It based that holding on the assumption that Portland ’s construction overrode the Commission’s, regardless of whether Portland had held the statute to be unambiguous. 345 F. 3d, at 1131. That reasoning was incorrect.    A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. This principle follows from Chevron itself. Chevron established a “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley , supra , at 740–741. Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court’s interpretation to override an agency’s. Chevron ’s premise is that it is for agencies, not courts, to fill statutory gaps. See 467 U. S., at 843–844, and n. 11. The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency’s construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.    A contrary rule would produce anomalous results. It would mean that whether an agency’s interpretation of an ambiguous statute is entitled to Chevron deference would turn on the order in which the interpretations issue: If the court’s construction came first, its construction would prevail, whereas if the agency’s came first, the agency’s construction would command Chevron deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals’ rule, moreover, would “lead to the ossification of large portions of our statutory law,” Mead , supra, at 247 (Scalia, J., dissenting), by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither Chevron nor the doctrine of stare decisis requires these haphazard results.    The dissent answers that allowing an agency to override what a court believes to be the best interpretation of a statute makes “judicial decisions subject to reversal by Executive officers.” Post , at 13 (opinion of Scalia, J.). It does not. Since Chevron teaches that a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative, the agency’s decision to construe that statute differently from a court does not say that the court’s holding was legally wrong. Instead, the agency may, consistent with the court’s holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of such statutes. In all other respects, the court’s prior ruling remains binding law (for example, as to agency interpretations to which Chevron is inapplicable). The precedent has not been “reversed” by the agency, any more than a federal court’s interpretation of a State’s law can be said to have been “reversed” by a state court that adopts a conflicting (yet authoritative) interpretation of state law.    The Court of Appeals derived a contrary rule from a mistaken reading of this Court’s decisions. It read Neal v. United States, 516 U. S. 284 (1996), to establish that a prior judicial construction of a statute categorically controls an agency’s contrary construction. 345 F. 3d, at 1131–1132; see also post , at 12, n. 11 (Scalia, J., dissenting). Neal established no such proposition. Neal declined to defer to a construction adopted by the United States Sentencing Commission that conflicted with one the Court previously had adopted in Chapman v. United States, 500 U. S. 453 (1991). Neal , supra , at 290–295. Chapman , however, had held the relevant statute to be unambiguous. See 500 U. S., at 463 (declining to apply the rule of lenity given the statute’s clear language). Thus, Neal established only that a precedent holding a statute to be unambiguous forecloses a contrary agency construction. That limited holding accorded with this Court’s prior decisions, which had held that a court’s interpretation of a statute trumps an agency’s under the doctrine of stare decisis only if the prior court holding “determined a statute’s clear meaning.” Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116 , 131 (1990) (emphasis added); see also Lechmere, Inc. v. NLRB, 502 U. S. 527 , 536–537 (1992). Those decisions allow a court’s prior interpretation of a statute to override an agency’s interpretation only if the relevant court decision held the statute unambiguous.    Against this background, the Court of Appeals erred in refusing to apply Chevron to the Commission’s interpretation of the definition of “telecommunications service,” 47 U. S. C. §153(46). Its prior decision in Portland held only that the best reading of §153(46) was that cable modem service was a “telecommunications service,” not that it was the only permissible reading of the statute. See 216 F. 3d, at 877–880. Nothing in Portland held that the Communications Act unambiguously required treating cable Internet providers as telecommunications carriers. Instead, the court noted that it was “not presented with a case involving potential deference to an administrative agency’s statutory construction pursuant to the Chevron doctrine,” id. , at 876; and the court invoked no other rule of construction (such as the rule of lenity) requiring it to conclude that the statute was unambiguous to reach its judgment. Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency’s, the court must hold that the statute unambiguously requires the court’s construction. Portland did not do so.    As the dissent points out, it is not logically necessary for us to reach the question whether the Court of Appeals misapplied Chevron for us to decide whether the Commission acted lawfully. See post , at 16–17 (opinion of Scalia, J.). Nevertheless, it is no “great mystery” why we are reaching the point here. Ibid. There is genuine confusion in the lower courts over the interaction between the Chevron doctrine and stare decisis principles, as the petitioners informed us at the certiorari stage of this litigation. See Pet. for Cert. of Federal Communications Commission et al. in No. 04–281, pp. 19–23; Pet. for Cert. of National Cable & Telecomm. Assn. et al. in No. 04–277, pp. 22–29. The point has been briefed. See Brief for Federal Petitioners 38–44; Brief for Cable-Industry Petitioners 30–36. And not reaching the point could undermine the purpose of our grant of certiorari: to settle authoritatively whether the Commission’s Declaratory Ruling is lawful. Were we to uphold the Declaratory Ruling without reaching the Chevron point, the Court of Appeals could once again strike down the Commission’s rule based on its Portland decision. Portland (at least arguably) could compel the Court of Appeals once again to reverse the Commission despite our decision, since our conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an “information service” leaves untouched Portland ’s holding that the Commission’s interpretation is not the best reading of the statute. We have before decided similar questions that were not, strictly speaking, necessary to our disposition. See, e.g., Agostini v. Felton, 521 U. S. 203 , 237 (1997) (requiring the Courts of Appeals to adhere to our directly controlling precedents, even those that rest on reasons rejected in other decisions); Roper v. Simmons, 543 U. S. ___ , ___ (2005) (slip op., at 23–24) (Scalia, J., dissenting) (criticizing this Court for not reaching the question whether the Missouri Supreme Court erred by failing to follow directly controlling Supreme Court precedent, though that conclusion was not necessary to the Court’s decision). It is prudent for us to do so once again today. IV    We next address whether the Commission’s construction of the definition of “telecommunications service,” 47 U. S. C. §153(46), is a permissible reading of the Communications Act under the Chevron framework. Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. At the first step, we ask whether the statute’s plain terms “directly addres[s] the precise question at issue.” 467 U. S., at 843. If the statute is ambiguous on the point, we defer at step two to the agency’s interpretation so long as the construction is “a reasonable policy choice for the agency to make.” Id. , at 845. The Commission’s interpretation is permissible at both steps. A    We first set forth our understanding of the interpretation of the Communications Act that the Commission embraced. The issue before the Commission was whether cable companies providing cable modem service are providing a “telecommunications service” in addition to an “information service.”    The Commission first concluded that cable modem service is an “information service,” a conclusion unchallenged here. The Act defines “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications … .” §153(20). Cable modem service is an information service, the Commission reasoned, because it provides consumers with a comprehensive capability for manipulating information using the Internet via high-speed telecommunications. That service enables users, for example, to browse the World Wide Web, to transfer files from file archives available on the Internet via the “File Transfer Protocol,” and to access e-mail and Usenet newsgroups. Declaratory Ruling 4821, ¶37; Universal Service Report 11537, ¶76. Like other forms of Internet service, cable modem service also gives users access to the Domain Name System (DNS). DNS, among other things, matches the Web page addresses that end users type into their browsers (or “click” on) with the Internet Protocol (IP) addresses[ Footnote 1 ] of the servers containing the Web pages the users wish to access. Declaratory Ruling 4821–4822, ¶37. All of these features, the Commission concluded, were part of the information service that cable companies provide consumers. Id. , at 4821–4823, ¶¶36–38; see also Universal Service Report 11536–11539, ¶¶75–79.    At the same time, the Commission concluded that cable modem service was not “telecommunications service.” “Telecommunications service” is “the offering of telecommunications for a fee directly to the public.” 47 U. S. C. §153(46). “Telecommunications,” in turn, is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” §153(43). The Commission conceded that, like all information-service providers, cable companies use “telecommunications” to provide consumers with Internet service; cable companies provide such service via the high-speed wire that transmits signals to and from an end user’s computer. Declaratory Ruling 4823, ¶40. For the Commission, however, the question whether cable broadband Internet providers “offer” telecommunications involved more than whether telecommunications was one necessary component of cable modem service. Instead, whether that service also includes a telecommunications “offering” “tur[ned] on the nature of the functions the end user is offered,” id. , at 4822, ¶38 (emphasis added), for the statutory definition of “telecommunications service” does not “res[t] on the particular types of facilities used,” id. , at 4821, ¶35; see §153(46) (definition of “telecommunications service” applies “regardless of the facilities used”).    Seen from the consumer’s point of view, the Commission concluded, cable modem service is not a telecommunications offering because the consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access: “As provided to the end user the telecommunications is part and parcel of cable modem service and is integral to its other capabilities.” Declaratory Ruling 4823, ¶39. The wire is used, in other words, to access the World Wide Web, newsgroups, and so forth, rather than “transparently” to transmit and receive ordinary-language messages without computer processing or storage of the message. See supra , at 4 (noting the Computer II notion of “transparent” transmission). The integrated character of this offering led the Commission to conclude that cable modem service is not a “stand-alone,” transparent offering of telecommunications. Declaratory Ruling 4823–4825, ¶¶41–43. B    This construction passes Chevron ’s first step. Respondents argue that it does not, on the ground that cable companies providing Internet service necessarily “offe[r]” the underlying telecommunications used to transmit that service. The word “offering” as used in §153(46), however, does not unambiguously require that result. Instead, “offering” can reasonably be read to mean a “stand-alone” offering of telecommunications, i.e. , an offered service that, from the user’s perspective, transmits messages unadulterated by computer processing. That conclusion follows not only from the ordinary meaning of the word “offering,” but also from the regulatory history of the Communications Act. 1    Cable companies in the broadband Internet service business “offe[r]” consumers an information service in the form of Internet access and they do so “via telecommunications,” §153(20), but it does not inexorably follow as a matter of ordinary language that they also “offe[r]” consumers the high-speed data transmission (telecommunications) that is an input used to provide this service, §153(46). We have held that where a statute’s plain terms admit of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference. See Verizon, 535 U. S., at 498 (deferring to the Commission’s interpretation of the term “cost” by reference to an alternative linguistic usage defined by what “[a] merchant who is asked about ‘the cost of providing the goods’ ” might “reasonably” say); National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 , 418 (1992) (agency construction entitled to deference where there were “alternative dictionary definitions of the word” at issue). The term “offe[r]” as used in the definition of telecommunications service, 47 U. S. C. §153(46), is ambiguous in this way.    It is common usage to describe what a company “offers” to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product, as the dissent concedes. See post , at 3 (opinion of Scalia, J.). One might well say that a car dealership “offers” cars, but does not “offer” the integrated major inputs that make purchasing the car valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as “offering” consumers the car’s components in addition to the car itself. Even if it is linguistically permissible to say that the car dealership “offers” engines when it offers cars, that shows, at most, that the term “offer,” when applied to a commercial transaction, is ambiguous about whether it describes only the offered finished product, or the product’s discrete components as well. It does not show that no other usage is permitted.    The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated offering. See ibid. We think that they are sufficiently integrated, because “[a] consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access.” Supra , at 16. In the telecommunications context, it is at least reasonable to describe companies as not “offering” to consumers each discrete input that is necessary to providing, and is always used in connection with, a finished service. We think it no misuse of language, for example, to say that cable companies providing Internet service do not “offer” consumers DNS, even though DNS is essential to providing Internet access. Declaratory Ruling 4810, n. 74, 4822–4823, ¶38. Likewise, a telephone company “offers” consumers a transparent transmission path that conveys an ordinary-language message, not necessarily the data transmission facilities that also “transmi[t] … information of the user’s choosing,” §153(43), or other physical elements of the facilities used to provide telephone service, like the trunks and switches, or the copper in the wires. What cable companies providing cable modem service and telephone companies providing telephone service “offer” is Internet service and telephone service respectively—the finished services, though they do so using (or “via”) the discrete components composing the end product, including data transmission. Such functionally integrated components need not be described as distinct “offerings.”    In response, the dissent argues that the high-speed transmission component necessary to providing cable modem service is necessarily “offered” with Internet service because cable modem service is like the offering of pizza delivery service together with pizza, and the offering of puppies together with dog leashes. Post , at 3–4 (opinion of Scalia, J.). The dissent’s appeal to these analogies only underscores that the term “offer” is ambiguous in the way that we have described. The entire question is whether the products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes). That question turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance. As the Commission has candidly recognized, “the question may not always be straightforward whether, on the one hand, an entity is providing a single information service with communications and computing components, or, on the other hand, is providing two distinct services, one of which is a telecommunications service.” Universal Service Report 11530, ¶60. Because the term “offer” can sometimes refer to a single, finished product and sometimes to the “individual components in a package being offered” (depending on whether the components “still possess sufficient identity to be described as separate objects,” post , at 3), the statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering. This leaves federal telecommunications policy in this technical and complex area to be set by the Commission, not by warring analogies.    We also do not share the dissent’s certainty that cable modem service is so obviously like pizza delivery service and the combination of dog leashes and dogs that the Commission could not reasonably have thought otherwise. Post, at 3–4. For example, unlike the transmission component of Internet service, delivery service and dog leashes are not integral components of the finished products (pizzas and pet dogs). One can pick up a pizza rather than having it delivered, and one can own a dog without buying a leash. By contrast, the Commission reasonably concluded, a consumer cannot purchase Internet service without also purchasing a connection to the Internet and the transmission always occurs in connection with information processing. In any event, we doubt that a statute that, for example, subjected offerors of “delivery” service (such as Federal Express and United Parcel Service) to common-carrier regulation would unambiguously require pizza-delivery companies to offer their delivery services on a common carrier basis. 2    The Commission’s traditional distinction between basic and enhanced service, see supra , at 4–5, also supports the conclusion that the Communications Act is ambiguous about whether cable companies “offer” telecommunications with cable modem service. Congress passed the definitions in the Communications Act against the background of this regulatory history, and we may assume that the parallel terms “telecommunications service” and “information service” substantially incorporated their meaning, as the Commission has held. See, e.g., In re Federal-State Joint Board on Universal Service , 12 FCC Rcd. 8776, 9179–9180, ¶788 (1997) (noting that the “definition of enhanced services is substantially similar to the definition of information services” and that “all services previously considered ‘enhanced services’ are ‘information services’ ”); Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152 , 159 (1993) (noting presumption that Congress is aware of “settled judicial and administrative interpretation[s]” of terms when it enacts a statute). The regulatory history in at least two respects confirms that the term “telecommunications service” is ambiguous.    First, in the Computer II Order that established the terms “basic” and “enhanced” services, the Commission defined those terms functionally, based on how the consumer interacts with the provided information, just as the Commission did in the order below. See supra , at 4–5. As we have explained, Internet service is not “ ‘transparent in terms of its interaction with customer-supplied information,’ ” Computer II Order 420, ¶96; the transmission occurs in connection with information processing. It was therefore consistent with the statute’s terms for the Commission to assume that the parallel term “telecommunications service” in 47 U. S. C. §153(46) likewise describes a “pure” or “transparent” communications path not necessarily separately present, from the end user’s perspective, in an integrated information-service offering.    The Commission’s application of the basic/enhanced service distinction to non-facilities-based ISPs also supports this conclusion. The Commission has long held that “all those who provide some form of transmission services are not necessarily common carriers.” Computer II Order 431, ¶122; see also id. , at 435, ¶132 (“acknowledg[ing] the existence of a communications component” in enhanced-service offerings). For example, the Commission did not subject to common-carrier regulation those service providers that offered enhanced services over telecommunications facilities, but that did not themselves own the underlying facilities—so-called “non-facilities-based” providers. See Universal Service Report 11530, ¶60. Examples of these services included database services in which a customer used telecommunications to access information, such as Dow Jones News and Lexis, as well as “value added networks,” which lease wires from common carriers and provide transmission as well as protocol-processing service over those wires. See In re Amendment to Sections 64.702 of the Commission’s Rules and Regulations (Third Computer Inquiry) , 3 FCC Rcd. 1150, 1153, n. 23 (1988); supra , at 4 (explaining protocol conversion). These services “combin[ed] communications and computing components,” yet the Commission held that they should “always be deemed enhanced” and therefore not subject to common-carrier regulation. Universal Service Report 11530, ¶60. Following this traditional distinction, the Commission in the Universal Service Report classified ISPs that leased rather than owned their transmission facilities as pure information-service providers. Id., at 11540, ¶81.    Respondents’ statutory arguments conflict with this regulatory history. They claim that the Communications Act unambiguously classifies as telecommunications carriers all entities that use telecommunications inputs to provide information service. As respondent MCI concedes, this argument would subject to mandatory common-carrier regulation all information-service providers that use telecommunications as an input to provide information service to the public. Brief for Respondent MCI, Inc. 30. For example, it would subject to common-carrier regulation non-facilities-based ISPs that own no transmission facilities. See Universal Service Report 11532–11533, ¶66. Those ISPs provide consumers with transmission facilities used to connect to the Internet, see supra , at 2, and so, under respondents’ argument, necessarily “offer” telecommunications to consumers. Respondents’ position that all such entities are necessarily “offering telecommunications” therefore entails mandatory common-carrier regulation of entities that the Commission never classified as “offerors” of basic transmission service, and therefore common carriers, under the Computer II regime.[ Footnote 2 ] See Universal Service Report 11540, ¶81 (noting past Commission policy); Computer and Communications Industry Assn. v. FCC , 693 F. 2d 198, 209 (CADC 1982) (noting and upholding Commission’s Computer II “finding that enhanced services … are not common carrier services within the scope of Title II”). We doubt that the parallel term “telecommunications service” unambiguously worked this abrupt shift in Commission policy. Respondents’ analogy between cable companies that provide cable modem service and facilities-based enhanced-service providers—that is, enhanced-service providers who own the transmission facilities used to provide those services—fares no better. Respondents stress that under the Computer II rules the Commission regulated such providers more heavily than non-facilities-based providers. The Commission required, for example, local telephone companies that provided enhanced services to offer their wires on a common-carrier basis to competing enhanced-service providers. See, e.g., In re Amendment of Sections 64.702 of the Commission’s Rules and Regulations (Third Computer Inquiry) , 104 F. C. C. 2d 958, 964, ¶4 (1986) (hereinafter Computer III Order ). Respondents argue that the Communications Act unambiguously requires the same treatment for cable companies because cable companies also own the facilities they use to provide cable modem service (and therefore information service). We disagree. We think it improbable that the Communications Act unambiguously freezes in time the Computer II treatment of facilities-based information-service providers. The Act’s definition of “telecommunications service” says nothing about imposing more stringent regulatory duties on facilities-based information-service providers. The definition hinges solely on whether the entity “offer[s] telecommunications for a fee directly to the public,” 47 U. S. C. §153(46), though the Act elsewhere subjects facilities-based carriers to stricter regulation, see §251(c) (imposing various duties on facilities-based local telephone companies). In the Computer II rules, the Commission subjected facilities-based providers to common-carrier duties not because of the nature of the “offering” made by those carriers, but rather because of the concern that local telephone companies would abuse the monopoly power they possessed by virtue of the “bottleneck” local telephone facilities they owned. See Computer II Order 474–475, ¶¶229, 231; Computer III Order 968–969, ¶12; Verizon , 535 U. S., at 489–490 (describing the naturally monopolistic physical structure of a local telephone exchange). The differential treatment of facilities-based carriers was therefore a function not of the definitions of “enhanced-service” and “basic service,” but instead of a choice by the Commission to regulate more stringently, in its discretion, certain entities that provided enhanced service. The Act’s definitions, however, parallel the definitions of enhanced and basic service, not the facilities-based grounds on which that policy choice was based, and the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction. In fact, it has invited comment on whether it can and should do so. See supra , at 7. In sum, if the Act fails unambiguously to classify non-facilities-based information-service providers that use telecommunications inputs to provide an information service as “offer[ors]” of “telecommunications,” then it also fails unambiguously to classify facilities-based information-service providers as telecommunications-service offerors; the relevant definitions do not distinguish facilities-based and non-facilities-based carriers. That silence suggests, instead, that the Commission has the discretion to fill the consequent statutory gap. C We also conclude that the Commission’s construction was “a reasonable policy choice for the [Commission] to make” at Chevron ’s second step. 467 U. S., at 845. Respondents argue that the Commission’s construction is unreasonable because it allows any communications provider to “evade” common-carrier regulation by the expedient of bundling information service with telecommunications. Respondents argue that under the Commission’s construction a telephone company could, for example, offer an information service like voice mail together with telephone service, thereby avoiding common-carrier regulation of its telephone service. We need not decide whether a construction that resulted in these consequences would be unreasonable because we do not believe that these results follow from the construction the Commission adopted. As we understand the Declaratory Ruling , the Commission did not say that any telecommunications service that is priced or bundled with an information service is automatically unregulated under Title II. The Commission said that a telecommunications input used to provide an information service that is not “separable from the data-processing capabilities of the service” and is instead “part and parcel of [the information service] and is integral to [the information service’s] other capabilities” is not a telecommunications offering. Declaratory Ruling 4823, ¶39; see supra , at 16–17. This construction does not leave all information service offerings exempt from mandatory Title II regulation. “It is plain,” for example, that a local telephone company “cannot escape Title II regulation of its residential local exchange service simply by packaging that service with voice mail.” Universal Service Report 11530, ¶60. That is because a telephone company that packages voice mail with telephone service offers a transparent transmission path—telephone service—that transmits information independent of the information-storage capabilities provided by voice mail. For instance, when a person makes a telephone call, his ability to convey and receive information using the call is only trivially affected by the additional voice-mail capability. Equally, were a telephone company to add a time-of-day announcement that played every time the user picked up his telephone, the “transparent” information transmitted in the ensuing call would be only trivially dependent on the information service the announcement provides. By contrast, the high-speed transmission used to provide cable modem service is a functionally integrated component of that service because it transmits data only in connection with the further processing of information and is necessary to provide Internet service. The Commission’s construction therefore was more limited than respondents assume. Respondents answer that cable modem service does, in fact, provide “transparent” transmission from the consumer’s perspective, but this argument, too, is mistaken. Respondents characterize the “information-service” offering of Internet access as consisting only of access to a cable company’s e-mail service, its Web page, and the ability it provides consumers to create a personal Web page. When a consumer goes beyond those offerings and accesses content provided by parties other than the cable company, respondents argue, the consumer uses “pure transmission” no less than a consumer who purchases phone service together with voice mail. This argument, we believe, conflicts with the Commission’s understanding of the nature of cable modem service, an understanding we find to be reasonable. When an end user accesses a third-party’s Web site, the Commission concluded, he is equally using the information service provided by the cable company that offers him Internet access as when he accesses the company’s own Web site, its e-mail service, or his personal Web page. For example, as the Commission found below, part of the information service cable companies provide is access to DNS service. See supra , at 15–16. A user cannot reach a third-party’s Web site without DNS, which (among other things) matches the Web site address the end user types into his browser (or “clicks” on with his mouse) with the IP address of the Web page’s host server. See P. Albitz & C. Liu, DNS and BIND 10 (4th ed. 2001) (For an Internet user, “DNS is a must. … [N]early all of the Internet’s network services use DNS. That includes the World Wide Web, electronic mail, remote terminal access, and file transfer”). It is at least reasonable to think of DNS as a “capability for … acquiring … retrieving, utilizing, or making available” Web site addresses and therefore part of the information service cable companies provide. 47 U. S. C. §153(20).[ Footnote 3 ] Similarly, the Internet service provided by cable companies facilitates access to third-party Web pages by offering consumers the ability to store, or “cache,” popular content on local computer servers. See Declaratory Ruling 4810, ¶17, and n. 76. Cacheing obviates the need for the end user to download anew information from third-party Web sites each time the consumer attempts to access them, thereby increasing the speed of information retrieval. In other words, subscribers can reach third-party Web sites via “the World Wide Web, and browse their contents, [only] because their service provider offers the ‘capability for … acquiring, [storing] … retrieving [and] utilizing … information.’ ” Universal Service Report 11538, ¶76 (quoting 47 U. S. C. §153(20)). “The service that Internet access providers offer to members of the public is Internet access,” Universal Service Report 11539, ¶79, not a transparent ability (from the end user’s perspective) to transmit information. We therefore conclude that the Commission’s construction was reasonable. V Respondent MCI, Inc., urges that the Commission’s treatment of cable modem service is inconsistent with its treatment of DSL service, see supra , at 3 (describing DSL service), and therefore is an arbitrary and capricious deviation from agency policy. See 5 U. S. C. §706(2)(A). MCI points out that when local telephone companies began to offer Internet access through DSL technology in addition to telephone service, the Commission applied its Computer II facilities-based classification to them and required them to make the telephone lines used to transmit DSL service available to competing ISPs on nondiscriminatory, common-carrier terms. See supra , at 24 (describing Computer II facilities-based classification of enhanced-service providers); In re Deployment of Wireline Services Offering Advanced Telecommunications Capability , 13 FCC Rcd. 24011, 24030–24031, ¶¶36–37 (1998) (hereinafter Wireline Order ) (classifying DSL service as a telecommunications service). MCI claims that the Commission’s decision not to regulate cable companies similarly under Title II is inconsistent with its DSL policy. We conclude, however, that the Commission provided a reasoned explanation for treating cable modem service differently from DSL service. As we have already noted, see supra , at 9–10, the Commission is free within the limits of reasoned interpretation to change course if it adequately justifies the change.[ Footnote 4 ] It has done so here. The traditional reason for its Computer II common-carrier treatment of facilities-based carriers (including DSL carriers), as the Commission explained, was “that the telephone network [was] the primary, if not exclusive, means through which information service providers can gain access to their customers.” Declaratory Ruling 4825, ¶44 (emphasis in original; internal quotation marks omitted). The Commission applied the same treatment to DSL service based on that history, rather than on an analysis of contemporaneous market conditions. See Wireline Order 24031, ¶37 (noting DSL carriers’ “continuing obligation” to offer their transmission facilities to competing ISPs on nondiscriminatory terms). The Commission in the order under review, by contrast, concluded that changed market conditions warrant different treatment of facilities-based cable companies providing Internet access. Unlike at the time of Computer II , substitute forms of Internet transmission exist today: “[R]esidential high-speed access to the Internet is evolving over multiple electronic platforms, including wireline, cable, terrestrial wireless and satellite.” Declaratory Ruling 4802, ¶6; see also U. S. Telecom Assn. v. FCC , 290 F. 3d 415, 428 (CADC 2002) (noting Commission findings of “robust competition … in the broadband market”). The Commission concluded that “ ‘broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.’ ” Declaratory Ruling 4802, ¶5. This, the Commission reasoned, warranted treating cable companies unlike the facilities-based enhanced-service providers of the past. Id. , at 4825, ¶44. We find nothing arbitrary about the Commission’s providing a fresh analysis of the problem as applied to the cable industry, which it has never subjected to these rules. This is adequate rational justification for the Commission’s conclusions. Respondents argue, in effect, that the Commission’s justification for exempting cable modem service providers from common-carrier regulation applies with similar force to DSL providers. We need not address that argument. The Commission’s decision appears to be a first step in an effort to reshape the way the Commission regulates information-service providers; that may be why it has tentatively concluded that DSL service provided by facilities-based telephone companies should also be classified solely as an information service. See In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities , 17 FCC Rcd. 3019, 3030, ¶20 (2002). The Commission need not immediately apply the policy reasoning in the Declaratory Ruling to all types of information-service providers. It apparently has decided to revisit its longstanding Computer II classification of facilities-based information-service providers incrementally. Any inconsistency between the order under review and the Commission’s treatment of DSL service can be adequately addressed when the Commission fully reconsiders its treatment of DSL service and when it decides whether, pursuant to its ancillary Title I jurisdiction, to require cable companies to allow independent ISPs access to their facilities. See supra , at 7, this page. We express no view on those matters. In particular, we express no view on how the Commission should, or lawfully may, classify DSL service. *** The questions the Commission resolved in the order under review involve a “subject matter [that] is technical, complex, and dynamic.” Gulf Power , 534 U. S., at 339. The Commission is in a far better position to address these questions than we are. Nothing in the Communications Act or the Administrative Procedure Act makes unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 IP addresses identify computers on the Internet, enabling data packets transmitted from other computers to reach them. See Universal Service Report 11531, ¶62; Huber 985. Footnote 2 The dissent attempts to escape this consequence of respondents’ position by way of an elaborate analogy between ISPs and pizzerias. Post , at 7–8 (opinion of Scalia, J.). This analogy is flawed. A pizzeria “delivers” nothing, but ISPs plainly provide transmission service directly to the public in connection with Internet service. For example, with dial-up service, ISPs process the electronic signal that travels over local telephone wires, and transmit it to the Internet. See supra , at 2; Huber 988. The dissent therefore cannot deny that its position logically would require applying presumptively mandatory Title II regulation to all ISPs. Footnote 3 The dissent claims that access to DNS does not count as use of the information-processing capabilities of Internet service because DNS is “scarcely more than routing information, which is expressly excluded from the definition of ‘information service.’ ” Post , at 9, and n. 6 (opinion of Scalia, J.). But the definition of information service does not exclude “routing information.” Instead, it excludes “any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” 47 U. S. C. §153(20). The dissent’s argument therefore begs the question because it assumes that Internet service is a “telecommunications system” or “service” that DNS manages (a point on which, contrary to the dissent’s assertion, post , at 9, n. 6, we need take no view for purposes of this response). Footnote 4 Respondents vigorously argue that the Commission’s purported inconsistent treatment is a reason for holding the Commission’s construction impermissible under Chevron U. S. A . Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Any inconsistency bears on whether the Commission has given a reasoned explanation for its current position, not on whether its interpretation is consistent with the statute. 545 U. S. ____ (2005) 545 U. S. ____ (2005) 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-277 AND 04-281 NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, et al., PETITIONERS 04–277 v. BRAND X INTERNET SERVICES et al. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES, PETITIONERS 04–281   v. BRAND X INTERNET SERVICES et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 2005] Justice Stevens , concurring.    While I join the Court’s opinion in full, I add this caveat concerning Part III–B, which correctly explains why a court of appeals’ interpretation of an ambiguous provision in a regulatory statute does not foreclose a contrary reading by the agency. That explanation would not necessarily be applicable to a decision by this Court that would presumably remove any pre-existing ambiguity. BREYER, J., CONCURRING NATIONAL CABLE & TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-277 AND 04-281 NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, et al., PETITIONERS 04–277 v. BRAND X INTERNET SERVICES et al. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES, PETITIONERS 04–281   v. BRAND X INTERNET SERVICES et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 2005] Justice Breyer , concurring.    I join the Court’s opinion because I believe that the Federal Communications Commission’s decision falls within the scope of its statutorily delegated authority—though perhaps just barely. I write separately because I believe it important to point out that Justice Scalia, in my view, has wrongly characterized the Court’s opinion in United States v. Mead Corp., 533 U. S. 218 (2001) . He states that the Court held in Mead that “some unspecified degree of formal process” before the agency “was required” for courts to accord the agency’s decision deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Post , at 12 (dissenting opinion); see also ibid. (formal process is “at least the only safe harbor”).    Justice Scalia has correctly characterized the way in which he, in dissent , characterized the Court’s Mead opinion. 533 U. S., at 245–246. But the Court said the opposite. An agency action qualifies for Chevron deference when Congress has explicitly or implicitly delegated to the agency the authority to “fill” a statutory “gap,” including an interpretive gap created through an ambiguity in the language of a statute’s provisions. Chevron, supra, at 843–844; Mead, supra , at 226–227. The Court said in Mead that such delegation “may be shown in a variety of ways, as by an agency’s power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent. ” 533 U. S., at 227 (emphasis added). The Court explicitly stated that the absence of notice-and-comment rulemaking did “not decide the case,” for the Court has “sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded.” Id. , at 231. And the Court repeated that it “has recognized a variety of indicators that Congress would expect Chevron deference.” Id. , at 237 (emphasis added).    It is not surprising that the Court would hold that the existence of a formal rulemaking proceeding is neither a necessary nor a sufficient condition for according Chevron deference to an agency’s interpretation of a statute. It is not a necessary condition because an agency might arrive at an authoritative interpretation of a congressional enactment in other ways, including ways that Justice Scalia mentions. See, e.g., Mead, supra, at 231. It is not a sufficient condition because Congress may have intended not to leave the matter of a particular interpretation up to the agency, irrespective of the procedure the agency uses to arrive at that interpretation, say, where an unusually basic legal question is at issue. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 600 (2004) (rejecting agency’s answer to question whether age discrimination law forbids discrimination against the relatively young).    Thus, while I believe Justice Scalia is right in emphasizing that Chevron deference may be appropriate in the absence of formal agency proceedings, Mead should not give him cause for concern. SCALIA, J., DISSENTING NATIONAL CABLE & TELECOMMUNICATIONS ASSN. V.BRAND X INTERNET SERVICES 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-277 AND 04-281 NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, et al., PETITIONERS 04–277 v. BRAND X INTERNET SERVICES et al. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES, PETITIONERS 04–281   v. BRAND X INTERNET SERVICES et al. on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 2005] Justice Scalia , with whom Justice Souter and Justice Ginsburg join as to Part I, dissenting.    The Federal Communications Commission (FCC or Commission) has once again attempted to concoct “a whole new regime of regulation (or of free-market competition)” under the guise of statutory construction. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 , 234 (1994). Actually, in these cases, it might be more accurate to say the Commission has attempted to establish a whole new regime of non -regulation, which will make for more or less free-market competition, depending upon whose experts are believed. The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress. I    The first sentence of the FCC ruling under review reads as follows: “Cable modem service provides high-speed access to the Internet, as well as many applications or functions that can be used with that access, over cable system facilities.” In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798, 4799, ¶1 (2002) (hereinafter Declaratory Ruling ) (emphasis added, footnote omitted). Does this mean that cable companies “offer” high-speed access to the Internet? Surprisingly not, if the Commission and the Court are to be believed.    It happens that cable-modem service is popular precisely because of the high-speed access it provides, and that, once connected with the Internet, cable-modem subscribers often use Internet applications and functions from providers other than the cable company. Nevertheless, for purposes of classifying what the cable company does, the Commission (with the Court’s approval) puts all the emphasis on the rest of the package (the additional “applications or functions”). It does so by claiming that the cable company does not “offe[r]” its customers high-speed Internet access because it offers that access only in conjunction with particular applications and functions, rather than “separate[ly],” as a “stand-alone offering.” Id., at 4802, ¶7, 4823, ¶40.    The focus on the term “offer” appropriately derives from the statutory definitions at issue in these cases. Under the Telecommunications Act of 1996, 110 Stat. 56, “ ‘information service’ ” involves the capacity to generate, store, interact with, or otherwise manipulate “information via telecommunications.” 47 U. S. C. §153(20). In turn, “ ‘telecommunications’ ” is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” §153(43). Finally, “ ‘telecommunications service’ ” is defined as “the offering of telecommunications for a fee directly to the public … regardless of the facilities used.” §153(46). The question here is whether cable-modem-service providers “offe[r] … telecommunications for a fee directly to the public.” If so, they are subject to Title II regulation as common carriers, like their chief competitors who provide Internet access through other technologies.    The Court concludes that the word “offer” is ambiguous in the sense that it has “ ‘alternative dictionary definitions’ ” that might be relevant. Ante, at 18 (quoting National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 , 418 (1992)). It seems to me, however, that the analytic problem pertains not really to the meaning of “offer,” but to the identity of what is offered. The relevant question is whether the individual components in a package being offered still possess sufficient identity to be described as separate objects of the offer, or whether they have been so changed by their combination with the other components that it is no longer reasonable to describe them in that way.    Thus, I agree (to adapt the Court’s example, ante, at 18) that it would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level). But what is sometimes true is not, as the Court seems to assume, always true. There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a “ ‘stand-alone’ ” basis, ante, at 17.    If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” ante, at 18, would prevent them from answering: “No, we do not offer delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ you delivery, because the delivery that we provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’ ” Cf. Declaratory Ruling 4823, ¶39; ante, at 16, 26.[ Footnote 1 ] Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.    In short, for the inputs of a finished service to qualify as the objects of an “offer” (as that term is reasonably understood), it is perhaps a sufficient, but surely not a necessary, condition that the seller offer separately “each discrete input that is necessary to providing … a finished service,” ante, at 19. The pet store may have a policy of selling puppies only with leashes, but any customer will say that it does offer puppies—because a leashed puppy is still a puppy, even though it is not offered on a “stand-alone” basis.    Despite the Court’s mighty labors to prove otherwise, ante, at 17–29, the telecommunications component of cable-modem service retains such ample independent identity that it must be regarded as being on offer—especially when seen from the perspective of the consumer or the end user, which the Court purports to find determinative, ante, at 18, 22, 27, 28. The Commission’s ruling began by noting that cable-modem service provides both “high-speed access to the Internet” and other “applications and functions,” Declaratory Ruling 4799, ¶1, because that is exactly how any reasonable consumer would perceive it: as consisting of two separate things.    The consumer’s view of the matter is best assessed by asking what other products cable-modem service substitutes for in the marketplace. Broadband Internet service provided by cable companies is one of the three most common forms of Internet service, the other two being dial-up access and broadband Digital Subscriber Line (DSL) service. Ante, at 2–3. In each of the other two, the physical transmission pathway to the Internet is sold—indeed, is legally required to be sold—separately from the Internet functionality. With dial-up access, the physical pathway comes from the telephone company and the Internet service provider (ISP) provides the functionality. “In the case of Internet access, the end user utilizes two different and distinct services. One is the transmission pathway, a telecommunications service that the end user purchases from the telephone company. The second is the Internet access service, which is an enhanced service provided by an ISP… . Th[e] functions [provided by the ISP] are separate from the transmission pathway over which that data travels. The pathway is a regulated telecommunications service; the enhanced service offered over it is not.” Oxman, The FCC and the Unregulation of the Internet, p. 13 (FCC, Office of Plans and Policy, Working Paper No. 31, July 1999), available at http://www.fcc.gov/ Bureaus/OPP/working_papers/oppwp31.pdf (as visited June 24, 2005, and available in the Clerk of Court’s case file).[ Footnote 2 ] As the Court acknowledges, ante, at 29, DSL service has been similar to dial-up service in the respect that the physical connection to the Internet must be offered separately from Internet functionality.[ Footnote 3 ] Thus, customers shopping for dial-up or DSL service will not be able to use the Internet unless they get both someone to provide them with a physical connection and someone to provide them with applications and functions such as e-mail and Web access. It is therefore inevitable that customers will regard the competing cable-modem service as giving them both computing functionality and the physical pipe by which that functionality comes to their computer—both the pizza and the delivery service that nondelivery pizzerias require to be purchased from the cab company.[ Footnote 4 ]    Since the delivery service provided by cable (the broad-band connection between the customer’s computer and the cable company’s computer-processing facilities) is downstream from the computer-processing facilities, there is no question that it merely serves as a conduit for the information services that have already been “assembled” by the cable company in its capacity as ISP. This is relevant because of the statutory distinction between an “information service” and “telecommunications.” The former involves the capability of getting, processing, and manipulating information. §153(20). The latter, by contrast, involves no “change in the form or content of the information as sent and received.” §153(43). When cable-company-assembled information enters the cable for delivery to the subscriber, the information service is already complete. The information has been (as the statute requires) generated, acquired, stored, transformed, processed, retrieved, utilized, or made available. All that remains is for the information in its final, unaltered form, to be delivered (via telecommunications) to the subscriber.    This reveals the insubstantiality of the fear invoked by both the Commission and the Court: the fear of what will happen to ISPs that do not provide the physical pathway to Internet access, yet still use telecommunications to acquire the pieces necessary to assemble the information that they pass back to their customers. According to this reductio, ante, at 22–24, if cable-modem-service providers are deemed to provide “telecommunications service,” then so must all ISPs because they all “use” telecommunications in providing Internet functionality (by connecting to other parts of the Internet, including Internet backbone providers, for example). In terms of the pizzeria analogy, this is equivalent to saying that, if the pizzeria “offers” delivery, all restaurants “offer” delivery, because the ingredients of the food they serve their customers have come from other places; no matter how their customers get the food (whether by eating it at the restaurant, or by coming to pick it up themselves), they still consume a product for which delivery was a necessary “input.” This is nonsense. Concluding that delivery of the finished pizza constitutes an “offer” of delivery does not require the conclusion that the serving of prepared food includes an “offer” of delivery. And that analogy does not even do the point justice, since “ ‘telecommunications service’ ” is defined as “the offering of telecommunications for a fee directly to the public.” 47 U. S. C. §153(46) (emphasis added). The ISPs’ use of telecommunications in their processing of information is not offered directly to the public.    The “regulatory history” on which the Court depends so much, ante, at 21–25, provides another reason why common-carrier regulation of all ISPs is not a worry. Under its Computer Inquiry rules, which foreshadowed the definitions of “information” and “telecommunications” services, ante, at 4–5, the Commission forbore from regulating as common carriers “value-added networks”—non-facilities-based providers who leased basic services from common carriers and bundled them with enhanced services; it said that they, unlike facilities-based providers, would be deemed to provide only enhanced services, ante, at 22.[ Footnote 5 ] That same result can be achieved today under the Commission’s statutory authority to forbear from imposing most Title II regulations. 47 U. S. C. §160. In fact, the statutory criteria for forbearance—which include what is “just and reasonable,” “necessary for the protection of consumers,” and “consistent with the public interest,” §§160(a)(1), (2), (3)—correspond well with the kinds of policy reasons the Commission has invoked to justify its peculiar construction of “telecommunications service” to exclude cable-modem service.    The Court also puts great stock in its conclusion that cable-modem subscribers cannot avoid using information services provided by the cable company in its ISP capacity, even when they only click-through to other ISPs. Ante, at 27–29. For, even if a cable-modem subscriber uses e-mail from another ISP, designates some page not provided by the cable company as his home page, and takes advantage of none of the other standard applications and functions provided by the cable company, he will still be using the cable company’s Domain Name System (DNS) server and, when he goes to popular Web pages, perhaps versions of them that are stored in the cable company’s cache. This argument suffers from at least two problems. First, in the context of telephone services, the Court recognizes a de minimis exception to contamination of a telecommunications service by an information service. Ante, at 26–27. A similar exception would seem to apply to the functions in question here. DNS, in particular, is scarcely more than routing information, which is expressly excluded from the definition of “information service.” 47 U. S. C. §153(20).[ Footnote 6 ] Second, it is apparently possible to sell a telecommunications service separately from, although in conjunction with, ISP-like services; that is precisely what happens in the DSL context, and the Commission does not contest that it could be done in the context of cable. The only impediment appears to be the Commission’s failure to require from cable companies the unbundling that it required of facilities-based providers under its Computer Inquiry .    Finally, I must note that, notwithstanding the Commission’s self-congratulatory paean to its deregulatory largesse, e.g., Brief for Federal Petitioners 29–32, it concluded the Declaratory Ruling by asking, as the Court paraphrases, “whether under its Title I jurisdiction [the Commission] should require cable companies to offer other ISPs access to their facilities on common-carrier terms.” Ante, at 7; see also Reply Brief for Federal Petitioners 9; Tr. of Oral Arg. 17. In other words, what the Commission hath given, the Commission may well take away—unless it doesn’t. This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions. The main source of the Commission’s regulatory authority over common carriers is Title II, but the Commission has rendered that inapplicable in this instance by concluding that the definition of “telecommunications service” is ambiguous and does not (in its current view) apply to cable-modem service. It contemplates, however, altering that (unnecessary) outcome, not by changing the law ( i.e., its construction of the Title II definitions), but by reserving the right to change the facts. Under its undefined and sparingly used “ancillary” powers, the Commission might conclude that it can order cable companies to “unbundle” the telecommunications component of cable-modem service.[ Footnote 7 ] And presto, Title II will then apply to them, because they will finally be “offering” telecommunications service! Of course, the Commission will still have the statutory power to forbear from regulating them under §160 (which it has already tentatively concluded it would do, Declaratory Ruling 4847–4848, ¶¶94–95). Such Möbius-strip reasoning mocks the principle that the statute constrains the agency in any meaningful way.    After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is “offering” telecommunications. For that simple reason set forth in the statute, I would affirm the Court of Appeals. II    In Part III–B of its opinion, the Court continues the administrative-law improvisation project it began four years ago in United States v. Mead Corp., 533 U. S. 218 (2001). To the extent it set forth a comprehensible rule,[ Footnote 8 ] Mead drastically limited the categories of agency action that would qualify for deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). For example, the position taken by an agency before the Supreme Court, with full approval of the agency head, would not qualify. Rather, some unspecified degree of formal process was required—or was at least the only safe harbor. See Mead, supra, at 245–246 (Scalia, J., dissenting).[ Footnote 9 ]    This meant that many more issues appropriate for agency determination would reach the courts without benefit of an agency position entitled to Chevron deference, requiring the courts to rule on these issues de novo .[ Footnote 10 ] As I pointed out in dissent, this in turn meant (under the law as it was understood until today)[ Footnote 11 ] that many statutory ambiguities that might be resolved in varying fashions by successive agency administrations, would be resolved finally, conclusively, and forever, by federal judges—producing an “ossification of large portions of our statutory law,” 533 U. S., at 247. The Court today moves to solve this problem of its own creation by inventing yet another breathtaking novelty: judicial decisions subject to reversal by Executive officers.    Imagine the following sequence of events: FCC action is challenged as ultra vires under the governing statute; the litigation reaches all the way to the Supreme Court of the United States. The Solicitor General sets forth the FCC’s official position (approved by the Commission) regarding interpretation of the statute. Applying Mead, however, the Court denies the agency position Chevron deference, finds that the best interpretation of the statute contradicts the agency’s position, and holds the challenged agency action unlawful. The agency promptly conducts a rulemaking, and adopts a rule that comports with its earlier position—in effect disagreeing with the Supreme Court concerning the best interpretation of the statute. According to today’s opinion, the agency is thereupon free to take the action that the Supreme Court found unlawful.    This is not only bizarre. It is probably unconstitutional. As we held in Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 (1948), Article III courts do not sit to render decisions that can be reversed or ignored by Executive officers. In that case, the Court of Appeals had determined it had jurisdiction to review an order of the Civil Aeronautics Board awarding an overseas air route. By statute such orders were subject to Presidential approval and the order in question had in fact been approved by the President. Id., at 110–111. In order to avoid any conflict with the President’s foreign-affairs powers, the Court of Appeals concluded that it would review the board’s action “as a regulatory agent of Congress,” and the results of that review would remain subject to approval or disapproval by the President. Id., at 112–113. As I noted in my Mead dissent, 533 U. S., at 248, the Court bristled at the suggestion: “Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.” Waterman, supra, at 113. That is what today’s decision effectively allows. Even when the agency itself is party to the case in which the Court construes a statute, the agency will be able to disregard that construction and seek Chevron deference for its contrary construction the next time around.[ Footnote 12 ]    Of course, like Mead itself, today’s novelty in belated remediation of Mead creates many uncertainties to bedevil the lower courts. A court’s interpretation is conclusive, the Court says, only if it holds that interpretation to be “the only permissible reading of the statute,” and not if it merely holds it to be “the best reading.” Ante, at 13. Does this mean that in future statutory-construction cases involving agency-administered statutes courts must specify (presumably in dictum) which of the two they are holding? And what of the many cases decided in the past, before this dictum’s requirement was established? Apparently, silence on the point means that the court’s decision is subject to agency reversal: “Before a judicial construction of a statute, whether contained in a precedent or not, may trump an agency’s, the court must hold that the statute unambiguously requires the court’s construction.”[ Footnote 13 ] Ibid. (I have not made, and as far as I know the Court has not made, any calculation of how many hundreds of past statutory decisions are now agency-reversible because of failure to include an “unambiguous” finding. I suspect the number is very large.) How much extra work will it entail for each court confronted with an agency-administered statute to determine whether it has reached, not only the right (“best”) result, but “the only permissible” result? Is the standard for “unambiguous” under the Court’s new agency-reversal rule the same as the standard for “unambiguous” under step one of Chevron ? (If so, of course, every case that reaches step two of Chevron will be agency-reversible.) Does the “unambiguous” dictum produce stare decisis effect even when a court is affirming , rather than reversing, agency action—so that in the future the agency must adhere to that affirmed interpretation? If so, does the victorious agency have the right to appeal a Court of Appeals judgment in its favor, on the ground that the text in question is in fact not (as the Court of Appeals held) unambiguous, so the agency should be able to change its view in the future?    It is indeed a wonderful new world that the Court creates, one full of promise for administrative-law professors in need of tenure articles and, of course, for litigators.[ Footnote 14 ] I would adhere to what has been the rule in the past: When a court interprets a statute without Chevron deference to agency views, its interpretation (whether or not asserted to rest upon an unambiguous text) is the law. I might add that it is a great mystery why any of this is relevant here. Whatever the stare decisis effect of AT&T Corp. v. Portland, 216 F. 3d 871 (CA9 2000), in the Ninth Circuit, it surely does not govern this Court’s decision. And—despite the Court’s peculiar, self-abnegating suggestion to the contrary, ante, at 14—the Ninth Circuit would already be obliged to abandon Portland ’s holding in the face of this Court’s decision that the Commission’s construction of “telecommunications service” is entitled to deference and is reasonable. It is a sadness that the Court should go so far out of its way to make bad law.    I respectfully dissent. Footnote 1 The myth that the pizzeria does not offer delivery becomes even more difficult to maintain when the pizzeria advertises quick delivery as one of its advantages over competitors. That, of course, is the case with cable broadband. Footnote 2 See also In re Federal-State Joint Board on Universal Service , 13 FCC Rcd. 11501, 11571–11572, ¶145 (1998) (end users “obtain telecommunications service from local exchange carriers, and then use information services provided by their Internet service provider and [Web site operators] in order to access [the Web]”). Footnote 3 In the DSL context, the physical connection is generally resold to the consumer by an ISP that has taken advantage of the telephone company’s offer. The consumer knows very well, however, that the physical connection is a necessary component for Internet access which, just as in the dial-up context, is not provided by the ISP. Footnote 4 The Court contends that this analogy is inapposite because one need not have a pizza delivered, ante, at 20, whereas one must purchase the cable connection in order to use cable’s ISP functions. But the ISP functions provided by the cable company can be used without cable delivery—by accessing them from an Internet connection other than cable. The merger of the physical connection and Internet functions in cable’s offerings has nothing to do with the “ ‘inextricably intertwined,’ ” ante, at 6, nature of the two (like a car and its carpet), but is an artificial product of the cable company’s marketing decision not to offer the two separately, so that the Commission could (by the Declaratory Ruling under review here) exempt it from common-carrier status. Footnote 5 The Commission says forbearance cannot explain why value-added networks were not regulated as basic-service providers because it was not given the power to forbear until 1996. Reply Brief for Federal Petitioners 3–4, n. 1. It is true that when the Commission ruled on value-added networks, the statute did not explicitly provide for forbearance—any more than it provided for the categories of basic and enhanced services that the Computer Inquiry rules established, and through which the forbearance was applied. The D. C. Circuit, however, had long since recognized the Commission’s discretionary power to “forbear from Title II regulation.” Computer & Communications Industry Assn. v. FCC , 693 F. 2d 198, 212 (1982).    The Commission also says its Computer Inquiry rules should not apply to cable because they were developed in the context of telephone lines. Brief for Federal Petitioners 35–36; see also ante, at 24–25. But to the extent that the statute imported the Computer Inquiry approach, there is no basis for applying it differently to cable than to telephone lines, since the definition of “telecommunications service” applies “regardless of the facilities used.” 47 U. S. C. §153(46). Footnote 6 The Court says that invoking this explicit exception from the definition of information services, which applies only to the “management, control, or operation of a telecommunications system or the management of a telecommunications service,” 47 U. S. C. §153(20), begs the question whether cable-modem service includes a telecommunications service, ante, at 28, n. 3. I think not, and cite the exception only to demonstrate that the incidental functions do not prevent cable from including a telecommunications service if it otherwise qualifies. It is rather the Court that begs the question, saying that the exception cannot apply because cable is not a telecommunications service. Footnote 7 Under the Commission’s assumption that cable-modem-service providers are not providing “telecommunications services,” there is reason to doubt whether it can use its Title I powers to impose common-carrier-like requirements, since 47 U. S. C. §153(44) specifically provides that a “telecommunications carrier shall be treated as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services” (emphasis added), and “this chapter” includes Titles I and II. Footnote 8 For a description of the confusion Mead has produced in the D. C. Circuit alone, see Vermeule, Mead in the Trenches, 71 Geo. Wash. L. Rev. 347, 361 (2003) (concluding that “the Court has inadvertently sent the lower courts stumbling into a no-man’s land”). Footnote 9 Justice Breyer attempts to clarify Mead by repeating its formulations that the Court has “sometimes found reasons” to give Chevron deference in a (still-unspecified) “variety of ways” or because of a (still-unspecified) “variety of indicators,” ante, at 2 (concurring opinion) (internal quotation marks and emphasis omitted). He also notes that deference is sometimes inappropriate for reasons unrelated to the agency’s process. Surprising those who thought the Court’s decision not to defer to the agency in General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004), depended on its conclusion that there was “no serious question … about purely textual ambiguity” in the statute, id., at 600, Justice Breyer seemingly attributes that decision to a still-underdeveloped exception to Chevron deference—one for “unusually basic legal question[s],” ante, at 2. The Court today (thankfully) does not follow this approach: It bases its decision on what it sees as statutory ambiguity, ante, at 25, without asking whether the classification of cable-modem service is an “unusually basic legal question.” Footnote 10 It is true that, even under the broad basis for deference that I propose (viz., any agency position that plainly has the approval of the agency head, see United States v. Mead Corp., 533 U. S. 218 , 256–257 (2001) (Scalia, J., dissenting)), some interpretive matters will be decided de novo , without deference to agency views. This would be a rare occurrence, however, at the Supreme Court level—at least with respect to matters of any significance to the agency. Seeking to achieve 100% agency control of ambiguous provisions through the complicated method the Court proposes is not worth the incremental benefit. Footnote 11 The Court’s unanimous holding in Neal v. United States, 516 U. S. 284 (1996), plainly rejected the notion that any form of deference could cause the Court to revisit a prior statutory-construction holding: “Once we have determined a statute’s meaning, we adhere to our ruling under the doctrine of stare decisis, and we assess an agency’s later interpretation of the statute against that settled law.” Id., at 295. The Court attempts to reinterpret this plain language by dissecting the cases Neal cited, noting that they referred to previous determinations of “ ‘a statute’s clear meaning.’ ” Lechmere, Inc. v. NLRB, 502 U. S. 527 , 537 (1992) (quoting Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116 , 131 (1990)). But those cases reveal that today’s focus on the term “clear” is revisionist. The oldest case in the chain using that word, Maislin Industries, did not rely on a prior decision that held the statute to be clear, but on a run-of-the-mill statutory interpretation contained in a 1908 decision. Id., at 130–131. When Maislin Industries referred to the Court’s prior determination of “a statute’s clear meaning,” it was referring to the fact that the prior decision had made the statute clear, and was not conducting a retrospective inquiry into whether the prior decision had declared the statute itself to be clear on its own terms. Footnote 12 The Court contends that no reversal of judicial holdings is involved, because “a court’s opinion as to the best reading of an ambiguous statute … is not authoritative,” ante, at 11. That fails to appreciate the difference between a de novo construction of a statute and a decision whether to defer to an agency’s position, which does not even “ purport to give the statute a judicial interpretation.” Mead, supra, at 248 (Scalia, J., dissenting). Once a court has decided upon its de novo construction of the statute, there no longer is a “different construction” that is “consistent with the court’s holding,” ante, at 11, and available for adoption by the agency. Footnote 13 Suggestive of the same chaotic undermining of all prior judicial decisions that do not explicitly renounce ambiguity is the Court’s explanation of why agency departure from a prior judicial decision does not amount to overruling: “[T]he agency may, consistent with the court’s holding, choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason) of [ambiguous] statutes [it is charged with administering].” Ante, at 11. Footnote 14 Further de-ossification may already be on the way, as the Court has hinted that an agency construction unworthy of Chevron deference may be able to trump one of our statutory-construction holdings. In Edelman v. Lynchburg College, 535 U. S. 106 , 114 (2002), the Court found “no need to resolve any question of deference” because the Equal Employment Opportunity Commission’s rule was “the position we would adopt even if … we were interpreting the statute from scratch.” It nevertheless refused to say whether the agency’s position was “the only one permissible.” Id., at 114, n. 8 (quotation marks omitted). Justice O’Connor appropriately “doubt[ed] that it is possible to reserve” the question whether a regulation is entitled to Chevron deference “while simultaneously maintaining … that the agency is free to change its interpretation” in the future. Id., at 122 (opinion concurring in judgment). In response, the Court cryptically said only that “not all deference is deference under Chevron. ” Id., at 114, n. 8.

The Supreme Court ruled that cable companies providing broadband internet service are not considered providers of "telecommunications service" and are therefore exempt from common-carrier regulation under Title II of the Communications Act of 1934. This decision gives the Federal Communications Commission (FCC) the authority to interpret ambiguous statutes within the scope of their administrative duties.

Government Agencies

City of Arlington v. FCC

https://supreme.justia.com/cases/federal/us/569/290/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 11–1545 and 11–1547 _________________ CITY OF ARLINGTON, TEXAS, et al., PETITIONERS 11–1545 v. FEDERAL COMMUNICATIONS COMMISSION et al. CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER 11–1547 v. FEDERAL COMMUNICATIONS COMMISSION et al. on writs of certiorari to the united states court of appeals for the fifth circuit [May 20, 2013] Justice Scalia delivered the opinion of the Court. We consider whether an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). I Wireless telecommunications networks require towers and antennas; proposed sites for those towers and antennas must be approved by local zoning authorities. In the Telecommunications Act of 1996, Congress “impose[d] specific limitations on the traditional authority of state and local governments to regulate the location, construction, and modification of such facilities,” Rancho Palos Verdes v. Abrams , 544 U.S. 113 , 115 (2005), and incorporated those limitations into the Communications Act of 1934, see 110Stat. 56, 151. Section 201(b) of that Act empowers the Federal Communications Commission to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.” Ch. 296, 52Stat. 588, codified at 47 U. S. C. §201(b). Of course, that rulemaking authority extends to the subsequently added portions of the Act. See AT&T Corp. v. Iowa Utilities Bd. , 525 U.S. 366 , 377–378 (1999). The Act imposes five substantive limitations, which are codified in 47 U. S. C. §332(c)(7)(B); only one of them, §332(c)(7)(B)(ii), is at issue here. That provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after the request is duly filed.” Two other features of §332(c)(7) are relevant. First, subparagraph (A), known as the “saving clause,” provides that nothing in the Act, except those limitations provided in §332(c)(7)(B), “shall limit or affect the authority of a State or local government” over siting decisions. Second, §332(c)(7)(B)(v) authorizes a person who believes a state or local government’s wireless-siting decision to be inconsistent with any of the limitations in §332(c)(7)(B) to “commence an action in any court of competent jurisdiction.” In theory, §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities. But in practice, wireless providers often faced long delays. In July 2008, CTIA—The Wireless Association,[ 1 ] which represents wireless service providers, petitioned the FCC to clarify the meaning of §332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests “within a reasonable period of time.” In November 2009, the Commission, relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In re Petition for Declaratory Ruling , 24 FCC Rcd. 13994, 14001. The Commission found that the “record evidence demonstrates that unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services” and that such delays “impede the promotion of ad- vanced services and competition that Congress deemed critical in the Telecommunications Act of 1996.” Id., at 14006, 14008. A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005. Some state and local governments opposed adoption of the Declaratory Ruling on the ground that the Commission lacked “authority to interpret ambiguous provisions of Section 332(c)(7).” Id., at 14000. Specifically, they argued that the saving clause, §332(c)(7)(A), and the judicial review provision, §337(c)(7)(B)(v), together display a congressional intent to withhold from the Commission authority to interpret the limitations in §332(c)(7)(B). Asserting that ground of objection, the cities of Arlington and San Antonio, Texas, petitioned for review of the Declaratory Ruling in the Court of Appeals for the Fifth Circuit. Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt the 90- and 150-day timeframes. 668 F.3d 229, 248 (CA5 2012) (citing Texas v. United States , 497 F.3d 491, 501 (CA5 2007)). Applying Chevron , the Court of Appeals found “§332(c)(7)(A)’s effect on the FCC’s author- ity to administer §332(c)(7)(B)’s limitations ambiguous,” 668 F. 3d , at 250, and held that “the FCC’s interpretation of its statutory authority” was a permissible construction of the statute. Id., at 254. On the merits, the court upheld the presumptive 90- and 150-day deadlines as a “permissible construction of §332(c)(7)(B)(ii) and (v) . . . entitled to Chevron deference.” Id. , at 256. We granted certiorari, 568 U. S. ___ (2012), limited to the first question presented: “Whether . . . a court should apply Chevron to . . . an agency’s determination of its own jurisdiction.” Pet. for Cert. in No. 11–1545, p. i. II A As this case turns on the scope of the doctrine enshrined in Chevron , we begin with a description of that case’s now-canonical formulation. “When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.” 467 U. S., at 842. First, applying the ordinary tools of statutory construction, the court must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id., at 842–843. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id., at 843. Chevron is rooted in a background presumption of congressional intent: namely, “that Congress, when it left ambiguity in a statute” administered by an agency, “understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A. , 517 U.S. 735 , 740–741 (1996). Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. See Iowa Utilities Bd. , 525 U. S., at 397. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion. B The question here is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction). The argument against deference rests on the premise that there exist two distinct classes of agency interpretations: Some interpretations—the big, important ones, presumably—define the agency’s “jurisdiction.” Others—humdrum, run-of-the-mill stuff—are simply applications of jurisdiction the agency plainly has. That premise is false, because the distinction between “jurisdictional” and “nonjurisdictional” interpretations is a mirage. No matter how it is framed, the question a court faces when confronted with an agency’s inter- pretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority . The misconception that there are, for Chevron purposes, separate “jurisdictional” questions on which no deference is due derives, perhaps, from a reflexive extension to agen- cies of the very real division between the jurisdictional and nonjurisdictional that is applicable to courts. In the judicial context, there is a meaningful line: Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all . Congress has the power (within limits) to tell the courts what classes of cases they may decide, see Trainmen v. Toledo, P. & W. R. Co. , 321 U.S. 50 , 63–64 (1944); Lauf v. E. G. Shinner & Co. , 303 U.S. 323 , 330 (1938), but not to prescribe or superintend how they decide those cases, see Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211 , 218–219 (1995). A court’s power to decide a case is independent of whether its decision is correct, which is why even an erroneous judgment is entitled to res judicata effect. Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires. That is not so for agencies charged with administering congressional statutes. Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires . Because the question—whether framed as an incorrect application of agency authority or an assertion of author- ity not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.” An example will illustrate just how illusory the pro- posed line between “jurisdictional” and “nonjurisdictional” agency interpretations is. Imagine the following validly-enacted statute: Common Carrier Act Section 1. The Agency shall have jurisdiction to prohibit any common carrier from imposing an unreasonable condition upon access to its facilities. There is no question that this provision—including the terms “common carrier” and “unreasonable condition”—defines the Agency’s jurisdiction. Surely, the argument goes, a court must determine de novo the scope of that jurisdiction. Consider, however, this alternative formulation of the statute: Common Carrier Act Section 1. No common carrier shall impose an unreasonable condition upon access to its facilities. Section 2. The Agency may prescribe rules and regulations necessary in the public interest to effectuate Section 1 of this Act. Now imagine that the Agency, invoking its Section 2 authority, promulgates this Rule: “(1) The term ‘common carrier’ in Section 1 includes Internet Service Providers. (2) The term ‘unreasonable condition’ in Section 1 includes unreasonably high prices. (3) A monthly fee greater than $25 is an unreasonable condition on access to Internet service.” By this Rule, the Agency has claimed for itself jurisdiction that is doubly questionable: Does its authority extend to Internet Service Providers? And does it extend to setting prices? Yet Section 2 makes clear that Congress, in petitioners’ words, “conferred interpretive power on the agency” with respect to Section 1. Brief for Petitioners in No. 1545, p. 14. Even under petitioners’ theory, then, a court should defer to the Agency’s interpretation of the terms “common carrier” and “unreasonable condition”—that is to say, its assertion that its “jurisdiction” extends to regulating Internet Service Providers and setting prices. In the first case, by contrast, petitioners’ theory would accord the agency no deference. The trouble with this is that in both cases, the underlying question is exactly the same : Does the statute give the agency authority to regulate Internet Service Providers and cap prices, or not?[ 2 ] The reality, laid bare, is that there is no difference , insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its “jurisdiction”) and its exceeding authorized application of authority that it unquestionably has. “To exceed authorized application is to exceed authority. Virtually any administrative action can be characterized as either the one or the other, depending on how generally one wishes to describe the ‘authority.’ ” Mississippi Power & Light Co. v. Mississippi ex rel. Moore , 487 U.S. 354 , 381 (1988) (Scalia, J., concurring in judgment); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm.”). This point is nicely illustrated by our decision in National Cable & Telecommunications Assn., Inc. v. Gulf Power Co., 534 U.S. 327 (2002). That case considered whether the FCC’s “jurisdiction” to regulate the rents utility-pole owners charge for “pole attachments” (defined as attachments by a cable television system or provider of telecommunications service) extended to attachments that provided both cable television and high-speed Internet access (attachments for so-called “commingled services”). Id ., at 331–336. We held, sensibly, that Chevron applied. 534 U. S. , at 333, 339. Whether framed as going to the scope of the FCC’s delegated authority or the FCC’s application of its delegated authority, the underlying question was the same: Did the FCC exceed the bounds of its statutory authority to regulate rents for “pole attachments” when it sought to regulate rents for pole attachments providing commingled services? The label is an empty distraction because every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction. One of the briefs in support of petitioners explains, helpfully, that “[j]urisdictional questions concern the who, what, where, and when of regulatory power: which subject matters may an agency regulate and under what conditions.” Brief for IMLA Respondents 18–19. But an agency’s application of its authority pursuant to statutory text answers the same questions. Who is an “outside salesman”? What is a “pole attachment”? Where do the “waters of the United States” end? When must a Medicare provider challenge a reimbursement determination in order to be entitled to an administrative appeal? These can all be reframed as questions about the scope of agencies’ regulatory jurisdiction— and they are all questions to which the Chevron framework applies. See Christopher v. SmithKline Beecham Corp. , 567 U. S. ___, ___, ___ (2012) (slip op., at 2, 8); National Cable & Telecommunications Assn., supra, at 331, 333; United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121 , 123, 131 (1985); Sebelius v. Auburn Regional Medical Center, 568 U. S. ___, ___, ___ (2013) (slip op., at 1, 11). In sum, judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold inquiry.”). The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking. C Fortunately, then, we have consistently held “that Chevron applies to cases in which an agency adopts a con- struction of a jurisdictional provision of a statute it administers.” 1 R. Pierce, Administrative Law Treatise §3.5, p. 187 (2010). One of our opinions explicitly says that no “exception exists to the normal [deferential] standard of review” for “ ‘jurisdictional or legal question[s] concerning the coverage’ ” of an Act. NLRB v. City Disposal Systems, Inc. , 465 U.S. 822 , 830, n. 7 (1984). A prime example of deferential review for questions of jurisdiction is Commodity Futures Trading Comm’n v. Schor , 478 U.S. 833 (1986). That case involved a CFTC interpretation of 7 U. S. C. §18(c), which provides that before the Commission takes action on a complaint, the complainant must file a bond to cover “any reparation award that may be issued by the Commission against the complainant on any counterclaim by respondent.” (Emphasis added.) The CFTC, pursuant to its broad rulemaking authority, see §12a(5), interpreted that oblique reference to counterclaims as granting it “the power to take jurisdiction over” not just federal-law counterclaims, but state-law counterclaims as well. Schor , supra , at 844. We not only deferred under Chevron to the Commission’s “eminently reasonable . . . interpretation of the statute it is entrusted to administer,” but also chided the Court of Appeals for declining to afford def- erence because of the putatively “ ‘statutory interpretation-jurisdictional’ nature of the question at issue.” 478 U. S. , at 844–845. Similar examples abound. We have afforded Chevron deference to the Commerce Department’s determination that its authority to seek antidumping duties extended to uranium imported under contracts for enrichment services, United States v. Eurodif S. A. , 555 U.S. 305 , 316 (2009); to the Interstate Commerce Commission’s view that courts, not the Commission, possessed “initial jurisdiction with respect to the award of reparations” for unreasonable shipping charges, Reiter v. Cooper, 507 U.S. 258 , 269 (1993) (internal quotation marks and ellipsis omitted); and to the Army Corps of Engineers’ assertion that its permitting authority over discharges into “waters of the United States” extended to “freshwater wetlands” adjacent to covered waters, Riverside Bayview Homes, supra , at 123–124, 131. We have even deferred to the FCC’s assertion that its broad regulatory authority extends to pre-empting conflicting state rules. City of New York v. FCC , 486 U.S. 57 , 64 (1988); Capital Cities Cable, Inc. v. Crisp , 467 U.S. 691 , 700 (1984).[ 3 ] Our cases hold that Chevron applies equally to statutes designed to curtail the scope of agency discretion. For instance, in Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc. , 470 U.S. 116 , 123 (1985), we considered a statute prohibiting the Environmental Protection Agency from “modify[ing] any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list.” The EPA construed the statute as not precluding it from granting variances with respect to certain toxic pollutants. Finding no “clear congressional intent to forbid EPA’s sensible variance mechanism,” id., at 134, we deferred to the EPA’s construction of this express limitation on its own regulatory authority, id., at 125 (citing Chevron , 467 U. S. 837); see also, e.g., Japan Whaling Assn. v. American Cetacean Soc. , 478 U.S. 221 , 226, 232–234 (1986). The U. S. Reports are shot through with applications of Chevron to agencies’ constructions of the scope of their own jurisdiction. And we have applied Chevron where concerns about agency self-aggrandizement are at their apogee: in cases where an agency’s expansive construction of the extent of its own power would have wrought a fundamental change in the regulatory scheme. In FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 (2000), the threshold question was the “appropriate framework for analyzing” the FDA’s assertion of “jurisdiction to regulate tobacco products,” id., at 126, 132—a question of vast “economic and political magnitude,” id., at 133. “Because this case involves an administrative agency’s construction of a statute that it administers,” we held, Chevron applied. 529 U. S. , at 132. Similarly, in MCI Telecommunications Corp. v. American Telephone & Telegraph Co. , 512 U.S. 218 , 224, 229, 231 (1994), we applied the Chevron framework to the FCC’s assertion that the statutory phrase “modify any requirement” gave it authority to eliminate rate-filing requirements, “the essential characteristic of a rate-regulated industry,” for long-distance telephone carriers. The false dichotomy between “jurisdictional” and “non- jurisdictional” agency interpretations may be no more than a bogeyman, but it is dangerous all the same. Like the Hound of the Baskervilles, it is conjured by those with greater quarry in sight: Make no mistake—the ultimate target here is Chevron itself. Savvy challengers of agency action would play the “jurisdictional” card in every case. See, e.g., Cellco Partnership v. FCC , 700 F.3d 534, 541 (CADC 2012). Some judges would be deceived by the specious, but scary-sounding, “jurisdictional”-“nonjurisdictional” line; others tempted by the prospect of making public policy by prescribing the meaning of ambiguous statutory commands. The effect would be to transfer any number of interpretive decisions—archetypal Chevron questions, about how best to construe an ambiguous term in light of competing policy interests—from the agencies that administer the statutes to federal courts.[ 4 ] We have cautioned that “judges ought to refrain from substituting their own interstitial lawmaking” for that of an agency. Ford Motor Credit Co. v. Milhollin , 444 U.S. 555 , 568 (1980). That is precisely what Chevron prevents. III A One group of respondents contends that Chevron deference is inappropriate here because the FCC has “assert[ed] jurisdiction over matters of traditional state and local concern.” Brief for IMLA Respondents 35. But this case has nothing to do with federalism. Section 332(c)(7)(B)(ii) explicitly supplants state authority by requiring zoning authorities to render a decision “within a reasonable period of time,” and the meaning of that phrase is indisputably a question of federal law. We rejected a similar faux-federalism argument in the Iowa Utilities Board case, in terms that apply equally here: “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U. S., at 379, n. 6. These lines will be drawn either by unelected federal bureaucrats, or by unelected (and even less politically accountable) federal judges. “[I]t is hard to spark a passionate ‘States’ rights’ debate over that detail.” Ibid. B A few words in response to the dissent. The question on which we granted certiorari was whether “a court should apply Chevron to review an agency’s determination of its own jurisdiction.” Pet. for Cert. i.[ 5 ] Perhaps sensing the incoherence of the “jurisdictional-nonjurisdictional” line, the dissent does not even attempt to defend it, see post, at 5, but proposes a much broader scope for de novo judicial review: Jurisdictional or not, and even where a rule is at issue and the statute contains a broad grant of rulemaking authority, the dissent would have a court search provision-by-provision to determine “whether [that] delegation covers the ‘specific provision’ and ‘particular question’ before the court.” Post, at 11–12. The dissent is correct that United States v. Mead Corp. , 533 U.S. 218 (2001), requires that, for Chevron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. No one disputes that. But Mead denied Chevron deference to action, by an agency with rulemaking authority, that was not rulemaking. What the dissent needs, and fails to produce, is a single case in which a general conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field. There is no such case, and what the dissent proposes is a massive revision of our Chevron jurisprudence. Where we differ from the dissent is in its apparent rejection of the theorem that the whole includes all of its parts—its view that a general conferral of rulemaking authority does not validate rules for all the matters the agency is charged with administering. Rather, the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determination of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the conferral of general rulemaking author- ity). It would simply punt that question back to the Court of Appeals, presumably for application of some sort of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos. There is no need to wade into these murky waters. It suffices to decide this case that the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority. *  *  * Those who assert that applying Chevron to “jurisdictional” interpretations “leaves the fox in charge of the henhouse” overlook the reality that a separate category of “jurisdictional” interpretations does not exist. The fox-in-the-henhouse syndrome is to be avoided not by estab- lishing an arbitrary and undefinable category of agency decisionmaking that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where Congress has established a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional.” If “the agency’s answer is based on a permissible construction of the statute,” that is the end of the matter. Chevron , 467 U. S., at 842. The judgment of the Court of Appeals is affirmed. It is so ordered. Notes 1 This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here. 2 The dissent’s non-answer to this example reveals the hollowness of its theory. It “might,” the dissent claims, be “harder” to interpret the first Act, because it is (somehow) less “clear” than the second Act. Post, at 15–16 (opinion of Roberts, C. J.). That it is even possible that the two could come out differently under the dissent’s test (whatever it is) shows that that test must be wrong. The two statutes are substantively identical. Any difference in outcome would be arbitrary, so a sound interpretive approach should yield none. 3 The dissent’s reliance on dicta in Adams Fruit Co. v. Barrett , 494 U.S. 638 (1990), see post, at 8–9, is misplaced. In that case, the Department of Labor had interpreted a statute creating a private right of action for migrant or seasonal farmworkers as providing no remedy where a state workers’-compensation law covered the worker. 494 U. S. , at 649. We held that we had no need to “defer to the Secretary of Labor’s view of the scope of” that private right of action “because Congress has expressly established the Judiciary and not the Department of Labor as the adjudicator of private rights of action arising under the statute.” Ibid . Adams Fruit stands for the modest proposition that the Judiciary, not any executive agency, determines “the scope”—including the available remedies—“of judicial power vested by” statutes establishing private rights of action. Id., at 650. Adams Fruit explicitly affirmed the Department’s authority to promulgate the substantive standards enforced through that private right of action. See ibid. The dissent’s invocation of Gonzales v. Oregon , 546 U.S. 243 (2006), see post, at 10–11, is simply perplexing: The majority opinion in that case expressly lists the Communications Act as an example of a statute under which an agency’s “authority is clear because the statute gives an agency broad power to enforce all provisions of the statute.” 546 U. S. , at 258–259 (citing 47 U. S. C. §201(b); emphasis added). That statement cannot be squared with the dissent’s proposed remand for the Fifth Circuit to determine “whether Congress delegated interpretive authority over §332(c)(7)(B)(ii) to the FCC.” Post, at 18. 4 The Chief Justice’s discomfort with the growth of agency power, see post, at 2–4, is perhaps understandable. But the dissent overstates when it claims that agencies exercise “legislative power” and “judicial power.” Post , at 2; see also post, at 16. The former is vested exclusively in Congress, U. S. Const., Art. I, §1, the latter in the “one supreme Court” and “such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1. Agencies make rules (“Private cattle may be grazed on public lands X, Y, and Z subject to certain conditions”) and conduct adjudications (“This rancher’s grazing permit is revoked for violation of the conditions”) and have done so since the beginning of the Republic. These activities take “legislative” and “judicial” forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the “executive Power.” Art. II, §1, cl. 1. 5 The dissent—apparently with no attempt at irony—accuses us of “misunderstand[ing]” the question presented as one of “jurisdiction.” Post, at 5. Whatever imprecision inheres in our understanding of the question presented derives solely from our having read it. SUPREME COURT OF THE UNITED STATES _________________ Nos. 11–1545 and 11–1547 _________________ CITY OF ARLINGTON, TEXAS, et al., PETITIONERS 11–1545 v. FEDERAL COMMUNICATIONS COMMISSION et al. CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER 11–1547 v. FEDERAL COMMUNICATIONS COMMISSION et al. on writs of certiorari to the united states court of appeals for the fifth circuit [May 20, 2013] Justice Breyer, concurring in part and concurring in the judgment. I agree with the Court that normally “the question a court faces when confronted with an agency’s interpretation of a statute it administers” is, “simply, whether the agency has stayed within the bounds of its statutory authority.” Ante, at 5–6. In this context, “the distinction between ‘jurisdictional’ and ‘non-jurisdictional’ interpretations is a mirage.” Ante, at 5. Deciding just what those statutory bounds are, however, is not always an easy matter, and the Court’s case law abounds with discussion of the subject. A reviewing judge, for example, will have to decide independently whether Congress delegated authority to the agency to provide interpretations of, or to enact rules pursuant to, the statute at issue—interpretations or rules that carry with them “the force of law.” United States v. Mead Corp. , 533 U.S. 218 , 229 (2001). If so, the reviewing court must give special leeway or “deference” to the agency’s interpretation. See id., at 227–228. We have added that, if “[e]mploying traditional tools of statutory construction,” INS v. Cardoza-Fonseca , 480 U.S. 421 , 446 (1987), the court determines that Congress has spoken clearly on the disputed question, then “that is the end of the matter,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 , 842 (1984). The agency is due no deference, for Congress has left no gap for the agency to fill. Id., at 842–844. If, on the other hand, Congress has not spoken clearly, if, for example it has written ambiguously, then that ambiguity is a sign—but not always a conclusive sign—that Congress intends a reviewing court to pay particular attention to ( i.e. , to give a degree of deference to) the agency’s interpretation. See Gonzales v. Oregon , 546 U.S. 243 , 258–269 (2006); Mead, supra, at 229. I say that the existence of statutory ambiguity is sometimes not enough to warrant the conclusion that Congress has left a deference-warranting gap for the agency to fill be- cause our cases make clear that other, sometimes context-specific, factors will on occasion prove relevant. (And, given the vast number of government statutes, regulatory programs, and underlying circumstances, that variety is hardly surprising.) In Mead, for example, we looked to several factors other than simple ambiguity to help determine whether Congress left a statutory gap, thus delegating to the agency the authority to fill that gap with an interpretation that would carry “the force of law.” 533 U. S., at 229–231. Elsewhere, we have assessed “the interstitial nature of the legal question, the re- lated expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time.” Barnhart v. Walton , 535 U.S. 212 , 222 (2002). The subject matter of the relevant provision—for instance, its distance from the agency’s ordinary statutory duties or its falling within the scope of another agency’s authority—has also proved relevant. See Gonzalez , supra, at 265–266. See also Gellhorn & Verkuil, Controlling Chevron -Based Delegations, 20 Cardozo L. Rev. 989, 1007–1010 (1999). Moreover, the statute’s text, its context, the structure of the statutory scheme, and canons of textual construction are relevant in determining whether the statute is ambiguous and can be equally helpful in determining whether such ambiguity comes accompanied with agency authority to fill a gap with an interpretation that carries the force of law. See Household Credit Services, Inc. v. Pfennig , 541 U.S. 232 , 239–242 (2004); Zuni Public School Dist. No. 89 v. Department of Education , 550 U.S. 81 , 98–99 (2007); FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 , 133 (2000); Dole v. Steelworkers , 494 U.S. 26 , 36 (1990). Statutory purposes, including those revealed in part by legislative and regulatory history, can be similarly relevant. See Brown & Williamson Tobacco Corp. , supra, at 143–147; Pension Benefit Guaranty Corporation v. LTV Corp. , 496 U.S. 633 , 649 (1990); Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc. , 550 U.S. 45 , 48–49 (2007). See also AT&T Corp. v. Iowa Utilities Bd. , 525 U.S. 366 , 412–413 (1999) (Breyer, J., concurring in part and dissenting in part). Although seemingly complex in abstract description, in practice this framework has proved a workable way to approximate how Congress would likely have meant to allocate interpretive law-determining authority between reviewing court and agency. The question whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer independently. The judge, considering “traditional tools of statutory construction,” Cardoza-Fonseca , supra , at 446, will ask whether Congress has spoken unambiguously. If so, the text controls. If not, the judge will ask whether Congress would have intended the agency to resolve the resulting ambiguity. If so, deference is warranted. See Mead , supra, at 229. Even if not, however, sometimes an agency interpretation, in light of the agency’s special expertise, will still have the “power to persuade, if lacking power to control,” Skidmore v. Swift & Co. , 323 U.S. 134 , 140 (1944). The case before us offers an example. The relevant statutory provision requires state or local governments to act on wireless siting applications “within a reasonable period of time after” a wireless service provider files such a request. 47 U. S. C. §332(c)(7)(B)(ii). The Federal Com- munications Commission (FCC) argued that this pro- vision granted it a degree of leeway in determining the amount of time that is reasonable. Many factors favor the agency’s view: (1) the language of the Telecommunications Act grants the FCC broad authority (including rulemaking authority) to administer the Act; (2) the words are open-ended— i.e. “ambiguous”; (3) the provision concerns an interstitial administrative matter, in respect to which the agency’s expertise could have an important role to play; and (4) the matter, in context, is complex, likely making the agency’s expertise useful in helping to answer the “rea- sonableness” question that the statute poses. See §151 (creating the FCC); §201(b) (providing rulemaking auth- ority); National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U.S. 967 , 980–981 (2005) (acknowledging the FCC’s authority to administer the Act). On the other side of the coin, petitioners point to two statutory provisions which, they believe, require a different conclusion—namely, that the FCC lacked authority altogether to interpret §332(c)(7)(B)(ii). First, a nearby saving clause says: “Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” §332(c)(7)(A). Second, a judicial review provision, says: “Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.” §332(c)(7)(B)(v). In my view, however, these two provisions cannot provide good reason for reaching the conclusion advocated by petitioners. The first provision begins with an exception, stating that it does not apply to (among other things) the “reasonableness” provision here at issue. The second sim- ply sets forth a procedure for judicial review, a review that applies to most government actions. Both are consistent with a statutory scheme that gives States, localities, the FCC, and reviewing courts each some role to play in the location of wireless service facilities. And neither “expressly describ[es] an exception” to the FCC’s plenary authority to interpret the Act. American Hospital Assn. v. NLRB , 499 U.S. 606 , 613 (1991). For these reasons, I would reject petitioners’ argument and conclude that §332(c)(7)(B)(ii)—the “reasonableness” statute—leaves a gap for the FCC to fill. I would hold that the FCC’s lawful efforts to do so carry “the force of law.” Mead, 533 U. S. , at 229. The Court of Appeals ultimately reached the same conclusion (though for somewhat dif- ferent reasons), and the majority affirms the lower court. I consequently join the majority’s judgment and such por- tions of its opinion as are consistent with what I have written here. SUPREME COURT OF THE UNITED STATES _________________ Nos. 11–1545 and 11–1547 _________________ CITY OF ARLINGTON, TEXAS, et al., PETITIONERS 11–1545 v. FEDERAL COMMUNICATIONS COMMISSION et al. CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, PETITIONER 11–1547 v. FEDERAL COMMUNICATIONS COMMISSION et al. on writs of certiorari to the united states court of appeals for the fifth circuit [May 20, 2013] Chief Justice Roberts, with whom Justice Kennedy and Justice Alito join, dissenting. My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency. I One of the principal authors of the Constitution famously wrote that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government. The administrative state “wields vast power and touches almost every aspect of daily life.” Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U. S. ___, ___ (2010) (slip op., at 18). The Framers could hardly have envisioned today’s “vast and varied federal bureaucracy” and the authority administrative agencies now hold over our economic, social, and political activities. Ibid. “[T]he administrative state with its reams of regulations would leave them rubbing their eyes.” Alden v. Maine , 527 U.S. 706 , 807 (1999) (Souter, J., dissenting), quoted in Federal Maritime Comm’n v. South Carolina Ports Authority , 535 U.S. 743 , 755 (2002). And the federal bureaucracy continues to grow; in the last 15 years, Congress has launched more than 50 new agencies. Compare Office of the Federal Register, United States Government Manual 1997/1998, with Office of the Federal Register, United States Government Manual 2012. And more are on the way. See, e.g., Congressional Research Service, C. Copeland, New Entities Created Pursuant to the Patient Protection and Affordable Care Act 1 (2010) (The PPACA “creates, requires others to create, or authorizes dozens of new entities to implement the legislation”). Although the Constitution empowers the President to keep federal officers accountable, administrative agencies enjoy in practice a significant degree of independence. As scholars have noted, “no President (or his executive office staff) could, and presumably none would wish to, supervise so broad a swath of regulatory activity.” Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2250 (2001); see also S. Breyer, Making Our Democracy Work 110 (2010) (“the president may not have the time or willingness to review [agency] decisions”). President Truman colorfully described his power over the administrative state by complaining, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.” See R. Nathan, The Administrative Presidency 2 (1986). President Kennedy once told a constituent, “I agree with you, but I don’t know if the government will.” See id., at 1. The collection of agencies housed outside the traditional executive departments, including the Federal Communications Commission, is routinely described as the “headless fourth branch of government,” reflecting not only the scope of their authority but their practical independence. See, e.g., Administrative Conference of United States, D. Lewis & J. Selin, Sourcebook of United States Executive Agencies 11 (2012). As for judicial oversight, agencies enjoy broad power to construe statutory provisions over which they have been given interpretive authority. In Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , we established a test for reviewing “an agency’s construction of the statute which it administers.” 467 U.S. 837 , 842 (1984). If Congress has “directly spoken to the precise question at issue,” we said, “that is the end of the matter.” Ibid. A contrary agency interpretation must give way. But if Congress has not expressed a specific intent, a court is bound to defer to any “permissible construction of the statute,” even if that is not “the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id., at 843, and n. 11. When it applies, Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous—expressing “a mood rather than a message.” Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 1263, 1311 (1962). By design or default, Congress often fails to speak to “the precise question” before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it “exceeds the bounds of the permissible.” Barnhart v. Walton , 535 U.S. 212 , 218 (2002). It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed. See, e.g., Talk America, Inc. v. Michigan Bell Telephone Co. , 564 U. S. ___, ___ (2011) (Scalia, J., concurring) (slip op., at 3) (noting that the FCC “has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends”); Sackett v. EPA , 566 U. S. ___, ___–___ (2012) (slip op., at 9–10) (rejecting agency argument that would “enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review”). What the Court says in footnote 4 of its opinion is good, and true (except of course for the “dissent overstates” part). Ante, at 13–14, n. 4. The Framers did divide governmental power in the manner the Court describes, for the purpose of safeguarding liberty. And yet . . . the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, “in the public interest”—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching. It is against this background that we consider whether the authority of administrative agencies should be augmented even further, to include not only broad power to give definitive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power. Before proceeding to answer that question, however, it is necessary to sort through some confusion over what this litigation is about. The source of the confusion is a familiar culprit: the concept of “jurisdiction,” which we have repeatedly described as a word with “ ‘many, too many, meanings.’ ” Union Pacific R. Co. v. Locomotive Engineers , 558 U.S. 67 , 81 (2009). The Court states that the question “is whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, its jurisdiction).” Ante, at 5. That is fine—until the parenthetical. The parties, amici , and court below too often use the term “jurisdiction” imprecisely, which leads the Court to misunderstand the argument it must confront. That argument is not that “there exist two distinct classes of agency interpretations,” some “big, important ones” that “define the agency’s ‘jurisdiction,’ ” and other “humdrum, run-of-the-mill” ones that “are simply applications of jurisdiction the agency plainly has.” Ibid. The argument is instead that a court should not defer to an agency on whether Congress has granted the agency interpretive authority over the statutory ambiguity at issue. You can call that “jurisdiction” if you’d like, as petitioners do in the question presented. But given that the term is ambiguous, more is required to understand its use in that question than simply “having read it.” Ante, at 15, n. 5. It is important to keep in mind that the term, in the present context, has the more precise meaning noted above, encompassing congressionally delegated authority to issue interpretations with the force and effect of law. See 668 F.3d 229, 248 (CA5 2012) (case below) (“The issue in the instant case is whether the FCC possessed statutory authority to administer §332(c)(7)(B)(ii) and (v) by adopting the 90- and 150-day time frames”). And that has nothing do with whether the statutory provisions at issue are “big” or “small.” II “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison , 1 Cranch 137, 177 (1803). The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide “all relevant questions of law.” 5 U. S. C. §706. We do not ignore that command when we afford an agency’s statutory interpretation Chevron deference; we respect it. We give binding deference to permissible agency interpretations of statutory ambiguities because Con- gress has delegated to the agency the authority to interpret those ambiguities “with the force of law.” United States v. Mead Corp. , 533 U.S. 218 , 229 (2001); see also Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27–28 (1983) (“the court is not abdicating its constitutional duty to ‘say what the law is’ by deferring to agency interpretations of law: it is simply applying the law as ‘made’ by the authorized law-making entity”). But before a court may grant such deference, it must on its own decide whether Congress—the branch vested with lawmaking authority under the Constitution—has in fact delegated to the agency lawmaking power over the ambiguity at issue. See ante, at 4 (Breyer, J., concurring in part and concurring in judgment) (“The question whether Congress has delegated to an agency the authority to provide an interpretation that carries the force of law is for the judge to answer independently.”). Agencies are creatures of Congress; “an agency literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC , 476 U.S. 355 , 374 (1986). Whether Congress has conferred such power is the “relevant question[ ] of law” that must be answered before affording Chevron deference. 5 U. S. C. §706. III A Our precedents confirm this conclusion—beginning with Chevron itself. In Chevron , the EPA promulgated a regulation interpreting the term “stationary sources” in the Clean Air Act. 467 U. S., at 840 (quoting 42 U. S. C. §7502(b)(6)(1982 ed.)). An environmental group petitioned for review of the rule, challenging it as an impermissible interpretation of the Act. 467 U. S., at 841, 859. Finding the statutory text “not dispositive” and the legislative history “silent on the precise issue,” we upheld the rule. Id., at 862, 866. In our view, the challenge to the agency’s interpretation “center[ed] on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress.” Id., at 866. Judges, we said, “are not experts in the field, and are not part of either political branch of the Government.” Id., at 865. Thus, because Congress had not answered the specific question at issue, judges had no business providing their own resolution on the basis of their “personal policy preferences.” Ibid. Instead, the “agency to which Congress ha[d] delegated policymaking responsibilities” was the appropriate political actor to resolve the competing interests at stake, “within the limits of that delegation.” Ibid. Chevron ’s rule of deference was based on—and limited by—this congressional delegation. And the Court did not ask simply whether Congress had delegated to the EPA the authority to administer the Clean Air Act generally. We asked whether Congress had “delegat[ed] authority to the agency to elucidate a specific provision of the statute by regulation.” Id., at 843–844 (emphasis added); see id. , at 844 (discussing “the legislative delegation to an agency on a particular question ” (emphasis added)). We deferred to the EPA’s interpretation of “stationary sources” based on our conclusion that the agency had been “charged with responsibility for administering the provision. ” Id., at 865 (emphasis added). B We have never faltered in our understanding of this straightforward principle, that whether a particular agency interpretation warrants Chevron deference turns on the court’s determination whether Congress has delegated to the agency the authority to interpret the statutory ambiguity at issue. We made the point perhaps most clearly in Adams Fruit Co. v. Barrett , 494 U.S. 638 (1990). In that case, the Department of Labor contended the Court should defer to its interpretation of the scope of the private right of action provided by the Migrant and Seasonal Agriculture Worker Protection Act (AWPA), 29 U. S. C. §1854, against employers who intentionally violated the Act’s motor vehicle safety provisions. We refused to do so. Although “as an initial matter” we rejected the idea that Congress left a “statutory ‘gap’ ” for the agency to fill, we reasoned that if the “AWPA’s language establishing a private right of action is ambiguous,” the Secretary of Labor’s interpretation of its scope did not warrant Chevron deference. 494 U. S., at 649. In language directly applicable to the question before us, we explained that “[a] precondition to deference under Chevron is a congressional delegation of administrative authority.” Ibid. Although “Congress clearly envisioned, indeed expressly mandated, a role for the Department of Labor in administering the statute by requiring the Secretary to promulgate standards implementing AWPA’s motor vehicle provisions ,” we found “[n]o such delegation regarding AWPA’s enforcement provisions .” Id., at 650 (emphasis added). It would therefore be “inappropriate,” we said, “to consult executive interpretations” of the enforcement provisions to resolve ambiguities “surrounding the scope of AWPA’s judicially enforceable remedy.” Ibid. Without questioning the principle that agency determinations “within the scope of delegated authority are entitled to deference,” we explained that “it is fundamental ‘that an agency may not bootstrap itself into an area in which it has no jurisdiction.’ ” Ibid. (quoting Federal Maritime Comm’n v. Seatrain Lines, Inc. , 411 U.S. 726 , 745 (1973)). Our subsequent cases follow the same approach. In United States v. Mead Corp. , supra , for example, Chevron deference turned on whether Congress had delegated to the agency authority to interpret the statutory ambiguity by a particular means. The Customs Service had issued a “classification ruling,” interpreting the term “diaries” in a tariff schedule to include “day planners” of the type Mead imported, and on that basis subjected the planners to a four-percent tariff. Mead protested the imposition of the tariff, the Customs Service claimed Chevron deference for its interpretation, and the controversy made its way to our Court. Id., at 224–226. In Mead , we again made clear that the “category of interpretative choices” to which Chevron deference applies is defined by congressional intent. Id., at 229. Chevron deference, we said, rests on a recognition that Congress has delegated to an agency the interpretive authority to implement “a particular provision” or answer “ ‘a particular question.’ ” Ibid. (quoting Chevron , 467 U. S., at 844) . An agency’s interpretation of “a particular statutory provision” thus qualifies for Chevron deference only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was pro-mulgated in the exercise of that authority.” 533 U. S., at 226–227. The Court did not defer to the agency’s views but instead determined that Congress had not delegated interpretive authority to the Customs Service to definitively construe the tariff schedule through classification rulings. Neither the statutory authorization for the classification rulings, nor the Customs Service’s practice in issuing such rulings, “reasonably suggest[ed] that Congress ever thought of [such] classification rulings as deserving the deference claimed for them.” Id., at 231. And in the absence of such a delegation, we concluded the interpretations adopted in those rulings were “beyond the Chevron pale.” Id., at 234. Gonzales v. Oregon , 546 U.S. 243 (2006), is in the same line of precedent. In that case, as here, deference turned on whether a congressional delegation of interpretive authority reached a particular statutory ambiguity. The Attorney General claimed Chevron deference for his interpretation of the phrase “legitimate medical purpose” in the Controlled Substances Act (CSA) to exclude the prescribing and dispensing of controlled substances for the purpose of assisting suicide. Id., at 254, 258. No one disputed that “legitimate medical purpose” was “ambiguous in the relevant sense.” Id., at 258. Nor did any Justice dispute that the Attorney General had been granted the power in the CSA to promulgate rules with the force of law. Ibid. ; see id., at 281 (Scalia, J., dissenting). Nevertheless, the Court explained, “ Chevron deference . . . is not accorded merely because the statute is ambiguous and an administrative official is involved.” Id., at 258. The regulation advancing the interpretation, we said, “must be promulgated pursuant to authority Congress has delegated to the official.” Ibid. (citing Mead , supra, at 226–227). In the CSA, Congress delegated to the Attorney General the authority to promulgate regulations “relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances,” 21 U. S. C. §821, or “for the efficient execution of his functions under [the CSA],” §871(b). After considering the text, structure, and purpose of the Act, the Court concluded on its own that interpreting “legitimate medical purpose” fell under neither delegation. Gonzales, 546 U. S., at 258–269. Because the regulation “was not promulgated pursuant to the Attorney General’s authority, its interpretation of ‘legitimate medical purpose’ d[id] not receive Chevron deference.” Id., at 268. Adams Fruit , Mead , and Gonzales thus confirm that Chevron deference is based on, and finds legitimacy as, a congressional delegation of interpretive authority. An agency interpretation warrants such deference only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner. Whether Congress has done so must be determined by the court on its own before Chevron can apply. See H. Edwards, L. Elliot, & M. Levy, Federal Courts Standards of Review 168 (2d ed. 2013) (“a court decides de novo whether an agency has acted within the bounds of congressionally delegated authority” (citing Mead , supra, at 226–227, and Gonzales , supra, at 258)); Sales & Adler, The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences , 2009 U. Ill. L. Rev. 1497, 1564 (2009) (“if delegation really is antecedent to deference, as Mead insists, it cannot be that courts should defer to an agency’s views on whether a delegation has taken place”). In other words, we do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide. Simply put, that question is “beyond the Chevron pale.” Mead , supra , at 234. IV Despite these precedents, the FCC argues that a court need only locate an agency and a grant of general rulemaking authority over a statute. Chevron deference then applies, it contends, to the agency’s interpretation of any ambiguity in the Act, including ambiguity in a provision said to carve out specific provisions from the agency’s general rulemaking authority. If Congress intends to exempt part of the statute from the agency’s interpretive authority, the FCC says, Congress “can ordinarily be expected to state that intent explicitly.” Brief for Federal Respondents 30 (citing American Hospital Assn. v. NLRB , 499 U.S. 606 (1991)). If a congressional delegation of interpretive authority is to support Chevron deference, however, that delegation must extend to the specific statutory ambiguity at issue. The appropriate question is whether the delegation covers the “specific provision” and “particular question” before the court. Chevron , 467 U. S., at 844. A congressional grant of authority over some portion of a statute does not necessarily mean that Congress granted the agency interpretive authority over all its provisions. See Adams Fruit , 494 U. S., at 650. An example that might highlight the point concerns statutes that parcel out authority to multiple agencies, which “may be the norm, rather than an exception.” Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 S. Ct. Rev. 201, 208; see, e.g., Gonzales , 546 U. S, at 250–251 (describing shared author-ity over the CSA between the Attorney General and the Secretary of Health and Human Services); Sutton v. United Air Lines, Inc. , 527 U.S. 471 , 478 (1999) (authority to issue regulations implementing the Americans with Disabilities Act “is split primarily among three Government agencies”). The Dodd-Frank Wall Street Reform and Consumer Protection Act, for example, authorizes rulemaking by at least eight different agencies. See Con-gressional Research Service, C. Copeland, Rulemaking Requirements and Authorities in the Dodd-Frank Wall Street Reform and Consumer Protection Act 7 (2010). When presented with an agency’s interpretation of such a statute, a court cannot simply ask whether the statute is one that the agency administers; the question is whether authority over the particular ambiguity at issue has been delegated to the particular agency. By the same logic, even when Congress provides interpretive authority to a single agency, a court must decide if the ambiguity the agency has purported to interpret with the force of law is one to which the congressional delegation extends. A general delegation to the agency to administer the statute will often suffice to satisfy the court that Congress has delegated interpretive authority over the ambiguity at issue. But if Congress has exempted particular provisions from that authority, that exemption must be respected, and the determination whether Congress has done so is for the courts alone. The FCC’s argument that Congress “can ordinarily be expected to state that intent explicitly,” Brief for Federal Respondents 30 (citing American Hospital , supra ), goes to the merits of that determination, not to whether a court should decide the question de novo or defer to the agency. Indeed, that is how the Court in American Hospital considered it. It was in the process of “employing the traditional tools of statutory construction” that the Court said it would have expected Congress to speak more clearly if it had intended to exclude an entire subject area—employee units for collecting bargaining—from the NLRB’s general rulemaking authority. Id., at 613, 614. The Court concluded, after considering the language, structure, policy, and legislative history of the Act on its own—without deferring to the agency—that the meaning of the statute was “clear and contrary to the meaning advanced by petitioner.” Id., at 609–614. To be sure, the Court also noted that “[e]ven if we could find any ambiguity in [the provision] after employing the traditional tools of statutory construction, we would still defer to Board’s reasonable interpretation.” Id., at 614 (emphasis added). But that single sentence of dictum cannot carry the day for the FCC here. V As the preceding analysis makes clear, I do not understand petitioners to ask the Court—nor do I think it necessary—to draw a “specious, but scary-sounding” line between “big, important” interpretations on the one hand and “humdrum, run-of-the-mill” ones on the other. Ante, at 5, 12. Drawing such a line may well be difficult. Distinguishing between whether an agency’s interpretation of an ambiguous term is reasonable and whether that term is for the agency to interpret is not nearly so difficult. It certainly did not confuse the FCC in this proceeding. Compare In re Petition for Declaratory Ruling , 24 FCC Rcd. 13994, 14000–14003 (2009) (addressing the latter question), with id., at 14003–14015 (addressing the former). Nor did it confound the Fifth Circuit. Compare 668 F. 3d, at 247–254 (deciding “whether the FCC possessed statutory authority to administer §332(c)(7)(B)(ii)”), with id., at 254–260 (considering “whether the 90- and 150-day time frames themselves also pass muster under Chevron ”). More importantly, if the legitimacy of Chevron deference is based on a congressional delegation of interpretive authority, then the line is one the Court must draw. The majority’s hypothetical Common Carrier Acts do not demonstrate anything different. Ante, at 6–8. The major-ity states that in its second Common Carrier Act, Section 2 makes clear that Congress “ ‘conferred interpretative power on the agency’ ” to interpret the ambiguous terms “common carrier” and “unreasonable condition.” Ante, at 7 (quoting Brief for Petitioners in No. 1545, p. 14). Thus, it says, under anyone’s theory a court must defer to the agency’s reasonable interpretations of those terms. Correct. The majority claims, however, that “petitioners’ theory would accord the agency no deference” in its interpretation of the same ambiguous terms in the first Common Carrier Act. Ante, at 7–8. But as I understand petitioners’ argument—and certainly in my own view—a court, in both cases, need only decide for itself whether Congress has delegated to the agency authority to interpret the ambiguous terms, before affording the agency’s interpretation Chevron deference. For the second Common Carrier Act, the answer is easy. The majority’s hypothetical Congress has spoken clearly and specifically in Section 2 of the Act about its delegation of authority to interpret Section 1. As for the first Act, it is harder to analyze the question, given only one section of a presumably much larger statute. But if the first Common Carrier Act is like most agencies’ organic statutes, I have no reason to doubt that the agency would likewise have interpretive authority over the same ambiguous terms, and therefore be entitled to deference in con-struing them, just as with the second Common Carrier Act. There is no new “test” to worry about, cf. ante, at 16; courts would simply apply the normal rules of statutory construction. That the question might be harder with respect to the first Common Carrier Act should come as no surprise. The second hypothetical Congress has more carefully defined the agency’s authority than the first. Whatever standard of review applies, it is more difficult to interpret an unclear statute than a clear one. My point is simply that before a court can defer to the agency’s interpretation of the ambiguous terms in either Act, it must determine for itself that Congress has delegated authority to the agency to issue those interpretations with the force of law. The majority also expresses concern that adopting petitioners’ position would undermine Chevron ’s stable background rule against which Congress legislates. Ante, at 5. That, of course, begs the question of what that stable background rule is. See Merrill & Hickman, Chevron ’s Domain, 89 Geo. L. Rev. 833, 910 (2001) (“Courts have never deferred to agencies with respect to questions such as whether Congress has delegated to an agency the power to act with the force of law through either legislative rules or binding adjudications. Similarly, it has never been maintained that Congress would want courts to give Chevron deference to an agency’s determination that it is entitled to Chevron deference, or should give Chevron deference to an agency’s determination of what types of interpretations are entitled to Chevron deference” (footnote omitted)). VI The Court sees something nefarious behind the view that courts must decide on their own whether Congress has delegated interpretative authority to an agency, before deferring to that agency’s interpretation of law. What is afoot, according to the Court, is a judicial power-grab, with nothing less than “ Chevron itself” as “the ultimate target.” Ante, at 12. The Court touches on a legitimate concern: Chevron importantly guards against the Judiciary arrogating to itself policymaking properly left, under the separation of powers, to the Executive. But there is another concern at play, no less firmly rooted in our constitutional structure. That is the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well. An agency’s interpretive authority, entitling the agency to judicial deference, acquires its legitimacy from a delegation of lawmaking power from Congress to the Executive. Our duty to police the boundary between the Legislature and the Executive is as critical as our duty to respect that between the Judiciary and the Executive. See Zivotofsky v. Clinton , 566 U. S. ___, ___ (2012) (slip op., at 8). In the present context, that means ensuring that the Legislative Branch has in fact delegated lawmaking power to an agency within the Executive Branch, before the Judiciary defers to the Executive on what the law is. That concern is heightened, not diminished, by the fact that the administrative agencies, as a practical matter, draw upon a potent brew of executive, legislative, and judicial power. And it is heightened, not diminished, by the dramatic shift in power over the last 50 years from Congress to the Executive—a shift effected through the administrative agencies. We reconcile our competing responsibilities in this area by ensuring judicial deference to agency interpretations under Chevron —but only after we have determined on our own that Congress has given interpretive authority to the agency. Our “task is to fix the boundaries of delegated authority,” Monaghan, 83 Colum. L. Rev., at 27; that is not a task we can delegate to the agency. We do not leave it to the agency to decide when it is in charge. *  *  * In these cases, the FCC issued a declaratory ruling interpreting the term “reasonable period of time” in 47 U. S. C. §332(c)(7)(B)(ii). The Fifth Circuit correctly recognized that it could not apply Chevron deference to the FCC’s interpretation unless the agency “possessed statutory authority to administer §332(c)(7)(B)(ii),” but it erred by granting Chevron deference to the FCC’s view on that antecedent question. See 668 F. 3d, at 248. Because the court should have determined on its own whether Congress delegated interpretive authority over §332(c)(7)(B)(ii) to the FCC before affording Chevron deference, I would vacate the decision below and remand the cases to the Fifth Circuit to perform the proper inquiry in the first instance. I respectfully dissent.

The Supreme Court considered whether an agency's interpretation of a statutory ambiguity related to its regulatory authority is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. The Court concluded that an agency's interpretation of a statutory provision is only entitled to Chevron deference if Congress has delegated interpretive authority to the agency and the agency's interpretation is reasonable. In these cases, the FCC issued a ruling interpreting a provision of the Telecommunications Act of 1996, and the Fifth Circuit applied Chevron deference to the FCC's interpretation. The Supreme Court held that the Fifth Circuit erred by granting Chevron deference without first determining whether Congress delegated interpretive authority to the FCC over the specific statutory provision at issue.

Government Agencies

FCC v. Fox Television Stations, Inc.

https://supreme.justia.com/cases/federal/us/556/502/

OPINION OF THE COURT FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. FOX TELEVISION STATIONS, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [April 28, 2009]    Justice Scalia delivered the opinion of the Court, except as to Part III–E.    Federal law prohibits the broadcasting of “any … indecent … language,” 18 U. S. C. §1464, which includes expletives referring to sexual or excretory activity or organs, see FCC v. Pacifica Foundation , 438 U. S. 726 (1978). This case concerns the adequacy of the Federal Communications Commission’s explanation of its decision that this sometimes forbids the broadcasting of indecent expletives even when the offensive words are not repeated. I. Statutory and Regulatory Background    The Communications Act of 1934, 48 Stat. 1064, 47 U. S. C. §151 et seq. (2000 ed. and Supp. V), established a system of limited-term broadcast licenses subject to various “conditions” designed “to maintain the control of the United States over all the channels of radio transmission,” §301 (2000 ed.). Twenty-seven years ago we said that “[a] licensed broadcaster is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.” CBS, Inc. v. FCC , 453 U. S. 367 , 395 (1981) (internal quotation marks omitted).    One of the burdens that licensees shoulder is the indecency ban—the statutory proscription against “utter[ing] any obscene, indecent, or profane language by means of radio communication,” 18 U. S. C. §1464—which Congress has instructed the Commission to enforce between the hours of 6 a.m. and 10 p.m. Public Telecommunications Act of 1992, §16(a), 106 Stat. 954, note following 47 U. S. C. §303.[ Footnote 1 ] Congress has given the Commission various means of enforcing the indecency ban, including civil fines, see §503(b)(1), and license revocations or the denial of license renewals, see §§309(k), 312(a)(6).    The Commission first invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin’s “Filthy Words” monologue actionably indecent. Pacifica Foundation , 56 F. C. C. 2d 94. At that time, the Commission announced the definition of indecent speech that it uses to this day, prohibiting “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.” Id., at 98.    In FCC v. Pacifica Foundation , supra , we upheld the Commission’s order against statutory and constitutional challenge. We rejected the broadcasters’ argument that the statutory proscription applied only to speech appealing to the prurient interest, noting that “the normal definition of ‘indecent’ merely refers to nonconformance with accepted standards of morality.” Id., at 740. And we held that the First Amendment allowed Carlin’s monologue to be banned in light of the “uniquely pervasive presence” of the medium and the fact that broadcast programming is “uniquely accessible to children.” Id., at 748–749.    In the ensuing years, the Commission took a cautious, but gradually expanding, approach to enforcing the statutory prohibition against indecent broadcasts. Shortly after Pacifica , 438 U. S. 726 , the Commission expressed its “inten[tion] strictly to observe the narrowness of the Pacifica holding,” which “relied in part on the repetitive occurrence of the ‘indecent’ words” contained in Carlin’s monologue. In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254, ¶10 (1978). When the full Commission next considered its indecency standard, however, it repudiated the view that its enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue.” In re Pacifica Foundation, Inc. , 2 FCC Rcd. 2698, 2699, ¶12 (1987). The Commission determined that such a “highly restricted enforcement standard … was unduly narrow as a matter of law and inconsistent with [the Commission’s] enforcement responsibilities under Section 1464.” In re Infinity Broadcasting Corp. of Pa. , 3 FCC Rcd. 930, ¶5 (1987). The Court of Appeals for the District of Columbia Circuit upheld this expanded enforcement standard against constitutional and Administrative Procedure Act challenge. See Action for Children’s Television v. FCC , 852 F. 2d 1332 (1988) (R. Ginsburg, J.), superseded in part by Action for Children’s Television v. FCC , 58 F. 3d 654 (1995) (en banc).    Although the Commission had expanded its enforcement beyond the “repetitive use of specific words or phrases,” it preserved a distinction between literal and nonliteral (or “expletive”) uses of evocative language. In re Pacifica Foundation, Inc. , 2 FCC Rcd., at 2699, ¶13. The Commission explained that each literal “description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive,” but that “deliberate and repetitive use … is a requisite to a finding of indecency” when a complaint focuses solely on the use of nonliteral expletives. Ibid. Over a decade later, the Commission emphasized that the “full context” in which particular materials appear is “critically important,” but that a few “principal” factors guide the inquiry, such as the “explicitness or graphic nature” of the material, the extent to which the material “dwells on or repeats” the offensive material, and the extent to which the material was presented to “pander,” to “titillate,” or to “shock.” In re Industry Guidance On the Commission’s Case Law Interpreting 18 U. S. C. §1464 and Enforcement Policies Regarding Broadcast Indecency , 16 FCC Rcd. 7999, 8002, ¶9, 8003, ¶10 (2001) (emphasis deleted). “No single factor,” the Commission said, “generally provides the basis for an indecency finding,” but “where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.” Id., at 8003, ¶10, 8008, ¶17.    In 2004, the Commission took one step further by declaring for the first time that a nonliteral (expletive) use of the F- and S-Words could be actionably indecent, even when the word is used only once. The first order to this effect dealt with an NBC broadcast of the Golden Globe Awards, in which the performer Bono commented, “ ‘This is really, really, f***ing brilliant.’ ” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order) . Although the Commission had received numerous complaints directed at the broadcast, its enforcement bureau had concluded that the material was not indecent because “Bono did not describe, in context, sexual or excretory organs or activities and … the utterance was fleeting and isolated.” Id., at 4975–4976, ¶3. The full Commission reviewed and reversed the staff ruling.    The Commission first declared that Bono’s use of the F-Word fell within its indecency definition, even though the word was used as an intensifier rather than a literal descriptor. “[G]iven the core meaning of the ‘F-Word,’ ” it said, “any use of that word … inherently has a sexual connotation.” Id. , at 4978, ¶8. The Commission determined, moreover, that the broadcast was “patently offensive” because the F-Word “is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” because “[i]ts use invariably invokes a coarse sexual image,” and because Bono’s use of the word was entirely “shocking and gratuitous.” Id. , at 4979, ¶9.    The Commission observed that categorically exempting such language from enforcement actions would “likely lead to more widespread use.” Ibid. Commission action was necessary to “safeguard the well-being of the nation’s children from the most objectionable, most offensive language.” Ibid. The order noted that technological advances have made it far easier to delete (“bleep out”) a “single and gratuitous use of a vulgar expletive,” without adulterating the content of a broadcast. Id. , at 4980, ¶11.    The order acknowledged that “prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ … are not indecent or would not be acted upon.” It explicitly ruled that “any such interpretation is no longer good law.” Ibid., ¶12. It “clarif[ied] … that the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” Ibid. Because, however, “existing precedent would have permitted this broadcast,” the Commission determined that “NBC and its affiliates necessarily did not have the requisite notice to justify a penalty.” Id. , at 4981–4982, ¶15. II. The Present Case    This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission’s Golden Globes Order . The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” Brief for Petitioners 9. The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called “The Simple Life.” Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” Id., at 9–10. Following each of these broadcasts, the Commission received numerous complaints from parents whose children were exposed to the language.    On March 15, 2006, the Commission released Notices of Apparent Liability for a number of broadcasts that the Commission deemed actionably indecent, including the two described above. In re Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 (2006). Multiple parties petitioned the Court of Appeals for the Second Circuit for judicial review of the order, asserting a variety of constitutional and statutory challenges. Since the order had declined to impose sanctions, the Commission had not previously given the broadcasters an opportunity to respond to the indecency charges. It therefore requested and obtained from the Court of Appeals a voluntary remand so that the parties could air their objections. 489 F. 3d 444, 453 (2007). The Commission’s order on remand upheld the indecency findings for the broadcasts described above. See In re Complaints Regarding Various Television Broadcasts Between February 2, 2002, and March 8, 2005 , 21 FCC Rcd. 13299 (2006) (Remand Order) .    The order first explained that both broadcasts fell comfortably within the subject-matter scope of the Commission’s indecency test because the 2003 broadcast involved a literal description of excrement and both broadcasts invoked the “F-Word,” which inherently has a sexual connotation. Id. , at 13304, ¶16, 13323, ¶58. The order next determined that the broadcasts were patently offensive under community standards for the medium. Both broadcasts, it noted, involved entirely gratuitous uses of “one of the most vulgar, graphic, and explicit words for sexual activity in the English language.” Id. , at 13305, ¶17, 13324, ¶59. It found Ms. Richie’s use of the “F-Word” and her “explicit description of the handling of excrement” to be “vulgar and shocking,” as well as to constitute “pandering,” after Ms. Hilton had playfully warned her to “ ‘watch the bad language.’ ” Id. , at 13305, ¶17. And it found Cher’s statement patently offensive in part because she metaphorically suggested a sexual act as a means of expressing hostility to her critics. Id. , at 13324, ¶60. The order relied upon the “critically important” context of the utterances, id. , at 13304, ¶15, noting that they were aired during prime-time awards shows “designed to draw a large nationwide audience that could be expected to include many children interested in seeing their favorite music stars,” id. , at 13305, ¶18, 13324, ¶59. Indeed, approximately 2.5 million minors witnessed each of the broadcasts. Id. , at 13306, ¶18, 13326, ¶65.    The order asserted that both broadcasts under review would have been actionably indecent under the staff rulings and Commission dicta in effect prior to the Golden Globes Order —the 2003 broadcast because it involved a literal description of excrement, rather than a mere expletive, because it used more than one offensive word, and because it was planned, 21 FCC Rcd., at 13307, ¶22; and the 2002 broadcast because Cher used the F-Word not as a mere intensifier, but as a description of the sexual act to express hostility to her critics, id. , at 13324, ¶60. The order stated, however, that the pre- Golden Globes regime of immunity for isolated indecent expletives rested only upon staff rulings and Commission dicta, and that the Commission itself had never held “that the isolated use of an expletive … was not indecent or could not be indecent,” 21 FCC Rcd., at 13307, ¶21. In any event, the order made clear, the Golden Globes Order eliminated any doubt that fleeting expletives could be actionably indecent, 21 FCC Rcd., at 13308, ¶23, 13325, ¶61, and the Commission disavowed the bureau-level decisions and its own dicta that had said otherwise, id. , at 13306–13307, ¶¶20, 21. Under the new policy, a lack of repetition “weigh[s] against a finding of indecency,” id. , at 13325, ¶61, but is not a safe harbor.    The order explained that the Commission’s prior “strict dichotomy between ‘expletives’ and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does not make sense in light of the fact that an ‘expletive’s’ power to offend derives from its sexual or excretory meaning.” Id. , at 13308, ¶23. In the Commission’s view, “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children)” to take “ ‘the first blow’ ” and would allow broadcasters “to air expletives at all hours of a day so long as they did so one at a time.” Id. , at 13309, ¶25. Although the Commission determined that Fox encouraged the offensive language by using suggestive scripting in the 2003 broadcast, and unreasonably failed to take adequate precautions in both broadcasts, id. , at 13311–13314, ¶¶31–37, the order again declined to impose any forfeiture or other sanction for either of the broadcasts, id. , at 13321, ¶53, 13326, ¶66.    Fox returned to the Second Circuit for review of the Remand Order , and various intervenors including CBS, NBC, and ABC joined the action. The Court of Appeals reversed the agency’s orders, finding the Commission’s reasoning inadequate under the Administrative Procedure Act. 489 F. 3d 444. The majority was “skeptical that the Commission [could] provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” but it declined to reach the constitutional question. Id., at 462. Judge Leval dissented, id., at 467. We granted certiorari, 552 U. S. ___ (2008). III. Analysis A. Governing Principles    The Administrative Procedure Act, 5 U. S. C. §551 et seq. , which sets forth the full extent of judicial authority to review executive agency action for procedural correctness, see Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U. S. 519 , 545–549 (1978), permits (insofar as relevant here) the setting aside of agency action that is “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under what we have called this “narrow” standard of review, we insist that an agency “examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U. S. 29 , 43 (1983). We have made clear, however, that “a court is not to substitute its judgment for that of the agency,” ibid., and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc. , 419 U. S. 281 , 286 (1974).    In overturning the Commission’s judgment, the Court of Appeals here relied in part on Circuit precedent requiring a more substantial explanation for agency action that changes prior policy. The Second Circuit has interpreted the Administrative Procedure Act and our opinion in State Farm as requiring agencies to make clear “ ‘why the original reasons for adopting the [displaced] rule or policy are no longer dispositive’ ” as well as “ ‘why the new rule effectuates the statute as well as or better than the old rule.’ ” 489 F. 3d, at 456–457 (quoting New York Council, Assn. of Civilian Technicians v. FLRA , 757 F. 2d 502, 508 (CA2 1985); emphasis deleted). The Court of Appeals for the District of Columbia Circuit has similarly indicated that a court’s standard of review is “heightened somewhat” when an agency reverses course. NAACP v. FCC , 682 F. 2d 993, 998 (1982).    We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance. That case, which involved the rescission of a prior regulation, said only that such action requires “a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” 463 U. S., at 42 (emphasis added).[ Footnote 2 ] Treating failures to act and rescissions of prior action differently for purposes of the standard of review makes good sense, and has basis in the text of the statute, which likewise treats the two separately. It instructs a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U. S. C. §706(1), and to “hold unlawful and set aside agency action, findings, and conclusions found to be [among other things] … arbitrary [or] capricious,” §706(2)(A). The statute makes no distinction, however, between initial agency action and subsequent agency action undoing or revising that action.    To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. See United States v. Nixon , 418 U. S. 683 , 696 (1974). And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N. A. , 517 U. S. 735 , 742 (1996). It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.    In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council , 485 U. S. 568 , 575 (1988). We know of no precedent for applying it to limit the scope of authorized executive action. In the same section authorizing courts to set aside “arbitrary [or] capricious” agency action, the Administrative Procedure Act separately provides for setting aside agency action that is “unlawful,” 5 U. S. C. §706(2)(A), which of course includes unconstitutional action. We think that is the only context in which constitutionality bears upon judicial review of authorized agency action. If the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act’s “arbitrary [or] capricious” standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge.[ Footnote 3 ] B. Application to This Case    Judged under the above described standards, the Commission’s new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious. First, the Commission forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent “prior Commission and staff action” and explicitly disavowing them as “no longer good law.” Golden Globes Order, 19 FCC Rcd., at 4980, ¶12. To be sure, the (superfluous) explanation in its Remand Order of why the Cher broadcast would even have violated its earlier policy may not be entirely convincing. But that unnecessary detour is irrelevant. There is no doubt that the Commission knew it was making a change. That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing any lingering doubt. Remand Order , 21 FCC Rcd., at 13308, ¶23, 13325, ¶61.    Moreover, the agency’s reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the Commission said with regard to expletive use of the F-Word, “the word’s power to insult and offend derives from its sexual meaning.” Id. , at 13323, ¶58. And the Commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica , 438 U. S., at 750. Even isolated utterances can be made in “pander[ing,] … vulgar and shocking” manners, Remand Order , 21 FCC Rcd., at 13305, ¶17, and can constitute harmful “ ‘first blow[s]’ ” to children, id. , at 13309, ¶25. It is surely rational (if not inescapable) to believe that a safe harbor for single words would “likely lead to more widespread use of the offensive language,” Golden Globes Order, supra, at 4979, ¶9.    When confronting other requests for per se rules governing its enforcement of the indecency prohibition, the Commission has declined to create safe harbors for particular types of broadcasts. See In re Pacifica Foundation, Inc. , 2 FCC Rcd., at 2699, ¶12 (repudiating the view that the Commission’s enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue”); In re Infinity Broadcasting Corp. of Pa. , 3 FCC Rcd., at 932, ¶17 (“reject[ing] an approach that would hold that if a work has merit, it is per se not indecent”). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se nonactionable because that was “at odds with the Commission’s overall enforcement policy.” Remand Order , supra, at 13308, ¶23.    The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission’s stepped-up enforcement policy. Golden Globes Order, supra, at 4980, ¶11. And the agency’s decision not to impose any forfeiture or other sanction precludes any argument that it is arbitrarily punishing parties without notice of the potential consequences of their action. C. The Court of Appeals’ Reasoning The Court of Appeals found the Commission’s action arbitrary and capricious on three grounds. First, the court criticized the Commission for failing to explain why it had not previously banned fleeting expletives as “harmful ‘first blow[s].’ ” 489 F. 3d, at 458. In the majority’s view, without “evidence that suggests a fleeting expletive is harmful [and] … serious enough to warrant government regulation,” the agency could not regulate more broadly. Id., at 461. As explained above, the fact that an agency had a prior stance does not alone prevent it from changing its view or create a higher hurdle for doing so. And it is not the Commission, but Congress that has proscribed “any … indecent … language.” 18 U. S. C. §1464. There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. See, e.g., State Farm , 463 U. S., at 46–56 (addressing the costs and benefits of mandatory passive restraints for automobiles). It is something else to insist upon obtaining the unobtainable. Here it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical data, the ban would effectively be a nullity. The Commission had adduced no quantifiable measure of the harm caused by the language in Pacifica , and we nonetheless held that the “government’s interest in the ‘well-being of its youth’ … justified the regulation of otherwise protected expression.” 438 U. S., at 749 (quoting Ginsberg v. New York , 390 U. S. 629 , 640, 639 (1968)). If the Constitution itself demands of agencies no more scientifically certain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to comply with the requirement of reasoned decisionmaking. The court’s second objection is that fidelity to the agency’s “first blow” theory of harm would require a categorical ban on all broadcasts of expletives; the Commission’s failure to go to this extreme thus undermined the coherence of its rationale. 489 F. 3d, at 458–459. This objection, however, is not responsive to the Commission’s actual policy under review—the decision to include patently offensive fleeting expletives within the definition of indecency. The Commission’s prior enforcement practice, unchallenged here, already drew distinctions between the offensiveness of particular words based upon the context in which they appeared. Any complaint about the Commission’s failure to ban only some fleeting expletives is better directed at the agency’s context-based system generally rather than its inclusion of isolated expletives. More fundamentally, however, the agency’s decision to consider the patent offensiveness of isolated expletives on a case-by-case basis is not arbitrary or capricious. “Even a prime-time recitation of Geoffrey Chaucer’s Miller’s Tale,” we have explained, “would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected.” Pacifica , supra , at 750, n. 29. The same rationale could support the Commission’s finding that a broadcast of the film Saving Private Ryan was not indecent—a finding to which the broadcasters point as supposed evidence of the Commission’s inconsistency. The frightening suspense and the graphic violence in the movie could well dissuade the most vulnerable from watching and would put parents on notice of potentially objectionable material. See In re Complaints Against Various Television Licensees Regarding Their Broadcast on Nov. 11, 2004 of the ABC Television Network’s Presentation of the Film “Saving Private Ryan,” 20 FCC Rcd. 4507, 4513, ¶15 (2005) (noting that the broadcast was not “intended as family entertainment”). The agency’s decision to retain some discretion does not render arbitrary or capricious its regulation of the deliberate and shocking uses of offensive language at the award shows under review—shows that were expected to (and did) draw the attention of millions of children. Finally, the Court of Appeals found unconvincing the agency’s prediction (without any evidence) that a per se exemption for fleeting expletives would lead to increased use of expletives one at a time. 489 F. 3d, at 460. But even in the absence of evidence, the agency’s predictive judgment (which merits deference) makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance. The Court of Appeals was perhaps correct that the Commission’s prior policy had not yet caused broadcasters to “barrag[e] the airwaves with expletives,” ibid. That may have been because its prior permissive policy had been confirmed (save in dicta) only at the staff level. In any event, as the Golden Globes order demonstrated, it did produce more expletives than the Commission (which has the first call in this matter) deemed in conformity with the statute. D. Respondents’ Arguments Respondents press some arguments that the court did not adopt. They claim that the Commission failed to acknowledge its change in enforcement policy. That contention is not tenable in light of the Golden Globes Order ’s specific declaration that its prior rulings were no longer good law, 19 FCC Rcd., at 4980, ¶12, and the Remand Order ’s disavowal of those staff rulings and Commission dicta as “seriously flawed,” 21 FCC Rcd., at 13308, ¶23. The broadcasters also try to recharacterize the nature of the Commission’s shift, contending that the old policy was not actually a per se rule against liability for isolated expletives and that the new policy is a presumption of indecency for certain words. This description of the prior agency policy conflicts with the broadcasters’ own prior position in this case. See, e.g. , Brief in Opposition for Respondent Fox Television Stations, Inc., et al. 4 (“For almost 30 years following Pacifica, the FCC did not consider fleeting, isolated or inadvertent expletives to be indecent”). And we find no basis for the contention that the Commission has now adopted a presumption of indecency; its repeated reliance on context refutes this claim. The broadcasters also make much of the fact that the Commission has gone beyond the scope of authority approved in Pacifica , which it once regarded as the farthest extent of its power. But we have never held that Pacifica represented the outer limits of permissible regulation, so that fleeting expletives may not be forbidden. To the contrary, we explicitly left for another day whether “an occasional expletive” in “a telecast of an Elizabethan comedy” could be prohibited. 438 U. S., at 748. By using the narrowness of Pacifica ’s holding to require empirical evidence of harm before the Commission regulates more broadly, the broadcasters attempt to turn the sword of Pacifica , which allowed some regulation of broadcast indecency, into an administrative-law shield preventing any regulation beyond what Pacifica sanctioned. Nothing prohibits federal agencies from moving in an incremental manner. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U. S. 967 , 1002 (2005). Finally, the broadcasters claim that the Commission’s repeated appeal to “context” is simply a smokescreen for a standardless regime of unbridled discretion. But we have previously approved Commission regulation based “on a nuisance rationale under which context is all-important,” Pacifica , supra, at 750, and we find no basis in the Administrative Procedure Act for mandating anything different. E. The Dissents’ Arguments Justice Breyer purports to “begin with applicable law,” post , at 1, but in fact begins by stacking the deck. He claims that the FCC’s status as an “independent” agency sheltered from political oversight requires courts to be “all the more” vigilant in ensuring “that major policy decisions be based upon articulable reasons.” Post , at 1, 2. Not so. The independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction. See, e.g. , In re Sealed Case , 838 F. 2d 476, 507–508 (CADC) (Silberman, J.), rev’d sub nom. Morrison v. Olson , 487 U. S. 654 (1988); Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2271, n. 93 (2001); Calabresi & Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541, 583 (1994); Easterbrook, The State of Madison’s Vision of the State: A Public Choice Perspective, 107 Harv. L. Rev. 1328, 1341 (1994). Indeed, the precise policy change at issue here was spurred by significant political pressure from Congress.[ Footnote 4 ] Justice Stevens apparently recognizes this political control by Congress, and indeed sees it as the manifestation of a principal-agency relationship. In his judgment, the FCC is “better viewed as an agent of Congress” than as part of the Executive. Post, at 3 (dissenting opinion). He nonetheless argues that this is a good reason for requiring the FCC to explain “why its prior policy is no longer sound before allowing it to change course.” Post, at 4. Leaving aside the unconstitutionality of a scheme giving the power to enforce laws to agents of Congress, see Bowsher v. Synar , 478 U. S. 714 , 726 (1986), it seems to us that Justice Stevens’ conclusion does not follow from his premise. If the FCC is indeed an agent of Congress, it would seem an adequate explanation of its change of position that Congress made clear its wishes for stricter enforcement, see n. 4, supra.[ Footnote 5 ] The Administrative Procedure Act, after all, does not apply to Congress and its agencies.[ Footnote 6 ] Regardless, it is assuredly not “applicable law” that rulemaking by independent regulatory agencies is subject to heightened scrutiny. The Administrative Procedure Act, which provides judicial review, makes no distinction between independent and other agencies, neither in its definition of agency, 5 U. S. C. §701(b)(1), nor in the standards for reviewing agency action, §706. Nor does any case of ours express or reflect the “heightened scrutiny” Justice Breyer and Justice Stevens would impose. Indeed, it is hard to imagine any closer scrutiny than that we have given to the Environmental Protection Agency, which is not an independent agency. See Massachusetts v. EPA , 549 U. S. 497 , 533–535 (2007); Whitman v. American Trucking Assns., Inc. , 531 U. S. 457 , 481–486 (2001). There is no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch, see Freytag v. Commissioner , 501 U. S. 868 , 921 (1991) (Scalia, J., concurring in part and concurring in judgment), by letting Article III judges—like jackals stealing the lion’s kill—expropriate some of the power that Congress has wrested from the unitary Executive. Justice Breyer and Justice Stevens rely upon two supposed omissions in the FCC’s analysis that they believe preclude a finding that the agency did not act arbitrarily. Neither of these omissions could undermine the coherence of the rationale the agency gave, but the dissenters’ evaluation of each is flawed in its own right. First, both claim that the Commission failed adequately to explain its consideration of the constitutional issues inherent in its regulation, post , at 7–11 (opinion of Breyer, J.); post, at 4–7 (opinion of Stevens, J.). We are unaware that we have ever before reversed an executive agency, not for violating our cases, but for failure to discuss them adequately. But leave that aside. According to Justice Breyer, the agency said “next to nothing about the relation between the change it made in its prior ‘fleeting expletive’ policy and the First-Amendment-related need to avoid ‘censorship,’ ” post , at 7–8. The Remand Order does, however, devote four full pages of small-type, single-spaced text (over 1,300 words not counting the footnotes) to explaining why the Commission believes that its indecency-enforcement regime (which includes its change in policy) is consistent with the First Amendment—and therefore not censorship as the term is understood. More specifically, Justice Breyer faults the FCC for “not explain[ing] why the agency changed its mind about the line that Pacifica draws or its policy’s relation to that line,” post , at 10. But in fact (and as the Commission explained) this Court’s holding in Pacifica, 438 U. S. 726 , drew no constitutional line; to the contrary, it expressly declined to express any view on the constitutionality of prohibiting isolated indecency. Justice Breyer and Justice Stevens evidently believe that when an agency has obtained this Court’s determination that a less restrictive rule is constitutional, its successors acquire some special burden to explain why a more restrictive rule is not un constitutional. We know of no such principle.[ Footnote 7 ] Second, Justice Breyer looks over the vast field of particular factual scenarios unaddressed by the FCC’s 35-page Remand Order and finds one that is fatal: the plight of the small local broadcaster who cannot afford the new technology that enables the screening of live broadcasts for indecent utterances. Cf. post, at 11–16. The Commission has failed to address the fate of this unfortunate, who will, he believes, be subject to sanction. We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood. Their main exposure with regard to self-originated programming is live coverage of news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve “breaking news coverage,” and that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a public event,” 21 FCC Rcd., at 13311, ¶33. As for the programming that small stations receive on a network “feed”: This will be cleansed by the expensive technology small stations (by Justice Breyer’s hypothesis) cannot afford. But never mind the detail of whether small broadcasters are uniquely subject to a great risk of punishment for fleeting expletives. The fundamental fallacy of Justice Breyer’s small-broadcaster gloomyscenario is its demonstrably false assumption that the Remand Order makes no provision for the avoidance of unfairness—that the single-utterance prohibition will be invoked uniformly, in all situations. The Remand Order made very clear that this is not the case. It said that in determining “what, if any, remedy is appropriate” the Commission would consider the facts of each individual case, such as the “possibility of human error in using delay equipment,” id., at 13313, ¶35. Thus, the fact that the agency believed that Fox (a large broadcaster that used suggestive scripting and a deficient delay system to air a prime-time awards show aimed at millions of children) “fail[ed] to exercise ‘reasonable judgment, responsibility and sensitivity,’ ” id. , at 13311, ¶33, and n. 91 (quoting Pacifica Foundation, Inc. , 2 FCC Rcd., at 2700, ¶18), says little about how the Commission would treat smaller broadcasters who cannot afford screening equipment. Indeed, that they would not be punished for failing to purchase equipment they cannot afford is positively suggested by the Remand Order’ s statement that “[h]olding Fox responsible for airing indecent material in this case does not … impose undue burdens on broadcasters.” 21 FCC Rcd., at 13313, ¶36. There was, in sum, no need for the Commission to compose a special treatise on local broadcasters.[ Footnote 8 ] And Justice Breyer can safely defer his concern for those yeomen of the airwaves until we have before us a case that involves one. IV. Constitutionality The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson , 544 U. S. 709 , 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of Stevens, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. *  *  * The Second Circuit believed that children today “likely hear this language far more often from other sources than they did in the 1970’s when the Commission first began sanctioning indecent speech,” and that this cuts against more stringent regulation of broadcasts. 489 F. 3d, at 461. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission’s policy choices and not with the explanation it has given. We decline to “substitute [our] judgment for that of the agency,” State Farm , 463 U. S., at 43, and we find the Commission’s orders neither arbitrary nor capricious. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The statutory prohibition applicable to commercial radio and television stations extends by its terms from 6 a.m. to 12 midnight. The Court of Appeals for the District of Columbia Circuit held, however, that because “Congress and the Commission [had] backed away from the consequences of their own reasoning,” by allowing some public broadcasters to air indecent speech after 10 p.m., the court was forced “to hold that the section is unconstitutional insofar as it bars the broadcasting of indecent speech between the hours of 10:00 p.m. and midnight.” Action for Children’s Television v. FCC , 58 F. 3d 654, 669 (1995) (en banc), cert. denied, 516 U. S. 1043 (1996). Footnote 2 Justice Breyer’s contention that State Farm did anything more, post , at 4–6 (dissenting opinion), rests upon his failure to observe the italicized phrase and upon a passage quoted in State Farm from a plurality opinion in Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade , 412 U. S. 800 (1973). That passage referred to “a presumption that [congressional] policies will be carried out best if the settled rule is adhered to.” Id., at 807–808 (opinion of Marshall, J.). But the Atchison plurality made this statement in the context of requiring the agency to provide some explanation for a change, “so that the reviewing court may understand the basis of the agency’s action and so may judge the consistency of that action with the agency’s mandate,” id., at 808. The opinion did not assert the authority of a court to demand explanation sufficient to enable it to weigh (by its own lights) the merits of the agency’s change. Nor did our opinion in State Farm . Footnote 3 Justice Breyer claims that “[t]he Court has often applied [the doctrine of constitutional avoidance] where an agency’s regulation relies on a plausible but constitutionally suspect interpretation of a statute.” Post , at 21. The cases he cites, however, set aside an agency regulation because, applying the doctrine of constitutional avoidance to the ambiguous statute under which the agency acted, the Court found the agency’s interpretation of the statute erroneous. See Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers , 531 U. S. 159 , 174 (2001); NLRB v. Catholic Bishop of Chicago , 440 U. S. 490 , 507 (1979). But Justice Breyer does not urge that we issue such a holding, evidently agreeing that we should limit our review to what the Court of Appeals decided, see Part IV, infra —which included only the adequacy of the Commission’s rulemaking procedure, and not the statutory question. Rather, Justice Breyer seeks a “remand [that] would do no more than ask the agency to reconsider its policy decision in light of” constitutional concerns. Post , at 21. That strange and novel disposition would be entirely unrelated to the doctrine of constitutional avoidance, and would better be termed the doctrine of judicial arm-twisting or appellate review by the wagged finger. Footnote 4 A Subcommittee of the FCC’s House oversight Committee held hearings on the FCC’s broadcast indecency enforcement on January 28, 2004. “Can You Say That on TV?”: An Examination of the FCC’s Enforcement with respect to Broadcast Indecency, Hearing before the Subcommittee on Telecommunications and the Internet of the House Committee on Energy and Commerce, 108th Cong., 2d Sess. Members of the Subcommittee specifically “called on the full Commission to reverse [the staff ruling in the Golden Globes case]” because they perceived a “feeling amongst many Americans that some broadcasters are engaged in a race to the bottom, pushing the decency envelope to distinguish themselves in the increasingly crowded entertainment field.” Id. , at 2 (statement of Rep. Upton); see also, e.g. , id. , at 17 (statement of Rep. Terry), 19 (statement of Rep. Pitts). They repeatedly expressed disapproval of the FCC’s enforcement policies, see, e.g. , id. , at 3 (statement of Rep. Upton) (“At some point we have to ask the FCC: How much is enough? When will it revoke a license?”); id., at 4 (statement of Rep. Markey) (“Today’s hearing will allow us to explore the FCC’s lackluster enforcement record with respect to these violations”). About two weeks later, on February 11, 2004, the same Subcommittee held hearings on a bill increasing the fines for indecency violations. Hearings on H. R 3717 before the Subcommittee on Telecommunications and the Internet of the House Committee on Energy and Commerce, 108th Cong., 2d Sess. All five Commissioners were present and were grilled about enforcement shortcomings. See, e.g. , id. , at 124 (statement of Rep. Terry) (“Chairman Powell, … it seems like common sense that if we had … more frequent enforcement instead of a few examples of fines … that would be a deterrent in itself”); id., at 7 (statement of Rep. Dingell) (“I see that apparently … there is no enforcement of regulations at the FCC”). Certain statements, moreover, indicate that the political pressure applied by Congress had its desired effect. See ibid. (“I think our committee’s work has gotten the attention of FCC Chairman Powell and the Bush Administration. And I’m happy to see the FCC now being brought to a state of apparent alert on these matters”); see also id., at 124 (statement of Michael Copps, FCC Commissioner) (noting “positive” change in other Commissioners’ willingness to step up enforcement in light of proposed congressional action). A version of the bill ultimately became law as the Broadcast Decency Enforcement Act of 2005, 120 Stat. 491. The FCC adopted the change that is the subject of this litigation on March 3, 2004, about three weeks after this second hearing. See Golden Globes Order , 19 FCC Rcd. 4975. Footnote 5 Justice Stevens accuses us of equating statements made in a congressional hearing with the intent of Congress. Post , at 4, n. 3. In this opinion, we do not. The intent of the full Congress (or at least a majority of each House) is thought relevant to the interpretation of statutes, since they must be passed by the entire Congress. See U. S. Const., Art. I, §7. It is quite irrelevant, however, to the extrastatutory influence Congress exerts over agencies of the Executive Branch, which is exerted by the congressional committees responsible for oversight and appropriations with respect to the relevant agency. That is a major reason why committee assignments are important, and committee chairmanships powerful. Surely Justice Stevens knows this. Footnote 6 The Administrative Procedure Act defines “agency” to mean “each authority of the Government of the United States,” 5 U. S. C. §551(1), but specifically excludes “the Congress,” §551(1)(A). The Court of Appeals for the District of Columbia Circuit has “interpreted [this] exemption for ‘the Congress’ to mean the entire legislative branch,” Washington Legal Foundation v. United States Sentencing Comm’n , 17 F. 3d 1446, 1449 (1994); see also Ethnic Employees of Library of Congress v. Boorstin , 751 F. 2d 1405, 1416, n. 15 (CADC 1985) (holding that the Library of Congress is not an “agency” under the Act). Footnote 7 Justice Stevens criticizes us for “assuming that Pacifica endorsed” the enforcement at issue here. Post , at 4. We do nothing of the sort. We rely on the fact that certain aspects of the agency’s decision mirror the context-based approach Pacifica approved, supra , at 14, but that goes to our holding on administrative law, and says nothing about constitutionality . Justice Stevens also argues that heightened deference should be due the FCC’s prior policy because the “FCC’s initial views … reflect the views of the Congress that delegated the Commission authority to flesh out details not fully defined in the enacting statute.” Post, at 3. We do not believe that the dead hand of a departed Congressional oversight Committee should constrain the discretion that the text of a statute confers—but the point is in any event irrelevant in this appeal, which concerns not whether the agency has exceeded its statutory mandate but whether the reasons for its actions are adequate. Footnote 8 Justice Breyer posits that the FCC would have been required to give more explanation had it used notice-and-comment rulemaking, which “should lead us to the same conclusion” in this review of the agency’s change through adjudication. Post, at 17. Even assuming the premise, there is no basis for incorporating all of the Administrative Procedure Act’s notice-and-comment procedural requirements into arbitrary-and-capricious review of adjudicatory decisions. Cf. Vermont Yankee , 435 U. S., at 545–549. OPINION OF KENNEDY, J. FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. FOX TELEVISION STATIONS, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [April 28, 2009]    Justice Kennedy, concurring in part and concurring in the judgment.    I join Parts I, II, III–A through III–D, and IV of the opinion of the Court and agree that the judgment must be reversed. This separate writing is to underscore certain background principles for the conclusion that an agency’s decision to change course may be arbitrary and capricious if the agency sets a new course that reverses an earlier determination but does not provide a reasoned explanation for doing so. In those circumstances I agree with the dissenting opinion of Justice Breyer that the agency must explain why “it now reject[s] the considerations that led it to adopt that initial policy.” Post , at 5.    The question whether a change in policy requires an agency to provide a more-reasoned explanation than when the original policy was first announced is not susceptible, in my view, to an answer that applies in all cases. There may be instances when it becomes apparent to an agency that the reasons for a longstanding policy have been altered by discoveries in science, advances in technology, or by any of the other forces at work in a dynamic society. If an agency seeks to respond to new circumstances by modifying its earlier policy, the agency may have a substantial body of data and experience that can shape and inform the new rule. In other cases the altered circumstances may be so new that the agency must make predictive judgments that are as difficult now as when the agency’s earlier policy was first announced. Reliance interests in the prior policy may also have weight in the analysis.    The question in each case is whether the agency’s reasons for the change, when viewed in light of the data available to it, and when informed by the experience and expertise of the agency, suffice to demonstrate that the new policy rests upon principles that are rational, neutral, and in accord with the agency’s proper understanding of its authority. That showing may be required if the agency is to demonstrate that its action is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). And, of course, the agency action must not be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” §706(2)(C).    These requirements stem from the administrative agency’s unique constitutional position. The dynamics of the three branches of Government are well understood as a general matter. But the role and position of the agency, and the exact locus of its powers, present questions that are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and effective way without administrative agencies. Yet the amorphous character of the administrative agency in the constitutional system escapes simple explanation.    If agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances. To that end the Constitution requires that Congress’ delegation of lawmaking power to an agency must be “specific and detailed.” Mistretta v. United States , 488 U. S. 361 , 374 (1989). Congress must “clearly delineat[e] the general policy” an agency is to achieve and must specify the “boundaries of [the] delegated authority.” Id. , at 372–373. Congress must “ ‘lay down by legislative act an intelligible principle,’ ” and the agency must follow it. Id. , at 372 (quoting J. W. Hampton, Jr., & Co. v. United States , 276 U. S. 394 , 409 (1928)).    Congress passed the Administrative Procedure Act (APA) to ensure that agencies follow constraints even as they exercise their powers. One of these constraints is the duty of agencies to find and formulate policies that can be justified by neutral principles and a reasoned explanation. To achieve that end, Congress confined agencies’ discretion and subjected their decisions to judicial review. See R. Stewart & C. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1248 (1982) (the APA was a “working compromise, in which broad delegations of discretion were tolerated as long as they were checked by extensive procedural safeguards”). If an agency takes action not based on neutral and rational principles, the APA grants federal courts power to set aside the agency’s action as “arbitrary” or “capricious.” 5 U. S. C. §706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U. S. 402 , 416 (1971). For these reasons, agencies under the APA are subject to a “searching and careful” review by the courts. Ibid. Where there is a policy change the record may be much more developed because the agency based its prior policy on factual findings. In that instance, an agency’s decision to change course may be arbitrary and capricious if the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so. An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.    This is the principle followed in the Court’s opinion in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). There, Congress directed the agency to issue regulations that would “ ‘meet the need for motor vehicle safety.’ ” Id. , at 33. The agency promulgated a regulation requiring cars to have passive-restraint systems—either airbags or automatic seatbelts. Id. , at 37. The agency based this regulation on its factual finding that these systems save lives. Id. , at 35.    Following a change in Presidential administration, however, the agency reversed course and rescinded the regulation. In doing so, the agency did not address its prior finding that airbags save lives. Id. , at 47–48. Indeed, “[n]ot one sentence” of the agency’s “rulemaking statement” in support of rescinding the regulation discussed the benefits of airbags. Id. , at 48. This Court found the agency’s rescission arbitrary and capricious because the agency did not address its prior factual findings. See id. , at 49–51.    The present case does not raise the concerns addressed in State Farm . Rather than base its prior policy on its knowledge of the broadcast industry and its audience, the FCC instead based its policy on what it considered to be our holding in FCC v. Pacifica Foundation , 438 U. S. 726 (1978). See In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254, ¶10 (1978) (“We intend strictly to observe the narrowness of the Pacifica holding”). The FCC did not base its prior policy on factual findings.    The FCC’s Remand Order explains that the agency has changed its reading of Pacifica . The reasons the agency announces for this change are not so precise, detailed, or elaborate as to be a model for agency explanation. But, as the opinion for the Court well explains, the FCC’s reasons for its action were the sort of reasons an agency may consider and act upon. The Court’s careful and complete analysis—both with respect to the procedural history of the FCC’s indecency policies, and the reasons the agency has given to support them—is quite sufficient to sustain the FCC’s change of course against respondents’ claim that the agency acted in an arbitrary or capricious fashion.    The holding of the Court of Appeals turned on its conclusion that the agency’s explanation for its change of policy was insufficient, and that is the only question presented here. I agree with the Court that as this case comes to us from the Court of Appeals we must reserve judgment on the question whether the agency’s action is consistent with the guarantees of the Constitution. THOMAS, J., CONCURRING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. FOX TELEVISION STATIONS, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [April 28, 2009]    Justice Thomas, concurring.    I join the Court’s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission’s (FCC) policy with respect to indecent broadcast speech under the Administrative Procedure Act. I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC , 395 U. S. 367 (1969); FCC v. Pacifica Foundation , 438 U. S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727 , 812 (1996) (Thomas, J., concurring in judgment in part and dissenting in part).    In Red Lion , this Court upheld the so-called “fairness doctrine,” a Government requirement “that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.” 395 U. S., at 369, 400–401. The decision relied heavily on the scarcity of available broadcast frequencies. According to the Court, because broadcast spectrum was so scarce, it “could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.” Id. , at 376 . To this end, the Court concluded that the Government should be “permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium.” Id. , at 390; see also id. , at 389 (concluding that “as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused”). Applying this principle, the Court held that “[i]t does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern.” Id., at 394. Red Lion specifically declined to answer whether the First Amendment authorized the Government’s “refusal to permit the broadcaster to carry a particular program or to publish his own views[,] … [or] government censorship of a particular program,” id. , at 396. But then in Pacifica , this Court rejected a challenge to the FCC’s authority to impose sanctions on the broadcast of indecent material. See 438 U. S., at 729–730, 750–751; id ., at 742 (plurality opinion), relying on Red Lion , the Court noted that “broadcasting … has received the most limited First Amendment protection.” 438 U. S., at 748. The Court also emphasized the “uniquely pervasive presence” of the broadcast media in Americans’ lives and the fact that broadcast programming was “uniquely accessible to children.” Id., at 748–749.    This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g. , the “scarcity of radio frequencies,” Red Lion, supra , at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller , 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. Denver Area, supra , at 813 (Thomas, J., concurring in judgment in part and dissenting in part) (“First Amendment distinctions between media [have been] dubious from their infancy”). Indeed, the logical weakness of Red Lion and Pacifica has been apparent for some time: “It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media.” Telecommunications Research & Action Center v. FCC, 801 F. 2d 501, 508 (CADC 1986) (Bork, J.).    Highlighting the doctrinal incoherence of Red Lion and Pacifica , the Court has declined to apply the lesser standard of First Amendment scrutiny imposed on broadcast speech to federal regulation of telephone dial-in services, see Sable Communications of Cal., Inc. v. FCC , 492 U. S. 115 , 127–128 (1989), cable television programming, see Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 , 637 (1994), and the Internet, see Reno v. American Civil Liberties Union , 521 U. S. 844 , 867–868 (1997). “There is no justification for this apparent dichotomy in First Amendment jurisprudence. Whatever the merits of Pacifica when it was issued[,] … it makes no sense now.” Action for Children’s Television v. FCC , 58 F. 3d 654, 673 (CADC 1995) (Edwards, C. J., dissenting). The justifications relied on by the Court in Red Lion and Pacifica —“spectrum scarcity, intrusiveness, and accessibility to children—neither distinguish broadcast from cable, nor explain the relaxed application of the principles of the First Amendment to broadcast.” 58 F. 3d, at 673; see also In re Industry Guidance on Commission’s Case Law Interpreting 18 U. S. C. § 1464 and Enforcement Policies Regarding Broadcast Indecency , 16 FCC Rcd. 7999, 8021, n. 11 (2001) (statement of Commissioner Furchtgott-Roth) (“It is ironic that streaming video or audio content from a television or radio station would likely receive more constitutional protection, see Reno [v. American Civil Liberties Union , 521 U. S. 844 (1997)], than would the same exact content broadcast over-the-air”).    Second, even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica , dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. See Brief for Respondents NBC Universal et al. 37–38 (hereinafter NBC Brief). As NBC notes, the number of over-the-air broadcast stations grew from 7,411 in 1969, when Red Lion was issued, to 15,273 by the end of 2004. See NBC Brief 38; see also FCC Media Bureau Staff Research Paper, J. Berresford, The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed 12–13 (Mar. 2005) (No. 2005–2). And the trend should continue with broadcast television’s imminent switch from analog to digital transmission, which will allow the FCC to “stack broadcast channels right beside one another along the spectrum, and ultimately utilize significantly less than the 400 MHz of spectrum the analog system absorbs today.” Consumer Electronics Assn. v. FCC , 347 F. 3d 291, 294 (CADC 2003).    Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. See App. to Pet. for Cert. 107a. Broadcast and other video programming is also widely available over the Internet. See Stelter, Serving Up Television Without the TV Set, N. Y. Times, Mar. 10, 2008, p. C1. And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. See May, Charting a New Constitutional Jurisprudence for the Digital Age, 3 Charleston L. Rev. 373, 375 (2009). The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today. See In re Industry Guidance, supra , at 8020 (statement of Commissioner Furchtgott-Roth) (“If rules regulating broadcast content were ever a justifiable infringement of speech, it was because of the relative dominance of that medium in the communications marketplace of the past. As the Commission has long recognized, the facts underlying this justification are no longer true” (footnote omitted)).    These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis . See Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 855 (1992) (asking “whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification”); see also American Trucking Assns., Inc. v. Scheiner , 483 U. S. 266 , 302 (1987) (O’Connor, J., dissenting) (“Significantly changed circumstances can make an older rule, defensible when formulated, inappropriate …”). “In cases involving constitutional issues” that turn on a particular set of factual assumptions, “this Court must, in order to reach sound conclusions, feel free to bring its opinions into agreement with experience and with facts newly ascertained.” Burnet v. Coronado Oil & Gas Co. , 285 U. S. 393 , 412 (1932) (Brandeis, J., dissenting). For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.  With respect to reliance by FCC v. Pacifica Foundation , 438 U. S. 726 (1978), on the ease with which children could be exposed to indecent television programming, technology has provided innovative solutions to assist adults in screening their children from unsuitable programming—even when that programming appears on broadcast channels. See NBC Brief 43–47 (discussing V-chip technology, which allows targeted blocking of television programs based on content). STEVENS, J., DISSENTING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. FOX TELEVISION STATIONS, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [April 28, 2009]    Justice Stevens, dissenting.    While I join Justice Breyer’s cogent dissent, I think it important to emphasize two flaws in the Court’s reasoning. Apparently assuming that the Federal Communications Commission’s (FCC or Commission) rulemaking authority is a species of executive power, the Court espouses the novel proposition that the Commission need not explain its decision to discard a longstanding rule in favor of a dramatically different approach to regulation. See ante , at 10–11. Moreover, the Court incorrectly assumes that our decision in FCC v. Pacifica Foundation , 438 U. S. 726 (1978), decided that the word “indecent,” as used in 18 U. S. C. §1464,[ Footnote 1 ] permits the FCC to punish the broadcast of any expletive that has a sexual or excretory origin. Pacifica was not so sweeping, and the Commission’s changed view of its statutory mandate certainly would have been rejected if presented to the Court at the time. I    “The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each.” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc. , 501 U. S. 252 , 272 (1991). The distinction among the branches is not always sharp, see Bowsher v. Synar , 478 U. S. 714 , 749 (1986) (Stevens, J., concurring in judgment) (citing cases), a consequence of the fact that the “great ordinances of the Constitution do not establish and divide fields of black and white,” Springer v. Philippine Islands , 277 U. S. 189 , 209 (1928) (Holmes, J., dissenting). Strict lines of authority are particularly elusive when Congress and the President both exert a measure of control over an agency. As a landmark decision involving the Federal Trade Commission (FTC) made clear, however, when Congress grants rulemaking and adjudicative authority to an expert agency composed of commissioners selected through a bipartisan procedure and appointed for fixed terms, it substantially insulates the agency from executive control. See Humphrey’s Executor v. United States , 295 U. S. 602 , 623–628 (1935).    With the view that broadcast regulation “should be as free from political influence or arbitrary control as possible,” S. Rep. No. 772, 69th Cong., 1st Sess., 2 (1926), Congress established the FCC with the same measure of independence from the Executive that it had provided the FTC. Just as the FCC’s commissioners do not serve at the will of the President, see 47 U. S. C. §154(c) (2000 ed.), its regulations are not subject to change at the President’s will. And when the Commission fashions rules that govern the airwaves, it exercises legislative power delegated to it by Congress. See Whitman v. American Trucking Assns., Inc ., 531 U. S. 457 , 489–490 (2001) (Stevens, J., concurring in part and concurring in judgment); Bowsher , 478 U. S., at 752 (opinion of Stevens, J.). Consequently, the FCC “cannot in any proper sense be characterized as an arm or an eye of the executive” and is better viewed as an agent of Congress established “to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative … aid.” Humphrey’s Executor , 295 U. S., at 628.[ Footnote 2 ]    The FCC, like all agencies, may revise its regulations from time to time, just as Congress amends its statutes as circumstances warrant. But the FCC is constrained by its congressional mandate. There should be a strong presumption that the FCC’s initial views, reflecting the informed judgment of independent commissioners with expertise in the regulated area, also reflect the views of the Congress that delegated the Commission authority to flesh out details not fully defined in the enacting statute. The rules adopted after Pacifica , 438 U. S. 726 , have been in effect for decades and have not proved unworkable in the intervening years. As Justice Breyer’s opinion explains, broadcasters have a substantial interest in regulatory stability; the threat of crippling financial penalties looms large over these entities. See post , at 10–14. The FCC’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape. It therefore makes eminent sense to require the Commission to justify why its prior policy is no longer sound before allowing it to change course.[ Footnote 3 ] The FCC’s congressional charter, 47 U. S. C. §151 et seq. , the Administrative Procedure Act, 5 U. S. C. §706(2)(A) (2006 ed.) (instructing courts to “hold unlawful and set aside … arbitrary [or] capricious” agency action), and the rule of law all favor stability over administrative whim. II    The Court commits a second critical error by assuming that Pacifica endorsed a construction of the term “indecent,” as used in 18 U. S. C. §1464, that would include any expletive that has a sexual or excretory origin. Neither the opinion of the Court, nor Justice Powell’s concurring opinion, adopted such a far-reaching interpretation. Our holding was narrow in two critical respects. First, we concluded, over the dissent of four Justices, that the statutory term “indecent” was not limited to material that had prurient appeal and instead included material that was in “nonconformance with accepted standards of morality.” Pacifica, 438 U. S., at 740. Second, we upheld the FCC’s adjudication that a 12-minute, expletive-filled monologue by satiric humorist George Carlin was indecent “as broadcast.” Id ., at 735. We did not decide whether an isolated expletive could qualify as indecent. Id. , at 750; id. , at 760–761 (Powell, J., concurring in part and concurring in judgment). And we certainly did not hold that any word with a sexual or scatological origin, however used, was indecent.    The narrow treatment of the term “indecent” in Pacifica defined the outer boundaries of the enforcement policies adopted by the FCC in the ensuing years. The Commission originally explained that “under the legal standards set forth in Pacifica , deliberate and repetitive use [of expletives] in a patently offensive manner is a requisite to a finding of indecency.” In re Pacifica Foundation , 2 FCC Rcd. 2698, 2699, ¶13 (1987). While the “repetitive use” issue has received the most attention in this case, it should not be forgotten that Pacifica permitted the Commission to regulate only those words that describe sex or excrement. See 438 U. S., at 743 (plurality opinion) (“[T]he Commission’s definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities” (emphasis added)). The FCC minimizes the strength of this limitation by now claiming that any use of the words at issue in this case, in any context and in any form, necessarily describes sex or excrement. See In re Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 , 21 FCC Rcd. 13299, 13308, ¶23 (2006) (Remand Order) (“[A]ny strict dichotomy between expletives and descriptions or depictions of sexual or excretory functions is artificial and does not make sense in light of the fact that an expletive’s power to offend derives from its sexual or excretory meaning” (internal quotation marks omitted)). The customs of speech refute this claim: There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use of such a word for an entirely different purpose, such as to express an emotion. One rests at the core of indecency; the other stands miles apart. As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency.[ Footnote 4 ] See In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4978–4979, ¶¶8–9 (2004) (declaring that even the use of an expletive to emphasize happiness “invariably invokes a coarse sexual image”).    Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin. These words may not be polite, but that does not mean they are necessarily “indecent” under §1464. By improperly equating the two, the Commission has adopted an interpretation of “indecency” that bears no resemblance to what Pacifica contemplated.[ Footnote 5 ] Most distressingly, the Commission appears to be entirely unaware of this fact, see Remand Order, 21 FCC Rcd., at 13308 (erroneously referencing Pacifica in support of its new policy), and today’s majority seems untroubled by this significant oversight, see ante , at 4–5, 13–14. Because the FCC has failed to demonstrate an awareness that it has ventured far beyond Pacifica ’s reading of §1464, its policy choice must be declared arbitrary and set aside as unlawful. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 416 (1971). III    For these reasons and those stated in Justice Breyer’s dissenting opinion, I would affirm the judgment of the Court of Appeals. Footnote 1 Section 1464 provides: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” Footnote 2 Justice Scalia erroneously concludes that treating the FCC’s rulemaking authority as an exercise of legislative power would somehow be unconstitutional. See ante , at 21 (citing Bowsher v. Synar , 478 U. S. 714 , 726 (1986)). But that is the nature of rulemaking: Rules promulgated by agencies (independent or not) carry the force of law precisely because they are exercises of such legislative authority. This may offend Justice Scalia’s theory of the “unitary Executive,” ante , at 22, but it does not offend the Constitution. Indeed, “the Framers vested ‘All legislative Powers’ in the Congress, Art. I, §1, just as in Article II they vested the ‘executive Power’ in the President, Art. II, §1. Those provisions do not purport to limit the authority of either recipient of power to delegate authority to others.” Whitman v. American Trucking Assns., Inc. , 531 U. S. 457 , 489 (2001) (Stevens, J., concurring in part and concurring in judgment). Footnote 3 It appears that Justice Scalia has come to the view that isolated statements by members of a congressional oversight subcommittee are sufficient evidence of Congress’ intent. See ante , at 20, n. 4. Delving into the details of how various lawmakers “grilled” the full slate of FCC Commissioners, Justice Scalia concludes, quite remarkably, that this encounter “made clear [Congress’] wishes for stricter enforcement” and “would seem an adequate explanation of [the FCC’s] change of position.” Ante , at 21. Putting to the side the question whether congressional outrage is the kind of evidence sufficient to explain the Commission’s decision to adopt a thinly-reasoned and unconstitutional policy, Justice Scalia’s treatment of these proceedings as evidencing the intent of Congress would make even the most ardent student of legislative history blush. Footnote 4 It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom. Footnote 5 While Justice Thomas and I disagree about the continued wisdom of Pacifica , see ante , p. 1 (concurring opinion), the changes in technology and the availability of broadcast spectrum he identifies certainly counsel a restrained approach to indecency regulation, not the wildly expansive path the FCC has chosen. BREYER, J., DISSENTING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. FOX TELEVISION STATIONS, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [April 28, 2009]    Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.    In my view, the Federal Communications Commission failed adequately to explain why it changed its indecency policy from a policy permitting a single “fleeting use” of an expletive, to a policy that made no such exception. Its explanation fails to discuss two critical factors, at least one of which directly underlay its original policy decision. Its explanation instead discussed several factors well known to it the first time around, which by themselves provide no significant justification for a change of policy. Consequently, the FCC decision is “arbitrary, capricious, an abuse of discretion.” 5 U. S. C. §706(2)(A); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U. S. 29 , 41–43 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 , 420–421 (1971) . And I would affirm the Second Circuit’s similar determination. I    I begin with applicable law. That law grants those in charge of independent administrative agencies broad authority to determine relevant policy. But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences. Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “ ‘the exercise of political oversight.’ ” Freytag v. Commissioner , 501 U. S. 868 , 916 (1991) (Scalia, J., concurring in part and concurring in judgment); see also Morrison v. Olson , 487 U. S. 654 , 691, n. 30 (1988). That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from ballot-box control makes it all the more important that courts review its decisionmaking to assure compliance with applicable provisions of the law—including law requiring that major policy decisions be based upon articulable reasons.    The statutory provision applicable here is the Administrative Procedure Act’s (APA) prohibition of agency action that is “arbitrary, capricious, [or] an abuse of discretion,” 5 U. S. C. §706(2)(A). This legal requirement helps assure agency decisionmaking based upon more than the personal preferences of the decisionmakers. Courts have applied the provision sparingly, granting agencies broad policymaking leeway. But they have also made clear that agency discretion is not “ ‘unbounded.’ ” Burlington Truck Lines, Inc. v. United States , 371 U. S. 156 , 167–168 (1962). In so holding, American courts have followed a venerable legal tradition, stretching back at least to the days of Sir Edward Coke and the draining of the English fens. See Rooke’s Case , 77 Eng. Rep. 209, 210, 5 Coke Rep. 99b, 100a (C. P. 1598) (Coke, J.) (members of sewer commission with authority to act according “to their discretio[n]” are nonetheless “limited and bound with the rule of reason and law … and [cannot act] according to their wills and private affections” (quoted in Jaffe, Judicial Review: Constitutional and Jurisdictional Fact, 70 Harv. L. Rev. 953, 954 (1957))).    The law has also recognized that it is not so much a particular set of substantive commands but rather it is a process , a process of learning through reasoned argument, that is the antithesis of the “arbitrary.” This means agencies must follow a “logical and rational” decisionmaking “process.” Allentown Mack Sales & Service, Inc. v. NLRB , 522 U. S. 359 , 374 (1998). An agency’s policy decisions must reflect the reasoned exercise of expert judgment. See Burlington Truck Lines, supra , at 167 (decision must reflect basis on which agency “exercised its expert discretion”); see also Humphrey’s Executor v. United States , 295 U. S. 602 , 624 (1935) (independent agencies “exercise … trained judgment … ‘informed by experience’ ”). And, as this Court has specified, in determining whether an agency’s policy choice was “arbitrary,” a reviewing court “must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Overton Park, supra , at 416.    Moreover, an agency must act consistently. The agency must follow its own rules. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co. , 284 U. S. 370 , 389–390 (1932). And when an agency seeks to change those rules, it must focus on the fact of change and explain the basis for that change. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U. S. 967 , 981 (2005) (“ Unexplained inconsistency is” a “reason for holding an interpretation to be an arbitrary and capricious change from agency practice” (emphasis added)).    To explain a change requires more than setting forth reasons why the new policy is a good one. It also requires the agency to answer the question, “Why did you change?” And a rational answer to this question typically requires a more complete explanation than would prove satisfactory were change itself not at issue. An (imaginary) administrator explaining why he chose a policy that requires driving on the right-side, rather than the left-side, of the road might say, “Well, one side seemed as good as the other, so I flipped a coin.” But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the administrator changed driving practice, from right-side to left-side, 25 years later.    In State Farm , a unanimous Court applied these commonsense requirements to an agency decision that rescinded an earlier agency policy. The Court wrote that an agency must provide an explanation for the agency’s “revocation” of a prior action that is more thorough than the explanation necessary when it does not act in the first instance. The Court defined “revocation,” not simply as rescinding an earlier policy, cf. ante , at 10–11, but as “a reversal of the agency’s former views as to the proper course.” State Farm , 463 U. S., at 41 (emphasis added). See also Verizon Communications Inc. v. FCC , 535 U. S. 467 , 502, n. 20 (2002) (portion of Court’s opinion joined by Scalia, Kennedy, and Thomas, JJ.) (noting State Farm “may be read as prescribing more searching judicial review” when “an agency [is] ‘changing its course’ as to the interpretation of a statute”); Thomas Jefferson Univ. v. Shalala , 512 U. S. 504 , 524, n. 3 (1994) (Thomas, J., dissenting) (similar).    At the same time, the Court described the need for explanation in terms that apply, not simply to pure rescissions of earlier rules, but rather to changes of policy as it more broadly defined them. But see ante , at 10–11. It said that the law required an explanation for such a change because the earlier policy, representing a “ ‘settled course of behavior[,] embodies the agency’s informed judgment that, by pursuing that course, it will carry out the policies … best if the settled rule is adhered to.’ ” State Farm, supra , at 41–42. Thus, the agency must explain why it has come to the conclusion that it should now change direction. Why does it now reject the considerations that led it to adopt that initial policy? What has changed in the world that offers justification for the change? What other good reasons are there for departing from the earlier policy?    Contrary to the majority’s characterization of this dissent, it would not (and State Farm does not) require a “ heightened standard” of review. Ante , at 10 (emphasis added). Rather, the law requires application of the same standard of review to different circumstances, namely circumstances characterized by the fact that change is at issue. It requires the agency to focus upon the fact of change where change is relevant, just as it must focus upon any other relevant circumstance. It requires the agency here to focus upon the reasons that led the agency to adopt the initial policy, and to explain why it now comes to a new judgment.    I recognize that sometimes the ultimate explanation for a change may have to be, “We now weigh the relevant considerations differently.” But at other times, an agency can and should say more. Where, for example, the agency rested its previous policy on particular factual findings, see ante , at 3–5 (Kennedy, J., concurring in part and concurring in judgment); or where an agency rested its prior policy on its view of the governing law, see infra , at 7–11; or where an agency rested its previous policy on, say, a special need to coordinate with another agency, one would normally expect the agency to focus upon those earlier views of fact, of law, or of policy and explain why they are no longer controlling. Regardless, to say that the agency here must answer the question “why change” is not to require the agency to provide a justification that is “ better than the reasons for the old [policy].” Ante , at 11. It is only to recognize the obvious fact that change is sometimes (not always) a relevant background feature that sometimes (not always) requires focus (upon prior justifications) and explanation lest the adoption of the new policy (in that circumstance) be “arbitrary, capricious, an abuse of discretion.”    That is certainly how courts of appeals, the courts that review agency decisions, have always treated the matter in practice. See, e.g. , Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Kempthorne , 497 F. 3d 337, 351 (CA3 2007); Yale-New Haven Hosp . v. Leavitt , 470 F. 3d 71, 79 (CA2 2006); Citizens Awareness Network, Inc . v. United States , 391 F. 3d 338, 352 (CA1 2004). But see NAACP v. FCC , 682 F. 2d 993, 998 (CADC 1982) (using word “heightened”). The majority’s holding could in this respect significantly change judicial review in practice, and not in a healthy direction. But see, ante , at 1–5 (Kennedy, J., concurring in part and concurring in judgment). After all, if it is always legally sufficient for the agency to reply to the question “why change?” with the answer “we prefer the new policy” (even when the agency has not considered the major factors that led it to adopt its old policy), then why bother asking the agency to focus on the fact of change? More to the point, why would the law exempt this and no other aspect of an agency decision from “arbitrary, capricious” review? Where does, and why would, the APA grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?    Avoiding the application of any heightened standard of review, the Court in State Farm recognized that the APA’s “nonarbitrary” requirement affords agencies generous leeway when they set policy. 463 U. S., at 42. But it also recognized that this leeway is not absolute. The Court described its boundaries by then listing considerations that help determine whether an explanation is adequate. Mirroring and elaborating upon its statement in Overton Park, 401 U. S. 402 , the Court said that a reviewing court should take into account whether the agency had “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, supra , at 43; see also Overton Park, supra , at 416. II    We here must apply the general standards set forth in State Farm and Overton Park to an agency decision that changes a 25-year-old “fleeting expletive” policy from (1) the old policy that would normally permit broadcasters to transmit a single, fleeting use of an expletive to (2) a new policy that would threaten broadcasters with large fines for transmitting even a single use (including its use by a member of the public) of such an expletive, alone with nothing more. The question is whether that decision satisfies the minimal standards necessary to assure a reviewing court that such a change of policy is not “arbitrary, capricious, [or] an abuse of discretion,” 5 U. S. C. §706(2)(A), particularly as set forth in, e.g. , State Farm and Overton Park, supra , at 2–7 . The decision, in my view, does not satisfy those standards.    Consider the requirement that an agency at least minimally “consider … important aspect[s] of the problem.” State Farm, supra , at 43. The FCC failed to satisfy this requirement, for it failed to consider two critically important aspects of the problem that underlay its initial policy judgment (one of which directly, the other of which indirectly). First, the FCC said next to nothing about the relation between the change it made in its prior “fleeting expletive” policy and the First-Amendment-related need to avoid “censorship,” a matter as closely related to broadcasting regulation as is health to that of the environment. The reason that discussion of the matter is particularly important here is that the FCC had explicitly rested its prior policy in large part upon the need to avoid treading too close to the constitutional line.    Thirty years ago, the Court considered the location of that constitutional line. In FCC v. Pacifica Foundation , 438 U. S. 726 (1978), the Court reviewed an FCC decision forbidding the broadcast of a monologue that deliberately and repeatedly uttered the expletives here at issue more than 100 times in one hour at a time of day when children were likely to hear the broadcast. Id ., at 739. The Court held that the FCC’s prohibition did not violate the First Amendment. But the Court divided 5 to 4. And two Members of the majority, Justices Powell and Blackmun, explicitly noted that the Court “does not speak to cases involving the isolated use of a potentially offensive word … as distinguished from the verbal shock treatment administered by respondent here.” Id ., at 760–761 (Powell, J., concurring in part and concurring in judgment) (emphasis added). This statement by two Members of the majority suggested that they could reach a different result, finding an FCC prohibition unconstitutional, were that prohibition aimed at the fleeting or single use of an expletive.    The FCC subsequently made clear that it thought that Justice Powell’s concurrence set forth a constitutional line that its indecency policy should embody. In 1978, the Commission wrote that the First Amendment “severely limit[s]” the Commission’s role in regulating indecency. It added that the Court, in Pacifica , had “relied … on the repetitive occurrence of the ‘indecent’ words in question.” And it said that, in setting policy, it “intend[ed] strictly to observe the narrowness of the Pacifica holding.” In re Application of WGBH Educ. Foundation , 69 F. C. C. 2d 1250, 1254, ¶10.    In 1983, the Commission again wrote that it understood the Court’s decision in Pacifica to rest on the “repetitive occurrence of the ‘indecent’ words in question.” And, again, the Commission explained that its regulation of fleeting or isolated offensive words would reflect Justice Powell’s understanding of the First Amendment’s scope. In re Application of Pacifica Foundation , 95 F. C. C. 2d 750, 760, ¶¶17–18.     In 1987, the Commission once more explained that its “fleeting expletives” policy reflected the Court’s decision in Pacifica . It said that, under its policy, “speech that is indecent must involve more than an isolated use of an offensive word,” adding that “we believe that under the legal standards set forth in Pacifica , deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” In re Pacifica Foundation , 2 FCC Rcd. 2698, 2699, ¶13 (emphasis added). In another order that same year, the Commission stated that “the First Amendment dicate[s] a careful and restrained approach with regard to review of matters involving broadcast programming”; it then explained, citing Pacifica , that “[s]peech that is indecent must involve more than the isolated use of an offensive word.” In re Infinity Broadcasting , 2 FCC Rcd. 2705, 2705, ¶¶6–7 (1987) (emphasis added). And in 2001, in giving the industry guidance, the FCC once again said in respect to its regulation of indecent speech that it “must both identify a compelling interest for any regulation … and choose the least restrictive means to further that interest.” In re Industry Guidance On Commission’s Case Law Interpreting 18 U. S. C. §1464 and Enforcement Policies Regarding Broadcast Indecency , 16 FCC Rcd. 7999, 8000–8001, ¶3–5.    The FCC thus repeatedly made clear that it based its “fleeting expletive” policy upon the need to avoid treading too close to the constitutional line as set forth in Justice Powell’s Pacifica concurrence. What then did it say, when it changed its policy, about why it abandoned this Constitution-based reasoning? The FCC devoted “four full pages of small-type, single-spaced text,” ante , at 23, responding to industry arguments that, e.g. , changes in the nature of the broadcast industry made all indecency regulation, i.e. , 18 U. S. C. §1464, unconstitutional. In doing so it repeatedly reaffirmed its view that Pacifica remains good law. In re Complaints Regarding Various Television Broadcasts Between February 2, 2002, and March, 8, 2008, 21 FCC Rcd. 13299, 13317–13321, ¶¶42–52 (2006) (Remand Order) . All the more surprising then that, in respect to why it abandoned its prior view about the critical relation between its prior fleeting expletive policy and Justice Powell’s Pacifica concurrence, it says no more than the following:    “[O]ur decision is not inconsistent with the Supreme Court ruling in Pacifica . The Court explicitly left open the issue of whether an occasional expletive could be considered indecent.” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4982, ¶16 (2004) (Golden Globe Order) . And, (repeating what it already had said), “ [Pacifica] specifically reserved the question of ‘an occasional expletive’ and noted that it addressed only the ‘particular broadcast’ at issue in that case.” Remand Order , supra , at 13308–13309, ¶24.    These two sentences are not a summary of the FCC’s discussion about why it abandoned its prior understanding of Pacifica . They are the discussion. These 28 words (repeated in two opinions) do not acknowledge that an entirely different understanding of Pacifica underlay the FCC’s earlier policy; they do not explain why the agency changed its mind about the line that Pacifica draws or its policy’s relation to that line; and they tell us nothing at all about what happened to the FCC’s earlier determination to search for “compelling interests” and “less restrictive alternatives.” They do not explain the transformation of what the FCC had long thought an insurmountable obstacle into an open door. The result is not simply Hamlet without the prince, but Hamlet with a prince who, in mid-play and without explanation, just disappears.    I have found one other related reference to Pacifica , but that reference occurs in an opinion written by a dissenting Commissioner. That dissenter said that the FCC had “ ‘fail[ed] to address the many serious [constitutional] concerns raised’ ” by the new policy, while adding that the new policy was “not the restrained enforcement policy encouraged by the Supreme Court in Pacifica .” Remand Order, supra, at 13331, 13334. Neither that Commissioner in his dissent, nor I in this dissent, claim that agencies must always take account of possible constitutional issues when they formulate policy. Cf. ante , at 12. But the FCC works in the shadow of the First Amendment and its view of the application of that Amendment to “fleeting expletives” directly informed its initial policy choice. Under these circumstances, the FCC’s failure to address this “aspect” of the problem calls for a remand to the agency. Overton Park, 401 U. S. , at 420–421.    Second, the FCC failed to consider the potential impact of its new policy upon local broadcasting coverage. This “aspect of the problem” is particularly important because the FCC explicitly took account of potential broadcasting impact. Golden Globe Order, supra , at 4980, ¶11 (“The ease with which broadcasters today can block even fleeting words in a live broadcast is an element in our decision”). Indeed, in setting forth “bleeping” technology changes (presumably lowering bleeping costs) as justifying the policy change, it implicitly reasoned that lower costs, making it easier for broadcasters to install bleeping equipment, made it less likely that the new policy would lead broadcasters to reduce coverage, say by canceling coverage of public events. Ibid. (“[T]echnological advances have made it possible … to prevent the broadcast of a single offending word or action without blocking or disproportionately disrupting the message of the speaker or performer”).    What then did the FCC say about the likelihood that smaller independent broadcasters, including many public service broadcasters, still would not be able to afford “bleeping” technology and, as a consequence, would reduce local coverage, indeed cancel coverage, of many public events? It said nothing at all.    The FCC cannot claim that local coverage lacks special importance. To the contrary, “the concept of localism has been a cornerstone of broadcast regulation for decades.” In re Broadcast Localism , 23 FCC Rcd. 1324, 1326, 1327, ¶¶3, 5 (2008). That policy seeks to provide “viewers and listeners … access to locally responsive programming including, but not limited to, local news and public affairs matter” and to ensure “diversity in what is seen and heard over the airwaves.” That policy has long favored local broadcasting, both as a means to increase coverage of local events and, insofar as it increases the number of broadcast voices, as an end in itself. See, e.g. , In re Reexamination of Comparative Standards for Noncommercial Educ. Applicants , 15 FCC Rcd. 7386, 7399, ¶29 (2000) (adopting a system for selecting applicants for broadcast channels that “would foster our goal of broadcast diversity by enabling the local public to be served by differing … licensees”); In re 2002 Biennial Regulatory Review , 18 FCC Rcd. 13620, 13644, ¶¶77, 79 (2003) (“We remain firmly committed to the policy of promoting localism among broadcast outlets. … A … measure of localism is the quantity and quality of local news and public affairs programming”).    Neither can the FCC now claim that the impact of its new policy on local broadcasting is insignificant and obviously so. Broadcasters tell us, as they told the FCC, the contrary. See Brief for Former FCC Commissioners as Amici Curiae 17–19; App. 235–237; Joint Comments of Fox Television Stations, Inc. et al., In re Remand of Section III.B of the Commission’s March 15, 2006 Omnibus Order Resolving Numerous Broadcast Television Indecency Complaints 14–15, http://www.fcc.gov/DA06–1739/joint-networks.pdf (all Internet materials as visited Apr. 7, 2009, and available in Clerk of Court’s case file). They told the FCC, for example, that the costs of bleeping/delay systems, up to $100,000 for installation and annual operation, place that technology beyond the financial reach of many smaller independent local stations. See id. , at 14 (“The significant equipment and personnel costs associated with installing, maintaining, and operating delay equipment sufficient to cover all live news, sports, and entertainment programs could conceivably exceed the net profits of a small local station for an entire year”); id ., at App. XI. And they ask what the FCC thinks will happen when a small local station without bleeping equipment wants to cover, say a local city council meeting, a high school football game, a dance contest at community center, or a Fourth of July parade.    Relevant literature supports the broadcasters’ financial claims. See, e.g. , Ho, Taking No Chances, Austin American-Statesman, June 18, 2006, p. J1; Dotinga, Dirty-Word Filters Prove Costly, Wired.com, July 9, 2004, http://www. wired.com/entertainment/music/news/2004/07/64127; Stations, Cable Networks Finding Indecency Rules Expensive, Public Broadcasting Report, Aug. 4, 2006. It also indicates that the networks with which some small stations are affiliated are not liable for the stations’ local transmissions (unless the networks own them). Ho, supra , at J1; Public Stations Fear Indecency Fine Jump Means Premium Hikes, Public Broadcasting Report, July 7, 2006. The result is that smaller stations, fearing “fleeting expletive” fines of up to $325,000, may simply cut back on their coverage. See Romano, Reporting Live. Very Carefully, Broadcasting & Cable, July 4, 2005, p. 8; see also ibid . (“Afraid to take chances” of getting fined under the FCC’s new policy, “local broadcasters are responding by altering—or halting altogether—the one asset that makes local stations so valuable to their communities: live TV”); Daneman, WRUR Drops Its Live Radio Programs, Rochester Democrat and Chronicle, May 27, 2004, p. 1B (reporting that a local broadcast station ceased broadcasting all local live programming altogether in response to the Commission’s policy change). And there are many such smaller stations. See, e.g. , Corporation for Public Broadcasting, Frequently Asked Questions, available at http:// www.cpb.org/aboutpb/faq/stations.html (noting there are over 350 local public television stations and nearly 700 local public radio stations that receive support from the Corporation for Public Broadcasting).    As one local station manager told the FCC, “[t]o lessen the risk posed by the new legal framework … I have directed [the station’s] news staff that [our station] may no longer provide live, direct-to-air coverage” of “live events where crowds are present … unless they affect matters of public safety or convenience. Thus, news coverage by [my station] of live events where crowds are present essentially will be limited to civil emergencies.” App. 236–237 (declaration of Dennis Fisher).    What did the FCC say in response to this claim? What did it say about the likely impact of the new policy on the coverage that its new policy is most likely to affect, coverage of local live events—city council meetings, local sports events, community arts productions, and the like? It said nothing at all.    The plurality acknowledges that the Commission entirely failed to discuss this aspect of the regulatory problem. But it sees “no need” for discussion in light of its, i.e. , the plurality’s, own “doubt[s]” that “small-town broadcasters run a heightened risk of liability for indecent utterances” as a result of the change of policy. Ante , at 24–25. The plurality's “doubt[s]” rest upon its views (1) that vulgar expression is less prevalent (at least among broadcast guests) in smaller towns, ante , at 24; (2) that the greatest risk the new policy poses for “small-town broadcasters” arises when they broadcast local “news and public affairs,” ibid ., and (3) that the Remand Order says “little about how the Commission would treat smaller broadcasters who cannot afford screening equipment,” while also pointing out that the new policy “ ‘does not … impose undue burdens on broadcasters’ ” and emphasizing that the case before it did not involve “ ‘breaking news.’ ” Ante , at 24–25.    As to the first point, about the prevalence of vulgarity in small towns, I confess ignorance. But I do know that there are independent stations in many large and medium sized cities. See Television & Cable Factbook, Directory of Television Stations in Operation 2008. As to the second point, I too believe that coverage of local public events, if not news, lies at the heart of the problem.    I cannot agree with the plurality, however, about the critical third point, namely that the new policy obviously provides smaller independent broadcasters with adequate assurance that they will not be fined. The new policy removes the “fleeting expletive” exception, an exception that assured smaller independent stations that they would not be fined should someone swear at a public event. In its place, it puts a policy that places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events. The Remand Order says that there “is no outright news exemption from our indecency rules. ” 21 FCC Rcd., at 13327, ¶71 (emphasis added). The best it can provide by way of assurance is to say that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a public event under some circumstances .” Id ., at 13311, ¶33 (emphasis added). It does list those circumstances as including the “possibility of human error in using delay equipment.” Id ., at 13313, ¶35. But it says nothing about a station’s inability to afford delay equipment (a matter that in individual cases could itself prove debatable). All the FCC had to do was to consider this matter and either grant an exemption or explain why it did not grant an exemption. But it did not. And the result is a rule that may well chill coverage—the kind of consequence that the law has considered important for decades, to which the broadcasters pointed in their arguments before the FCC, and which the FCC nowhere discusses. See, e.g. , Dombrowski v. Pfister , 380 U. S. 479 , 494 (1965) (“So long as the statute remains available to the State the threat of prosecutions of protected expression is a real and substantial one. Even the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression”); see also Ashcroft v. Free Speech Coalition , 535 U. S. 234 , 244 (2002); Gibson v. Florida Legislative Investigation Comm. , 372 U. S. 539 , 556–557 (1963); Wieman v. Updegraff , 344 U. S. 183 , 195 (1952) (Frankfurter, J., concurring).    Had the FCC used traditional administrative notice-and-comment procedures, 5 U. S. C. §553, the two failures I have just discussed would clearly require a court to vacate the resulting agency decision. See ACLU v. FCC , 823 F. 2d 1554, 1581 (CADC 1987) (“Notice and comment rulemaking procedures obligate the FCC to respond to all significant comments, for the opportunity to comment is meaningless unless the agency responds to significant points raised by the public” (emphasis added; internal quotation marks omitted)). Here the agency did not make new policy through the medium of notice and comment proceedings. But the same failures here—where the policy is important, the significance of the issues clear, the failures near complete—should lead us to the same conclusion. The agency’s failure to discuss these two “important aspect[s] of the problem” means that the resulting decision is “ ‘arbitrary, capricious, an abuse of discretion’ ” requiring us to remand the matter to the agency. State Farm, 463 U. S., at 43; Overton Park, 401 U. S., at 416. III    The three reasons the FCC did set forth in support of its change of policy cannot make up for the failures I have discussed. Consider each of them. First, as I have pointed out, the FCC based its decision in part upon the fact that “bleeping/delay systems” technology has advanced. I have already set forth my reasons for believing that that fact, without more, cannot provide a sufficient justification for its policy change. Supra, at 11–16.    Second, the FCC says that the expletives here in question always invoke a coarse excretory or sexual image; hence it makes no sense to distinguish between whether one uses the relevant terms as an expletive or as a literal description. The problem with this answer is that it does not help to justify the change in policy. The FCC was aware of the coarseness of the “image” the first time around. See, e.g. , Remand Order, 21 FCC Rcd., at 13308, ¶23 (asserting that FCC has always understood the words as coarse and indecent). And it explained the first time around why it nonetheless distinguished between their literal use and their use as fleeting expletives. See, e.g. , In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d , at 1254–1255, ¶¶10–11 (discussing First Amendment considerations and related need to avoid reduced broadcast coverage). Simply to announce that the words, whether used descriptively or as expletives, call forth similar “images” is not to address those reasons.    Third, the FCC said that “perhaps” its “most importan[t]” justification for the new policy lay in the fact that its new “contextual” approach to fleeting expletives is better and more “[c]onsistent with” the agency’s “general approach to indecency” than was its previous “categorica[l]” approach, which offered broadcasters virtual immunity for the broadcast of fleeting expletives. Remand Order , supra , at 13308, ¶23. This justification, however, offers no support for the change without an understanding of why, i.e. , in what way, the FCC considered the new approach better or more consistent with the agency’s general approach.    The Solicitor General sets forth one way in which the new policy might be more consistent with statutory policy. The indecency statute prohibits the broadcast of “any … indecent … language.” 18 U. S. C. §1464. The very point of the statute, he says, is to eliminate nuisance; and the use of expletives, even once, can constitute such a nuisance. The Solicitor General adds that the statutory word “any” indicates that Congress did not intend a safe-harbor for a fleeting use of that language. Brief for Petitioners 24–25. The fatal flaw in this argument, however, lies in the fact that the Solicitor General and not the agency has made it. We must consider the lawfulness of an agency’s decision on the basis of the reasons the agency gave, not on the basis of those it might have given. SEC v. Chenery Corp. , 332 U. S. 194 , 196–197 (1947); State Farm, supra , at 50. And the FCC did not make this claim. Hence, we cannot take it into account and need not evaluate its merits.    In fact, the FCC found that the new policy was better in part because, in its view, the new policy better protects children against what it described as “ ‘the first blow’ ” of broadcast indecency that results from the “ ‘pervasive’ ” nature of broadcast media. It wrote that its former policy of “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children) to take ‘the first blow.’ ” Remand Order, supra , at 13309, ¶25.    The difficulty with this argument, however, is that it does not explain the change. The FCC has long used the theory of the “first blow” to justify its regulation of broadcast indecency. See, e.g. , In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U. S. C. §1464, 5 FCC Rcd. 5297, 5302, ¶¶34–35 (1990). Yet the FCC has also long followed its original “fleeting expletives” policy. Nor was the FCC ever unaware of the fact to which the majority points, namely that children’s surroundings influence their behavior. See, e.g., In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U. S. C. §1464 , 8 FCC Rcd. 704, 706, ¶11 (1993). So, to repeat the question: What, in respect to the “first blow,” has changed?    The FCC points to no empirical (or other) evidence to demonstrate that it previously understated the importance of avoiding the “first blow.” Like the majority, I do not believe that an agency must always conduct full empirical studies of such matters. Ante , at 15–16. But the FCC could have referred to, and explained, relevant empirical studies that suggest the contrary. One review of the empirical evidence, for example, reports that “[i]t is doubtful that children under the age of 12 understand sexual language and innuendo; therefore it is unlikely that vulgarities have any negative effect.” Kaye & Sapolsky, Watch Your Mouth! An Analysis of Profanity Uttered by Children on Prime-Time Television, 2004 Mass Communication & Soc’y 429, 433 (Vol. 7) (citing two studies). The Commission need not have accepted this conclusion. But its failure to discuss this or any other such evidence, while providing no empirical evidence at all that favors its position, must weaken the logical force of its conclusion. See State Farm, 463 U. S. , at 43 (explaining that an agency’s failure to “examine the relevant data” is a factor in determining whether the decision is “arbitrary”).    The FCC also found the new policy better because it believed that its prior policy “would as a matter of logic permit broadcasters to air expletives at all hours of a day so long as they did so one at a time.” Remand Order, 21 FCC Rcd., at 13309, ¶25. This statement, however, raises an obvious question: Did that happen? The FCC’s initial “fleeting expletives” policy was in effect for 25 years. Had broadcasters during those 25 years aired a series of expletives “one at a time?” If so, it should not be difficult to find evidence of that fact. But the FCC refers to none. Indeed, the FCC did not even claim that a change had taken place in this respect. It spoke only of the pure “logic” of the initial policy “permitting” such a practice. That logic would have been apparent to anyone, including the FCC, in 1978 when the FCC set forth its initial policy.    Finally, the FCC made certain statements that suggest it did not believe it was changing prior policy in any major way. It referred to that prior policy as based on “staff letters and dicta” and it said that at least one of the instances before it (namely, the Cher broadcast) would have been actionably indecent under that prior policy. Id ., at 13306–13307, 13324, ¶¶20–21, 60. As we all agree, however, in fact the FCC did change its policy in a major way. See ante , at 13. To the extent that the FCC minimized that fact when considering the change, it did not fully focus on the fact of change. And any such failure would make its decision still less supportable. See National Cable, 545 U. S., at 981. IV    Were the question a closer one, the doctrine of constitutional avoidance would nonetheless lead me to remand the case. See United States v. Jin Fuey Moy , 241 U. S. 394 , 401 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score” (emphasis added)). That doctrine seeks to avoid unnecessary judicial consideration of constitutional questions, assumes that Congress, no less than the Judicial Branch, seeks to act within constitutional bounds, and thereby diminishes the friction between the branches that judicial holdings of unconstitutionality might otherwise generate. See Almendarez-Torres v. United States , 523 U. S. 224 , 237–238 (1998); see also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers , 531 U. S. 159 , 172–173 (2001); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council , 485 U. S. 568 , 575 (1988); Rescue Army v. Municipal Court of Los Angeles , 331 U. S. 549 , 571 (1947); Ashwander v. TVA , 297 U. S. 288 , 345–348 (1936) (Brandeis, J., concurring). The doctrine assumes that Congress would prefer a less-than-optimal interpretation of its statute to the grave risk of a constitutional holding that would set the statute entirely aside. See Almendarez-Torres , supra , at 238 (construction of statute that avoids invalidation best reflects congressional will); cf. United States v. Booker , 543 U. S. 220 , 249, 267 (2005).    Unlike the majority, I can find no convincing reason for refusing to apply a similar doctrine here. The Court has often applied that doctrine where an agency’s regulation relies on a plausible but constitutionally suspect interpretation of a statute. See, e.g. , Solid Waste Agency, supra , at 172–174; NLRB v. Catholic Bishop of Chicago , 440 U. S. 490 , 506–507 (1979). The values the doctrine serves apply whether the agency’s decision does, or does not, rest upon a constitutionally suspect interpretation of a statute. And a remand here would do no more than ask the agency to reconsider its policy decision in light of the concerns raised in a judicial opinion. Cf. Fullilove v. Klutznick , 448 U. S. 448 , 551 (1980) (Stevens, J., dissenting) (a holding that a congressional action implicating the Equal Protection Clause “was not adequately preceded by a consideration of less drastic alternatives or adequately explained by a statement of legislative purpose would be far less intrusive than a final determination that the substance of” that action was unconstitutional). I would not now foreclose, as the majority forecloses, our further consideration of this matter. (Of course, nothing in the Court’s decision today prevents the Commission from reconsidering its current policy in light of potential constitutional considerations or for other reasons.) V    In sum, the FCC’s explanation of its change leaves out two critically important matters underlying its earlier policy, namely Pacifica and local broadcasting coverage. Its explanation rests upon three considerations previously known to the agency (“coarseness,” the “first blow,” and running single expletives all day, one at a time). With one exception, it provides no empirical or other information explaining why those considerations, which did not justify its new policy before, justify it now. Its discussion of the one exception (technological advances in bleeping/delay systems), failing to take account of local broadcast coverage, is seriously incomplete.    I need not decide whether one or two of these features, standing alone, would require us to remand the case. Here all come together. And taken together they suggest that the FCC’s answer to the question, “Why change?” is, “We like the new policy better.” This kind of answer, might be perfectly satisfactory were it given by an elected official. But when given by an agency, in respect to a major change of an important policy where much more might be said, it is not sufficient. State Farm, 463 U. S., at 41–42 . For these reasons I would find the FCC’s decision “arbitrary, capricious, an abuse of discretion,” 5 U. S. C. §706(2)(A), requiring remand of this case to the FCC. And I would affirm the Second Circuit’s similar determination.    With respect, I dissent. GINSBURG, J., DISSENTING FCC V. FOX TELEVISION STATIONS, INC. 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-582 FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS v. FOX TELEVISION STATIONS, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [April 28, 2009]    Justice Ginsburg, dissenting.    The mainspring of this case is a Government restriction on spoken words. This appeal, I recognize, arises under the Administrative Procedure Act.* Justice Breyer’s dissenting opinion, which I join, cogently describes the infirmities of the Federal Communications Commission’s (FCC or Commission) policy switch under that Act. The Commission’s bold stride beyond the bounds of FCC v. Pacifica Foundation , 438 U. S. 726 (1978), I agree, exemplified “arbitrary” and “capricious” decisionmaking. I write separately only to note that there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today’s decision does nothing to diminish that shadow. More than 30 years ago, a sharply divided Court allowed the FCC to sanction a midafternoon radio broadcast of comedian George Carlin’s 12-minute “Filthy Words” monologue. Ibid. Carlin satirized the “original” seven dirty words and repeated them relentlessly in a variety of colloquialisms. The monologue was aired as part of a program on contemporary attitudes toward the use of language. In re Citizen’s Complaint Against Pacifica Foundation Station WBAI (FM) , 56 F. C. C. 2d 94, 95 (1975). In rejecting the First Amendment challenge, the Court “emphasize[d] the narrowness of [its] holding.” Pacifica, 438 U. S., at 750. See also ante , at 1 (Stevens, J., dissenting). In this regard, the majority stressed that the Carlin monologue deliberately repeated the dirty words “over and over again.” 438 U. S., at 729, 751–755 (Appendix). Justice Powell, concurring, described Carlin’s speech as “verbal shock treatment.” Id. , at 757 (concurring in part and concurring in judgment). In contrast, the unscripted fleeting expletives at issue here are neither deliberate nor relentlessly repetitive. Nor does the Commission’s policy home in on expressions used to describe sexual or excretory activities or organs. Spontaneous utterances used simply to convey an emotion or intensify a statement fall within the order’s compass. Cf. Cohen v. California , 403 U. S. 15 , 26 (1971) (“[W]ords are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727 , 805 (1996) (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part) (a word categorized as indecent “often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power”). The Pacifica decision, however it might fare on reassessment, see ante , at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante , at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting). * The Second Circuit, presented with both constitutional and statutory challenges, vacated the remand order on APA grounds. The court therefore “refrain[ed] from deciding” the “constitutional questions.” 489 F. 3d 444, 462 (2007) (quoting Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U. S. 439 , 445 (1988)). The majority, however, stated and explained why it was “skeptical” that the Commission’s policy could “pass constitutional muster.” 489 F. 3d, at 462.

In FCC v. Fox Television Stations, Inc., the Supreme Court considered the Federal Communications Commission's (FCC) policy on "indecent expletives" in broadcast media. The case concerned the FCC's decision that indecent expletives, even when not repeated, could be prohibited under the Communications Act of 1934 and the indecency ban. The Court reviewed the FCC's explanation for its decision and the statutory and regulatory background, including the definition of indecent speech established by the FCC in 1975. The Court noted the narrowness of its previous holding in FCC v. Pacifica Foundation, where it upheld the FCC's order against a daytime broadcast of George Carlin's "Filthy Words" monologue. In the present case, the Court considered unscripted, fleeting expletives that were neither deliberate nor repetitive and expressed skepticism about the constitutionality of the FCC's policy. The Second Circuit vacated the FCC's order on administrative law grounds and refrained from deciding the constitutional questions.

Government Agencies

Scialabba v. de Osorio

https://supreme.justia.com/cases/federal/us/573/41/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–930 _________________ LORI SCIALABBA, ACTING DIRECTOR, UNITEDSTATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., PETITIONERS v. ROSA-LINA CUELLAR DE OSORIO et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 9, 2014]      Justice Kagan announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Ginsburg join.      Under the Immigration and Nationality Act, 8 U. S. C. §1101 et seq., citizens and lawful permanent residents (LPRs) of the United States may petition for certain fam-ily members—spouses, siblings, and children of various ages—to obtain immigrant visas. Such a sponsored individual is known as the petition’s principal beneficiary. In turn, any principal beneficiary’s minor child—meaning an unmarried child under the age of 21—qualifies as a derivative beneficiary, “entitled to the same [immigration] status” and “order of consideration” as his parent. §1153(d). Accordingly, when a visa becomes available to the petition’s principal beneficiary, one also becomes available to her minor child.      But what happens if, sometime after the relevant petition was filed, a minor child (whether a principal or a derivative beneficiary) has turned 21—or, in immigration lingo, has “aged out”? The immigration process may take years or even decades to complete, due in part to bureaucratic delays associated with reviewing immigration documents and in (still greater) part to long queues for the limited number of visas available each year. So someone who was a youngster at the start of the process may be an adult at the end, and no longer qualify for an immigration status given to minors. The Child Status Protection Act (CSPA), 116Stat. 927, ensures that the time Government officials have spent processing immigration papers will not count against the beneficiary in assessing his status. See 8 U. S. C. §1153(h)(1). But even with that provision, the beneficiary may age out solely because of the time he spent waiting in line for a visa to become available.      The question presented in this case is whether the CSPA grants a remedy to all aliens who have thus outpaced the immigration process—that is, all aliens who counted as child beneficiaries when a sponsoring petition was filed, but no longer do so (even after excluding administrative delays) by the time they reach the front of the visa queue. The Board of Immigration Appeals (BIA or Board) said no. It interpreted the CSPA as providing relief to only a subset of that group—specifically, those aged-out aliens who qualified or could have qualified as principal beneficiaries of a visa petition, rather than only as derivative beneficiaries piggy-backing on a parent. We now uphold the Board’s determination as a permissible construction of the statute. I A      An alien needs an immigrant visa to enter and permanently reside in the United States. See §1181(a).[ 1 ] To obtain that highly sought-after document, the alien must fall within one of a limited number of immigration cate-gories. See §§1151(a)–(b). The most favored is for the “immediate relatives” of U. S. citizens—their parents, spouses, and unmarried children under the age of 21.See §§1151(b)(2)(A)(i), 1101(b)(1). Five other categories—crucial to this case, and often denominated “preference” categories—are for “family-sponsored immigrants,” who include more distant or independent relatives of U. S. citizens, and certain close relatives of LPRs.[ 2 ] Specifically, those family preference categories are: F1:      the unmarried, adult (21 or over) sons and daughters of U. S. citizens; F2A:      the spouses and unmarried, minor (under 21) children of LPRs; F2B:      the unmarried, adult (21 or over) sons and daughters of LPRs; F3:      the married sons and daughters of U. S. citizens; F4:      the brothers and sisters of U. S. citizens. §§1151(a)(1), 1153(a)(1)–(4).[ 3 ] (A word to the wise: Dog-ear this page for easy reference, because these categories crop up regularly throughout this opinion.)      The road to obtaining any family-based immigrant visa begins when a sponsoring U. S. citizen or LPR files a petition on behalf of a foreign relative, termed the principal beneficiary. See §§1154(a)(1)(A)(i), (a)(1)(B)(i)(I), (b); 8 CFR §204.1(a)(1) (2014). The sponsor (otherwise knownas the petitioner—we use the words interchangeably) must provide U. S. Citizenship and Immigration Services (USCIS) with evidence showing, among other things, that she has the necessary familial relationship with thebeneficiary, see §§204.2(a)(2), (d)(2), (g)(2), and that she has not committed any conduct disqualifying her from sponsoring an alien for a visa, see, e.g., 8 U. S. C. §1154(a)(1)(B)(i)(II) (barring an LPR from submitting a petition if she has committed certain offenses against minors). USCIS thereafter reviews the petition, and approves it if found to meet all requirements. See §1154(b).      For a family preference beneficiary, that approval results not in getting a visa then and there, but only in getting a place in line. (The case is different for “immediate relatives” of U. S. citizens, who can apply for and receive a visa as soon as a sponsoring petition is approved.) The law caps the number of visas issued each year in the five family preference categories, see §§1151(c)(1), 1152, 1153(a)(1)–(4), and demand regularly exceeds the supply. As a consequence, the principal beneficiary of an approved petition is placed in a queue with others in her category (F1, F2A, or what have you) in order of “priority date”—that is, the date a petition was filed with USCIS. See §1153(e)(1); 8 CFR §204.1(b); 22 CFR 42.53(a) (2013). Every month, the Department of State sets a cut-off date for each family preference category, indicating that visas (sometimes referred to by “visanumbers”) are available for beneficiaries with priority dates earlier than the cut-off. See 8 CFR §245.1(g)(1); 22 CFR §42.51(b). The system is thus first-come, first-served within each preference category, with visas becoming available in order of priority date.      Such a date may benefit not only the principal beneficiary of a family preference petition, but also her spouse and minor children. Those persons, labeled the petition’s “derivative beneficiar[ies],” are “entitled to the same status, and the same order of consideration” as the principal. 8 U. S. C. §§1153(d), (h). Accordingly, when a visa becomes available for the principal, one becomes available for her spouse and minor children too. And that is so even when (as is usually but not always the case) the spouse and children would not qualify for any family preference category on their own. For example, the child of an F4 petition’s principal beneficiary is the niece or nephew of a U. S. citizen, and federal immigration law does not recognize that relationship. Nonetheless, the child can piggy-back on his qualifying parent in seeking an immigrant visa—although, as will be further discussed, he may not immigrate without her. See 22 CFR §40.1(a)(2); infra, at 6, 20–21, 31–32.      Once visas become available, the principal and any derivative beneficiaries must separately file visa applications. See 8 U. S. C. §1202(a). Such an application requires an alien to demonstrate in various ways her ad-missibility to the United States. See, e.g., §1182(a)(1)(A) (alien may not have serious health problems); §1182(a)(2)(A) (alien may not have been convicted of certain crimes); §1182(a)(3)(B) (alien may not have engaged in terrorist activity). Notably, one necessary showing involves the U. S. citizen or LPR who filed the initial petition: To mitigate any possibility of becoming a “public charge,” the visa applicant (whether a principal or de-rivative beneficiary) must append an “affidavit of sup-port” executed by that sponsoring individual. §§1182(a)(4)(C)(ii), 1183a(a)(1). Such an affidavit legally commits the sponsor to support the alien, usually for at least 10 years, with an annual income “not less than125% of the federal poverty line.” §1183a(a)(1)(A); see §§1183a(a)(2)–(3).      After the beneficiaries have filed their applications, a consular official reviews the documents and, if everything is in order, schedules in-person interviews. See §1202(h). The interviews for a principal and her children (or spouse) usually occur back-to-back, although those for the children may also come later.[ 4 ] The consular official will determine first whether the principal should receive a visa; if (but only if ) the answer is yes, the official will then consider the derivatives’ applications. See 22 CFR §§40.1(a)(2), 42.62, 42.81(a). Provided all goes well, everyone exits the consulate with visas in hand—but that still does not make them LPRs. See 8 U. S. C. §1154(e). Each approved alien must then travel to the United States within a set time, undergo inspection, and confirm her admissibility. See §§1201(c), 1222, 1225(a)–(b). Once again, a derivative’s fate is tied to the principal’s: If the principal cannot enter the country, neither can her children (or spouse). See §1153(d); 22 CFR §40.1(a)(2). When, but only when, an alien with an immigrant visa is approved at the border does she finally become an LPR.[ 5 ] B      All of this takes time—and often a lot of it. At the front end, many months may go by before USCIS approves the initial sponsoring petition.[ 6 ] On the back end, several additional months may elapse while a consular official considers the alien’s visa application and schedules an interview.[ 7 ] And the middle is the worst. After a sponsoring petition is approved but before a visa application can be filed, a family-sponsored immigrant may stand in line for years—or even decades—just waiting for an immigrant visa to become available. See, e.g., Dept. of State, Bureau of Consular Affairs, 9 Visa Bulletin, Immigrant Numbers for December 2013 (Nov. 8, 2013).      And as the years tick by, young people grow up, and thereby endanger their immigration status. Remember that not all offspring, but only those under the age of 21 can qualify as an “immediate relative” of a U. S. citizen, or as the principal beneficiary of an LPR’s F2A petition, or (most crucially here) as the derivative beneficiary of any family preference petition. See supra, at 3, 5. So an alien eligible to immigrate at the start of the process (when a sponsor files a petition) might not be so at the end (when an immigration official reviews his documents for admission). He may have “aged out” of his original immigration status by the simple passage of time.      In 2002, Congress enacted the Child Status Protection Act (CSPA), 116Stat. 927, to address the treatment of those once-but-no-longer-minor aliens. One section of the Act neatly eliminates the “aging out” problem for the offspring of U. S. citizens seeking to immigrate as “immediate relatives.” Under that provision, the “determination of whether [such] an alien satisfies the [immigration law’s] age requirement . . . shall be made using [his] age” on the date the initial petition was filed. 8 U. S. C. §1151(f )(1). The section thus halts the flow of time for that group of would-be immigrants: If an alien was young when a U. S. citizen sponsored his entry, then Peter Pan-like, he remains young throughout the immigration process.      A different scheme—and one not nearly so limpid—applies to the offspring of LPRs and aliens who initially qualified as either principal beneficiaries of F2A petitions or derivative beneficiaries of any kind of family preference petition. Section 3 of the CSPA, now codified at 8 U. S. C. §1153(h), contains three interlinked paragraphs that mitigate the “aging out” problem for those prospective immigrants. The first two are complex but, with some perseverance, comprehensible. The third—the key provision here—is through and through perplexing.[ 8 ]      The first paragraph, §1153(h)(1), contains a formula for calculating the age of an alien “[f ]or purposes of subsections (a)(2)(A) and (d)”—that is, for any alien seeking an immigrant visa directly under F2A or as a derivative beneficiary of any preference category. The “determination of whether [such] an alien satisfies the [immigration law’s] age requirement”—that is, counts as under 21—“shall be made using—      “(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of [derivative beneficiaries], the date on which an immigrant visa number became available for the alien’s parent) . . . ; reduced by      “(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.” §1153(h)(1). The cross-referenced second paragraph, §1153(h)(2), then explains that the “applicable petition” mentioned is the petition covering the given alien—so again, either an F2A petition filed on his own behalf or any petition extending to him as a derivative.      Taken together, those two paragraphs prevent an alien from “aging out” because of—but only because of—bureaucratic delays: the time Government officials spend reviewing (or getting around to reviewing) paperwork at what we have called the front and back ends of the immigration process. See supra, at 6–7. The months that elapse before USCIS personnel approve a family preference petition (“the period during which the applicable petition described in paragraph (2) was pending”) do not count against an alien in determining his statutory “age.” Neither do the months a consular officer lets pass before adjudicating the alien’s own visa application (the period after “an immigrant visa number becomes available for such alien (or . . . [his] parent)”). But the time in between—the months or, more likely, years the alien spends simply waiting for a visa to become available—is not similarly excluded in calculating his age: Every day the alien stands in that line is a day he grows older, under the immigration laws no less than in life. And so derivative beneficiaries, as well as principal beneficiaries of F2A petitions, can still “age out”—in other words, turn 21, notwithstanding §1153(h)(1)’s dual age adjustments—prior to receiving an opportunity to immigrate.      What happens then (if anything) is the subject of §1153(h)’s third paragraph—the provision at issue in this case. That paragraph states:      “If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, thealien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The provision thus first references the aged-out beneficiaries of family preference petitions, and then directs immigration officials to do something whose meaning this opinion will further consider—i.e., “automatically convert” an alien’s petition to an “appropriate category.”      The Board of Immigration Appeals (BIA) addressed the meaning of §1153(h)(3) in Matter of Wang, 25 I. & N. Dec. 28 (2009); its interpretation there is what we review in this case. Wang was the principal beneficiary of an F4 petition that his sister, a U. S. citizen, filed in 1992. At that time, Wang’s daughter was 10 years old, and thus qualified as a derivative beneficiary. But Wang waited in line for a visa for more than a decade, and by the time his priority date finally came up, his daughter had turned 22 (even after applying §1153(h)(1)’s age-reduction formula). Wang thus obtained a visa for himself, boarded a plane alone, and entered the United States as an LPR. He then filed a new preference petition on his daughter’s behalf—this one under F2B, the category for LPRs’ adult sons and daughters. USCIS approved that petition, with a priority date corresponding to the date of Wang’s filing. Wang contended that under §1153(h)(3), his daughter was instead entitled to “retain the original priority date” given to his sister’s old F4 petition, because that petition could “automatically be converted” to the F2B category.      The Board rejected that argument. It explained that “the language of [§1153(h)(3)] does not expressly state which petitions qualify for automatic conversion and retention of priority dates.” Id., at 33. Given that “ambiguity,” the BIA looked to the “recognized meaning” of “the phrase ‘automatic conversion’ ” in immigration statutes and regulations—which it “presume[d]” Congress understood when enacting the CSPA. Id., at 33–35. “Historically,” the BIA showed, that language applied only when apetition could move seamlessly from one family preference category to another—not when a new sponsor was needed to fit a beneficiary into a different category. Id., at 35. Some aged-out aliens’ petitions could accomplish that maneuver, because the alien had a qualifying relationship with the original sponsor, and continued to do so upon aging out; in that event, the Board held, §1153(h)(3) ensured that the alien would retain his original priority date. See id., at 34–35. But the F4 petition filed by Wang’s sister could not “automatically be converted” in that way because Wang’s daughter never had a qualifying relationship with the sponsor: “[N]o category exists for the niece of a United States citizen.” Id., at 35–36. That is why Wang himself had to file a new petition on his daughter’s behalf once she aged out and could no longer ride on his sibling status. The Board saw no evidence that Congress meant “to expand the use of the concept[ ] of automatic conversion” to reach such a case. Id., at 36. And the Board thought such an expansion unwarranted because it would allow aliens like Wang’s daughter, who lacked any independent entitlement to a visa during the years her father spent standing on the F4 queue, to “cut[ ] in line ahead of others awaiting visas in other preference categories.” Id., at 38. C      The respondents in this case are similarly situated to Wang, and they seek the same relief. Each was once the principal beneficiary of either an F3 petition filed by a U. S. citizen parent or an F4 petition filed by a U. S. citizen sibling. Each also has a son or daughter who, on the date of filing, was under 21 and thus qualified as a derivative beneficiary of the petition. But as was true of Wang’s daughter, the respondents’ offspring had all turned 21 (even accounting for §1153(h)(1)’s age adjustments) by the time visas became available. Accordingly, the respondents immigrated to the United States alone and, as new LPRs, filed F2B petitions for their sons and daughters. Each argued that under §1153(h)(3), those petitions should get the same priority date as the original F3 and F4 petitions once had. USCIS instead gave the new F2B petitions current priority dates, meaning that the sons and daughters could not leapfrog over others in the F2B line.      This case began as two separate suits, one joining many individual plaintiffs and the other certified as a class action. In each suit, the District Court deferred to the BIA’s interpretation of §1153(h)(3) in Wang, and accordingly granted summary judgment to the Government. See Zhang v. Napolitano, 663 F. Supp. 2d 913, 919 (CD Cal. 2009); Costelo v. Chertoff, No. SA08–00688, 2009 WL 4030516 (CD Cal., Nov. 10, 2009). After consolidating the two cases on appeal, a panel of the Ninth Circuit affirmed: Like the lower courts, it found §1153(h)(3) ambiguous and acceded to the BIA’s construction. 656 F. 3d 954, 965–966 (2011). The Ninth Circuit then granted rehearing en banc and reversed in a 6-to-5 decision. 695 F. 3d 1003 (2012). The majority concluded that “the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to [all] aged-out derivative beneficiaries,” and that the Board’s contrary conclusion “is not entitled to deference.” Id., at 1006.      We granted certiorari, 570 U. S. ___ (2013), to resolve a Circuit split on the meaning of §1153(h)(3),[ 9 ] and we now reverse the Ninth Circuit’s decision. II      Principles of Chevron deference apply when the BIA interprets the immigration laws. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 –844 (1984); INS v. Aguirre-Aguirre, 526 U. S. 415 –425 (1999). Indeed, “judicial deference to the Executive Branch is especially appropriate in the immigration context,” where decisions about a complex statu-tory scheme often implicate foreign relations. Id., at 425. (Those hardy readers who have made it this far will surely agree with the “complexity” point.) Under Chevron, the statute’s plain meaning controls, whatever the Board might have to say. See 467 U. S., at 842–843. But if the law does not speak clearly to the question at issue, a court must defer to the Board’s reasonable interpretation, rather than substitute its own reading. Id., at 844.      And §1153(h)(3) does not speak unambiguously to the issue here—or more precisely put, it addresses that issue in divergent ways. We might call the provision Janus-faced. Its first half looks in one direction, toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition. But as the BIA recognized, and we will further explain, the section’s second half looks another way, toward a remedy that can apply to only a subset of those beneficiaries—and one not including the respondents’ offspring. The two faces of the statute do not easily cohere with each other: Read either most naturally, and the other appears to mean not what it says. That internal tension makes possible alternative reasonable constructions, bringing into correspondence in one way or another the section’s different parts. And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.      Begin by reading the statute from the top—the part favoring the respondents. Section 1153(h)(3)’s first clause—“If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d)”—states a condition that every aged-out beneficiary of a preference petition satisfies. That is because all those beneficiaries have had their ages “determined under paragraph (1)” (and have come up wanting): Recall that the age formula of §1153(h)(1) applies to each alien child who originally qualified (under “subsections (a)(2)(A) and (d)”) as the principal beneficiary of an F2A petition or the derivative beneficiary of any family preference petition. On its own, then, §1153(h)(3)’s opening clause encompasses the respondents’ sons and daughters, along with every other once-young beneficiary of a family preference petition now on the wrong side of 21. If the next phrase said something like “the alien shall be treated as though still a minor” (much as the CSPA did to ensure U. S. citizens’ children, qualifying as “immediate relatives,” would stay forever young, see supra, at 7–8), all those aged-out beneficiaries would prevail in this case.      But read on, because §1153(h)(3)’s second clause instead prescribes a remedy containing its own limitation on the eligible class of recipients. “[T]he alien’s petition,” that part provides, “shall automatically be converted to the appropriate category and the alien shall retain the original priority date.” That statement directs immigration officials to take the initial petition benefitting an alien child, and now that he has turned 21, “convert[ ]” that same petition from a category for children to an “appropriate category” for adults (while letting him keep the old priority date). The “conversion,” in other words, is merely from one category to another; it does not entail any change in the petition, including its sponsor, let alone any new filing. And more, that category shift is to be “automatic”—that is, one involving no additional decisions, contingencies, or delays. See, e.g., Random House Webster’s Unabridged Dictionary 140 (2d ed. 2001) (defining “automatic” as “having the capability of starting, operating, moving, etc., independently”); The American Heritage Dictionary 122 (4th ed. 2000) (“[a]cting or operating in a manner essentially independent of external influence”). The operation described is, then, a mechanical cut-and-paste job—moving a petition, without any substantive alteration, from one (no-longer-appropriate, child-based) category to another (now-appropriate, adult) compartment. And so the aliens who may benefit from §1153(h)(3)’s back half are only those for whom that procedure is possible. The clause offers relief not to every aged-out beneficiary, but just to those covered by petitions that can roll over, seamlessly and promptly, into a category for adult relatives.      That understanding of §1153(h)(3)’s “automatic conversion” language matches the exclusive way immigration law used the term when Congress enacted the CSPA. For many years before then (as today), a regulation entitled “Automatic conversion of preference classification” instructed immigration officials to change the preference category of a petition’s principal beneficiary when either his or his sponsor’s status changed in specified ways. See 8 CFR §§204.2(i)(1)–(3) (2002). For example, the regulation provided that when a U. S. citizen’s child aged out, his “immediate relative” petition converted to an F1 petition, with his original priority date left intact. See §204.2(i)(2). Similarly, when a U. S. citizen’s adult son married, his original petition migrated from F1 to F3, see §204.2(i) (1)(i); when, conversely, such a person divorced, his petition converted from F3 to F1, see §204.2(i)(1)(iii); and when a minor child’s LPR parent became a citizen, his F2A petition became an “immediate relative” petition, see §204.2(i)(3)—all again with their original priority dates. Most notable here, what all of those authorized changes had in common was that they could occur without any change in the petitioner’s identity, or otherwise in the petition’s content. In each circumstance, the “automatic conversion” entailed nothing more than picking up the petition from one category and dropping it into another for which the alien now qualified.[ 10 ]      Congress used the word “conversion” (even without the modifier “automatic”) in the identical way in two other sections of the CSPA. See Law v. Siegel, 571 U. S. ___, ___ (slip op., at 7) (2014) (“[W]ords repeated in different parts of the same statute generally have the same meaning”). Section 2 refers to occasions on which, by virtue of the above-described regulation, a petition “converted” from F2A to the “immediate relative” category because of the sponsor parent’s naturalization, or from the F3 to theF1 box because of the beneficiary’s divorce. 8 U. S. C. §§1151(f )(2), (3). Then, in §6, Congress authorized an additional conversion of the same nature: It directed that when an LPR parent-sponsor naturalizes, the petition he has filed for his adult son or daughter “shall be converted,” unless the beneficiary objects, from the F2B to the F1 compartment—again with the original priority date unchanged. 8 U. S. C. §§1154(k)(1)–(3). (That opt-out mechanism itself underscores the otherwise mechanical nature of the conversion.) Once again, in those cases, all that is involved is a recategorization—moving the same petition, filed by the same petitioner, from one preference classification to another, so as to reflect a change in either the alien’s or his sponsor’s status. In the rest of the CSPA, as in the prior immigration regulation, that is what “conversion” means.      And if the term meant more than that in §1153(h)(3), it would undermine the family preference system’s core premise: that each immigrant must have a qualified sponsor. Consider the alternative addressed in Wang—if “automatic conversion” were also to encompass the substitution of a new petitioner for the old one, to make sure the aged-out alien’s petition fits into a new preference category. In a case like Wang, recall, the original sponsor doesnot have a legally recognized relationship with the aged-out derivative beneficiary (they are aunt and niece); accordingly, the derivative’s father—the old principal beneficiary—must be swapped in as the petitioner to enable his daughter to immigrate. But what if, at that point, the father is in no position to sponsor his daughter? Suppose he decided in the end not to immigrate, or failed to pass border inspection, or died in the meanwhile. Or suppose he entered the country, but cannot sponsor a relative’s visa because he lacks adequate proof of parentage or committed a disqualifying crime. See §1154(a)(1)(B)(i)(II); 8 CFR §204.2(d)(2); supra, at 4. Or suppose he does not want to—or simply cannot—undertake the significant financial obligations that the law imposes on someone petitioning for an alien’s admission. See 8 U. S. C. §§1183a(a)(1)(A), (f )(1)(D); supra, at 5. Immigration officials cannot assume away all those potential barriers to entry: That would run counter to the family preference system’s insistence that a qualified and willing sponsor back every immigrant visa. See §§1154(a)–(b). But neither can they easily, or perhaps at all, figure out whether such a sponsor exists unless he files and USCIS approves a new petition—the very thing §1153(h)(3) says is not required.      Indeed, in cases like Wang, the problem is broader: Under the statute’s most natural reading, a new qualified sponsor will hardly ever exist at the moment the petition is to be “converted.” Section 1153(h)(3), to be sure, does not explicitly identify that point in time. But §1153(h)(1) specifies the date on which a derivative beneficiary is deemed to have either aged out or not: It is “the date on which an immigrant visa number became available for the alien’s parent.” See §§1153(h)(1)(A)–(B). Because that statutory aging out is the one and only thing that triggers automatic conversion for eligible aliens, the date of conversion is best viewed as the same. That reading, more-over, comports with the “automatic conversion” regulation on which Congress drew in enacting the CSPA, see supra, at 16–17: The rule authorizes conversions “upon” or “as of the date” of the relevant change in the alien’s status (including turning 21))—regardless when USCIS may receive notice of the change. 8 CFR §204.2(i); but cf. post, at 14 (Sotomayor, J., dissenting) (wrongly stating that under that rule conversion occurs upon the agency’s receipt of proof of the change). But on that date, no new petitioner will be ready to step into the old one’s shoes if such a substitution is needed to fit an aged-out beneficiary into a different category. The beneficiary’s parent, on the day a “visa number became available,” cannot yet be an LPR or citizen; by definition, she has just become eligible to apply for a visa, and faces a wait of at least several months before she can sponsor an alien herself. Nor, except in a trivial number of cases, is any hitherto unidentified person likely to have a legally recognized relationship to the alien. So if an aged-out beneficiary has lost his qualifying connection to the original petitioner, no conversion to an “appropriate category” can take place at the requisite time. As long as immigration law demands some valid sponsor, §1153(h)(3) cannot give such an alien the designated relief.      On the above account—in which conversion entails a simple reslotting of an original petition into a now-appropriate category—§1153(h)(3)’s back half provides a remedy to two groups of aged-out beneficiaries. First, any child who was the principal beneficiary of an F2A petition (filed by an LPR parent on his behalf) can take advantage of that clause after turning 21. He is, upon aging out, the adult son of the same LPR who sponsored him as a child; his petition can therefore be moved seamlessly—without the slightest alteration or delay—into the F2B category. Second, any child who was the derivative beneficiary of an F2A petition (filed by an LPR on his spouse’s behalf) can similarly claim relief, provided that under the statute, he is not just the spouse’s but also the petitioner’s child.[ 11 ] Such an alien is identically situated to the aged-out principal beneficiary of an F2A petition; indeed, for the price of another filing fee, he could just as easily have been named a principal himself. He too is now the adult son of the original LPR petitioner, and his petition can also be instantly relabeled an F2B petition, without any need to substitute a new sponsor or make other revisions. In each case, the alien had a qualifying relationship before he was 21 and retains it afterward; all that must be changed is the label affixed to his petition.[ 12 ]      In contrast, as the Board held in Wang, the aged-out derivative beneficiaries of the other family preference categories—like the sons and daughters of the respondents here—cannot qualify for “automatic conversion.” Recall that the respondents themselves were principal beneficiaries of F3 and F4 petitions; their children, when under 21, counted as derivatives, but lacked any qualifying preference relationship of their own. The F3 derivatives were the petitioners’ grandsons and granddaughters; the F4 derivatives their nephews and nieces; and none of those are relationships Congress has recognized as warranting a family preference. See 8 U. S. C. §§1153(a)(3)–(4). Now that the respondents’ children have turned 21, and they can no longer ride on their parents’ coattails, that lack of independent eligibility makes a difference. For them, unlike for the F2A beneficiaries, it is impossible simply to slide the original petitions from a (no-longer-appropriate) child category to a (now-appropriate) adult one. To fit into a new category, those aged-out derivatives, like Wang’s daughter, must have new sponsors—and for all the reasons already stated, that need means they cannot benefit from “automatic conversion.”      All that said, we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged-out beneficiaries. That is because, as we explained earlier, the two halves of §1153(h)(3) face in different directions. See supra, at 14. Section 1153(h)(3)’s first part—its conditional phrase—encompasses every aged-out beneficiary of a family preference petition, and thus points toward broad-based relief. But as just shown, §1153(h)(3)’s second part—its remedial prescription—applies only to a narrower class of beneficiaries: those aliens who naturally qualify for (and so can be “automatically converted” to) a new preference classification when they age out. Were there an interpretation that gave each clause full effect, the Board would have been required to adopt it. But the ambiguity those ill-fitting clauses create instead left the Board with a choice—essentially of how to reconcile the statute’s different commands. The Board, recognizing the need to make that call, opted to abide by the inherent limits of §1153(h)(3)’s remedial clause, rather than go beyond those limits so as to match the sweep of the section’s initial condition. On the Board’s reasoned view, the only beneficiaries entitled to statutory relief are those capable of obtaining the remedy designated. When an agency thus resolves statutory tension, ordinary principles of administrative deference require us to defer. See National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 666 (2007) (When a statutory scheme contains “a fundamental ambiguity” arising from “the differing mandates” of two provisions, “it is appropriate to look to the implementing agency’s expert interpretation” to determine which “must give way”). III      The respondents urge us to overturn the Board’s judgment for three independent reasons. First, and principally, they take issue with the Board’s—and now our—viewof the limits associated with “automatic conversion”: They argue that every aged-out beneficiary’s petition can “automatically be converted” to an “appropriate category,” and that the two halves of §1153(h)(3) are thus reconcilable. Second, the respondents contend that even if “automatic conversion” does not extend so far, §1153(h)(3) separately entitles each such beneficiary to the benefit of his original petition’s priority date. And third, they claim that the Board’s way of resolving whatever ambiguity inheres in §1153(h)(3) is arbitrary and capricious. The dissenting opinion reiterates the first two arguments, though with slight variation and in opposite order, while forgoing the third. See post, at 9–19 (opinion of Sotomayor, J.) (hereinafter the dissent). We find none of the contentions persuasive. A      The respondents (and the dissent) initially aver that every aged-out beneficiary (including their own sons and daughters) can “automatically be converted” to an “appropriate” immigration category, if only immigration officials try hard enough. The Government, in the respondents’ view, can accomplish that feat by substituting new sponsors for old ones, and by “managing the timing” of every conversion to ensure such a new petitioner exists on the relevant date. Brief for Respondents 33. And because, the respondents say, it is thus possible to align the two halves of §1153(h)(3)—even if through multiple administrative maneuvers—immigration officials are under an obligation to do so. We disagree, for reasons that should sound familiar: Several are the same as those we have just given for upholding the Board’s interpretation. But still, we walk through the respondents’ argument step-by-step, to show how far it departs from any ordinary understanding of “automatic conversion.”      The first (and necessary) premise of that argument does not augur well for the remainder: It is the view that the “automatic conversion” procedure permits a change in the petitioner’s identity. According to the respondents, the aged-out beneficiaries’ parents, upon becoming LPRs, can be subbed in for the original sponsors (i.e., the beneficiaries’ grandparents, aunts, and uncles), and the petitions then converted to the F2B category. But as we have shown, the “automatic conversion” language—as most naturally read and as long used throughout immigration law—contemplates merely moving a petition into a new and valid category, not changing its most essential feature. See supra, at 15–17. That alone defeats the respondents’ position.      And a further problem follows—this one concerning the date of automatic conversion. The respondents need that date to come at a time when the derivative beneficiaries’ parents (the substitute petitioners) are already living in the United States as LPRs; otherwise, the petitions could not qualify for the F2B box. In an attempt to make that possible, the respondents propose that conversion be viewed as taking place when “the derivative beneficiary’s visa . . . application is adjudicated.” Brief for Respondents 29. But as we have (again) demonstrated, the statute is best read as establishing a different date: that “on which an immigrant visa number became available for the alien’s parent”—when, by definition, the parent is not yet an LPR. §1153(h)(1); see supra, at 18–19. That is the moment when a derivative ages out, which is the single change conversion reflects. By contrast, the respondents’ suggested date has no connection to that metamorphosis; the date of adjudication is merely when an immigration official later discovers that a child has turned 21. And that date is itself fortuitous, reflecting no more than when an immigration officer got around to reviewing a visa application: The possibility of conversion would thus depend on bureaucratic vagaries attending the visa process. So the respondents’ mistaken view of the timing of conversion is another off-ramp from their argument.[ 13 ]      Yet there is more—because even after substituting a new petitioner and delaying the conversion date in a way the statute does not contemplate, the respondents must propose yet further fixes to make “automatic” conversion work for their sons and daughters. The respondents’ next problem is that even on the conversion date they propose, most of them (and other derivatives’ parents) were not yet LPRs, and so could not possibly be sponsors. In the ordinary course, principal and derivative beneficiaries living abroad apply for their visas at the same time and go to the consulate together for back-to-back interviews. See supra, at 6. And even if the parent is approved first, that alone does not make her an LPR; she still must come to this country, demonstrate her continued eligibility, and pass an inspection. See ibid. Thus, the respondents must recommend changes to the visa process to get the timing to work—essentially, administrative juggling to hold off the derivative beneficiary’s visa adjudication until his parent has become an LPR. In particular, they suggest that the consular official defer the derivative’s interview, or that the official nominally “reject the application” and then instruct the derivative to “reapply after the principal beneficiary immigrates.” Brief for Respondents 30. But the need for that choreography (which, in any event, few if any of the respondents conformed to) renders the conversion process only less “automatic,” because now it requires special intervention, purposeful delay, and deviation from standard administrative practice. Conversion has become not a machine that would go of itself, but a process painstakingly managed.      And after all this fancy footwork, the respondents’ scheme still cannot succeed, because however long a visa adjudication is postponed, a derivative’s parent may never become able to sponsor a relative’s visa—and immigration officials cannot practicably tell whether a given parent has done so. We have noted before the potential impediments to serving as a petitioner—including that a parent may not immigrate, may not qualify as a sponsor, or may not be able to provide the requisite financial support. See supra, at 17–18. The respondents offer no way to deal with those many contingencies. Require the parent to submit a new petition? But the entire point of automatic conversion (as the respondents themselves agree) is to obviate the need for such a document. See Brief for Respondents 30, 42. Investigate the parent’s eligibility in some other way? But even were that possible (which we doubt) such an inquiry would not square with the essential idea of an automatic process. Disregard the possibility that no legal sponsor exists? But then visas would go, inevitably and not infrequently, to ineligible aliens. And so the workarounds have well and truly run out on the respondents’ argument.[ 14 ]      That leaves us with the same statutory inconsistency with which we began. Having followed each step of the respondents’ resourceful (if Rube Goldbergish) argument, we still see no way to apply the concept of automatic conversion to the respondents’ children and others like them. And that means we continue to face a statute whose halves do not correspond to each other—giving rise to an ambiguity that calls for Chevron deference. B      The respondents, however, have another idea for reconciling §1153(h)(3)’s front and back parts (and this back-up claim becomes the dissent’s principal argument). Recall that the section’s remedial clause instructs that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The respondents (and the dissent) ask us to read the italicized language as conferring a benefit wholly independent of automatic conversion. On that view, aged-out derivatives, even though ineligible for conversion, could “retain the[ir] original priority date[s]” if their parents file a new petition (as the respondents in fact did here “as a protective matter,” Tr. of Oral Arg. 55). And then, everyone encompassed in §1153(h)(3)’s first clause would get at least some form of relief (even if not both forms) from the section’s second. For this argument, the respondents principally rely on the word “and”: “Where the word ‘and’ connects two” phrases as in §1153(h)(3)’s back half, the respondents contend, those terms “operate independently.” Brief for Respondents 39; see post, at 9.      But the conjunction “and” does not necessarily disjoin two phrases in the way the respondents say. In some sentences, no doubt, the respondents have a point. They use as their primary example: “[I]f the boat takes on water, then you shall operate the bilge pump and you shall distribute life jackets.” Brief for Respondents 39; see also post, at 10 (offering further examples). We agree that “you shall distribute life jackets” functions in that sentence as an independent command. But we can come up with many paired dictates in which the second is conditional on the first. “If the price is reasonable, buy two tickets and save a receipt.” “If you have time this summer, read this book and give me a report.” Or, shades of this case: “If your cell-phone contract expires, buy a new phone and keep the old number.”[ 15 ] In each case, the second command functions only once the first is accomplished. Whether “and” works in that way or in the respondents’ depends, like many questions of usage, on the context. See, e.g., Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U. S. ___, ___ (2012).      Here, we think, context compels the Board’s view that the instructions work in tandem. The first phrase instructs immigration officials to convert a petition (when an “appropriate category” exists); the next clarifies that such a converted petition will retain the original priority date, rather than receive a new one corresponding to the date of conversion. That reading comports with the way retention figures in other statutory and regulatory provisions respecting “conversions”; there too, retention of a priority date is conditional on a conversion occurring. See 8 U. S. C. §§1154(k)(1)–(3); 8 CFR §204.2(i); supra, at 16. The respondents wish to unhook the “retention” phrase from that mooring, and use it to explain what will attend a different event—that is, the filing of a new petition. But that is to make “retention” conditional on something the statute nowhere mentions—a highly improbable thing for Congress to have done. (If, once again, a teacher says to “read this book and give me a report,” no one would think he wants a report on some unidentified subject.) And indeed, the respondents’ and dissent’s own examples prove this point: In not a single one of their proffered sentences is the second command contingent on the occurrence of some additional, unstated event, as it would have to be under the respondents’ construction of §1153(h)(3); rather, each such command (e.g., “distribute life jackets”) flows directly from the stated condition (e.g., “if the boat takes on water”). So by far the more natural understanding of §1153(h)(3)’s text is that retention follows conversion, and nothing else.      The respondents’ contrary view would also engender unusual results, introducing uncertainty into the immigration system’s operation and thus interfering with statutory goals. Were their theory correct, an aged-out alien could hold on to a priority date for years or even decades while waiting for a relative to file a new petition. Even if that filing happened, say, 20 years after the alien aged out, the alien could take out his priority-date token, and assert a right to spring to the front of any visa line. At that point, USCIS could well have a hard time confirming the old priority date, in part because the names of derivative beneficiaries need not be listed on a visa petition. And the possibility of such leap-frogging from many years past would impede USCIS’s publication of accurate waiting times. As far as we know, immigration law nowhere else allows an alien to keep in his pocket a priority date untethered to any existing valid petition. Without some clearer statement, we cannot conclude Congress intended here to create such a free-floating, open-ended entitlement to a defunct petition’s priority date. See Wang, 25 I. & N. Dec., at 36.[ 16 ] C      Finally, the respondents contend that even if §1153(h)(3) points at once in two directions—toward a broader scope in its first half and a narrower one in its second—the BIA acted unreasonably in choosing the more restrictive reading. In their view, the Board has offered no valid reason, consistent with “the purposes and concerns of the immigration laws,” to treat their own sons and daughters less favorably than aliens who were principal and derivative beneficiaries of F2A petitions. Brief for Respondents 47. Indeed, the respondents suggest that the BIA, “for its own unfathomable reasons, disapproves of Congress’s decision to allow any aged-out” aliens to get relief, and has thus “limited [§1153(h)(3)] to as few derivative beneficiaries as possible.” Id., at 55.      We cannot agree. At the least, the Board’s interpretation has administrative simplicity to recommend it. Under that view, immigration authorities need only perform the kind of straightforward (i.e., “automatic”) conversion they have done for decades—moving a petition from one box to another to reflect a given status change like aging out. See Wang, 25 I. & N. Dec., at 36. The respondents, as we have shown, would transform conversion into a managed, multi-stage process, requiring immigration and consular officials around the world to sequence and delay every aged-out alien’s visa adjudication until they are able to confirm that one of his parents had become a qualifying and willing F2B petitioner. And according to the Government’s (incomplete) statistics, that would have to happen in, at a minimum, tens of thousands of cases every year. See Reply Brief 18, n. 13.      Still more important, the Board offered a cogent argument, reflecting statutory purposes, for distinguishing between aged-out beneficiaries of F2A petitions and the respondents’ sons and daughters. See Wang, 35 I. & N. Dec., at 38. As earlier explained, the F2A beneficiaries have all had a qualifying relationship with an LPR for the entire period they have waited in line—i.e., since their original priority dates. See supra, at 19–20. That means that when immigration authorities convert their petitions, they will enter the F2B line at the same place as others who have had a comparable relationship for an equal time. The conversion thus fits with the immigration law’s basic first-come-first-served rule. See 8 U. S. C. §1153(e); supra, at 4. By contrast, the derivative beneficiaries of F3 and F4 petitions, like the respondents’ sons and daughters, lacked any qualifying relationship with a citizen or LPR during the period they waited in line. See supra, at 20–21. They were, instead, the grandchildren, nieces, or nephews of citizens, and those relationships did not independently entitle them to visas. If such aliens received relief under §1153(h)(3), they would jump over thousands of others in the F2B line who had a qualifying relationship with an LPR for a far longer time. That displacement would, the Board reasonably found, scramble the priority order Congress prescribed.      The argument to the contrary assumes that the respondents’ sons and daughters should “receive credit” for all the time the respondents themselves stood in line. Brief for Respondents 50. But first, the time the respondents spent waiting for a visa may diverge substantially from the time their children did. Suppose, for example, that one of the respondents had stood in the F4 queue for 15 years, and with just 4 years to go, married someone with a 17-year-old son. Under the respondents’ reading, that derivative beneficiary, after aging out, would get the full benefit of his new parent’s wait, and so displace many thousands of aliens who (unlike him) had stood in an immigration queue for nearly two decades. And second, even when the derivative qualified as such for all the time his parent stood in line, his status throughout that period hinged on his being that parent’s minor child. If his parent had obtained a visa before he aged out, he would have been eligible for a visa too, because the law does not demand that a prospective immigrant abandon a minor child. But if the parent had died while waiting for a visa, or had been found ineligible, or had decided not to immigrate after all, the derivative would have gotten nothing for the time spent in line. See supra, at 5–6. Similarly, the Board could reasonably conclude, he should not receive credit for his parent’s wait when he has become old enough to live independently. In the unavoidably zero-sum world of allocating a limited number of visas, the Board could decide that he belongs behind any alien who has had a lengthier stand-alone entitlement to immigrate. IV      This is the kind of case Chevron was built for. What-ever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly. Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law. Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role. We decline that path, and defer to the Board.      We therefore reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 An alien already in the United States—for example, on a student or temporary worker visa—must obtain “adjustment of status” rather than an immigrant visa to become a lawful permanent resident. See . Because the criteria for securing adjustment of status and obtaining an immigrant visa are materially identical, we use the single term “immigrant visa” to refer to both. 2 The “family preference” label, as used by immigration officials, applies only to these five classifications, and not to the category for “im-mediate relatives” of U. S. citizens. See Brief for Petitioners 3, n. 1. 3 Immigrant visas can also go to aliens with special, marketable skills, see §§1151(a)(2), 1153(b), or to aliens from countries with historically low immigration to the United States, see §§1151(a)(3), 1153(c). None of the respondents here sought visas under those “employment-based” or “diversity” categories. 4 See Dept. of State, The Immigrant Visa Process: Visa Applicant Interview, online at http://travel.state.gov/content/visas/english/immigrate/immigrant-process/interview/applicant_interview.html (all Internet materials as visited June 5, 2014, and available in Clerk of Court’s case file). 5 The last part of the immigration process is streamlined for aliens already residing in the United States who have applied for adjustment of status. See n. 1, . The immigration officer interviewing such an alien, upon finding her visa-eligible, may declare her an LPR on the spot. See . But here too, the officer will not make a derivative beneficiary an LPR unless and until he approves that status for the principal. See 22 CFR §40.1(a)(2). 6 See USCIS, Processing Time Information, online at https://egov.uscis.gov/cris/processingTimesDisplayInit.do. 7 See The Immigrant Visa Process: Interview, online at http://travel.state.gov/content / visas / english / immigrate  / immigrant-process /interview.html. 8 The full text of these three paragraphs, for the masochists among this opinion’s readers, is as follows: 9 Compare 695 F. 3d 1003, 1006 (CA9 2012) (case below) (holding that §1153(h)(3) extends relief to all aged-out derivative beneficiaries); v. , 655 F. 3d 363, 365 (CA5 2011) (same), with v. , 654 F. 3d 376, 385 (CA2 2011) (holding that §1153(h)(3) not merely permits, but requires the Board’s contrary interpretation). 10 The dissent responds to this fact only with a pair of non-sequiturs. at 18–19 (opinion of ). First, the dissent cites a statutory provision that does not use the word “conversion” at all, so can hardly attest to its meaning. See . And next, the dissent cites a regulation that post-dated the CSPA by years, and thus is equally irrelevant to what Congress intended. See 71 Fed. Reg. 35732, 35749 (2006) (adding 8 CFR §204.2(i)(1)(iv)). More-over, both provisions relate to a circumstance in which a person can -petition for a visa because her U. S. citizen or LPR relative either died or engaged in domestic abuse. In that situation, the alien’s eligibility rests throughout on her connection to the deceased or abusive relative; no new party must ever come in, as one has to in a case like , to salvage a no-longer-effective petition. See , at 18 (addressing the problems that the substitution of a new petitioner raises). 11 Given the statute’s broad definition of “child,” the only F2A derivative beneficiaries who fall outside that proviso are stepchildren who were over the age of 18 when the petitioner married the spousal beneficiary. See §1101(b)(1)(B). The Government represents that thousands of children are designated as F2A derivatives every year. See Reply Brief 18, n. 13. 12 It is, therefore, impossible to understand the dissent’s statement that conversion of such a petition to an appropriate category requires “ ‘substantive alteration’ to [the] petition.” See , at 19, n. 8 (opinion of . 13 Still, the respondents’ view of the timing of conversion is better than the dissent’s. As an initial matter, the dissent’s objection to assessing conversion as of the date a visa becomes available hinges on an imaginary difficulty. That approach, the dissent complains, cannot be right because that date always “occurs before the point at which the child is determined to have aged-out.” at 15Well, yes. The date a visa becomes available is, under the statute, the date an alien ages out (or not); and that status change of course occurs before an immigration official, reviewing a visa application, finds that it has done so. But what of it? When an official determines that an alien was no longer a child on the date a visa became available, he also assesses whether automatic conversion was available to the alien that prior date. In other words, here as elsewhere in immigration law, conversion occurs (or not) upon the date of the relevant status change—and no other. See at 19. And once that is understood, the supposed difficulties the dissent throws up all melt away. At the time of the status change, F2A petitions can be converted without further contingencies, decisions, or delays, whereas no other petitions can. But cf. at 16, 17, n. 7 (countering, irrelevantly, that an F2A petition is automatically converted, additional steps remain in the immigration process). And immigration officials later reviewing visa applications know that fact, and can treat the different classes of aged-out beneficiaries accordingly. 14 Nor does the dissent offer any serious aid to the respondents. The dissent initially acknowledges that automatic conversion cannot involve “additional decisions, contingencies, or delays.” , at 13. But no worries, the dissent continues: “[O]nce [an alien’s parent] provides confirmation of her eligibility to sponsor” the aged-out alien, the original petition “can automatically be converted to an F2B petition, with no additional decision or contingency” or (presumably) delay. ,at 14. Think about that: Once every decision, contingency, and delay we have just described is over (and a parent has at long last turned out to be a viable sponsor), the dissent assures us that no further decisions, contingencies, and delays remain. Or, put differently, there are no contingencies after all the contingencies have been resolved; no decisions after all the decisions have been made; and no delay after all the delay has transpired. And as if that argument were not awkward enough, consider that it would make automatic conversion turn on the filing of a new document that shows the parent’s eligibility to sponsor her aged-out son or daughter—the very thing, as all parties agree, that conversion is supposed to render unnecessary. See at 18, 26. 15 The dissent appears to think that something helpful to its view follows from repeating the word “shall” and changing the subject of the commands. See at 9–10. But that is not so, as some further examples show. “If you advance to the next round, my assistant shall schedule an interview and you shall come in to answer questions.” “If the plane is low on fuel, the tanks shall be refilled and the pilot shall fly the route as scheduled.” In these sentences, as in our prior ones, the second command is conditional on the first; all that differs is that these sentences are (much like statutes) more formal and stilted. And the dissent’s citation of v. , , adds nothing to its argument. There, we construed the following provision: “[T]here shall be allowed to the holder of [a secured] claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” , at 241. We held that the phrase “provided for under the agreement” qualifies the words “any reasonable fees, costs, or charges,” but not the words “interest on such claim.” at 241–242. What relevance that interpretation bears to this case eludes us. 16 The dissent claims that USCIS “administered priority date retention in exactly this manner” before the CSPA’s enactment, , at 10, but that confident assertion is just not so—or at least not in any way that assists the respondents. The dissent principally relies on 8 CFR §204.2(a)(4), which prior to the CSPA’s enactment permitted an aged-out F2A derivative beneficiary to retain his old priority date “if [a] subsequent petition is filed ” as filed the original. Far from authorizing an open-ended, free-floating entitlement, that now-superseded regulation allowed an alien to keep his priority date only if he (unlike the respondents’ offspring) had a qualifying relationship with the initial petitioner—that is, only if he fell within the group that the BIA in thought entitled to reliefSee 25 I. & N. Dec., at 34–35. And the other provisions the dissent cites (which, unlike §204.2(a)(4), continue to operate) similarly fail to support the dissent’s position, because they enable an alien to retain a priority date only if attached to an existing valid petition. See (permitting an alien to retain a priority date associated with an ex-isting F2B petition); 8 CFR §204.5(e) (permitting an alien to retain apriority date associated with an existing employment-based peti-tion); §204.12(f)(1) (permitting an alien to retain a priority dateassociated with an existing employment-based petition for immigrating physicians). SUPREME COURT OF THE UNITED STATES _________________ No. 12–930 _________________ LORI SCIALABBA, ACTING DIRECTOR, UNITEDSTATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., PETITIONERS v. ROSA-LINA CUELLAR DE OSORIO et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 9, 2014]      Chief Justice Roberts, with whom Justice Scalia joins, concurring in the judgment.      I agree with much of the plurality’s opinion and with its conclusion that the Board of Immigration Appeals reasonably interpreted 8 U. S. C. §1153(h)(3). I write separately because I take a different view of what makes this provision “ambiguous” under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984) .      As the plurality reads section 1153(h)(3), the statute’s two clauses address the issue before the Court “in divergent ways” and “do not easily cohere with each other.” Ante, at 14. For the plurality, the first clause looks “toward the sweeping relief the respondents propose, which would reach every aged-out beneficiary of a family preference petition,” while the second clause offers narrower relief that can help “only a subset of those beneficiaries.” Ibid. Such “ill-fitting clauses,” the plurality says, “left the Board with a choice—essentially of how to reconcile the statute’s different commands.” Ante, at 21.      To the extent the plurality’s opinion could be read to suggest that deference is warranted because of a direct conflict between these clauses, that is wrong. Courts defer to an agency’s reasonable construction of an ambiguous statute because we presume that Congress intended to assign responsibility to resolve the ambiguity to the agency. Chevron, supra, at 843–844. But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice. Chevron is not a license for an agency to repair a statute that does not make sense.[ 1 ]      I see no conflict, or even “internal tension,” ante, at 14, in section 1153(h)(3). See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (we must “interpret the statute ‘as a symmetrical and coherent regulatory scheme,’ and ‘fit, if possible, all parts into a[ ] harmonious whole’ ” (citation omitted)).      The statute reads:      “If the age of an alien is determined under [section 1153(h)(1)] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” §1153(h)(3).      The first clause states a condition—one that beneficiaries from any preference category can meet—and thereby defines the persons potentially affected by this provision. But the clause does not grant anything to anyone. I disagree with the plurality that the first clause “points toward broad-based relief,” ante, at 21, because I do not think the first clause points toward any relief at all.[ 2 ]      Imagine a provision of the Tax Code that read: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” It would be immediately apparent from that provision that an enrolled student who lives on campus is not entitled to the deduction, even though the student falls within the conditional first clause. And yet no one would describe the two clauses as being in tension. If the Internal Revenue Service then interpreted the term “cost of off-campus housing” to exclude payments by a student who rents a home from his parents, a court would determine whether that interpretation was reasonable. The same is true in this case.[ 3 ]      The particular benefit provided by section 1153(h)(3) is found exclusively in the second clause—the only operative provision. There we are told what an aged-out beneficiary (from whatever preference category) is entitled to: His petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date.” §1153(h)(3). But automatic conversion is not possible for every beneficiary in every preference category, as the plurality convincingly demonstrates. Ante, at 15–19. Automatic conversion requires, at minimum, that the beneficiary have his own sponsor, who demonstrates that he is eligible to act as a sponsor, and who commits to providing financial support for the beneficiary. Ante, at 18. Some aged-out children will not meet those prerequisites, and they cannot benefit from automatic conversion even under respondents’ interpretation of the statute.[ 4 ]      Beyond those requirements, however, Congress did not speak clearly to which petitions can “automatically be converted.” §1153(h)(3). Whatever other interpretations of that provision might be possible, it was reasonable, for the reasons explained by the plurality, for the Board to interpret section 1153(h)(3) to provide relief only to a child who was a principal or derivative beneficiary of an F2A petition. That interpretation is consistent with the ordinary meaning of the statutory terms, with the established meaning of automatic conversion in immigration law, and with the structure of the family-based immigration system. Ante, at 15–20. It also avoids the problems that would flow from respondents’ proposed alternative interpretations, including the suggestion that retention of the original priority date provides a benefit wholly separate from automatic conversion. Ante, at 18–19, 22–32.      I concur in the judgment. Notes 1 v. , 551U. S. 644 (2007), is not to the contrary. There the Court confrontedtwo different statutes, enacted to address different problems, that pre-sented “seemingly categorical—and, at first glance, irreconcilable—legislative commands.” at 661. We deferred to an agency’s reasonable interpretation, which “harmonize[d] the statutes,” in large part because of our strong presumption that one statute does not impliedly repeal another. at 662–669. did not address the consequences of a single statutory provision that appears to give divergent commands. 2 For the same reason, I do not agree with the contention in ’s dissent that the first clause of section 1153(h)(3) unambiguously “answers the precise question in this case.” at 6. 3 ’s dissent accuses me of “ignor[ing]” the first clause of section 1153(h)(3), “treating [that] clause as a nullity,” and denying the clause “effect.” at 20–21. But that point is correct only if the reader adopts ’s own premise, that the first clause has operative effect on its own. I give the statute’s first clause precisely the (limited) effect it is meant to have: it defines who is affected by section 1153(h)(3). s response to the campus housing example proves my point by acknowledging that who gets relief under a statute depends entirely on the meaning of the statute’s operative provision, not on the reach of the introductory clause. See at 21. The Court would not reject a reasonable interpretation of the term “cost of off-campus housing,” as ’s dissent would, simply because the IRS could have interpreted the term to cover more students who fall within the prefatory clause. 4 s dissent is wrong that “the relief promised in §1153(h)(3) (priority date retention and automatic conversion) be given” to every aged-out child in every preference category, at 21, and it therefore follows that the statute is ambiguous. SUPREME COURT OF THE UNITED STATES _________________ No. 12–930 _________________ LORI SCIALABBA, ACTING DIRECTOR, UNITEDSTATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., PETITIONERS v. ROSA-LINA CUELLAR DE OSORIO et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 9, 2014]      Justice Alito, dissenting.      I agree with many of Justice Sotomayor’s criticismsof the plurality opinion. I also agree with The Chief Justice’s critique of the plurality’s suggestion that, when two halves of a statute “do not easily cohere with each other,” an agency administering the statute is free to decide which half it will obey. Ante, at 14. After all, “[d]irect conflict is not ambiguity, and the resolution of such conflict is not statutory construction but legislative choice.” Ante, at 2 (Roberts, C. J., concurring in judgment). While I, like Justice Sotomayor, would affirm the Court of Appeals, my justification for doing so differs somewhat from hers.      As I see it, the question before us is whether there is or is not an “appropriate category” to which the petitions for respondents’ children may be converted. If there is, the agency was obligated by the clear text of 8 U. S. C. §1153(h)(3) to convert the petitions and leave the children with their original priority dates. Any such conversion would be “automatic,” because the agency’s obligation to convert the petitions follows inexorably, and without need for any additional action on the part of either respondents or their children, from the fact that the children’s ages have been calculated to be 21 or older.[ 1 ] If there is not an appropriate category, then the agency was not required to convert the petitions.      By the time respondents became legal permanent residents and filed new petitions for their children (if not sooner), there existed an appropriate category to which the original petitions could be converted. That is because at that point the children all qualified for F2B preference status, as unmarried, adult children of legal permanent residents. Accordingly, the agency should have converted respondents’ children’s petitions and allowed them to retain their original priority dates.[ 2 ]      Section 1153(h)(3) is brief and cryptic. It may well contain a great deal of ambiguity, which the Board of Immigration Appeals in its expertise is free to resolve, so long as its resolution is a “permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984) . But the statute is clear on at least one point: “If the age of an alien is determined under [§1153(h)(1)] to be 21 years of age or older . . . , the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition” (emphasis added). The Board was not free to disregard this clear statutory command. Notes 1 I do not believe the term “converted” demands the interpretationthe plurality gives it, for the reasons advanced in ’s dissenting opinion. 2 The Government does not argue that respondents’ children were ineligible for relief because, as a factual matter, their ages were never “determined . . . to be 21 years of age or older,” §1153(h)(3), after an appropriate category became available. I therefore do not opine on this issue. SUPREME COURT OF THE UNITED STATES _________________ No. 12–930 _________________ LORI SCIALABBA, ACTING DIRECTOR, UNITEDSTATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., PETITIONERS v. ROSA-LINA CUELLAR DE OSORIO et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 9, 2014]      Justice Sotomayor, with whom Justice Breyer joins, and with whom Justice Thomas joins except as to footnote 3, dissenting.      Although the workings of our Nation’s immigration system are often complex, the narrow question of statutory interpretation at the heart of this case is straightforward. Which aged-out children are entitled to retain their prior-ity dates: derivative beneficiaries of visa petitions in all five family-preference categories, or derivative beneficiaries of petitions in only one category? The initial clause of 8 U. S. C. §1153(h)(3) provides a clear answer: Aged-out children may retain their priority dates so long as they meet a single condition—they must be “determined . . . to be 21 years of age or older for purposes of” derivative beneficiary status. Because all five categories of aged-out children satisfy this condition, all are entitled to relief.      Notwithstanding this textual command, the Board of Immigration Appeals (BIA) ruled that four of the five categories of aged-out children to whom §1153(h)(3) unambiguously promises priority date retention, are, in fact, entitled to no relief at all. See Matter of Wang, 25 I. & N. Dec. 28, 38–39 (2009). The Court defers to that interpretation today. In doing so, the Court does not identify any ambiguity in the dispositive initial clause of §1153(h)(3). Indeed, it candidly admits that the clause mandates relief for “every aged-out beneficiary of a family-preference petition” in any of the five categories. Ante, at 21. The Court nevertheless holds that the BIA was free to ignore this unambiguous text on the ground that §1153(h)(3) also offers aged-out derivative beneficiaries a type of relief—automatic conversion—that it thinks can apply only to one of the five categories. The Court thus perceives a conflict in the statute that, in its view, permits the BIA to override §1153(h)(3)’s initial eligibility clause.      In reaching this conclusion, the Court fails to follow a cardinal rule of statutory interpretation: When deciding whether Congress has “specifically addressed the question at issue,” thereby leaving no room for an agency to fill a statutory gap, courts must “interpret the statute ‘as a . . . coherent regulatory scheme’ and ‘fit, if possible, all parts into [a] harmonious whole.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 –133 (2000) (citation omitted). Because the Court and the BIA ignore obvious ways in which §1153(h)(3) can operate as a coherent whole and instead construe the statute as a self-contradiction that was broken from the moment Congress wrote it, I respectfully dissent. I      Under Chevron, the first question we ask when reviewing an agency’s construction of a statute is whether “Congress has directly spoken to the precise question at issue.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984) . If it has, then “the court, as well as the agency, must give effect to th[at] unambiguously expressed intent.” Id., at 842–843. Congress has spoken directly to the question in this case.      United States citizens and lawful permanent residents (LPRs) may petition for certain relatives who reside abroad (known as the “principal beneficiaries” of such petitions) to receive immigrant visas. Congress has defined five categories of eligible relatives—referred to as family-preference categories—with annual limits on the number of visas that may be issued within each category.[ 1 ] Because the demand for visas outstrips supply, the wait for a visa can often last many years. While a principal beneficiary waits, her place in line is determined based on her “priority date,” the date on which her petition was filed. See §1153(e)(1); 8 CFR §204.1(b) (2014); 22 CFR §42.53(a) (2013). Priority dates are therefore crucial—the earlier one’s priority date, the sooner one’s place will come up in line and a visa will be available. Significantly, when the wait ends and a principal beneficiary finally becomes eligible to apply for a visa, 8 U. S. C. §1153(d) enables the beneficiary’s spouse and minor children (known as “derivative beneficiaries”) to do so too.      This case arises from a common problem: Given the lengthy period prospective immigrants must wait for a visa, a principal beneficiary’s child—although younger than 21 when her parent’s petition was initially filed—often will have turned 21 by the time the parent’s priority date comes up in line. Such a child is said to have “aged out” of derivative beneficiary treatment under §1153(d). By way of example, respondent Norma Uy was the principal beneficiary of an F4 family-preference petition filed by her U. S. citizen sister in February 1981. That petition listed Norma’s daughter, Ruth, who was then two years old, as a derivative beneficiary. If Norma had reached the front of the visa line at any time before Ruth’s 21st birthday, §1153(d) would have enabled Ruth to accompany Norma to the United States. Unfortunately, it took more than two decades for Norma’s priority date to become current, by which point Ruth was 23 and thus too old for derivative beneficiary status under §1153(d). Norma therefore immigrated alone to the United States, where she filed a new F2B petition (for unmarried children of LPRs) on Ruth’s behalf. Before §1153(h)(3) was enacted, however, an immigrant in Ruth’s position would have been unable to retain the February 1981 priority date from her original petition; the law would have instead required her to receive a new priority date all the way at the back of the F2B line.      Congress responded to this problem by enacting §1153(h)(3), a provision entitled “[r]etention of priority date.” It states:      “If the age of an alien is determined under [the formula specified in] paragraph (1)[[ 2 ]] to be 21 years of age or older for the purpos[e] of . . . [§1153(d)] of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”      The provision’s structure is crucial to its meaning. The initial clause (call it the “eligibility clause”) specifies who is eligible for relief. The concluding clause (call it the “relief clause”) describes the two forms of relief to which eligible persons are entitled. As the title of the provision suggests, the main form of relief is the right of an aged-out derivative beneficiary to retain the priority date of her original petition. In Ruth Uy’s case, such relief would mean the difference between resuming her wait near the front of the F2B line (which would allow her to receive a visa in short order) and being sent to the back of the line (where she would potentially have to wait an additional 27 years). Brief for Respondents 52.      The question in this case is which aged-out beneficiaries of family-preference petitions are eligible for priority date retention: the aged-out beneficiaries of petitions in all five family-preference categories (which would include respondents’ children, who were derivative beneficiaries of F3 and F4 petitions for adult children and adult siblings of U. S. citizens, respectively), or the aged-out beneficiaries of only F2A petitions for spouses and children of LPRs (the interpretation offered by the BIA)?      Congress answered that question in §1153(h)(3)’s eligibility clause, which specifies that relief is to be conferred on any immigrant who has been “determined under [the formula specified in] paragraph (1) to be 21 years of age or older” for the purpose of §1153(d). As the plurality concedes, this clause “states a condition that every aged-out beneficiary of a preference petition satisfies”—that is, it makes eligible for relief aged-out children within each of the F1, F2A, F2B, F3, and F4 categories. Ante, at 14.      Congress made this clear in two mutually reinforc-ing ways. First, by referring to the formula set forth in “paragraph (1),” the statute incorporates that paragraph’s cross-reference to §1153(h)(2). Section 1153(h)(2) in turn defines the set of covered petitions to include, “with respect to an alien child who is a derivative beneficiary under [§1153(d)], a petition filed . . . for classificationof the alien’s parent under [§1153(a)].” And §1153(a) encompasses all five family-preference categories. See §§1153(a)(1)–(4). Second, §1153(h)(3) promises relief to those who are found to be 21 “for the purpos[e] of . . . [§1153](d),” the provision governing derivative beneficiaries. And that provision also unambiguously covers all five family-preference categories. See §1153(d) (a minor child is “entitled to the same status” as a parent who is the principal beneficiary of a petition filed under §1153(a)); §1153(a) (setting forth the five family-preferencecategories).      In short, §1153(h)(3)’s eligibility clause answers the precise question in this case: Aged-out beneficiaries within all five categories are entitled to relief. “[T]he intent of Congress is clear,” so “that is the end of the matter.” Chevron, 467 U. S., at 842. II A      Because it concedes that §1153(h)(3)’s eligibility clause unambiguously “encompasses every aged-out beneficiary of a family-preference petition,” ante, at 21, the plurality tries to fit this case into a special pocket of Chevron jurisprudence in which it says we must defer to an agency’s decision to ignore a clear statutory command due to a conflict between that command and another statutory provision. See ante, at 14, 21. Thus, unlike in the usual Chevron case, where ambiguity derives from the fact that the text does not speak with sufficient specificity to the question at issue, the plurality argues that this is a case in which ambiguity can only arise—if it is to arise at all—if Congress has spoken clearly on the issue in diametrically opposing ways.[ 3 ] As the plurality frames it, §1153(h)(3)’s eligibility and relief clauses are “Janus-faced,” and that conflict “makes possible alternative reasonable constructions.” Ante, at 14.      In rushing to find a conflict within the statute, the plurality neglects a fundamental tenet of statutory interpretation: We do not lightly presume that Congress has legislated in self-contradicting terms. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradic-tory. . . . [T]here can be no justification for needlessly ren-dering provisions in conflict if they can be interpreted harmoniously”). That is especially true where, as here, the conflict that Congress supposedly created is not between two different statutes or even two separate provisions within a single statute, but between two clauses in the same sentence. See ibid. (“[I]t is invariably true that intelligent drafters do not contradict themselves”). Thus, time and again we have stressed our duty to “fit, if possible, all parts [of a statute] into [a] harmonious whole.” FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959) ; see also Morton v. Mancari, 417 U. S. 535, 551 (1974) (when two provisions “are capable of co-existence, it is the duty of the courts . . . to regard each as effective”). In reviewing an agency’s construction of a statute, courts “must,” we have emphasized, “interpret the statute ‘as a . . . coherent regulatory scheme’ ” rather than an internally inconsistent muddle, at war with itself and defective from the day it was written. Brown & Williamson, 529 U. S., at 133. And in doing so, courts should “[e]mplo[y] traditional tools of statutory construction.” INS v. Cardoza-Fonseca, 480 U. S. 421, 446 (1987) . Each of these cautions springs from a common well: As judicious as it can be to defer to administrative agencies, our foremost duty is, and always has been, to give effect to the law as drafted by Congress.      The plurality contends that deference is appropriate here because, in its view, 8 U. S. C. §1153(h)(3)’s two clauses are “self-contradictory.” Ante, at 33. But far from it being unworkable (or even difficult) for the agency to obey both clauses, traditional tools of statutory construction reveal that §1153(h)’s clauses are entirely compatible. B      The plurality argues that although §1153(h)(3)’s eligibility clause clearly encompasses aged-out beneficiaries within all five preference categories, the relief clause implies a conflicting “limitation on the eligible class of recipients.” Ante, at 15. The plurality infers that limitation from two premises. First, it contends that no aged-out child may retain her priority date unless her petition is also eligible for automatic conversion. And second, it asserts that only aged-out F2A beneficiaries may receive automatic conversion. As a result, the plurality concludes, it was reasonable for the BIA to exclude aged-out children in the four other categories from receiving both automatic conversion and priority date retention, thereby rendering §1153(h)(3)’s eligibility clause defunct.      The plurality’s conclusion is wrong because its premises are wrong. For one, §1153(h)(3) is naturally read to confer priority date retention as an independent form of relief to all aged-out children, regardless of whether automatic conversion is separately available. And even if that were wrong, the plurality’s supposition that only F2A beneficiaries can receive automatic conversion is incorrect on its own terms. Because either of these interpretations would treat §1153(h)(3) as a coherent whole, the BIA’s construction was impermissible. 1      The most obvious flaw in the plurality’s analysis is its presumption that §1153(h)(3) permits an aged-out child to retain her original priority date only if her petition canbe automatically converted. That is incorrect for many reasons.      When an immigrant is determined to have aged out of derivative beneficiary status, §1153(h)(3) prescribes two forms of relief: “[T]he alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” We have held that when a statute provides two forms of relief in this manner, joined by the conjunction “and,” the two remedies are “distinct.” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 –242 (1989). That understanding makes particular sense here, where Congress used the mandatory word “shall” twice, once before each form of relief. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (“[T]he mandatory [term] ‘shall’ . . . normally creates an obligation impervious to judicial discretion”). Moreover, the two “shall” commands operate on different subjects, further reinforcing that they prescribe distinct remedies: An aged-out “alien’s petition shall automatically be converted,” but it is “the alien” herself who, in all events, “shall retain” her original priority date. §1153(h)(3) (emphasis added).      The plurality responds with a series of examples in which the word “and” is used to join two commands, one of which is—as the plurality asserts here—dependent on another. Ante, at 28, and n. 15. But as the plurality recognizes, ante, at 28, that is hardly the only way the word can be used. For example: “If today’s baseball game is rained out, your ticket shall automatically be converted to a ticket for next Saturday’s game, and you shall retain your free souvenir from today’s game.” Or: “If you provide the DMV with proof of your new address, your voter registration shall automatically be converted to the correct polling location, and you shall receive in the mail an updated driver’s license.” It is plain in both of these examples that the two commands are distinct—the fan in the first example can keep her free souvenir even if she cannot attend next Saturday’s game; the new resident will receive an updated driver’s license even if she is ineligible to vote. What the plurality does not explain is why we should forgo the same understanding of §1153(h)(3)’s relief clause when that would treat the statute as a coherent whole (and when the plurality’s alternative interpretation would render the statute a walking self-contradiction within the span of a few words).      With the text unavailing, the plurality turns to a policy argument. The plurality worries that if automatic conversion and priority date retention are independent benefits, aged-out beneficiaries will be able to “hold on to a priority date for years . . . while waiting for a relative to file a new petition,” which might hamper U. S. Citizenship and Immigration Services (USCIS) operations. Ante, at 29–30. But the plurality’s fears of administrative inconvenience are belied by the fact that USCIS has administered prior-ity date retention in exactly this manner for years, with no apparent problems. Well before §1153(h)(3) was enacted, a regulation provided aged-out F2A derivative beneficiaries the ability to retain their priority dates without also providing automatic conversion. See 8 CFR §204.2(a)(4) (permitting priority date retention after a “separate petition” is filed); 57 Fed. Reg. 41053, 41059 (1992) (adopting this provision). Indeed, the USCIS continues to instruct field officers that a “separate petition” must be filed in order for such beneficiaries to “retain” their “original priority date[s].” Adjudicator’s Field Manual, ch. 21.2(c)(5), online at http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1.html (all Internet materials as visited June 5, 2014, and available in Clerk of Court’s case file). The notion that it is somehow impossible for an immigrant to retain her priority date contingent upon the filing of a separate petition is therefore contradicted by years of agency experience.[ 4 ]      In the end, the plurality suggests that we should defer to the BIA’s all-or-nothing approach because “context compels” it. Ante, at 28. Yet fatally absent from the plurality’s discussion of context is any mention of the first clause of the very same provision, which, as the plurality admits, unambiguously confers relief upon all five categories of aged-out children. That clause is dispositive, because—assuming that F2A beneficiaries alone can receive automatic conversion—a reading that treats automatic conversion and priority date retention as independent benefits is the only one that would “produc[e] a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) ; see also Home Builders, 551 U. S., at 666 (“ ‘It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” ’ ”). 2      Even if it were somehow impossible for an aged-out child to retain her priority date independently of auto-matic conversion, the plurality is wrong to view automatic conversion as a benefit that F2A beneficiaries alone may enjoy.      Section 1153(h)(3) provides that if an aged-out child qualifies for relief under the statute’s eligibility clause, “the alien’s petition shall automatically be converted to the appropriate category.” Whether an aged-out beneficiary in a given preference category may enjoy this relief turns on how one understands the words “automatically” and “converted.” Because the statute does not define the terms, we apply their ordinary meaning. See Burrage v. United States, 571 U. S. ___, ___ (2014) (slip op., at 6).      The ordinary meaning of “automatic” is “ ‘having the capability of starting, operating, moving, etc., independently’ ” based upon some predetermined predicate event, with no “additional decisions, contingencies, or delays.” Ante, at 15 (quoting Random House Webster’s Unabridged Dictionary 140 (2d ed. 2001)). The ordinary meaning of “convert” is “to change (something) into a different form.” Id., at 444. Here, the statute specifies the form into which an aged-out child’s petition shall be changed: another petition in the “appropriate category.” §1153(h)(3). Tying the terms together, then, “automatic conversion” means changing an old petition into a new petition in an appropriate category upon the occurrenceof some predicate event, without a further decision or contingency.      All aged-out beneficiaries can have their petitions automatically converted under this definition. Perhaps most sensibly, all five categories of petitions may be converted to an appropriate category, without any further decision or contingency, upon a logical predicate event: when USCIS receives confirmation that an appropriate category exists. To see how this would work, recall the case of Norma Uy, and her daughter, Ruth. Norma was the principal beneficiary of an F4 petition filed by her U. S. citizen sister; Ruth was a derivative beneficiary of the same petition. Because Ruth had aged out of derivative beneficiary status prior to Norma’s reaching the front of the visa line, Norma immigrated to the United States without Ruth. Once Norma became an LPR, however, she also became eligible to file a new petition on Ruth’s behalf underthe F2B category (unmarried adult children of LPRs), §1153(a)(2)(B). Thus, once Norma provides confirmation of that eligibility to sponsor Ruth (i.e., that she is an LPR, that Ruth is her daughter, and that she has not committed disqualifying criminal conduct, see ante, at 4), Ruth’s original F4 petition can automatically be converted to an F2B petition, with no additional decision or contingency.[ 5 ]      Indeed, this is how USCIS already applies automatic conversion in other contexts. For example, when an LPR has filed an F2A petition on behalf of a spouse or child, and the LPR subsequently becomes a U. S. citizen, a provision entitled “[a]utomatic conversion of preference classification,” 8 CFR §204.2(i), permits the F2A petition to be automatically converted to an “immediate relative” petition, §204.2(i)(3). See ante, at 16. Significantly, the predicate event that triggers this conversion is the agency’s receipt of proof that the petition’s sponsor has become a U. S. citizen—proof, in other words, that there is an appropriate category into which the petition can be converted.[ 6 ] Section 1153(h)(3)’s automatic conversion remedy can sensibly be administered in the same way.      The plurality’s contrary conclusion that automatic conversion is impossible for all but one category of family-preference petitions hinges on three basic misunderstandings. First, the plurality contends that automatic conversion is triggered not by confirmation of the existence of an appropriate category, but rather by a different predicate event: the moment when “ ‘an immigrant visa number bec[omes] available for the alien’s parent.’ ” Ante, at 19. This is a curious argument, not least because nothing in §1153(h)(3) suggests it. That provision simply makes automatic conversion available “[i]f the age of an alien is determined” to be “be 21 years of age or older” for pur-poses of §1153(d). Section 1153(h)(3) thus states the condition that an immigrant must satisfy to be eligible for automatic conversion, but it nowhere commands when the conversion should occur. There is no reason why conversion cannot occur at the logical point just described: the moment when USCIS receives proof that an appropriate category exists.      The plurality acknowledges that §1153(h)(3) “does not explicitly identify th[e] point in time” at which a “petition is to be ‘converted.’ ” Ante, at 18. It nevertheless suggests that the date when a conversion occurs “is best viewed” as the date when a visa became available for the aged-out child’s parent. Ante, at 19. But Congress could not have intended conversion to occur at that point for a glaring reason: The date on which a visa becomes available for an aged-out child’s parent occurs before the point at which the child is determined to have aged-out under §1153(d)—the very requirement §1153(h)(3) prescribes for the aged-out child to be eligible for automatic conversion in the first place. As the plurality explains, ante, at 5–6, such age determinations occur when an immigration official reviews the child’s derivative visa application, which invariably happens after a visa became available for the child’s parent as the principal beneficiary. At best, then, the plurality’s interpretation requires USCIS to convert petitions at a time when it does not know which petitions are eligible for conversion; at worst, it requires the automatic conversion of petitions benefiting immigrants who will never even qualify for such relief (i.e., aged-out immigrants who, for any number of reasons, never file a visa application and so are never determined by officials to be older than 21).      Faced with this fact, the plurality falls back to the position that automatic conversion must merely be viewed as having occurred “as of th[e] . . . date” when a parent’s visa becomes available, although the actual “assess[ment]” of the conversion will necessarily occur at some future point in time. Ante, at 24, n. 13. That approach, however, introduces precisely the kind of “additional decisions, contingencies, and delays” that the plurality regards as inconsistent with the ordinary meaning of “automatic,” ante, at 15. For even under the plurality’s view, automatic conversion cannot actually be “assesse[d]” until and unless the aged-out child decides to apply for a visa and officials assessing the child’s application deem her to have aged out (events which may themselves be contingent on the child’s parent first filing her own successful visa application, see ante, at 6). The far simpler approach is for conversion to occur automatically upon the most logical moment suggested by the statute: the moment when USCIS confirms that an “appropriate category” exists, §1153(h)(3). Indeed, the plurality fails to explain why this cannot be the proper predicate; it simply dismisses such an approach as supported “only” by “a single-minded resolve . . . to grant relief to every possible aged-out beneficiary.” Ante, at 25, n. 13. But that criticism is revealing: The “single-minded resolve” the plurality maligns is Congress’ own, for it is Congress that expressly provided, in the eligibility clause, for aged-out beneficiaries in all five categories to be granted relief.      The plurality’s second argument is a corollary of its first. If automatic conversion must occur when a visa first becomes available for a parent, the plurality frets, that will mean an aged-out child will have her petition automatically converted before immigration officials can ascertain whether her parent is even qualified to sponsor her. See ante, at 17–18. True enough, but that only confirms that it makes no sense to force USCIS to convert petitions so prematurely. The plurality’s fears can all be averted by having automatic conversion occur, as with petitions sponsored by LPRs who later become U. S. citizens, supra, at 13–15, when USCIS receives confirmation that conversion is appropriate.[ 7 ]      The plurality’s final argument is that something about the term “conversion” precludes relief for all but the aged-out derivative beneficiaries of F2A petitions. The plurality accepts that “conversion” will always require changing some aspects of a petition, including its preference category (e.g., from F2A to F2B) and the identity of its principal beneficiary (e.g., from an aged-out child’s parent to the child). But the plurality asserts that a related kind of change is entirely off the table: a change to the identity of the petition’s sponsor. Ante, at 15. If a converted petition requires a different sponsor than the original petition, the plurality suggests, then it cannot be “converted” at all.      The plurality points to nothing in the plain meaning of “conversion” that supports this distinction. It instead argues that a “conversion” cannot entail a change to the identity of a petition’s sponsor because that is “the exclusive way immigration law used the term when Congress enacted the CSPA.” Ante, at 16. But immigration law has long allowed petitions to be converted from one category to another in contexts where doing so requires changing the sponsor’s identity. In 2006, for example, the Secretary of Homeland Security promulgated a regulatory provision entitled “automatic conversion of preference classification,” 8 CFR §204.2(i)(1)(iv), which allows the automatic conversion of a petition filed by a U. S. citizen on behalf of her spouse to a widower petition if the citizen dies before the petition is approved. That conversion requires changing the sponsor from the citizen to the widower himself. The fact that the agency used the word “conversion” to refer to a process in which the petition’s sponsor was changed, just a few years after 8 U. S. C. §1153(h)(3) was enacted, strongly suggests that the term did not have the exclusive meaning that the plurality suggests. Similarly, §1154(a)(1)(D)(i)(III), a provision enacted two years before §1153(h)(3), see Victims of Trafficking and Violence Protection Act of 2000, 114Stat. 1522, provides that a petition filed by a battered spouse on behalf of her child “shall be considered” a self-petition filed by the child herself if the child ages out—a conversion that obviously requires changing the identity of the sponsor from the battered spouse to the aged-out child. And §1153(h)(4) confirms that such “self-petitioners” are entitled to §1153(h)(3)’s automatic conversion remedy. The plurality never explains how it can be mandatory to “convert” the identity of the sponsors in these contexts yet impermissible to “convert” the sponsors of the petitions at issue here—an understanding that is especially implausible in light of Congress’ command that such petitions “shall automatically be converted to the appropriate category.” §1153(h)(3).[ 8 ] III      The concurrence reaches the same result as the plural-ity does, but for a different reason. It begins by recognizing that §1153(h)(3)’s eligibility clause “states a condition” that is satisfied by aged-out “beneficiaries from any preference category.” Ante, at 2 (Roberts, C. J., concurring in judgment). The concurrence thus acknowledges that the eligibility clause encompasses aged-out beneficiaries of family-preference petitions in the F1, F2A, F2B, F3, and F4 categories.      The concurrence nonetheless concludes that the BIA was free to exclude F1, F2B, F3, and F4 beneficiaries from the clear scope of the eligibility clause because of a perceived ambiguity as to which beneficiaries can receive “automatic conversion.” See ante, at 4 (“Congress did not speak clearly to which petitions can  ‘automatically be converted’ ”). In other words, the concurrence concludes that it was reasonable for the agency to ignore the clear text of the eligibility clause because the phrase “automatic conversion” might be read in a manner that would benefit F2A beneficiaries alone.      This is an unusual way to interpret a statute. The concurrence identifies no case in which we have deferred to an agency’s decision to use ambiguity in one portion of a statute as a license to ignore another statutory provision that is perfectly clear. To the contrary, “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex., 484 U. S., at 371.      The concurrence justifies its conclusion only by treating the eligibility clause as a nullity. The concurrence is quite candid about its approach, arguing that §1153(h)(3)’s relief clause is its “only operative provision” and that the eligibility clause does not “grant anything to anyone.” Ante, at 3. Yet “[i]t is our duty ‘to give effect, if possible, to every clause and word of a statute.’ ” United States v. Menasche, 348 U. S. 528 –539 (1955). And there is an easy way to give meaning to the eligibility clause: The clause identifies who is entitled to the benefits specified in the ensuing relief clause.      The concurrence relies ultimately on an irrelevant hypothetical: “If a student is determined to be enrolled at an accredited university, the student’s cost of off-campus housing shall be deductible on her tax return.” Ante, at 3. In this example, the concurrence points out, it is “apparent. . . that an enrolled student who lives on campus is not entitled to the deduction, even though the student falls within the conditional first clause.” Ibid. That is correct, but it says nothing about this case. For in the hypothetical, it is plain that the promised relief (a tax deduction for off-campus housing) cannot apply to the persons at issue (students who live on campus). Here, however, the relief promised in §1153(h)(3) (priority date retention and automatic conversion) can be given to persons specified inthe initial eligibility clause (aged-out children in all five family-preference categories). See supra, at 9–19. And once one recognizes that aged-out children in each cate-gory unambiguously covered by the eligibility clause can receive relief, the BIA’s view that no children in four of those categories can ever receive any relief cannot be reasonable.[ 9 ] *  *  *      Congress faced a difficult choice when it enacted §1153(h)(3). Given the “zero-sum world of allocating a limited number of visas,” ante, at 33, Congress could have required aged-out children like Ruth Uy to lose their place in line and wait many additional years (or even decades) before being reunited with their parents, or it could have enabled such immigrants to retain their place in line—albeit at the cost of extending the wait for other immigrants by some shorter amount. Whatever one might think of the policy arguments on each side, however, this much is clear: Congress made a choice. The plurality’s contrary view—that Congress actually delegated the choice to the BIA in a statute that unambiguously encompasses aged-out children in all five preference categories and commands that they “shall retain the[ir] original priority date[s],” §1153(h)(3)—is untenable.      In the end, then, this case should have been resolved under a commonsense approach to statutory interpretation: Using traditional tools of statutory construction, agencies and courts should try to give effect to a statute’s clear text before concluding that Congress has legislated in conflicting and unintelligible terms. Here, there are straightforward interpretations of §1153(h)(3) that allow it to function as a coherent whole. Because the BIA and the Court ignore these interpretations and advance a construction that contravenes the language Congress wrote, I respectfully dissent. Notes 1 The five categories are F1 (unmarried adult children of U. S. citizens); F2A (spouses and unmarried minor children of LPRs); F2B (unmarried adult children of LPRs); F3 (married children of U. S. citizens); and F4 (brothers and sisters of U. S. citizens). 8 U. S. C. §§1153(a)(1)–(4). 2 As the plurality explains, at 9–10, the formula specified in paragraph (1) subtracts out bureaucratic delays resulting from the Government’s review of the relevant immigration paperwork. That formula is not at issue in this case. 3 To understand the kind of conflict that can make deference appropriate to an agency’s decision to override unambiguous statutory text, consider the provisions at issue in v. , . One provision, §402(b) of the Clean Water Act, , commanded, “without qualification, that the [Environmental Protection Agency] ‘shall approve’ a transfer application” whenever nine exclusive criteria were satisfied. 551 U. S., at 661. A second provision, §7(a)(2) of the Endangered Species Act of 1973, , was “similarly imperative,” ordering “ ‘[e]ach Federal agency’ ” to ensure that its actions were “ ‘not likely to jeopardize’ ” an endangered species. 551 U. S., at 662. “[A]pplying [§7(a)(2)’s] language literally,” we observed, would contravene the “mandatory and exclusive list of [nine] criteria set forth in §402(b),” because it would “engraf[t] a tenth criterion onto” the statute. ., at 662–663. The agency accordingly could not “simultaneously obey” both commands: It could consider 9 criteria or 10, but not both. ., at 666. In that circumstance, we found it appropriate to defer to the agency’s choice as to “which command must give way.” 4 The plurality does not dispute that USCIS has administered priority date retention as a form of relief independent from automatic conversion for years. at 30, n. 16. It nonetheless argues that the same approach is impermissible here for the counterintuitive reason that a pre-existing regulation used express language limiting priority date retention to derivative beneficiaries of F2A petitions alone. See at 30, n. 16(noting that 8 CFR §204.2(a)(4) permitted an aged-out beneficiary to retain her priority date “ ‘if the subsequent petition is filed by the same petitioner’ ”). Congress included no such language to limit the scope of priority date retention in , however, which just reinforces what the eligibility clause already makes clear: Priority date retention is independently available for aged-out de-rivative beneficiaries of all family-preference petitions, not just F2A petitions. 5 Of course, just like any other beneficiary of a family visa petition, one whose petition has been automatically converted must still satisfy the requirements for actually obtaining a visa. See at 5. For example, all visa applicants must attach an “affidavit of support” from their sponsors. . As is true for any other beneficiary, nothing stops a sponsor from declining to swear their support for the beneficiary of an automatically converted petition after a visa has become available. Converting petitions upon proof of an appropriate category therefore produces no uncertainties or contingencies that do not already exist for all family visa applicants to begin with. 6 See Dept. of State, If You Were an LPR and Are Now a U. S. Citizen: Upgrading a Petition, online at http://travel.state.gov/visa/immigrants/‌types/types_2991.html#5. The regulation cited by the plurality, 8 CFR §204.2(i), is not to the contrary; it merely establishes that when an automatic conversion occurs, it shall be treated as “[e]ffective upon the date of naturalization,” §204.2(i)(3). As the State Department’s instructions make clear, the conversion itself takes place after the new citizen “send[s] proof of [her] U. S. citizenship to the National Visa Center.” Dept. of State, If You Were an LPR and Are Now a U. S. Citizen: Upgrading a Petition. 7 The plurality is unsatisfied with this approach to automatic conversion on the theory that, in order to eliminate all additional “decisions, contingencies, or delays” in the process, this solution postpones the moment of “conversion” until the necessary contingencies are satisfied. Yet the plurality’s approach does the same thing, because even on its account, some “decisions, contingencies, or delays” must occur before conversion can actually be assessed by immigration officials ( a parent’s visa must become available, the child must apply for a visa, and immigration officials must deem her to have aged out, see , at 16). So the only question is whether the “conversion” should be considered to occur after all “decisions, contingencies, or delays” are in the past such that there is an appropriate category for conversion, or after only some. The former understanding would allow the unambiguous language of the eligibility clause to be carried into effect; the latter would preclude relief for four categories of derivative beneficiaries. In support of its restrictive interpretation, the plurality offers only the argument that converting a petition upon proof of an appropriate category would require the “filing of a new document. . . that shows the parent’s eligibility to sponsor her aged-out [child].” , at 26, n. 14. The fact that a statute may require an agency to process a form is not a reason to disregard a coherent reading of a statute in favor of a self-contradictory one. 8 Moreover, had Congress actually intended to permit relief only where a new petition has the same sponsor as the original petition, it had a ready model in the language of a pre-existing regulation. See 8 CFR §204.2(a)(4) (conferring priority date retention on a derivative beneficiary only “if the subsequent petition is filed by the same petitioner”). If it had wanted to limit §1153(h)(3) to just the beneficiaries preferred by the BIA, “Congress could easily have said so.” v. , . 9 More fundamentally, the concurrence’s hypothetical is irrelevant because it altogether ignores a critical feature of the statute before us: §1153(h)(2)’s express enumeration of the covered petitions to include petitions filed within the F1, F2A, F2B, F3, and F4 preference categories. See at 5–6. A proper analogy would therefore be a provision that says the following: “If a student is determined to be enrolled at an accredited junior college, community college, or 4-year college, the student’s room and board shall be tax-deductible and the student shall receive financial aid.” Is there any permissible reading of this provision under which, although expressly covered in the eligibility clause, all junior and community college students are categorically forbidden to receive the tax deduction and financial aid? Of course not. And that would be true even if the term “room and board” were ambiguous and thus open to an interpretation under which only 4-year students could receive the tax deduction. Likewise here, where F1, F2B, F3, and F4 derivative beneficiaries may not be categorically excluded from relief because they are indisputably covered by §1153(h)(3)’s eligibility clause and able to receive the relief described in the relief clause.

The Supreme Court ruled that the Child Status Protection Act (CSPA) grants a remedy to all aliens who have "aged out" of the immigration process, not just those who are principal beneficiaries of a visa petition. This means that minor children of visa applicants who turn 21 while waiting for their visa to be processed are still eligible for the same immigration status and order of consideration as their parent. The Court's decision ensures that the time spent processing immigration papers will not count against the beneficiary's status, but they may still age out due to the time spent waiting for a visa to become available.

Government Agencies

FCC v. Prometheus Radio Project

https://supreme.justia.com/cases/federal/us/592/19-1231/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–1231 and 19–1241 _________________ FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS 19–1231 v. PROMETHEUS RADIO PROJECT, et al. NATIONAL ASSOCIATION OF BROADCASTERS, et al., PETITIONERS 19–1241 v. PROMETHEUS RADIO PROJECT, et al. on writs of certiorari to the united states court of appeals for the third circuit [April 1, 2021] Justice Kavanaugh delivered the opinion of the Court. Under the Communications Act of 1934, the Federal Communications Commission possesses broad authority to regulate broadcast media in the public interest. Exercising that statutory authority, the FCC has long maintained strict ownership rules. The rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. Under Section 202(h) of the Telecommunications Act of 1996, the FCC must review the ownership rules every four years, and must repeal or modify any ownership rules that the agency determines are no longer in the public interest. In a 2017 order, the FCC concluded that three of its ownership rules no longer served the public interest. The FCC therefore repealed two of those rules—the Newspaper/Broadcast Cross-Ownership Rule and the Radio/Television Cross-Ownership Rule. And the Commission modified the third—the Local Television Ownership Rule. In conducting its public interest analysis under Section 202(h), the FCC considered the effects of the rules on competition, localism, viewpoint diversity, and minority and female ownership of broadcast media outlets. The FCC concluded that the three rules were no longer necessary to promote competition, localism, and viewpoint diversity, and that changing the rules was not likely to harm minority and female ownership. A non-profit advocacy group known as Prometheus Radio Project, along with several other public interest and consumer advocacy groups, petitioned for review, arguing that the FCC’s decision was arbitrary and capricious under the Administrative Procedure Act. In particular, Prometheus contended that the record evidence did not support the FCC’s predictive judgment regarding minority and female ownership. Over Judge Scirica’s dissent, the U. S. Court of Appeals for the Third Circuit agreed with Prometheus and vacated the FCC’s 2017 order. On this record, we conclude that the FCC’s 2017 order was reasonable and reasonably explained for purposes of the APA’s deferential arbitrary-and-capricious standard. We therefore reverse the judgment of the Third Circuit. I The Federal Communications Commission possesses broad statutory authority to regulate broadcast media “as public convenience, interest, or necessity requires.” 47 U. S. C. §303; see also §309(a). Exercising that authority, the FCC has historically maintained several strict ownership rules. The rules limit the number of radio stations, television stations, and newspapers that a single entity may own in a given market. See FCC v. National Citizens Comm. for Broadcasting , 436 U.S. 775 , 780–781, and nn. 1–3, 783–784 (1978). The FCC has long explained that the ownership rules seek to promote competition, localism, and viewpoint diversity by ensuring that a small number of entities do not dominate a particular media market. See id. , at 780–781, 808; In re 2002 Biennial Regulatory Review—Notice of Proposed Rulemaking , 17 FCC Rcd. 18503, 18515–18527 (2002). This case concerns three of the FCC’s current ownership rules. The first is the Newspaper/Broadcast Cross-Ownership Rule. Initially adopted in 1975, that rule prohibits a single entity from owning a radio or television broadcast station and a daily print newspaper in the same media market. The second is the Radio/Television Cross-Ownership Rule. Initially adopted in 1970, that rule limits the number of combined radio stations and television stations that an entity may own in a single market. And the third is the Local Television Ownership Rule. Initially adopted in 1964, that rule restricts the number of local television stations that an entity may own in a single market. The FCC adopted those rules in an early-cable and pre-Internet age when media sources were more limited. By the 1990s, however, the market for news and entertainment had changed dramatically. Technological advances led to a massive increase in alternative media options, such as cable television and the Internet. Those technological advances challenged the traditional dominance of daily print newspapers, local radio stations, and local television stations. See, e.g., In re 2002 Biennial Regulatory Review—Report and Order and Notice of Proposed Rulemaking , 18 FCC Rcd. 13620, 13647–13667 (2003) (2002 Review). In 1996, Congress passed and President Clinton signed the Telecommunications Act. To ensure that the FCC’s ownership rules do not remain in place simply through inertia, Section 202(h) of the Act directs the FCC to review its ownership rules every four years to determine whether those rules remain “necessary in the public interest as the result of competition.” §202(h), 110Stat. 111–112, as amended §629, 118Stat. 99–100, note following 47 U. S. C. §303. After conducting each quadrennial Section 202(h) review, the FCC “shall repeal or modify” any rules that it determines are “no longer in the public interest.” Ibid. Section 202(h) establishes an iterative process that requires the FCC to keep pace with industry developments and to regularly reassess how its rules function in the marketplace. See In re 2002 Biennial Regulatory Review—Report , 18 FCC Rcd. 4726, 4732 (2003). Soon after Section 202(h) was enacted, the FCC stated that the agency’s traditional public interest goals of promoting competition, localism, and viewpoint diversity would inform its Section 202(h) analyses. 2002 Review, 18 FCC Rcd., at 13627; see also In re 1998 Biennial Regulatory Review , 15 FCC Rcd. 11058, 11061–11062 (2000). The FCC has also said that, as part of its public interest analysis under Section 202(h), it would assess the effects of the ownership rules on minority and female ownership. 2002 Review, 18 FCC Rcd. , at 13627, 13634, and n. 67; see also In re 2010 Quadrennial Regulatory Review—Notice of Inquiry , 25 FCC Rcd. 6086, 6106 (2010); cf. In re Amendment of Section 73.3555 [formerly Sections 73.35, 73.240 and 73.636] of the Commission’s Rules Relating to Multiple Ownership of AM, FM and Television Broadcast Stations , 100 F. C. C. 2d 74, 97 (1985). Since 2002, the Commission has repeatedly sought to change several of its ownership rules—including the three rules at issue here—as part of its Section 202(h) reviews. See 2002 Review, 18 FCC Rcd., at 13622–13623 (eliminating strict caps on newspaper/broadcast and radio/television cross-ownership and modifying the Local Television Ownership Rule); In re 2006 Quadrennial Regulatory Review—Report and Order and Order on Reconsideration , 23 FCC Rcd. 2010, 2021 (2008) (relaxing the Newspaper/Broadcast Cross-Ownership Rule). But for the last 17 years, the Third Circuit has rejected the FCC’s efforts as unlawful under the APA. See Prometheus Radio Project v. FCC , 373 F.3d 372 (2004); Prometheus Radio Project v. FCC , 652 F.3d 431 (2011); see also 824 F.3d 33 (2016). As a result, those three ownership rules exist in substantially the same form today as they did in 2002.[ 1 ] The current dispute arises out of the FCC’s most recent attempt to change its ownership rules. In its quadrennial Section 202(h) order issued in 2016, the FCC concluded that the Newspaper/Broadcast Cross-Ownership, Radio/Television Cross-Ownership, and Local Television Ownership Rules remained necessary to serve the agency’s public interest goals of promoting “competition and a diversity of viewpoints in local markets.” In re 2014 Quadrennial Regulatory Review—Second Report and Order , 31 FCC Rcd. 9864, 9865 (2016) (2016 Order). The FCC therefore chose to retain the existing rules with only “minor modifications.” Ibid. A number of groups sought reconsideration of the 2016 Order. In 2017, the Commission (with a new Chair) granted reconsideration. In re 2014 Quadrennial Regulatory Review—Order on Reconsideration and Notice of Proposed Rulemaking , 32 FCC Rcd. 9802 (2017) (2017 Reconsideration Order). On reconsideration, the FCC performed a new public interest analysis. The agency explained that rapidly evolving technology and the rise of new media outlets—particularly cable and Internet—had transformed how Americans obtain news and entertainment, rendering some of the ownership rules obsolete. See, e.g., id., at 9811–9815. As a result of those market changes, the FCC concluded that the three ownership rules no longer served the agency’s public interest goals of fostering competition, localism, and viewpoint diversity. Id., at 9810, 9830, and n. 197, 9835–9836. The FCC explained that permitting efficient combinations among radio stations, television stations, and newspapers would benefit consumers. See id. , at 9819, 9830, 9835–9836. The Commission also considered the likely impact of any changes to its ownership rules on minority and female ownership. The FCC concluded that repealing or modifying the three ownership rules was not likely to harm minority and female ownership. Id., at 9822–9824, 9830–9831, 9839–9840.[ 2 ] Based on its analysis of the relevant factors, the FCC decided to repeal the Newspaper/Broadcast and Radio/Television Cross-Ownership Rules, and to modify the Local Television Ownership Rule. Id., at 9803. Prometheus and several other public interest and consumer advocacy groups petitioned for review, arguing that the FCC’s decision to repeal or modify those three rules was arbitrary and capricious under the APA. The Third Circuit vacated the 2017 Reconsideration Order. The court did not dispute the FCC’s conclusion that those three ownership rules no longer promoted the agency’s public interest goals of competition, localism, and viewpoint diversity. But the court held that the record did not support the FCC’s conclusion that the rule changes would “have minimal effect” on minority and female ownership. 939 F.3d 567, 584 (2019). The court directed the Commission, on remand, to “ascertain on record evidence” the effect that any rule changes were likely to have on minority and female ownership, “whether through new empirical research or an in-depth theoretical analysis.” Id., at 587. Judge Scirica dissented in relevant part. In his view, the FCC reasonably analyzed the record evidence and made a reasonable predictive judgment that the rule changes were not likely to harm minority and female ownership. Id., at 590. The FCC and a number of industry groups petitioned for certiorari. We granted certiorari. 591 U. S. ___ (2020). II In the 2017 Reconsideration Order, the FCC changed three of its ownership rules because it concluded that the rules were no longer in the public interest. In particular, the FCC concluded that the rules no longer served the agency’s goals of fostering competition, localism, and viewpoint diversity, and further concluded that repealing or modifying the rules was not likely to harm minority and female ownership. Prometheus argues that the FCC’s predictive judgment regarding minority and female ownership was arbitrary and capricious under the APA. See 5 U. S. C. §706(2)(A). We disagree. The APA’s arbitrary-and-capricious standard requires that agency action be reasonable and reasonably explained. Judicial review under that standard is deferential, and a court may not substitute its own policy judgment for that of the agency. A court simply ensures that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision. See FCC v. Fox Television Stations, Inc. , 556 U.S. 502 , 513–514 (2009); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983); see also FCC v. WNCN Listeners Guild , 450 U.S. 582 , 596 (1981). In its 2017 Reconsideration Order, the FCC analyzed the significant record evidence of dramatic changes in the media market over the past several decades. See, e.g., 32 FCC Rcd., at 9803, 9807, 9825, 9834. After thoroughly examining that record evidence, the Commission determined that the Newspaper/Broadcast Cross-Ownership, Radio/Television Cross-Ownership, and Local Television Ownership Rules were no longer necessary to serve the agency’s public interest goals of promoting competition, localism, and viewpoint diversity. The FCC therefore concluded that repealing the two cross-ownership rules and modifying the Local Television Ownership Rule would fulfill “the mandates of Section 202(h)” and “deliver on the Commission’s promise to adopt broadcast ownership rules that reflect the present, not the past.” Id., at 9803. In analyzing whether to repeal or modify those rules, the FCC also addressed the possible impact on minority and female ownership. The Commission explained that it had sought public comment on the issue of minority and female ownership during multiple Section 202(h) reviews, but “no arguments were made” that would lead the FCC to conclude that the existing rules were “necessary to protect or promote minority and female ownership.” Id., at 9822; see also id., at 9831, 9839; cf. In re 2006 Quadrennial Regulatory Review—Further Notice of Proposed Rulemaking , 21 FCC Rcd. 8834, 8837 (2006) (soliciting evidence on minority and female ownership); In re 2010 Quadrennial Regulatory Review—Notice of Inquiry , 25 FCC Rcd., at 6106, 6108–6109 (same); In re 2014 Quadrennial Regulatory Review—Further Notice of Proposed Rulemaking and Report and Order , 29 FCC Rcd. 4371, 4460, and n. 595, 4470 (2014) (same). Indeed, the FCC stated that it had received several comments suggesting the opposite—namely, comments suggesting that eliminating the Newspaper/Broadcast Cross-Ownership Rule “potentially could increase minority ownership of newspapers and broadcast stations.” 2017 Reconsideration Order, 32 FCC Rcd., at 9823 (emphasis added). Based on the record, the Commission concluded that repealing or modifying the three rules was not likely to harm minority and female ownership. See id. , at 9822, 9830, 9839. In challenging the 2017 Reconsideration Order in this Court, Prometheus does not seriously dispute the FCC’s conclusion that the existing rules no longer serve the agency’s public interest goals of competition, localism, and viewpoint diversity. Rather, Prometheus targets the FCC’s assessment that altering the ownership rules was not likely to harm minority and female ownership. Prometheus asserts that the FCC relied on flawed data in assessing the likely impact of changing the rules on minority and female ownership. Prometheus further argues that the FCC ignored superior data available in the record. Prometheus initially points to two data sets on which the FCC relied in the 2016 Order and the 2017 Reconsideration Order. Those data sets measured the number of minority-owned media outlets before and after the Local Television Ownership Rule and the Local Radio Ownership Rule were relaxed in the 1990s. Together, the data sets showed a slight decrease in the number of minority-owned media outlets immediately after the rules were relaxed, followed by an eventual increase in later years. The 2016 Order cited those data sets and explained that the number of minority-owned media outlets had increased over time. But the FCC added that there was no record evidence suggesting that past changes to the ownership rules had caused minority ownership levels to increase. See 31 FCC Rcd., at 9894–9895; id., at 9911–9912. In the 2017 Reconsideration Order, the FCC referred to the 2016 Order’s analysis of those data sets. The FCC stated that data in the record suggested that the previous relaxations of the Local Television Ownership and Local Radio Ownership Rules “have not resulted in reduced levels of minority and female ownership.” 2017 Reconsideration Order, 32 FCC Rcd., at 9831; see also id., at 9823; id., at 9839. The FCC further explained that “no party” had “presented contrary evidence or a compelling argument demonstrating why” altering the rules would have a different impact today. Id., at 9839; see also id. , at 9823, and n. 138; id., at 9831, and n. 201. The FCC therefore concluded that “the record provides no information to suggest” that eliminating or modifying the existing rules would harm minority and female ownership. Id., at 9831; see also id., at 9823; id., at 9839. Prometheus insists that the FCC’s numerical comparison was overly simplistic and that the data sets were materially incomplete. But the FCC acknowledged the gaps in the data. And despite repeatedly asking for data on the issue, the Commission received no other data on minority ownership and no data at all on female ownership levels. See 2016 Order, 31 FCC Rcd., at 9894–9895, nn. 211–212; id. , at 9911, n. 325; 2017 Reconsideration Order, 32 FCC Rcd., at 9822–9823, and n. 138 (incorporating 2016 Order’s discussion of data sets); id., at 9831, and n. 201 (same); id. , at 9839, and n. 243 (same). The FCC therefore relied on the data it had (and the absence of any countervailing evidence) to predict that changing the rules was not likely to harm minority and female ownership. Prometheus also asserts that countervailing—and superior—evidence was in fact in the record, and that the FCC ignored that evidence. Prometheus identifies two studies submitted to the FCC by Free Press, a media reform group. Those studies purported to show that past relaxations of the ownership rules and increases in media market concentration had led to decreases in minority and female ownership levels. According to Prometheus, the Free Press studies undercut the FCC’s prediction that its rule changes were unlikely to harm minority and female ownership. The FCC did not ignore the Free Press studies. The FCC simply interpreted them differently. In particular, in the 2016 Order, the Commission explained that its data sets and the Free Press studies showed the same long-term increase in minority ownership after the Local Television Ownership and Local Radio Ownership Rules were relaxed. 31 FCC Rcd., at 9895, and n. 215; id., at 9912, and n. 329. Moreover, as counsel for Prometheus forthrightly acknowledged at oral argument, the Free Press studies were purely backward-looking, and offered no statistical analysis of the likely future effects of the FCC’s proposed rule changes on minority and female ownership. See Tr. of Oral Arg. 75–76. In short, the FCC’s analysis was reasonable and reasonably explained for purposes of the APA’s deferential arbitrary-and-capricious standard. The FCC considered the record evidence on competition, localism, viewpoint diversity, and minority and female ownership, and reasonably concluded that the three ownership rules no longer serve the public interest. The FCC reasoned that the historical justifications for those ownership rules no longer apply in today’s media market, and that permitting efficient combinations among radio stations, television stations, and newspapers would benefit consumers. The Commission further explained that its best estimate, based on the sparse record evidence, was that repealing or modifying the three rules at issue here was not likely to harm minority and female ownership. The APA requires no more.[ 3 ] To be sure, in assessing the effects on minority and female ownership, the FCC did not have perfect empirical or statistical data. Far from it. But that is not unusual in day-to-day agency decisionmaking within the Executive Branch. The APA imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies. Cf. Fox Television , 556 U. S., at 518–520; Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U.S. 519 , 524 (1978). And nothing in the Telecommunications Act (or any other statute) requires the FCC to conduct its own empirical or statistical studies before exercising its discretion under Section 202(h). Here, the FCC repeatedly asked commenters to submit empirical or statistical studies on the relationship between the ownership rules and minority and female ownership. See, e.g., In re 2014 Quadrennial Review , 29 FCC Rcd., at 4460, and n. 595. Despite those requests, no commenter produced such evidence indicating that changing the rules was likely to harm minority and female ownership. In the absence of additional data from commenters, the FCC made a reasonable predictive judgment based on the evidence it had. See State Farm , 463 U. S., at 52. In light of the sparse record on minority and female ownership and the FCC’s findings with respect to competition, localism, and viewpoint diversity, we cannot say that the agency’s decision to repeal or modify the ownership rules fell outside the zone of reasonableness for purposes of the APA.[ 4 ] *  *  * We reverse the judgment of the U. S. Court of Appeals for the Third Circuit. It is so ordered. Notes 1 The FCC currently has two other ownership rules that are subject to its quadrennial Section 202(h) review: (1) the Local Radio Ownership Rule, which limits the number of radio stations that an entity may own in a single market, and (2) the Dual Network Rule, which prohibits mergers among the top four television broadcast networks (ABC, CBS, Fox, and NBC). The FCC has one additional ownership rule, the National Television Ownership Rule, which is not subject to review under Section 202(h). That rule limits the number of television stations that a single entity may own nationwide. Those other rules are not at issue in this case. 2 2017 Reconsideration Order, 32 FCC Rcd., at 9822 (“We find that repealing the” Newspaper/Broadcast Cross-Ownership Rule “will not have a material impact on minority and female ownership”); id., at 9830 (“[W]e find that the record fails to demonstrate that eliminating the Radio/Television Cross-Ownership Rule is likely to harm minority and female ownership”); id., at 9839 (“We find that the modifications we adopt to the Local Television Ownership Rule are not likely to harm minority and female ownership”). 3 Because we hold that the Third Circuit’s judgment must be reversed under ordinary principles of arbitrary-and-capricious review, we need not reach the industry petitioners’ alternative argument that the text of Section 202(h) does not authorize (or at least does not require) the FCC to consider minority and female ownership when the Commission conducts its quadrennial reviews. We also need not consider the industry petitioners’ related argument that the FCC, in its Section 202(h) review of an ownership rule, may not consider minority and female ownership unless promoting minority and female ownership was part of the FCC’s original basis for that ownership rule. 4 The Third Circuit also vacated the FCC’s separate 2018 Incubator Order and the 2016 Order’s definition of “eligible entity.” But the Third Circuit did not offer any independent reasons for doing so. Instead, it vacated those agency actions based solely on its conclusion that the FCC failed to adequately consider minority and female ownership in the 2017 Reconsideration Order. Because we reverse the judgment of the Third Circuit as to the 2017 Reconsideration Order, it follows that the Third Circuit’s judgment as to the Incubator Order and “eligible entity” definition is also reversed. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–1231 and 19–1241 _________________ FEDERAL COMMUNICATIONS COMMISSION, et al., PETITIONERS 19–1231 v. PROMETHEUS RADIO PROJECT, et al. NATIONAL ASSOCIATION OF BROADCASTERS, et al., PETITIONERS 19–1241 v. PROMETHEUS RADIO PROJECT, et al. on writs of certiorari to the united states court of appeals for the third circuit [April 1, 2021] Justice Thomas, concurring. As the Court correctly holds, the Federal Communications Commission’s orders were not arbitrary and capricious. Based on the record evidence available, the FCC reasonably concluded that modifying its broadcast ownership rules would not harm minority and female ownership of broadcast media. I write separately to note another, independent reason why reversal is warranted: The Third Circuit improperly imposed nonstatutory procedural requirements on the FCC by forcing it to consider ownership diversity in the first place. The FCC had no obligation to consider minority and female ownership. Nothing in §202(h) of the Telecommunications Act of 1996 directs the FCC to consider rates of minority and female ownership. See note following 47 U. S. C. §303 (requiring the FCC simply to consider “ ‘the public interest as the result of competition’ ”). Nor could any court force the FCC to consider ownership diversity: Courts have no authority to impose “judge-made procedur[es]” on agencies. Perez v. Mortgage Bankers Assn. , 575 U.S. 92, 102 (2015). Disregarding these limits, the Third Circuit imposed on the FCC a nonstatutory requirement to consider minority and female ownership. The court first did so in 2004 when it vacated the FCC’s modification of its Local Television Ownership Rule, faulting the FCC for “failing to mention anything about the effect this change would have on potential minority station owners.” 373 F.3d 372 , 420 (2004). It then directed the FCC on remand to “consider . . . proposals for enhancing ownership opportunities for women and minorities.” Id ., at 435, n. 82; accord, 652 F.3d 431, 471 (2011) (reiterating that its “prior remand requir[ed] the Commission to consider the effect of its rules on minority and female ownership”). Repeating this error in 2016, the Third Circuit mandated that the FCC, “in addition to §202(h)’s requirement . . . , include a determination about ‘the effect of the rules on minority and female ownership.’ ” 824 F.3d 33, 54, n. 13 (quoting 652 F. 3d, at 471; brackets omitted). Respondents try to defend the Third Circuit’s ruling by noting that the FCC has previously discussed ownership diversity when considering its ownership rules. They contend that the FCC thus believed that a purpose of those rules is to promote minority and female ownership. And because an agency cannot “depart from a prior policy sub silentio ,” FCC v. Fox Television Stations, Inc. , 556 U.S. 502 , 515 (2009), they argue that the FCC either had to consider ownership diversity or expressly repudiate its prior policy. That argument fails because the FCC’s ownership rules—unlike some of its non ownership rules—were never designed to foster ownership diversity. From its infancy, the FCC has generally focused on consumers, not producers. The year after it was established, the agency that would later become the FCC made clear that “ ‘emphasis must be first and foremost on the interest, the convenience, and the necessity of the listening public, and not on the interest, convenience, or necessity of the individual broadcaster.’ ” FCC v. Pottsville Broadcasting Co. , 309 U.S. 134 , 139, n. 2 (1940) (quoting a 1928 agency document). The FCC kept true to that design when promulgating ownership rules. For example, when it created the Newspaper/Broadcast Cross-Ownership Rule at issue here, the agency explained that its “ownership rules rest on two foundations: the twin goals of diversity of viewpoints and economic competition,” and that viewpoint diversity is the “higher” policy. 50 F. C. C. 2d 1046, 1074 (1975); see also 22 F. C. C. 2d 306, 313, ¶25 (1970) (stating that the “principal purpose” of the Radio/Television Cross-Ownership Rule is “promot[ing] diversity of viewpoints” and a secondary purpose is “promot[ing] competition”). To these two consumer-focused goals, the FCC has also added a third: localism. 18 FCC Rcd. 13620, 13624, ¶8, 13645, ¶81 (2003). None of these objectives advances demographic diversity of owners for the sake of owners. To be sure, the FCC has sometimes considered minority and female ownership of broadcast media when discussing ownership rules. Time after time, however, it has viewed those forms of diversity not “as policy goals in and of themselves, but as proxies for viewpoint diversity.” 17 FCC Rcd. 18503, 18519, ¶41, and n. 116, 18521, ¶50 (2002); accord, e.g., 18 FCC Rcd., at 13774, ¶389 (“diversity of ownership promotes diversity of viewpoints”); id., at 13636, ¶51, 13760, ¶355 (similar); 10 FCC Rcd. 2788, ¶¶1–2 (1995) (“promoting minority ownership of broadcasting and cable television facilities serves to enhance the diversity of viewpoints presented”). The FCC has also said that ownership diversity “promote[s] competition.” Id. , at 2789, ¶6; accord, 22 F. C. C. 2d, at 313, ¶25. And although the FCC has occasionally used language that, read in isolation, could suggest a freestanding goal of promoting ownership diversity, e.g., 17 FCC Rcd., at 18521, ¶50 (“[T]he Commission has historically used the ownership rules to foster ownership by diverse groups, such as minorities, women and small businesses”), these comments must be viewed in the light of the FCC’s repeated statements that “the core Commission goal [is] maximizing the diversity of points of view available to the public” and that “promoting minority [and female] ownership of broadcasting and cable television facilities serves” this core goal. E.g., 10 FCC Rcd., at 2788, ¶¶1–2. Even while trying to abide by the Third Circuit’s improper mandate, the FCC clarified in this proceeding that it considered ownership diversity a potential means to pursue viewpoint diversity, not a freestanding goal of its ownership rules. To cite just a few examples, in its 2016 order the FCC explained that it “has a long history of promulgating rules and regulations intended to promote diversity of ownership among broadcast licensees, and thereby foster a diversity of voices.” App. 335 (emphasis added). It afforded certain companies waivers from various rules to “serve our broader goal of diversity of ownership, and thus viewpoint diversity.” Id., at 337 (emphasis added). And it noted that it could not promulgate a race-conscious regulation without first “demonstrat[ing] a connection between minority ownership and viewpoint diversity” that would “satisfy strict scrutiny.” Id., at 397; cf. Metro Broadcasting, Inc. v. FCC , 497 U.S. 547 , 566–568 (1990) (upholding race-conscious “minority ownership policies” because they were “substantially related to the achievement of . . . broadcast diversity”— i.e., viewpoint diversity), overruled by Adarand Constructors, Inc. v. Peña , 515 U.S. 200 , 227 (1995) (requiring strict scrutiny for “all racial classifications”). The Third Circuit erred by disregarding this history. For example, when the FCC modified its Local Television Ownership Rule in 2003, the court faulted the FCC for “failing to mention anything about the effect this change would have on potential minority station owners.” 373 F. 3d, at 420. But as with its other ownership rules, the stated “objectives” for that rule were fostering viewpoint diversity and competition. 14 FCC Rcd. 12903, 12910–12912, ¶¶15, 17 (1999).[ 1 ] Here, as in 2003, once the FCC determined that none of its policy objectives for ownership rules—viewpoint diversity, competition, and localism—justified retaining its rules, the FCC was free to modify or repeal them without considering ownership diversity. Indeed, the FCC has long been clear that “it would be inappropriate to retain multiple ownership regulations for the sole purpose of promoting minority ownership.” 100 F. C. C. 2d 74, 94, ¶45 (1985). The Third Circuit had no authority to require the FCC to consider minority and female ownership. So in future reviews, the FCC is under no obligation to do so.[ 2 ] Notes 1 The FCC reiterated these objectives when modifying the rule in 2003. 18 FCC Rcd. 13620, 13708, ¶¶225–226. 2 The FCC has recently questioned the validity of the assumption that ownership diversity promotes viewpoint diversity. 32 FCC Rcd. 9802, 9810, ¶15, n. 49 (2017). Its previous acceptance of that assumption in no way precludes the FCC from rejecting it in the future.

The Federal Communications Commission (FCC) has the authority to regulate broadcast media ownership to promote competition, localism, and viewpoint diversity. In 2017, the FCC repealed or modified three ownership rules, concluding they no longer served the public interest. A non-profit group, Prometheus Radio Project, challenged the decision, arguing it would harm minority and female ownership of media outlets. The Third Circuit Court of Appeals agreed and vacated the FCC's order. The Supreme Court disagreed with the Third Circuit, stating that the FCC is not required to consider minority and female ownership if its policy objectives for ownership rules (competition, localism, and viewpoint diversity) are not met. The Court clarified that ownership diversity is a means to pursue viewpoint diversity, not a standalone goal. The FCC is free to modify or repeal rules that no longer serve their stated objectives without considering ownership diversity.

Government Agencies

Dept. of Commerce v. New York

https://supreme.justia.com/cases/federal/us/588/18-966/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–966 _________________ DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 27, 2019] Chief Justice Roberts delivered the opinion of the Court. The Secretary of Commerce decided to reinstate a question about citizenship on the 2020 census questionnaire. A group of plaintiffs challenged that decision on constitutional and statutory grounds. We now decide whether the Secretary violated the Enumeration Clause of the Constitution, the Census Act, or otherwise abused his discretion. I A In order to apportion Members of the House of Representatives among the States, the Constitution requires an “Enumeration” of the population every 10 years, to be made “in such Manner” as Congress “shall by Law direct.” Art. I, §2, cl. 3; Amdt. 14, §2. In the Census Act, Congress delegated to the Secretary of Commerce the task of conducting the decennial census “in such form and content as he may determine.” 13 U. S. C. §141(a). The Secretary is aided in that task by the Census Bureau, a statistical agency housed within the Department of Commerce. See §§2, 21. The population count derived from the census is used not only to apportion representatives but also to allocate federal funds to the States and to draw electoral districts. Wisconsin v. City of New York , 517 U.S. 1 , 5–6 (1996). The census additionally serves as a means of collecting demographic information, which “is used for such varied purposes as computing federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies.” Baldrige v. Shapiro , 455 U.S. 345 , 353–354, n. 9 (1982). Over the years, the census has asked questions about (for example) race, sex, age, health, education, occupation, housing, and military service. It has also asked about radio ownership, age at first marriage, and native tongue. The Census Act obliges everyone to answer census questions truthfully and requires the Secretary to keep individual answers confidential, including from other Government agencies. §§221, 8(b), 9(a). There have been 23 decennial censuses from the first census in 1790 to the most recent in 2010. Every census between 1820 and 2000 (with the exception of 1840) asked at least some of the population about their citizenship or place of birth. Between 1820 and 1950, the question was asked of all households. Between 1960 and 2000, it was asked of about one-fourth to one-sixth of the population. That change was part of a larger effort to simplify the census by asking most people a few basic demographic questions (such as sex, age, race, and marital status) on a short-form questionnaire, while asking a sample of the population more detailed demographic questions on a long-form questionnaire. In explaining the decision to move the citizenship question to the long-form questionnaire, the Census Bureau opined that “general census information on citizenship had become of less importance compared with other possible questions to be included in the census, particularly in view of the recent statutory requirement for annual alien registration which could provide the Immigration and Naturalization Service, the principal user of such data, with the information it needed.” Dept. of Commerce, Bureau of Census, 1960 Censuses of Population and Housing 194 (1966).[ 1 ] In 2010, the year of the latest census, the format changed again. All households received the same questionnaire, which asked about sex, age, race, Hispanic origin, and living arrangements. The more detailed demographic questions previously asked on the long-form questionnaire, including the question about citizenship, were instead asked in the American Community Survey (or ACS), which is sent each year to a rotating sample of about 2.6% of households. The Census Bureau and former Bureau officials have resisted occasional proposals to resume asking a citizenship question of everyone, on the ground that doing so would discourage noncitizens from responding to the census and lead to a less accurate count of the total population. See, e.g. , Federation of Am. Immigration Reform v. Klutznick , 486 F. Supp. 564 , 568 (DC 1980) (“[A]ccording to the Bureau[,] any effort to ascertain citizenship will inevitably jeopardize the overall accuracy of the population count”); Brief for Former Directors of the U. S. Census Bureau as Amici Curiae in Evenwel v. Abbott , O. T. 2014, No. 14–940, p. 25 (inquiring about citizenship would “invariably lead to a lower response rate”). B In March 2018, Secretary of Commerce Wilbur Ross announced in a memo that he had decided to reinstate a question about citizenship on the 2020 decennial census questionnaire. The Secretary stated that he was acting at the request of the Department of Justice (DOJ), which sought improved data about citizen voting-age population for purposes of enforcing the Voting Rights Act (or VRA)—specifically the Act’s ban on diluting the influence of minority voters by depriving them of single-member districts in which they can elect their preferred candidates. App. to Pet. for Cert. 548a. DOJ explained that federal courts determine whether a minority group could constitute a majority in a particular district by looking to the citizen voting-age population of the group. According to DOJ, the existing citizenship data from the American Community Survey was not ideal: It was not reported at the level of the census block, the basic component of legislative districting plans; it had substantial margins of error; and it did not align in time with the census-based population counts used to draw legislative districts. DOJ therefore formally requested reinstatement of the citizenship question on the census questionnaire. Id. , at 565a–569a. The Secretary’s memo explained that the Census Bureau initially analyzed, and the Secretary considered, three possible courses of action. The first was to continue to collect citizenship information in the American Community Survey and attempt to develop a data model that would more accurately estimate citizenship at the census block level. The Secretary rejected that option because the Bureau “did not assert and could not confirm” that such ACS-based data modeling was possible “with a sufficient degree of accuracy.” Id. , at 551a. The second option was to reinstate a citizenship question on the decennial census. The Bureau predicted that doing so would discourage some noncitizens from responding to the census. That would necessitate increased “non-response follow up” operations—procedures the Bureau uses to attempt to count people who have not responded to the census—and potentially lead to a less accurate count of the total population. Option three was to use administrative records from other agencies, such as the Social Security Administration and Citizenship and Immigration Services, to provide DOJ with citizenship data. The Census Bureau recommended this option, and the Secretary found it a “potentially appealing solution” because the Bureau has long used administrative records to supplement and improve census data. Id. , at 554a. But the Secretary concluded that administrative records alone were inadequate because they were missing for more than 10% of the population. The Secretary ultimately asked the Census Bureau to develop a fourth option that would combine options two and three: reinstate a citizenship question on the census questionnaire, and also use the time remaining until the 2020 census to “further enhance” the Bureau’s “administrative record data sets, protocols, and statistical models.” Id. , at 555a. The memo explained that, in the Secretary’s judgment, the fourth option would provide DOJ with the “most complete and accurate” citizen voting-age population data in response to its request. Id. , at 556a. The Secretary “carefully considered” the possibility that reinstating a citizenship question would depress the response rate. Ibid . But after evaluating the Bureau’s “limited empirical evidence” on the question— evidence drawn from estimated non-response rates to previous American Community Surveys and census questionnaires—the Secretary concluded that it was not possible to “determine definitively” whether inquiring about citizenship in the census would materially affect response rates. Id. , at 557a, 562a. He also noted the long history of the citizenship question on the census, as well as the facts that the United Nations recommends collecting census-based citizenship information, and other major democracies such as Australia, Canada, France, Indonesia, Ireland, Germany, Mexico, Spain, and the United Kingdom inquire about citizenship in their censuses. Altogether, the Secretary determined that “the need for accurate citizenship data and the limited burden that the reinstatement of the citizenship question would impose outweigh fears about a potentially lower response rate.” Id. , at 557a. C Shortly after the Secretary announced his decision, two groups of plaintiffs filed suit in Federal District Court in New York, challenging the decision on several grounds. The first group of plaintiffs included 18 States, the District of Columbia, various counties and cities, and the United States Conference of Mayors. They alleged that the Secretary’s decision violated the Enumeration Clause of the Constitution and the requirements of the Administrative Procedure Act. The second group of plaintiffs consisted of several non-governmental organizations that work with immigrant and minority communities. They added an equal protection claim. The District Court consolidated the two cases. Both groups of plaintiffs are respondents here. The Government moved to dismiss the lawsuits, arguing that the Secretary’s decision was unreviewable and that respondents had failed to state cognizable claims under the Enumeration Clause and the Equal Protection Clause. The District Court dismissed the Enumeration Clause claim but allowed the other claims to proceed. 315 F. Supp. 3d 766 (SDNY 2018). In June 2018, the Government submitted to the District Court the Commerce Department’s “administrative record”: the materials that Secretary Ross considered in making his decision. That record included DOJ’s December 2017 letter requesting reinstatement of the citizenship question, as well as several memos from the Census Bureau analyzing the predicted effects of reinstating the question. Shortly thereafter, at DOJ’s urging, the Government supplemented the record with a new memo from the Secretary, “intended to provide further background and context regarding” his March 2018 memo. App. to Pet. for Cert. 546a. The supplemental memo stated that the Secretary had begun considering whether to add the citizenship question in early 2017, and had inquired whether DOJ “would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act.” Ibid. According to the Secretary, DOJ “formally” requested reinstatement of the citizenship question after that inquiry. Ibid. Respondents argued that the supplemental memo indicated that the Government had submitted an incomplete record of the materials considered by the Secretary. They asked the District Court to compel the Government to complete the administrative record. The court granted that request, and the parties jointly stipulated to the inclusion of more than 12,000 pages of additional materials in the administrative record. Among those materials were emails and other records confirming that the Secretary and his staff began exploring the possibility of reinstating a citizenship question shortly after he was confirmed in early 2017, attempted to elicit requests for citizenship data from other agencies, and eventually persuaded DOJ to request reinstatement of the question for VRA enforcement purposes. In addition, respondents asked the court to authorize discovery outside the administrative record. They claimed that such an unusual step was warranted because they had made a strong preliminary showing that the Secretary had acted in bad faith. See Citizens to Preserve Overton Park , Inc. v. Volpe , 401 U.S. 402 , 420 (1971). The court also granted that request, authorizing expert discovery and depositions of certain DOJ and Commerce Department officials. In August and September 2018, the District Court issued orders compelling depositions of Secretary Ross and of the Acting Assistant Attorney General for DOJ’s Civil Rights Division. We granted the Government’s request to stay the Secretary’s deposition pending further review, but we declined to stay the Acting AAG’s deposition or the other extra-record discovery that the District Court had authorized. The District Court held a bench trial and issued findings of fact and conclusions of law on respondents’ statutory and equal protection claims. After determining that respondents had standing to sue, the District Court ruled that the Secretary’s action was arbitrary and capricious, based on a pretextual rationale, and violated certain provisions of the Census Act. On the equal protection claim, however, the District Court concluded that respondents had not met their burden of showing that the Secretary was motivated by discriminatory animus. The court granted judgment to respondents on their statutory claims, vacated the Secretary’s decision, and enjoined him from reinstating the citizenship question until he cured the legal errors the court had identified. 351 F. Supp. 3d 502 (SDNY 2019). The Government appealed to the Second Circuit, but also filed a petition for writ of certiorari before judgment, asking this Court to review the District Court’s decision directly because the case involved an issue of imperative public importance, and the census questionnaire needed to be finalized for printing by the end of June 2019. We granted the petition. 586 U. S. ___ (2019). At the Government’s request, we later ordered the parties to address whether the Enumeration Clause provided an alternative basis to affirm. 586 U. S. ___ (2019). II We begin with jurisdiction. Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” For a legal dispute to qualify as a genuine case or controversy, at least one plaintiff must have standing to sue. The doctrine of standing “limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong” and “confines the federal courts to a properly judicial role.” Spokeo , Inc. v. Robins , 578 U. S. ___, ___ (2016) (slip op., at 6). To have standing, a plaintiff must “present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.” Davis v. Federal Election Comm’n , 554 U.S. 724 , 733 (2008). Respondents assert a number of injuries—diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources—all of which turn on their expectation that reinstating a citizenship question will depress the census response rate and lead to an inaccurate population count. Several States with a disproportionate share of noncitizens, for example, anticipate losing a seat in Congress or qualifying for less federal funding if their populations are undercounted. These are primarily future injuries, which “may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158 (2014) (internal quotation marks omitted). The District Court concluded that the evidence at trial established a sufficient likelihood that the reinstatement of a citizenship question would result in noncitizen households responding to the census at lower rates than other groups, which in turn would cause them to be undercounted and lead to many of respondents’ asserted injuries. For purposes of standing, these findings of fact were not so suspect as to be clearly erroneous. We therefore agree that at least some respondents have Article III standing. Several state respondents here have shown that if noncitizen households are undercounted by as little as 2%—lower than the District Court’s 5.8% prediction—they will lose out on federal funds that are distributed on the basis of state population. That is a sufficiently concrete and imminent injury to satisfy Article III, and there is no dispute that a ruling in favor of respondents would redress that harm. The Government contends, however, that any harm to respondents is not fairly traceable to the Secretary’s decision, because such harm depends on the independent action of third parties choosing to violate their legal duty to respond to the census. The chain of causation is made even more tenuous, the Government argues, by the fact that such intervening, unlawful third-party action would be motivated by unfounded fears that the Federal Government will itself break the law by using noncitizens’ answers against them for law enforcement purposes. The Government invokes our steady refusal to “endorse standing theories that rest on speculation about the decisions of independent actors,” Clapper v. Amnesty Int’l USA , 568 U.S. 398 , 414 (2013), particularly speculation about future unlawful conduct, Los Angeles v. Lyons , 461 U.S. 95 , 105 (1983). But we are satisfied that, in these circumstances, respondents have met their burden of showing that third parties will likely react in predictable ways to the citizenship question, even if they do so unlawfully and despite the requirement that the Government keep individual answers confidential. The evidence at trial established that noncitizen households have historically responded to the census at lower rates than other groups, and the District Court did not clearly err in crediting the Census Bureau’s theory that the discrepancy is likely attributable at least in part to noncitizens’ reluctance to answer a citizenship question. Respondents’ theory of standing thus does not rest on mere speculation about the decisions of third parties; it relies instead on the predictable effect of Government action on the decisions of third parties. Cf. Bennett v. Spear , 520 U.S. 154 , 169–170 (1997); Davis , 554 U. S., at 734–735. Because Article III “requires no more than de facto causality,” Block v. Meese , 793 F.2d 1303, 1309 (CADC 1986) (Scalia, J.), traceability is satisfied here. We may therefore consider the merits of respondents’ claims, at least as far as the Constitution is concerned. III The Enumeration Clause of the Constitution does not provide a basis to set aside the Secretary’s decision. The text of that clause “vests Congress with virtually unlimited discretion in conducting the decennial ‘actual Enumeration,’ ” and Congress “has delegated its broad authority over the census to the Secretary.” Wisconsin , 517 U. S., at 19. Given that expansive grant of authority, we have rejected challenges to the conduct of the census where the Secretary’s decisions bore a “reasonable relationship to the accomplishment of an actual enumeration.” Id. , at 20. Respondents ask us to evaluate the Secretary’s decision to reinstate a citizenship question under that “reasonable relationship” standard, but we agree with the District Court that a different analysis is needed here. Our cases applying that standard concerned decisions about the population count itself—such as a postcensus decision not to use a particular method to adjust an undercount, id. , at 4, and a decision to allocate overseas military personnel to their home States, Franklin v. Massachusetts , 505 U.S. 788 , 790–791 (1992). We have never applied the standard to decisions about what kinds of demographic information to collect in the course of taking the census. Indeed, as the District Court recognized, applying the “reasonable relationship” standard to every census-related decision “would lead to the conclusion that it is unconstitutional to ask any demographic question on the census” because “asking such questions bears no relationship whatsoever to the goal of an accurate headcount.” 315 F. Supp. 3d, at 804–805. Yet demographic questions have been asked in every census since 1790, and questions about citizenship in particular have been asked for nearly as long. Like the District Court, we decline respondents’ invitation to measure the constitutionality of the citizenship question by a stand- ard that would seem to render every census since 1790 unconstitutional. We look instead to Congress’s broad authority over the census, as informed by long and consistent historical practice. All three branches of Government have understood the Constitution to allow Congress, and by extension the Secretary, to use the census for more than simply counting the population. Since 1790, Congress has sought, or permitted the Secretary to seek, information about matters as varied as age, sex, marital status, health, trade, profession, literacy, and value of real estate owned. See id. , at 801. Since 1820, it has sought, or permitted the Secretary to seek, information about citizenship in particular. Federal courts have approved the practice of collecting demographic data in the census. See, e.g. , United States v. Moriarity , 106 F. 886, 891 (CC SDNY 1901) (duty to take a census of population “does not prohibit the gathering of other statistics, if ‘necessary and proper,’ for the intelligent exercise of other powers enumerated in the constitution”). While we have never faced the question directly, we have assumed that Congress has the power to use the census for information-gathering purposes, see Legal Tender Cases , 12 Wall. 457, 536 (1871), and we have recognized the role of the census as a “linchpin of the federal statistical system by collecting data on the characteristics of individuals, households, and housing units throughout the country,” Department of Commerce v. United States House of Representatives , 525 U.S. 316 , 341 (1999) (internal quotation marks omitted). That history matters. Here, as in other areas, our interpretation of the Constitution is guided by a Government practice that “has been open, widespread, and unchallenged since the early days of the Republic.” NLRB v. Noel Canning , 573 U.S. 513, 572 (2014) (Scalia, J., concurring in judgment); see also Wisconsin , 517 U. S., at 21 (noting “importance of historical practice” in census context). In light of the early understanding of and long practice under the Enumeration Clause, we conclude that it permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. We need not, and do not, decide the constitutionality of any other question that Congress or the Secretary might decide to include in the census. IV The District Court set aside the Secretary’s decision to reinstate a citizenship question on the grounds that the Secretary acted arbitrarily and violated certain provisions of the Census Act. The Government contests those rulings, but also argues that the Secretary’s decision was not judicially reviewable under the Administrative Procedure Act in the first place. We begin with that contention. A The Administrative Procedure Act embodies a “basic presumption of judicial review,” Abbott Laboratories v. Gardner , 387 U.S. 136 , 140 (1967), and instructs reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U. S. C. §706(2)(A). Review is not available, however, “to the extent that” a relevant statute precludes it, §701(a)(1), or the agency action is “committed to agency discretion by law,” §701(a)(2). The Government argues that the Census Act commits to the Secretary’s unreviewable discretion decisions about what questions to include on the decennial census questionnaire. We disagree. To be sure, the Act confers broad authority on the Secretary. Section 141(a) instructs him to take “a decennial census of population” in “such form and content as he may determine, including the use of sampling procedures and special surveys.” 13 U. S. C. §141. The Act defines “census of population” to mean “a census of population, housing, and matters relating to population and housing,” §141(g), and it authorizes the Secretary, in “connection with any such census,” to “obtain such other census information as necessary,” §141(a). It also states that the “Secretary shall prepare questionnaires, and shall determine the inquiries, and the number, form, and subdivisions thereof, for the statistics, surveys, and censuses provided for in this title.” §5. And it authorizes him to acquire materials, such as administrative records, from other federal, state, and local agencies in aid of conducting the census. §6. Those provisions leave much to the Secretary’s discretion. See Wisconsin , 517 U. S., at 19 (“Through the Census Act, Congress has delegated its broad authority over the census to the Secretary.”). But they do not leave his discretion unbounded. In order to give effect to the command that courts set aside agency action that is an abuse of discretion, and to honor the presumption of judicial review, we have read the §701(a)(2) exception for action committed to agency discretion “quite narrowly, restricting it to ‘those rare circumstances where the relevant statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’ ” Weyerhaeuser Co. v. United States Fish and Wildlife Serv. , 586 U. S. ___, ___ (2018) (slip op., at 12) (quoting Lincoln v. Vigil , 508 U.S. 182 , 191 (1993)). And we have generally limited the exception to “certain categories of administrative decisions that courts traditionally have regarded as ‘committed to agency discretion,’ ” id. , at 191, such as a decision not to institute enforcement proceedings, Heckler v. Chaney , 470 U.S. 821 , 831–832 (1985), or a decision by an intelligence agency to terminate an employee in the interest of national security, Webster v. Doe , 486 U.S. 592 , 600–601 (1988). The taking of the census is not one of those areas traditionally committed to agency discretion. We and other courts have entertained both constitutional and statutory challenges to census-related decisionmaking. See, e.g. , Department of Commerce , 525 U.S. 316 ; Wisconsin , 517 U.S. 1 ; Carey v. Klutznick , 637 F.2d 834 (CA2 1980). Nor is the statute here drawn so that it furnishes no meaningful standard by which to judge the Secretary’s action. In contrast to the National Security Act in Webster , which gave the Director of Central Intelligence discretion to terminate employees whenever he “deem[ed]” it “advisable,” 486 U. S., at 594, the Census Act constrains the Secretary’s authority to determine the form and content of the census in a number of ways. Section 195, for example, governs the extent to which he can use statistical sampling. Section 6(c), which will be considered in more detail below, circumscribes his power in certain circumstances to collect information through direct inquiries when administrative records are available. More generally, by mandating a population count that will be used to apportion representatives, see §141(b), 2 U. S. C. §2a, the Act imposes “a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment.” Franklin , 505 U. S., at 819–820 (Stevens, J., concurring in part and concurring in judgment). The Secretary’s decision to reinstate a citizenship question is amenable to review for compliance with those and other provisions of the Census Act, according to the general requirements of reasoned agency decisionmaking. Because this is not a case in which there is “no law to apply,” Overton Park , 401 U. S., at 410, the Secretary’s decision is subject to judicial review. B At the heart of this suit is respondents’ claim that the Secretary abused his discretion in deciding to reinstate a citizenship question. We review the Secretary’s exercise of discretion under the deferential “arbitrary and capricious” standard. See 5 U. S. C. §706(2)(A). Our scope of review is “narrow”: we determine only whether the Secretary examined “the relevant data” and articulated “a satisfactory explanation” for his decision, “including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States , Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983) (internal quotation marks omitted). We may not substitute our judgment for that of the Secretary, ibid. , but instead must confine ourselves to ensuring that he remained “within the bounds of reasoned decisionmaking,” Baltimore Gas & Elec. Co. v. Natural Resources Defense Council , Inc. , 462 U.S. 87 , 105 (1983). The District Court set aside the Secretary’s decision for two independent reasons: His course of action was not supported by the evidence before him, and his stated rationale was pretextual. We focus on the first point here and take up the question of pretext later. The Secretary examined the Bureau’s analysis of various ways to collect improved citizenship data and explained why he thought the best course was to both reinstate a citizenship question and use citizenship data from administrative records to fill in the gaps. He considered but rejected the Bureau’s recommendation to use administrative records alone. As he explained, records are lacking for about 10% of the population, so the Bureau would still need to estimate citizenship for millions of voting-age people. Asking a citizenship question of everyone, the Secretary reasoned, would eliminate the need to estimate citizenship for many of those people. And supplementing census responses with administrative record data would help complete the picture and allow the Bureau to better estimate citizenship for the smaller set of cases where it was still necessary to do so. The evidence before the Secretary supported that decision. As the Bureau acknowledged, each approach—using administrative records alone, or asking about citizenship and using records to fill in the gaps—entailed tradeoffs between accuracy and completeness. Without a citizenship question, the Bureau would need to estimate the citizenship of about 35 million people; with a citizenship question, it would need to estimate the citizenship of only 13.8 million. Under either approach, there would be some errors in both the administrative records and the Bureau’s estimates. With a citizenship question, there would also be some erroneous self-responses (about 500,000) and some conflicts between responses and administrative record data (about 9.5 million). The Bureau explained that the “relative quality” of the citizenship data generated by each approach would depend on the “relative importance of the errors” in each, but it was not able to “quantify the relative magnitude of the errors across the alternatives.” App. 148. The Bureau nonetheless recommended using administrative records alone because it had “high confidence” that it could develop an accurate model for estimating the citizenship of the 35 million people for whom administrative records were not available, and it thought the resulting citizenship data would be of superior quality. Id. , at 146, 158–159. But when the time came for the Secretary to make a decision, the model did not yet exist, and even if it had, there was no way to gauge its relative accuracy. As the Bureau put it, “we will most likely never possess a fully adequate truth deck to benchmark” the model—which appears to be bureaucratese for “maybe, maybe not.” Id. , at 146. The Secretary opted instead for the approach that would yield a more complete set of data at an acceptable rate of accuracy, and would require estimating the citizenship of fewer people. The District Court overruled that choice, agreeing with the Bureau’s assessment that its recommended approach would yield higher quality citizenship data on the whole. But the choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make. He considered the relevant factors, weighed risks and benefits, and articulated a satisfactory explanation for his decision. In overriding that reasonable exercise of discretion, the court improperly substituted its judgment for that of the agency. The Secretary then weighed the benefit of collecting more complete and accurate citizenship data against the risk that inquiring about citizenship would depress census response rates, particularly among noncitizen households. In the Secretary’s view, that risk was difficult to assess. The Bureau predicted a 5.1% decline in response rates among noncitizen households if the citizenship question were reinstated.[ 2 ] It relied for that prediction primarily on studies showing that, while noncitizens had responded at lower rates than citizens to the 2000 short-form and 2010 censuses, which did not ask about citizenship, they responded at even lower rates than citizens to the 2000 long-form census and the 2010 American Community Survey, which did ask about citizenship. The Bureau thought it was reasonable to infer that the citizenship question accounted for the differential decline in noncitizen responses. But, the Secretary explained, the Bureau was unable to rule out other causes. For one thing, the evidence before the Secretary suggested that noncitizen households tend to be more distrustful of, and less likely to respond to, any government effort to collect information. For another, both the 2000 long-form census and 2010 ACS asked over 45 questions on a range of topics, including employment, income, and housing characteristics. Noncitizen households might disproportionately fail to respond to a lengthy and intrusive Government questionnaire for a number of reasons besides reluctance to answer a citizenship question—reasons relating to education level, socioeconomic status, and less exposure to Government outreach efforts. See App. to Pet. for Cert. 553a–554a, 557a–558a. The Secretary justifiably found the Bureau’s analysis inconclusive. Weighing that uncertainty against the value of obtaining more complete and accurate citizenship data, he determined that reinstating a citizenship question was worth the risk of a potentially lower response rate. That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census. Justice Breyer would conclude otherwise, but only by subordinating the Secretary’s policymaking discretion to the Bureau’s technocratic expertise. Justice Breyer’s analysis treats the Bureau’s (pessimistic) prediction about response rates and (optimistic) assumptions about its data modeling abilities as touchstones of substantive reason- ableness rather than simply evidence for the Secretary to consider. He suggests that the Secretary should have deferred to the Bureau or at least offered some special justification for drawing his own inferences and adopting his own assumptions. But the Census Act authorizes the Secretary, not the Bureau, to make policy choices within the range of reasonable options. And the evidence before the Secretary hardly led ineluctably to just one reasonable course of action. It called for value-laden decisionmaking and the weighing of incommensurables under conditions of uncertainty. The Secretary was required to consider the evidence and give reasons for his chosen course of action. He did so. It is not for us to ask whether his decision was “the best one possible” or even whether it was “better than the alternatives.” FERC v. Electric Power Supply Assn. , 577 U. S. ___, ___ (2016) (slip op., at 30). By second-guessing the Secretary’s weighing of risks and benefits and penalizing him for departing from the Bureau’s inferences and assumptions, Justice Breyer—like the District Court—substitutes his judgment for that of the agency. C The District Court also ruled that the Secretary violated two particular provisions of the Census Act, §6(c) and §141(f). Section 6 has three subsections. Subsections (a) and (b) authorize the Secretary to acquire administrative records from other federal agencies and from state and local governments.[ 3 ] Subsection (c) states: “To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries.” 13 U. S. C. §6(c). The District Court held, and respondents argue, that the Secretary failed to comply with §6(c) because he opted to collect citizenship data using direct inquiries when it was possible to provide DOJ with data from administrative records alone. At the outset, §6(c) may not even apply here. It governs the Secretary’s choices with respect to “statistics required.” The parties have assumed that phrase refers to census-related data that the Secretary wishes to acquire, but it may instead refer to particular kinds of statistics that other provisions of the Census Act actually do require the Secretary to collect and publish. See, e.g. , §41 (“The Secretary shall collect and publish statistics concerning [cotton and cotton production].”); §61 (“The Secretary shall collect, collate, and publish monthly statistics concerning [vegetable and animal oils and the like].”); §91 (“The Secretary shall collect and publish quarterly financial statistics of business operations, organization, practices, management, and relation to other businesses.”). If so, §6(c) would seem to have nothing to say about the Secretary’s collection of census-related citizenship data, which is not a “statistic” he is “required” to collect. Regardless, assuming the provision applies, the Secretary complied with it, for essentially the same reasons that his decision was not arbitrary and capricious. As he explained, administrative records would not, in his judgment, provide the more complete and accurate data that DOJ sought. He thus could not, “consistent with” the kind and quality of the “statistics required,” use administrative records instead of asking about citizenship directly. Respondents’ arguments to the contrary rehash their dis- agreement with the Secretary’s policy judgment about which approach would yield the most complete and accurate citizenship data. For the reasons already discussed, we may not substitute our judgment for that of the Secretary here. We turn now to §141(f), which requires the Secretary to report to Congress about his plans for the census. Paragraph (1) instructs him to submit, at least three years before the census date, a report containing his “determination of the subjects proposed to be included, and the types of information to be compiled,” in the census. Paragraph (2) then tells him to submit, at least two years before the census date, a report containing his “determination of the questions proposed to be included” in the census. Paragraph (3) provides: “[A]fter submission of a report under paragraph (1) or (2) of this subsection and before the appropriate census date, if the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, [he shall submit] areport containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be modified.” The Secretary timely submitted his paragraph (1) report in March 2017. It did not mention citizenship. In December 2017, he received DOJ’s formal request. Three months later, in March 2018, he timely submitted his para- graph (2) report. It did propose asking a question about citizenship. The District Court held that the Secretary’s failure to mention citizenship in his March 2017 report violated §141(f)(1) and provided an independent basis to set aside his action. Assuming without deciding that the Secretary’s compliance with the reporting requirement is for courts—rather than Congress—to police, we disagree. The Secretary’s March 2018 report satisfied the requirements of paragraph (3): By informing Congress that he proposed to include a citizenship question, the Secretary necessarily also informed Congress that he proposed to modify the original list of subjects that he submitted in the March 2017 report. Nothing in §141(f) suggests that the same report cannot simultaneously fulfill the requirements of paragraphs (2) and (3). And to the extent paragraph (3) requires the Secretary to explain his finding of new circumstances, he did so in his March 2018 memo, which described DOJ’s intervening request. In any event, even if we agreed with the District Court that the Secretary technically violated §141(f) by submitting a paragraph (2) report that doubled as a paragraph (3) report, the error would surely be harmless in these circumstances, where the Secretary nonetheless fully informed Congress of, and explained, his decision. See 5 U. S. C. §706 (in reviewing agency action, “due account shall be taken of the rule of prejudicial error”). V We now consider the District Court’s determination that the Secretary’s decision must be set aside because it rested on a pretextual basis, which the Government conceded below would warrant a remand to the agency. We start with settled propositions. First, in order to permit meaningful judicial review, an agency must “disclose the basis” of its action. Burlington Truck Lines , Inc. v. United States , 371 U.S. 156 , 167–169 (1962) (internal quotation marks omitted); see also SEC v. Chenery Corp. , 318 U.S. 80 , 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”). Second, in reviewing agency action, a court is ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council , Inc. , 435 U.S. 519 , 549 (1978); Camp v. Pitts , 411 U.S. 138 , 142–143 (1973) ( per curiam ). That principle reflects the recognition that further judicial inquiry into “executive motivation” represents “a substantial intrusion” into the workings of another branch of Government and should normally be avoided. Arlington Heights v. Metropolitan Housing Development Corp. , 429 U.S. 252 , 268, n. 18 (1977); see Overton Park , 401 U. S., at 420. Third, a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons. See Jagers v. Federal Crop Ins. Corp. , 758 F.3d 1179, 1185–1186 (CA10 2014) (rejecting argument that “the agency’s subjective desire to reach a particular result must necessarily invalidate the result, regardless of the objective evidence supporting the agency’s conclusion”). Relatedly, a court may not set aside an agency’s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration’s priorities. Agency policymaking is not a “rarified technocratic process, unaffected by political considerations or the presence of Presidential power.” Sierra Club v. Costle , 657 F.2d 298, 408 (CADC 1981). Such decisions are routinely informed by unstated considerations of politics, the legislative process, public relations, interest group relations, foreign relations, and national security concerns (among others). Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decisionmakers.” Overton Park , 401 U. S., at 420. On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery. Ibid. The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record. Recall that shortly after this litigation began, the Secretary, prodded by DOJ, filed a supplemental memo that added new, pertinent information to the administrative record. The memo disclosed that the Secretary had been considering the citizenship question for some time and that Commerce had inquired whether DOJ would formally request reinstatement of the question. That supplemental memo prompted respondents to move for both completion of the administrative record and extra-record discovery. The District Court granted both requests at the same hearing, agreeing with respondents that the Government had submitted an incomplete administrative record and that the existing evidence supported a prima facie showing that the VRA rationale was pretextual. The Government did not challenge the court’s conclusion that the administrative record was incomplete, and the parties stipulated to the inclusion of more than 12,000 pages of internal deliberative materials as part of the administrative record, materials that the court later held were sufficient on their own to demonstrate pretext. The Government did, however, challenge the District Court’s order authorizing extra-record discovery, as well as the court’s later orders compelling depositions of the Secretary and of the Acting Assistant Attorney General for DOJ’s Civil Rights Division. We agree with the Government that the District Court should not have ordered extra-record discovery when it did. At that time, the most that was warranted was the order to complete the administrative record. But the new material that the parties stipulated should have been part of the administrative record—which showed, among other things, that the VRA played an insignificant role in the decisionmaking process—largely justified such extra-record discovery as occurred (which did not include the deposition of the Secretary himself). We accordingly review the District Court’s ruling on pretext in light of all the evidence in the record before the court, including the extra-record discovery. That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660. The Government, on the other hand, contends that there was nothing objectionable or even surprising in this. And we agree—to a point. It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy. The record here reflects the sometimes involved nature of Executive Branch decisionmaking, but no particular step in the process stands out as inappropriate or defective. And yet, viewing the evidence as a whole, we share the District Court’s conviction that the decision to reinstate a citizenship question cannot be adequately explained in terms of DOJ’s request for improved citizenship data to better enforce the VRA. Several points, considered together, reveal a significant mismatch between the decision the Secretary made and the rationale he provided. The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” Id., at 551. The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued. Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part. Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived. We are presented, in other words, with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process. It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be. But having done so for the sufficient reasons we have explained, we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich , 550 F.2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case. In these unusual circumstances, the District Court was warranted in remanding to the agency, and we affirm that disposition. See Florida Power & Light Co. v. Lorion , 470 U.S. 729 , 744 (1985). We do not hold that the agency decision here was substantively invalid. But agencies must pursue their goals reasonably. Reasoned decisionmaking under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction. *  *  * The judgment of the United States District Court for the Southern District of New York is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The annual alien registration requirement was repealed in 1981. See §11, 95Stat. 1617 (1981). 2 Several months after the Secretary made his decision, the Bureau updated its prediction to 5.8%, the figure the District Court later relied on in its standing analysis. See 351 F. Supp. 3d 502, 579 (SDNY 2019). 3 The full text of subsections (a) and (b) provides: “(a) The Secretary, whenever he considers it advisable, may call upon any other department, agency, or establishment of the FederalGovernment, or of the government of the District of Columbia, for information pertinent to the work provided for in this title. “(b) The Secretary may acquire, by purchase or otherwise, from States, counties, cities, or other units of government, or their instrumentalities, or from private persons and agencies, such copies of records, reports, and other material as may be required for the efficient and economical conduct of the censuses and surveys provided for in this title.” 13 U. S. C. §6. SUPREME COURT OF THE UNITED STATES _________________ No. 18–966 _________________ DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 27, 2019] Justice Thomas, with whom Justice Gorsuch and Justice Kavanaugh join, concurring in part and dissenting in part. In March 2018, the Secretary of Commerce exercised his broad discretion over the administration of the decennial census to resume a nearly unbroken practice of asking a question relating to citizenship. Our only role in this case is to decide whether the Secretary complied with the law and gave a reasoned explanation for his decision. The Court correctly answers these questions in the affirmative. Ante , at 11–23. That ought to end our inquiry. The Court, however, goes further. For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale. Echoing the din of suspicion and distrust that seems to typify modern discourse, the Court declares the Secretary’s memorandum “pretextual” because, “viewing the evidence as a whole,” his explanation that including a citizenship question on the census would help enforce the Voting Rights Act (VRA) “seems to have been contrived.” Ante , at 23, 26, 28. The Court does not hold that the Secretary merely had additional , unstated reasons for reinstating the citizenship question. Rather, it holds that the Secretary’s stated rationale did not factor at all into his decision. The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions. And, if taken seriously as a rule of decision, this holding would transform administrative law. It is not difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus. Crediting these accusations on evidence as thin as the evidence here could lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes not contemplated by the Administrative Procedure Act (APA). Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding that he must not be telling the truth. The Court therefore up- holds the decision of the District Court—which, in turn, was transparently based on the application of an administration-specific standard. App. to Pet. for Cert. 527a (crediting respondents’ allegations that “the current Depart- ment of Justice has shown little interest in enforcing the” VRA (emphasis added)). The law requires a more impartial approach. Even assuming we are authorized to engage in the review undertaken by the Court—which is far from clear—we have often stated that courts reviewing agency action owe the Executive a “presumption of regularity.” Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402 , 415 (1971). The Court pays only lipservice to this principle. But, the evidence falls far short of supporting its decision. The Court, I fear, will come to regret inventing the principles it uses to achieve today’s result. I respectfully dissent from Part V of the opinion of the Court.[ 1 ] I As the Court explains, federal law directs the Secretary of Commerce to “take a decennial census.” 13 U. S. C. §141(a); see U. S. Const., Art. I, §2, cl. 3; Amdt. XIV, §2; ante , at 1–2. The discretion afforded the Secretary is extremely broad. Subject only to constitutional limitations and a handful of inapposite statutory requirements, the Secretary is expressly authorized to “determine the inquiries” on the census questionnaire and to conduct the census “in such form and content as he may determine.” §§5, 141(a); see ante , at 14–16, 20–23.[ 2 ] Prior census questionnaires have included questions ranging from sex, age, and race to commute, education, and radio ownership. And between 1820 and 2010, every decennial census questionnaire but one asked some segment of the population a question related to citizenship. The 2010 census was the first since 1840 that did not include any such question. In March 2018, the Secretary issued a memorandum reinstating a citizenship question on the 2020 census. He explained that the Department of Justice (DOJ) had formally requested reinstatement of the question because the data obtained would help enforce §2 of the VRA. He further explained that the question had been well tested in light of its extensive previous use, that he had consulted with the Census Bureau on the proposal, and that his final decision incorporated feedback from the Bureau. He recognized that staff at the Bureau believed that better data could be obtained through modeling and reliance on existing records, but he disagreed with that assessment, explaining that the data was inconclusive and that he thought it preferable to ask the question directly of the entire population. Respondents brought suit, seeking judicial review of the Secretary’s decision under the APA, 5 U. S. C. §706. II As relevant here, the APA requires courts to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” §706(2)(A). We have emphasized that “[r]eview under the arbitrary and capricious standard is deferential.” National Assn. of Home Builders v. Defenders of Wildlife , 551 U.S. 644 , 658 (2007); see Glickman v. Wileman Brothers & Elliott, Inc. , 521 U.S. 457 , 466, n. 8 (1997). It requires the reviewing court to determine whether the agency “ ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action.’ ” FCC v. Fox Television Stations, Inc. , 556 U.S. 502 , 513 (2009). We have described this as a “ ‘narrow’ standard of review” under which the reviewing court cannot “ ‘substitute its judgment for that of the agency,’ and should ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’ ” Id. , at 513–514 (citation omitted); accord, Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983).[ 3 ] Part IV–B of the opinion of the Court correctly applies this standard to conclude that the Secretary’s decision survives ordinary arbitrary-and-capricious review. That holding should end our inquiry. But the opinion continues. Acknowledging that “no particular step” in the proceedings here “stands out as inappropriate or defective,” even after reviewing “all the evidence in the record . . . , including the extra-record discovery,” ante , at 26, the Court nevertheless agrees with the District Court that the Secretary’s rationale for reinstating the citizenship question was “pretextual—that is, that the real reason for his decision was something other than the sole reason he put forward in his memorandum, namely enhancement of DOJ’s VRA enforcement efforts.” 351 F. Supp. 3d 502, 660 (SDNY 2019); see ante , at 28. According to the Court, something just “seems” wrong. Ibid. This conclusion is extraordinary. The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion. Moreover, each step of the inquiry offends the presumption of regularity we owe the Executive. The judgment of the District Court should be reversed. A Section 706(2) of the APA contemplates review of the administrative “record” to determine whether an agency’s “action, findings, and conclusions” satisfy six specified standards. See §§706(2)(A)–(F). None instructs the Court to inquire into pretext. Consistent with this statutory text, we have held that a court is “ordinarily limited to evaluating the agency’s contemporaneous explanation in light of the existing administrative record.” Ante , at 23 (citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U.S. 519 , 549 (1978)); see SEC v. Chenery Corp. , 318 U.S. 80 , 87 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based”). If an agency’s stated findings and conclusions withstand scrutiny, the APA does not permit a court to set aside the decision solely because the agency had “other unstated reasons” for its decision, such as “political considerations” or the “Administration’s priorities.” Ante , at 24. Unsurprisingly, then, this Court has never held an agency decision arbitrary and capricious on the ground that its supporting rationale was “pretextual.” Nor has it previously suggested that this was even a possibility. Under “settled propositions” of administrative law, ante , at 23, pretext is virtually never an appropriate or relevant inquiry for a reviewing court to undertake. Respondents conceptualize pretext as a subset of “arbitrary and capricious” review. It is far from clear that they are correct. But even if they were, an agency action is not arbitrary or capricious merely because the decisionmaker has other, unstated reasons for the decision. Ante , at 24. Nor is an agency action arbitrary and capricious merely because the decisionmaker was “inclined” to accomplish it before confirming that the law and facts supported that inclination. In re Dept. of Commerce , 586 U. S. ___, ___ (2018) (Gorsuch, J., concurring in part and dissenting in part) (slip op., at 2). Accordingly, even under respondents’ approach, a showing of pretext could render an agency action arbitrary and capricious only in the infinitesimally small number of cases in which the administrative record establishes that an agency’s stated rationale did not factor at all into the decision, thereby depriving the action of an adequate supporting rationale.[ 4 ] This showing is extremely difficult to make because the administrative record will rarely, if ever, contain evidence sufficient to show that an agency’s stated rationale did not actually factor into its decision. And we have stated that a “strong showing of bad faith or improper behavior” is necessary to venture beyond the agency’s “administrative findings” and inquire into “the mental processes of administrative decisionmakers.” Overton Park , 401 U. S., at 420.[ 5 ] We have never before found Overton Park ’s exception satisfied, much less invalidated an agency action based on “pretext.” Undergirding our arbitrary-and-capricious analysis is our longstanding precedent affording the Executive a “presumption of regularity.” Id., at 415; see United States v. Chemical Foundation, Inc. , 272 U.S. 1 , 14–15 (1926). This presumption reflects respect for a coordinate branch of government whose officers not only take an oath to support the Constitution, as we do, Art. VI, but also are charged with “faithfully execut[ing]” our laws, Art. II, §3. See United States v. Morgan , 313 U.S. 409 , 422 (1941) (presumption of regularity ensures that the “integrity of the administrative process” is appropriately respected). In practice, then, we give the benefit of the doubt to the agency. B The Court errs at the outset by proceeding beyond the administrative record to evaluate pretext. Respondents have not made a “strong showing of bad faith or improper behavior.” Overton Park , supra , at 420. The District Court’s initial order granting extra-record discovery relied on four categories of evidence: “evidence that [the Secretary] was predisposed to reinstate the citizenship question when he took office; that the [DOJ] hadn’t expressed a desire for more detailed citizenship data until the Secretary solicited its view; that he overruled the objections of his agency’s career staff; and that he declined to order more testing of the question given its long history.” Dept. of Commerce , 586 U. S., at ___ (slip op., at 2). None of this comes close to showing bad faith or improper behavior. Indeed, there is nothing even “unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape.” Ibid . Today all Members of the Court who reach the question agree that the District Court abused its discretion in ordering extra-record discovery based on this evidence. Ante , at 25 (“We agree with the Government that the District Court should not have ordered extra-record discovery when it did”). Nevertheless, the Court excuses the error because, in its view, “the new material that the parties [later] stipulated should have been part of the administrative record . . . largely justified such extra-record discovery as occurred.” Ibid. Given the requirement that respondents make a “strong showing” of bad faith, one would expect the Court to identify which “new material” supported such a showing. It does not. Nor does the Court square its suggestion that some of the extra-record discovery was not “justified” with its consideration of “all . . . the extra-record discovery.” Ante , at 25–26 . Regardless, I assume that the Court has in mind the administrative-record materials that the District Court would later rely on to establish pretext: “evidence that [the Secretary] had made the decision to add the citizenship question well before DOJ requested its addition in December 2017; the absence of any mention, at all , of VRA enforcement in the discussions of adding the question that preceded the [DOJ] Letter; unsuccessful attempts by Commerce Department staff to shop around for a request by another agency regarding citizenship data; and [the Secretary’s] personal outreach to Attorney General Sessions, followed by the [DOJ] Letter; not to mention the conspicuous procedural irregularities that accompanied the decision to add the question.” 351 F. Supp. 3d, at 661 (citations omitted). This evidence fails to make a strong showing of bad faith or improper behavior. Taken together, it proves at most that the Secretary was predisposed to add a citizenship question to the census and took steps to achieve that end before settling on the VRA rationale he included in his memorandum. Perhaps he had reasons for adding the citizenship question other than the VRA, but by the Court’s own telling, that does not amount to evidence of bad faith or improper behavior. Ante , at 24; see Dept. of Commerce , supra , at ___ (slip op., at 2). The Court thus errs in relying on materials outside the record to support its holding. And the Court does not claim that the evidence in the administrative record alone would prove that the March 2018 memorandum was a pretext. Given the presumption of regularity, the evidence discussed above falls far short of establishing that the VRA rationale did not factor at all into the Secretary’s decision. C Even if it were appropriate for the Court to rely on evidence outside the administrative record, that evidence still fails to establish pretext. None of the evidence cited by the Court or the District Court comes close to showing that the Secretary’s stated rationale — that adding a citizenship question to the 2020 census questionnaire would “provide . . . data that are not currently available” and “permit more effective enforcement of the [VRA],” App. to Pet. for Cert. 548a—did not factor at all into his decision. Once again, the evidence cited by the Court suggests at most that the Secretary had “other unstated reasons” for reinstating the citizenship question. Ante , at 24. For example, the Court states that the Secretary’s Director of Policy “initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review.” Ante , at 27. But this hardly shows pretext. It simply suggests that the Director believed that citizenship information could be useful in tackling problems related to national security and illegal immigration—a view that would also explain why the Secretary might not have been “considering VRA enforcement” early on. Ibid. ; see also American Community Survey, Why We Ask: Place of Birth, Citizenship and Year of Entry (2016) (explaining that inquiries about “place of birth, citizenship, and year of entry” provide statistics that are “essential for agencies and policy makers setting and evaluating immigration policies and laws, understanding how different immigrant groups are assimilated, and monitoring against discrimination”), https:// www2 . census . gov / programs - surveys / acs / about / qbyqfact / 2016/Citizenship.pdf (as last visited June 25, 2019). The Court emphasizes that the VRA rationale for the citizenship question originated in the Department of Commerce, and suggests that DOJ officials unthinkingly fell in line after the Attorney General was looped into the process. See ante , at 27. But the Court ignores that the letter was drafted by the then-Acting Assistant Attorney General for Civil Rights and reviewed by five other DOJ attorneys, including the Chief of the DOJ’s Voting Section. 351 F. Supp. 3d, at 554–556. Given the DOJ’s multilayer review process and its explanation for requesting citizenship data, the Court’s suggestion that the DOJ’s letter was inadequately vetted or improperly “influence[d]” by the Department of Commerce is entirely unsupported. Ante , at 27. In any event, none of this suggests, much less proves, that the Secretary harbored an unstated belief that adding the citizenship question would not help enforce the VRA, or that the VRA rationale otherwise did not factor at all into his decision. It simply suggests that a number of executive officials agreed that adding a citizenship question would support VRA enforcement. The Court’s other evidence is even further afield. The Court thinks it telling that the DOJ’s letter included “a specific request that Commerce collect the [citizenship] data by means of reinstating a citizenship question on the census,” rather than a more open-ended “entreaty for better citizenship data.” Ibid. I do not understand how the specificity of the DOJ’s letter bears on whether the Secretary’s rationale was pretextual—particularly since the letter specifically explained why “census questionnaire data regarding citizenship, if available, would be more appropriate for use in redistricting and in [VRA] litigation” than existing data. App. to Pet. for Cert. 568a; see id. , at 567a–568a. Unless the Court is now suggesting that agency correspondence must comply with the Court’s subjective, unsupported view of what “might” constitute a “typical request from another agency,” ante , at 27, the specificity of the DOJ’s letter is irrelevant. The Court also points to the DOJ’s decision not to meet with the Census Bureau “to discuss alternative ways to meet DOJ’s stated need for improved citizenship data.” Ibid. But the Court does not explain how the DOJ’s refusal bears on the Secretary’s rationale. Besides, it is easy to understand why DOJ officials would not be interested in meeting with the Census Bureau. The meeting would have been with career employees whose acknowledged purpose was to talk the DOJ out of its request. See 351 F. Supp. 3d, at 557. Having already considered the issue and explained the rationale behind the request, it seems at least plausible that the DOJ officials believed such a meeting would be unproductive. In short, the evidence cited by the Court establishes, at most, that leadership at both the Department of Commerce and the DOJ believed it important—for a variety of reasons—to include a citizenship question on the census. The Court also fails to give credit where it is due. The Secretary initiated this process inclined to favor what he called “Option B”—that is, simply “add[ing] a citizenship question to the decennial census.” App. to Pet. for Cert. 552a. But the Census Bureau favored “Option C”—relying solely on “administrative records” to supply the information needed by the DOJ. Id. , at 554a. The Secretary considered this view and found it a “potentially appealing solution,” ibid. , but concluded that it had shortcomings. Rather than revert to his original inclination, however, he “asked the Census Bureau to develop a fourth alternative, Option D, which would combine Options B and C.” Id. , at 555a. And he settled on that solution. Whatever one thinks of the Secretary’s choice, his willingness to change his mind in light of the Bureau’s feedback belies the idea that his rationale or decisionmaking process was a pretext. The District Court’s lengthy opinion pointed to other facts that, in its view, supported a finding of pretext. 351 F. Supp. 3d, at 567–572, 660–664 (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that a judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web. Cf. id. , at 662 (inferring “from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide”). But the Court does not rely on this evidence, and rightly so: It casts no doubt on whether the Secretary’s stated rationale factored into his decision. The evidence suggests, at most, that the Secretary had multiple reasons for wanting to include the citizenship question on the census. Finally, if there could be any doubt about this conclusion, the presumption of regularity resolves it. Where there are equally plausible views of the evidence, one of which involves attributing bad faith to an officer of a coordinate branch of Government, the presumption compels giving the benefit of the doubt to that officer. III The Court’s erroneous decision in this case is bad enough, as it unjustifiably interferes with the 2020 census. But the implications of today’s decision are broader. With today’s decision, the Court has opened a Pandora’s box of pretext-based challenges in administrative law. Today’s decision marks the first time the Court has ever invalidated an agency action as “pretextual.” Having taken that step, one thing is certain: This will not be the last time it is asked to do so. Virtually every significant agency action is vulnerable to the kinds of allegations the Court credits today. These decisions regularly involve coordination with numerous stakeholders and agencies, involvement at the highest levels of the Executive Branch, opposition from reluctant agency staff, and—perhaps most importantly—persons who stand to gain from the action’s demise. Opponents of future executive actions can be expected to make full use of the Court’s new approach. The 2015 “Open Internet Order” provides a case in point. In 2015, the Federal Communications Commission (FCC) adopted a controversial order reclassifying broadband Internet access service as a “telecommunications service” subject to regulation under Title II of the Communications Act. See In re Protecting and Promoting the Open Internet , 30 FCC Rcd. 5601, 5618 (2015). According to a dissenting Commissioner, the FCC “flip-flopp[ed]” on its previous policy not because of a change in facts or legal understanding, but based on “one reason and one reason alone. President Obama told us to do so.” Id., at 5921 (statement of Comm’r Pai). His view was supported by a 2016 congressional Report in which Republican Senate staff concluded that “the FCC bent to the political pressure of the White House” and “failed to live up to standards of transparency.” Majority Staff Report, Senate Committee on Homeland Security and Governmental Affairs, Regulating the Internet: How the White House Bowled Over FCC Independence, 114th Cong., 1st Sess., 29 (Comm. Print 2016). The Report cited evidence strikingly similar to that relied upon by the Court here—including agency-initiated “meetings with certain outside groups to support” the new result, id. , at 3; “apparen[t] . . . concern from the career staff that there was insufficient notice to the public and affected stakeholders,” id., at 4; and “regula[r] communicatio[n]” between the FCC Chairman and “presidential advisors,” id. , at 25. Under the malleable standard applied by the Court today, a serious case could be made that the Open Internet Order should have been invalidated as “pretextual,” regardless of whether any “particular step in the process stands out as inappropriate or defective.” Ante , at 26. It is enough, according to the Court, that a judge believes that the ultimate rationale “seems to have been contrived” when the evidence is considered “as a whole.” Ante , at 26, 28. Now that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them. Moreover, even if the effort to invalidate the action is ultimately unsuccessful, the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction. The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws. In short, today’s decision is a departure from traditional principles of administrative law. Hopefully it comes to be understood as an aberration—a ticket good for this day and this train only. *  *  * Because the Secretary’s decision to reinstate a citizenship question on the 2020 census was legally sound and a reasoned exercise of his broad discretion, I respectfully dissent from Part V of the opinion of the Court. Notes 1 Justice Kavanaugh and I join Parts I, II, III, and IV of the opinion of the Court. Justice Gorsuch joins Parts I, II, III, IV–B, and IV–C. 2 Justice Alito has made a strong argument that the specific decision at issue here—whether to include a citizenship question on the census—is a matter “committed to agency discretion by law.” 5 U. S. C. §701(a)(2); see post , at 3 (opinion concurring in part and dissenting in part). As he explains, the Secretary’s decision plainly falls within the scope of the Secretary’s constitutional authority, does not implicate any statutory prohibition, and is among the “inquiries” and “content[s]” of the census that the Secretary is expressly directed to “determine” for himself. §§5, 141(a); see post , at 5–15. Nevertheless, I assume, for the purpose of this opinion, that the Secretary’s decision is subject to judicial review. 3 Deferential review of the agency’s discretionary choices and reasoning under the arbitrary-and-capricious standard stands in marked contrast to a court’s plenary review of the agency’s interpretation and application of the law. See §§706(A)–(D) (court must review agency action to ensure that it complies with all “constitutional,” “statutory,” and “procedur[al]” requirements, and is otherwise “in accordance with law”). 4 We do not have before us a claim that information outside the administrative record calls into question the legality of an agency action based on an unstated, unlawful bias or motivation ( e.g. , a claim of religious discrimination under the Free Exercise Clause). But to the extent such a claim is viable, the analysis would have nothing to do with the arbitrary-and-capricious review pressed by respondents. See §§706(2)(A)–(C) (addressing agency actions that violate “constitutional” or “statutory” requirements, or that “otherwise [are] not in accordance with law”). 5 Insofar as Overton Park authorizes an exception to review on the administrative record, it has been criticized as having “no textual grounding in the APA” and as “created by the Court, without citation or explanation, to facilitate Article III review.” Gavoor & Platt, Administrative Records and the Courts, 67 U. Kan. L. Rev. 1, 44 (2018); see id., at 22 (further arguing that the exception was “neither presented by the facts of the case nor briefed by the parties”). The legitimacy and scope of the exception—which by its terms contemplates only “administrative officials who participated in the decision . . . giv[ing] testimony explaining their action,” Overton Park , 401 U. S., at 420—is an important question that may warrant future consideration. But because the Court’s holding is incorrect regardless of the validity of the Overton Park exception, I will apply it here. SUPREME COURT OF THE UNITED STATES _________________ No. 18–966 _________________ DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 27, 2019] Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, concurring in part and dissenting in part. I join Parts I, II, IV–A, and V of the Court’s opinion (except as otherwise indicated in this opinion). I dissent, however, from the conclusion the Court reaches in Part IV–B. To be more specific, I agree with the Court that the Secretary of Commerce provided a pretextual reason for placing a question about citizenship on the short-form census questionnaire and that a remand to the agency is appropriate on that ground. But I write separately because I also believe that the Secretary’s decision to add the citizenship question was arbitrary and capricious and therefore violated the Administrative Procedure Act (APA). There is no serious dispute that adding a citizenship question would diminish the accuracy of the enumeration of the population—the sole constitutional function of the census and a task of great practical importance. The record demonstrates that the question would likely cause a disproportionate number of noncitizens and Hispanics to go uncounted in the upcoming census. That, in turn, would create a risk that some States would wrongfully lose a congressional representative and funding for a host of federal programs. And, the Secretary was told, the adverse consequences would fall most heavily on minority communities. The Secretary decided to ask the question anyway, citing a need for more accurate citizenship data. But the evidence indicated that asking the question would produce citizenship data that is less accurate, not more. And the reason the Secretary gave for needing better citizenship data in the first place—to help enforce the Voting Rights Act of 1965—was not convincing. In short, the Secretary’s decision to add a citizenship question created a severe risk of harmful consequences, yet he did not adequately consider whether the question was necessary or whether it was an appropriate means of achieving his stated goal. The Secretary thus failed to “articulate a satisfactory explanation” for his decision, “failed to consider . . . important aspect[s] of the problem,” and “offered an explanation for [his] decision that runs counter to the evidence,” all in violation of the APA. Motor Vehicle Mfrs. Assn. of United States , Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983). These failures, in my view, risked undermining public confidence in the integrity of our democratic system itself. I would therefore hold that the Secretary’s decision—whether pretextual or not—was arbitrary, capricious, and an abuse of discretion. I A Three sets of laws determine the legal outcome of this case. First, the Constitution requires an “actual Enumeration” of the “whole number of persons in each State” every 10 years. Art. I, §2, cl. 3; Amdt. 14, §2. It does so in order to “provide a basis for apportioning representatives among the states in the Congress.” Baldrige v. Shapiro , 455 U.S. 345 , 353 (1982); see also Art. I, §2, cl. 3. The inclusion of this provision in the Constitution itself underscores the importance of conducting an accurate census. See Utah v. Evans , 536 U.S. 452 , 478 (2002) (recognizing “a strong constitutional interest in [the] accuracy” of the enumeration). Second, the Census Act contains two directives that constrain the Secretary’s ability to add questions to the census. Section 195 says that the Secretary “shall, if he considers it feasible,” authorize the use of statistical “sampling” in collecting demographic information. That means the Secretary must, if feasible, obtain demographic information through a survey sent to a sample of households, rather than through the short-form census questionnaire to which every household must respond. The other relevant provision, §6(c), says that “[ t ] o the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available” from administrative sources “instead of conducting direct inquiries.” (Emphasis added.) These provisions, taken together, reflect a congressional preference for keeping the short form short, so that it does not burden recipients and thereby discourage them from responding. Third, the APA prohibits administrative agencies from making choices that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). We have said that courts, in applying this provision, must decide “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park , Inc. v. Volpe , 401 U.S. 402 , 416 (1971). The agency must have “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action[,] including a ‘rational connection between the facts found and the choice made.’ ” State Farm , 463 U. S., at 43. An agency ordinarily fails to meet this standard if it has “failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Ibid. Courts do not apply these principles of administrative law mechanically. Rather, they take into account, for example, the nature and importance of the particular decision, the relevance and importance of missing information, and the inadequacies of a particular explanation in light of their importance. The Federal Government makes tens of thousands, perhaps millions, of administrative decisions each year. And courts would be wrong to expect or insist upon administrative perfection. But here, the Enumeration Clause, the Census Act, and the nature of the risks created by the agency’s decision all make clear that the decision before us is highly important to the proper functioning of our democratic system. It is therefore particularly important that courts here not overlook an agency’s (1) failure to consider serious risks of harm, (2) failure to explain its refusal to minimize those risks, or (3) failure to link its conclusion to available evidence. My view, like that of the District Court, is that the agency here failed on all three counts. B A brief history of how the census has worked over the years will help the reader understand some of the shortcomings of the Secretary’s decisionmaking process. The Framers wrote into the Constitution a mandate to conduct an “actual Enumeration” of the population every 10 years. Art. I, §2, cl. 3. They did so for good reason. The purpose of the census is to “provide a basis for apportioning representatives among the states in the Congress,” Baldrige , 455 U. S., at 353, ensuring that “comparative state political power in the House . . . reflect[s] comparative population,” Evans , 536 U. S., at 477. The Framers required an actual count of every resident to “limit political chicanery” and to prevent the census count from being “skewed for political . . . purposes.” Id. , at 500 (Thomas, J., concurring in part and dissenting in part). Throughout most of the Nation’s history, the Federal Government used enumerators, often trained census takers, to conduct the census by going door to door. The enumerators would ask a host of questions, including place of birth, citizenship, and others. But after the 1950 census, the Bureau began to change its approach. Post-census studies revealed that the census had failed to count more than 5 million people and that the undercount disproportionately affected members of minority groups. See M. Anderson, The American Census: A Social History 201−202 (1988); Brief for Historians and Social Scientists as Amici Curiae 15. Studies showed that statistical sampling would produce higher quality data. Anderson, American Census, at 201. Beginning with the 1960 census, the Bureau consequently divided its questioning into a short form and a long form. The short form contained a list of questions—a short list—that the census would ask of every household. That list included basic demographic questions like sex, age, race, and marital status. The short form did not include, and has never included, a question about citizenship. See ibid. ; Dept. of Commerce, U. S. Census Bureau, Measuring America: The Decennial Censuses From 1790 to 2000, p. 128 (2002). By way of contrast, the long form set forth a host of questions that would be asked of only a sample of households. In 1960, the long form was sent to one in every four households; in subsequent years, it was sent to approximately one in every six. See 351 F. Supp. 3d 502, 520 (SDNY 2019). And it was more recently replaced by the American Community Survey (ACS), which is sent to approximately 1 in 38 households each year. The long form (and now the ACS) has often included a question about citizenship. In 1970, the Census Bureau made another important change to the census. It significantly reduced its reliance upon in-person enumerators. See Anderson, supra , at 206. Instead, it sent nearly all households a questionnaire by mail. Most households received the short form, and a small sample received the long form. Instructions on the form told each household to fill out the questionnaire and return it to the Census Bureau by mail. Enumerators would follow up with households that did not return the questionnaire. To maximize accuracy and minimize cost, the Bureau tried to bring about the highest possible “self-response” rate, i.e. , to encourage as many households as possible to respond by mail. For that reason, it tried to keep the short form as short as possible. And it consistently opposed placing a citizenship question on that form. It feared that adding a question about citizenship would “inevitably jeopardize the overall accuracy of the population count,” partly because of added response burden but also because, as it explained, noncitizens faced with a citizenship question would be less likely to respond due to fears of “the information being used against them.” Federation for Am. Immigration Reform v. Klutznick , 486 F. Supp. 564 , 568 (DC 1980). Likely for similar reasons, Congress amended the Census Act in 1976, enacting the two statutory provisions to which I previously referred. These two provisions, 13 U. S. C. §6(c) and §195, together encourage the Secretary not to ask demographic questions on the short form if the information can be obtained either through the long form or through administrative records. II With this statutory and historical background, we can more easily consider the agency decision directly under review. That decision “reinstate[s] [a] citizenship question on the 2020 decennial census.” App. to Pet. for Cert. 549a−550a (Memorandum from Wilbur L. Ross, Jr., Secretary of Commerce, to Karen Dunn Kelley, Under Secretary for Economic Affairs (Mar. 26, 2018)). The agency’s decision memorandum provided one and only one reason for making that decision—namely, that the question was “necessary to provide complete and accurate data in response to” a request from the Department of Justice (DOJ). Id. , at 562a. The DOJ had requested the citizenship question for “use [in] . . . determining violations of Section 2 of the Voting Rights Act.” Id. , at 548a. The decision memorandum adds that the agency had not been able to “determine definitively how inclusion of a citizenship question on the decennial census will impact responsiveness. However, even if there is some impact on responses, the value of more complete and accurate data derived from surveying the entire population outweighs such concerns.” Id. , at 562a. The Secretary’s decision thus rests upon a weighing of potentially adverse consequences (diminished responses and a less accurate census count) against potentially offsetting advantages (better citizenship data). In my view, however, the Secretary did not make reasonable decisions about these potential costs and benefits in light of the administrative record. A Consider first the Secretary’s conclusion that he was “not able to determine definitively how inclusion of a citizenship question on the decennial census will impact responsiveness.” Ibid. Insofar as this statement implies that adding the citizenship question is unlikely to affect “responsiveness” very much (or perhaps at all), the evidence in the record indicates the contrary. 1 The administrative record includes repeated Census Bureau statements that adding the question would produce a less accurate count because noncitizens and Hispanics would be less likely to respond to the questionnaire. See App. 105, 109–112, 158. The Census Bureau’s chief scientist said specifically that adding the question would have “an adverse impact on self-response and, as a result, on the accuracy and quality of the 2020 Census.” Id. , at 109. And the chief scientist backed this statement up by pointing to “[t]hree distinct analyses.” Ibid. The first analysis compared nonresponse rates for the short-form census questionnaire (which did not include a citizenship question) to nonresponse rates for the ACS (which did). Obviously, more people fail to respond to the ACS than to the short form. Yet taking into account the fact that the nonresponse rate will be greater for the ACS than for the short form, the Bureau found that the difference between the two is yet greater for noncitizen households than for citizen households (by 5.1%, according to the Bureau). Id. , at 111. This led the Bureau to say that it was a “reasonable inference” that the presence of the citizenship question accounted for the difference. Ibid. The Bureau conducted two additional studies, both analyzing data from the ACS. One study looked at response rates for particular questions on the ACS. It showed that the “no answer” rate for the citizenship question was “much greater than the comparable rates” for other census questions (for example, questions about age, sex, race, and ethnicity). Id. , at 110. And it showed that the “no answer” rate for the citizenship question was significantly higher among Hispanics. Id. , at 109−110. The last study examined “break-off” rates, i.e. , the rate at which respondents stopped answering the questionnaire upon reaching a particular question. It found that Hispanics were significantly more likely than were non-Hispanics to stop answering at the point they reached the citizenship question. Id. , at 112. Together, these two studies provided additional support for the Census Bureau’s determination that the citizenship question is likely to mean disproportionately fewer responses from noncitizens and Hispanics than from others. Ibid. Putting numbers upon these study results, the Census Bureau estimated that adding the question to the short form would lead to 630,000 additional nonresponding households. Id. , at 114. That is to say, the question would cause households covering more than 1 million additional people to decline to respond to the census. When the Bureau does not receive a response, it follows up with in-person interviews in an effort to obtain the missing information. The Bureau often interviews what it calls “proxies,” such as family members and neighbors. But this followup process is subject to error; and the error rate is much greater than the error rate for self-responses. Ibid. The Bureau thus explained that lower self-response rates “degrade data quality” by increasing the risk of error and leading to hundreds of thousands of fewer correct enumerations. Id. , at 113−115. The Bureau added that its estimate was “conservative.” Id. , at 115. It expected “differences between citizen and noncitizen response rates and data quality” to be “amplified” in the 2020 census “compared to historical levels.” Ibid. Thus, it explained, “the decrease in self-response for citizen households in 2020 could be much greater than the 5.1 percentage points [it] observed during the 2010 Census.” Id. , at 115−116. Its conclusion in light of this evidence was clear. Adding the citizenship question to the short form was “very likely to reduce the self-response rate” and thereby “har[m] the quality of the census count.” Id. , at 105, 158. The Census Bureau’s analysis received support from other submissions. Several States pointed out that noncitizens and racial minorities had been undercounted in every prior census. Administrative Record 1091−1092. They also drew attention to recent surveys indicating that noncitizens had significant concerns about the confidentiality of census responses. Ibid. Former directors of the Census Bureau wrote that adding the citizenship question so late in the process “would put the accuracy of the enumeration and success of the census in all communities at grave risk.” Id. , at 1057. The American Sociological Association and Census Scientific Advisory Committee echoed these warnings. See id. , at 787, 794−795. On the other hand, the Secretary received submissions by other groups that supported adding the question. See, e.g. , id. , at 1178−1179, 1206, 1276. But as far as I can tell (or as far as the arguments made here and in the District Court inform the matter), none of these latter submissions significantly added to, or detracted from, the Census Bureau’s submissions in respect to the question’s likely impact on response rates. 2 The Secretary’s decision memorandum reached a quite different conclusion from the Census Bureau. The memorandum conceded that “a lower response rate would lead to . . . less accurate responses.” App. to Pet. for Cert. 556a. But it concluded that neither the Census Bureau nor any stakeholders had provided “definitive, empirical support” for the proposition that the citizenship question would reduce response rates. Id. , at 554a. The memorandum relied for that conclusion upon a number of considerations, but each is contradicted by the record. The memorandum first pointed to perceived shortcomings in the Census Bureau’s analysis of nonresponse rates. It noted that response rates are generally lower overall for the long form and ACS than they are for the short form. Id. , at 552a−554a. But the Bureau explained that its analysis accounted for this consideration, see App. 111, and no one has given us reason to think the contrary. The Secretary also noted that the Bureau “was not able to isolate what percentage of [the] decline was caused by the inclusion of a citizenship question rather than some other aspect of the long form survey.” App. to Pet. for Cert. 554a. But the Bureau said attributing the decline to the citizenship question was a “reasonable inference,” App. 111, and again, nothing in the record contradicted the Bureau’s judgment. And later analyses have borne out the Bureau’s judgment that the citizenship question contributes to the decline in self-response. See, e.g. , id. , at 1002−1006, 1008 (August 2018 Census Bureau study). The memorandum next cast doubt on the Census Bureau’s analysis of the rate at which people responded to particular questions on the ACS. It noted that the “no answer” rate to the citizenship question was comparable to the “no answer” rate for other questions on the ACS, including educational attainment, income, and property insurance. App. to Pet. for Cert. 553a. But as discussed above, the Bureau found it significant that the “no answer” rate for the citizenship question was “much greater” than the “no answer” rate for the other questions that appear on the short form —that is, the form on which the citizenship question would appear. App. 110, 124. The Secretary offered no reason why the demographic variables to which he pointed provided a better point of comparison. Finally, the memorandum relied on information provided by two outside stakeholders. The first was a study conducted by the private survey company Nielsen, in which questions about place of birth and time of arrival had not led to any appreciable decrease in the response rate. App. to Pet. for Cert. 552a. But Nielsen, which in fact urged the Secretary not to add the question, stated that its respondents (unlike census respondents) were paid to respond, and it is consequently not surprising that they did so. Administrative Record 1276. The memo- randum also cited statements by former Census Bureau officials suggesting that empirical evidence about the question’s potential impact on response rates was “limited.” App. to Pet. for Cert. 558a−559a; see also id. , at 552a. But there was no reason to expect the former officials to provide more extensive empirical evidence as to a citizenship question when they were not privy to the internal Bureau analyses on this question. And, like Nielsen, the former officials strongly urged the Secretary not to ask the question. See Administrative Record 1057. The upshot is that the Secretary received evidence of a likely drop in census accuracy by a number somewhere in the hundreds of thousands, and he received nothing significant to the contrary. The Secretary pointed out that the Census Bureau’s information was uncertain, i.e. , not “definitive.” But that is not a satisfactory answer. Few public-policy-related statistical studies of risks (say, of many health or safety matters) are definitive. As the Court explained in State Farm , “[i]t is not infrequent that the available data do not settle a regulatory issue, and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion.” 463 U. S., at 52. But an agency confronted with this situation cannot “merely recite the terms ‘substantial uncertainty’ as a justification for its actions.” Ibid. Instead, it “must explain the evidence which is available” and typically must offer a reasoned explanation for taking action without “engaging in a search for further evidence.” Ibid. The Secretary did not do so here. He did not explain why he made the decision to add the question without following the Bureau’s ordinary practice of extensively testing proposed changes to the census questionnaire. See App. 624−630, 641 (discussing testing process); see also, e.g. , Brief for Former Census Bureau Directors as Amici Curiae 17−21 (discussing prior examples of questions that the Bureau decided not to add after many years of pretesting). Without that testing, the Secretary could not treat the Bureau’s expert opinions and its experience with the relevant surveys as worthless merely because its conclusions were not precise. The Bureau’s opinions were properly considered as evidence of likelihoods, probabilities, or risks. As noted above, the consequences of mistakes in the census count, of even a few hundred thousand, are grave. Differences of a few thousand people, as between one State and another, can mean a loss or gain of a congressional seat—a matter of great consequence to a State. See 351 F. Supp. 3d, at 594. And similar small differences can make a large difference to the allocation of federal funds among competing state programs. Id. , at 596−597; see also Baldrige , 455 U. S., at 353−354, n. 9. If near-absolute certainty is what the Secretary meant by “definitive,” that insistence would itself be arbitrary in light of the constitutional and statutory consequences at stake. And if the Secretary instead meant that the evidence does not indicate a serious risk of a less accurate count, that conclusion does not find support in the record. B Now consider the Secretary’s conclusion that, even if adding a citizenship question diminishes the accuracy of the enumeration, “the value of more complete and accurate data derived from surveying the entire population outweighs . . . concerns” about diminished accuracy. App. to Pet. for Cert. 562a (emphasis added). That conclusion was also arbitrary. The administrative record indicates that adding a citizenship question to the short form would produce less “complete and accurate data,” not more. 1 The Census Bureau informed the Secretary that, for about 90% of the population, accurate citizenship data is available from administrative records maintained by the Social Security Administration and Internal Revenue Service. App. 146. The Bureau further informed the Secretary that it had “high confidence” that it could develop a statistical model that would accurately impute citizenship status for the remaining 10% of the population. Ibid. The Bureau stated that these methods alone—using existing administrative records for 90% of the population and statistical modeling for the remaining 10%—would yield more accurate citizenship data than also asking a citizenship question. Id. , at 159. How could that be so? The answer is somewhat technical but readily understandable. First , consider the 90% of the population (about 295 million people) as to whom administrative records are available. The Government agrees that using these administrative records would provide highly reliable information about citizenship, because the records “require proof of citizenship.” Id. , at 117. By contrast, if responses to a citizenship question were used for this group, the Census Bureau predicted without contradiction that about one-third of the noncitizens in this group who respond would answer the question untruthfully, claiming to be citizens when they are not. Id. , at 147. Those incorrect answers—about 9.5 million in total—would conflict with the administrative records on file for those noncitizens. And what would the Census Bureau do with the conflicting data? If it accepts the answer to the citizenship question as determinative, it will have less accurate data. If it accepts the citizenship data from administrative records as determinative, asking the question will have served no purpose. Thus, as to 295 million people—the overwhelming majority of the population—asking the citizenship question would at best add nothing at all. I say “at best” because, for one thing, the Census Bureau informed the Secretary that asking the question would produce 1 million more people who could not be linked to administrative records, which in turn would require the Census Bureau to resort to a less accurate source of citizenship data for these people. See id. , at 147−149; see also 351 F. Supp. 3d, at 538−539. For another, the policy of the Census Bureau has always been to use census responses rather than administrative records in cases where the two conflict. App. 147. In this case, that practice would mean accepting 9.5 million inaccurate responses even though accurate administrative records are available. See ibid. The Census Bureau could perhaps change that practice, but the Secretary’s decision memorandum said nothing about the matter. It did not address the problem. Second , consider the remaining 10% of the population (about 35 million people) for whom the Government lacks administrative records. The question here is which approach would yield the most “complete and accurate” citizenship data for this group—adding a citizenship question or using statistical modeling alone? To answer this question, we must further divide this group into two categories—those who would respond to the citizenship question if it were asked and those who would not. Start with the category of about 22 million people who would answer a citizenship question if it were asked. Would their answers regarding citizenship be more accurate than citizenship data produced by statistical modeling? The Census Bureau said no. That is because many of the noncitizens in this group would answer the question falsely, resulting in an estimated 500,000 inaccurate answers. See id. , at 148. And those who answer the question falsely would be commingled, perhaps randomly, with those who answer it correctly, thereby casting doubt on the answers of all 22 million, with no way of knowing which answers are correct and which are false. By contrast, the Bureau believed that it could develop a statistical model that would produce more accurate citizenship data than these census responses. The Bureau therefore informed the Secretary that it could do better. As the Bureau’s chief scientist explained, although “[o]ne might think” that asking the question “could help fill the . . . gaps” in the administrative records, the data did not support that assumption. Id. , at 157. Instead, he explained, responses to the citizenship question “may not be reliable,” which “calls into question their ability to improve upon” the Bureau’s statistical modeling process. Ibid. Next, turn to the more than 13 million remaining people who would not answer the citizenship question even if it were asked. As to this category, the Census Bureau would still need to use statistical modeling to obtain citizenship data, because there would be no census response to use instead. Hence, asking the citizenship question would add nothing at all as to this group. To the contrary, as the Government concedes, asking the question would reduce the accuracy of the citizenship data for this group, because the relatively inaccurate answers to the citizenship question would diminish the overall accuracy of the Census Bureau’s statistical model. See Brief for Petitioners 34 (conceding that the Census Bureau model will be “highe[r] quality” without the question than with it); 351 F. Supp. 3d, at 640 (explaining that asking the question would “corrup[t] . . . the data generated by extrapolating from self-responses through imputation”). In sum, in respect to the 295 million persons for whom administrative records exist, asking the question on the short form would, at best, be no improvement over using administrative records alone. And in respect to the remaining 35 million people for whom no administrative records exist, asking the question would be no better, and in some respects would be worse, than using statistical modeling. The Census Bureau therefore told the Secretary that asking the citizenship question, even in addition to using administrative records, “would result in poorer quality citizenship data” than using administrative records alone, and would “still have all the negative cost and quality implications” of asking the citizenship question. App. 159. I could find no evidence contradicting that prediction. 2 If my description of the record is correct, it raises a serious legal problem. How can an agency support the decision to add a question to the short form, thereby risking a significant undercount of the population, on the ground that it will improve the accuracy of citizenship data, when in fact the evidence indicates that adding the question will harm the accuracy of citizenship data? Of course it cannot. But, as I have just said, I have not been able to find evidence to suggest that adding the question would result in more accurate citizenship data. Neither could the District Court. After reviewing the record in detail, the District Court found that “all of the relevant evidence before Secretary Ross— all of it—demonstrated that using administrative records . . . would actually produce more accurate [citizenship] data than adding a citizenship question to the census.” 351 F. Supp. 3d, at 650. What consideration did the Secretary give to this problem? He stated simply that “[a]sking the citizenship question of 100 percent of the population gives each respondent the opportunity to provide an answer,” which “may eliminate the need for the Census Bureau to have to impute an answer for millions of people.” App. to Pet. for Cert. 556a. He therefore must have assumed, sub silentio , exactly what the Census Bureau experts urged him not to assume—that answers to the citizenship question would be more accurate than statistical modeling. And he ignored the undisputed respects in which asking the question would make the existing data less accurate. Other than his assumption, the Secretary said nothing, absolutely nothing, to suggest a reasoned basis for disagreeing with the Bureau’s expert statistical judgment. The Government now maintains that the Secretary reasonably discounted the Census Bureau’s recommendation because it was based on an untested prediction about the accuracy of its model. But this is not a case in which the Secretary was presented with a policy choice between two reasonable but uncertain options. For one thing, the record is much less uncertain than the Government acknowledges. Although it is true that the Census Bureau at one point told the Secretary that it could not “quantify the relative magnitude of the errors across the alternatives at this time,” App. 148, it unequivocally stated that asking the question “ would result in poorer quality citizenship data ” than omitting it, id. , at 159 (emphasis added). Thus, even if the Bureau could not “quantify” the relative accuracy of the options, it could and did conclude that one option was likely more accurate than the other. Even in the face of some uncertainty, where all available evidence indicates that one option is better than the other, it is unreasonable to choose the worse option without explanation. For another thing, to the extent the record reflects some uncertainty regarding the accuracy of the Census Bureau’s statistical model, that is because the model needed to be “developed and tested” before it could be employed. Id. , at 146. But the Secretary made his decision before any such development or testing could be completed. Having decided to make an immediate decision rather than wait for testing, the Secretary could not dismiss the Bureau’s prediction about the inadvisability of that decision on the ground that the prediction reflected likelihoods, probabilities, and risks rather than certainties. Finally, recall that the Census Act requires the Secretary to use administrative records rather than direct inquiries to “the maximum extent possible.” 13 U. S. C. §6(c). That statutory requirement highlights what should be obvious: Whether adding a citizenship question to the short form would produce more accurate citizenship data is a relevant factor—indeed, a critically important factor—that the Secretary was required to consider. Here, the Secretary did not adequately explain why he rejected the evidence that adding the question would yield less accurate data. He did not even acknowledge that the Census Act obliged him to use administrative records rather than asking a question to the extent possible. And he did not explain how obtaining citizenship data that is no better or worse than the data otherwise available could justify jeopardizing the accuracy of the census count. In these respects, the Secretary failed to consider “important aspect[s] of the problem” and “offered an explanation for [his] decision that runs counter to the evidence before the agency.” State Farm , 463 U. S., at 43. C The Secretary’s failure to consider this evidence—that adding the question would harm the census count in the interest of obtaining less accurate citizenship data—provides a sufficient basis for setting the decision aside. But there is more. The reason that the Secretary provided for needing more accurate citizenship information in the first place—to help the DOJ enforce the Voting Rights Act—is unconvincing. The Secretary stated that adding the citizenship question was “necessary to provide complete and accurate data in response to the DOJ request.” App. to Pet. for Cert. 562a. The DOJ’s request in turn asserted that the citizenship data currently available from the ACS was not “ideal” for enforcing the Voting Rights Act. Id. , at 567a. One of the DOJ’s principal complaints was that ACS data is reported for groups of census blocks rather than for each census block itself. The DOJ letter stated that adding a citizenship question could provide it with individual block-by-block data which, the DOJ maintained, would allow it to better enforce the Voting Rights Act’s protections for minority voters. Id. , at 568a. This rationale is difficult to accept. One obvious problem is that the DOJ provided no basis to believe that more precise data would in fact help with Voting Rights Act enforcement. Congress enacted the Voting Rights Act in 1965—15 years after the census last asked every household about citizenship. Actions to enforce the Act have therefore always used citizenship data derived from sampling. Yet I am aware of no one—not in the Department of Commerce proceeding, in the District Court, or in this Court—who has provided a single example in which enforcement of the Act has suffered due to lack of more precise citizenship data. Organizations with expertise in this area tell us that asking the citizenship question will not help enforce the Act. See, e.g. , Brief for NAACP Legal Defense & Educational Fund, Inc., as Amicus Curiae 30−36. Rather, the question will, by depressing the count of minority groups, hurt those whom the Act seeks to help. See, e.g. , Brief for Leadership Conference on Civil and Human Rights et al. as Amici Curiae 21−29. Another problem with the Secretary’s rationale is that, even assuming the DOJ needed more detailed citizenship data, there were better ways of obtaining the needed data. The Census Bureau offered to provide the DOJ with data using administrative records, which, as I have pointed out, are likely just as accurate, if not more accurate, than responses to a citizenship question. The Census Bureau offered to provide this data at the census block level, which would resolve each of the DOJ’s complaints about the existing ACS data. See Administrative Record 3289. But the Secretary rejected this alternative without explaining why it would not fully respond to the DOJ’s request. That failure was particularly problematic given that the Census Act requires the Secretary to use other methods of obtaining demographic information if at all possible. See §§6(c), 195. Normally, the Secretary would be entitled to place considerable weight upon the DOJ’s expertise in matters involving the Voting Rights Act, but there are strong reasons for discounting that expertise here. The administrative record shows that DOJ’s request to add a citizenship question originated not with the DOJ, but with the Secretary himself. See Administrative Record 3710. The Voting Rights Act rationale was in fact first proposed by Commerce Department officials. See ibid. DOJ officials, for their part, were initially uninterested in obtaining more detailed citizenship data, App. 414, and they agreed to request the data only after the Secretary personally spoke to the Attorney General about the matter, see Administrative Record 2651. And when the acting director of the Census Bureau proposed alternative means of obtaining better citizenship data, DOJ officials declined to meet to discuss the proposal. See id. , at 3460. Taken as a whole, the evidence in the administrative record indicates that the Voting Rights Act rationale offered by the Secretary was not just unconvincing, but pretextual. And, as the Court concludes, further evidence outside the administrative record but present in the trial record supports the finding of pretext. See Part V, ante. Among other things, that evidence reveals that the DOJ official who wrote the letter agreed that adding the question “is not necessary for DOJ’s VRA enforcement efforts.” App. 1113. And that official further acknowledged that he did not “know whether or not [citizenship] data produced from responses to the citizenship question . . . will, in fact, be more precise than the [citizenship] data on which the DOJ is currently relying for purposes of VRA enforcement.” Id. , at 1102. The Court explains, and I agree, that a court normally should not “reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons.” Ante , at 24. But in this case, “the evidence tells a story that does not match the explanation the Secretary gave for his decision.” Ante , at 27. This evidence strongly suggests that the Secretary’s stated rationale was pretextual. I consequently join Part V of the Court’s opinion (except insofar as it concludes that the Secretary’s decision was reasonable apart from the question of pretext). And I agree that the pretextual nature of the Secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency. *  *  * I agree with the Court that the APA gives agencies broad leeway to carry out their legislatively delegated duties. And I recognize that Congress has specifically delegated to the Secretary of Commerce the authority to conduct a census of the population “in such form and content as he may determine.” §141(a). But although this delegation is broad, it is not without limits. The APA supplies one such limit. In an effort to ensure rational decisionmaking, the APA prohibits an agency from making decisions that are “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A). This provision, of course, does not insist that decisionmakers think through every minor aspect of every problem that they face. But here, the Secretary’s decision was a major one, potentially affecting the proper workings of our democratic government and the proper allocation of hundreds of billions of dollars in federal funds. Cf. ante , at 10. Yet the decision was ill considered in a number of critically important respects. The Secretary did not give adequate consideration to issues that should have been central to his judgment, such as the high likelihood of an undercount, the low likelihood that a question would yield more accurate citizenship data, and the apparent lack of any need for more accurate citizenship data to begin with. The Secretary’s failures in considering those critical issues make his decision unreasonable. They are the kinds of failures for which, in my view, the APA’s arbitrary and capricious provision was written. As I have said, I agree with the Court’s conclusion as to pretext and with the decision to send the matter back to the agency. I do not agree, however, with several of the Court’s conclusions concerning application of the arbitrary and capricious standard. In my view, the Secretary’s decision—whether pretextual or not—was arbitrary, capricious, and an abuse of his lawfully delegated discretion. I consequently concur in the Court’s judgment to the extent that it affirms the judgment of the District Court. SUPREME COURT OF THE UNITED STATES _________________ No. 18–966 _________________ DEPARTMENT OF COMMERCE, et al., PETITIONERS v. NEW YORK, et al. on writ of certiorari before judgment to the united states court of appeals for the second circuit [June 27, 2019] Justice Alito, concurring in part and dissenting in part. It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision. While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable. No one disputes that it is important to know how many inhabitants of this country are citizens.[ 1 ] And the most direct way to gather this information is to ask for it in a census. The United Nations recommends that a census inquire about citizenship,[ 2 ] and many countries do so.[ 3 ] Asking about citizenship on the census also has a rich history in our country. Every census, from the very first one in 1790 to the most recent in 2010, has sought not just a count of the number of inhabitants but also varying amounts of additional demographic information. In 1800, Thomas Jefferson, as president of the American Philosophical Society, signed a letter to Congress asking for the inclusion on the census of questions regarding “ ‘the respective numbers of native citizens, citizens of foreign birth, and of aliens’ ” “ ‘for the purpose . . . of more exactly distinguishing the increase of population by birth and immigration.’ ” C. Wright, History and Growth of the United States Census (prepared for the Senate Committee on the Census), S. Doc. No. 194, 56th Cong., 1st Sess., 19 (1900). In 1820, John Quincy Adams, as Secretary of State, was responsible for conducting the census, and consistent with the 1820 Census Act, he instructed the marshals who were charged with gathering the information to ask about citizenship.[ 4 ] In 1830, when Martin Van Buren was Secretary of State, a question about citizenship was again included.[ 5 ] With the exception of the census of 1840, at least some portion of the population was asked a question about citizenship as part of the census through 2000, after which the question was moved to the American Community Survey, which is sent to only a small fraction of the population. All these census inquiries were made by the Executive pursuant to congressional authorization. None were reviewed by the courts. Now, for the first time, this Court has seen fit to claim a role with respect to the inclusion of a citizenship question on the census, and in doing so, the Court has set a dangerous precedent, both with regard to the census itself and with regard to judicial review of all other executive agency actions. For the reasons ably stated by Justice Thomas, see ante , p. ___ (opinion concurring in part and dissenting in part), today’s decision is either an aberration or a license for widespread judicial inquiry into the motivations of Executive Branch officials. If this case is taken as a model, then any one of the approximately 1,000 district court judges in this country, upon receiving information that a controversial agency decision might have been motivated by some unstated consideration, may order the questioning of Cabinet officers and other high-ranking Executive Branch officials, and the judge may then pass judgment on whether the decision was pretextual. What Bismarck is reputed to have said about laws and sausages comes to mind. And that goes for decisionmaking by all three branches. To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons. Of course, we may determine whether the decision is constitutional. But under the considerations that typically guide this Court in the exercise of its power of judicial review of agency action, we have no authority to decide whether the Secretary’s decision was rendered in compliance with the Administrative Procedure Act (APA). I The APA authorizes judicial review of “agency action” taken in violation of law, 5 U. S. C. §§706(2)(A)–(D), but §701(a)(2) of the APA bars judicial review of agency actions that are “committed to agency discretion by law.” Although we have characterized the scope of §701(a)(2) as “ ‘narrow,’ ” Heckler v. Chaney , 470 U.S. 821 , 830 (1985), there are circumstances in which it applies. And while our cases recognize a strong presumption in favor of judicial review of agency action, see, e.g. , Weyerhaeuser Co. v. United States Fish and Wildlife Serv. , 586 U. S. ___, ___ (2018) (slip op., at 11), this “is ‘just’ a presumption,” and like all real presumptions, it may be (and has been) rebutted, Lincoln v. Vigil , 508 U.S. 182 , 190 (1993).[ 6 ] In considering whether the general presumption in favor of judicial review has been rebutted in specific cases, we have identified factors that are relevant to the inquiry: whether the text and structure of the relevant statutes leave a court with any “ ‘meaningful standard against which to judge the agency’s exercise of discretion,’ ” Webster v. Doe , 486 U.S. 592 , 600 (1988) (quoting Heckler , supra , at 830); whether the matter at hand has traditionally been viewed as committed to agency discretion, see ICC v. Locomotive Engineers , 482 U.S. 270 , 282 (1987); whether the challenged action manifests a “general unsuitability” for judicial review because it involves a “complicated balancing of a number of factors,” including judgments regarding the allocation of agency resources or matters otherwise committed to another branch, Heckler , supra , at 831–832; and whether judicial review would produce “disruptive practical consequences,” Southern R. Co. v. Seaboard Allied Milling Corp. , 442 U.S. 444 , 457 (1979) (applying this factor to the reviewability inquiry under §701(a)(1)). Applying those factors, I conclude that the decision of the Secretary of Commerce to add core demographic questions to the decennial census questionnaire is committed to agency discretion by law and therefore may not be challenged under the APA.[ 7 ] II A I start with the question whether the relevant statutory provisions provide any standard that courts can apply in reviewing the Secretary’s decision to restore a citizenship question to the census. The provision that directly addresses this question is 13 U. S. C. §141(a), the statute that vests the Secretary with authority to administer the decennial census. This provision gives the Secretary unfettered discretion to include on the census questions about basic demographic characteristics like citizenship. It begins by providing that the Secretary “shall, in the year 1980 and every 10 years thereafter, take a decennial census of population . . . in such form and content as he may determine , including the use of sampling procedures and special surveys.” Ibid. (emphasis added). The two phrases I have highlighted—“census of population” and “in such form and content as he may determine”—are of immediate importance. A “census of popu- lation” is broader than a mere head count. The term is defined as “a census of population . . . and matters relating to population .” §141(g) (emphasis added). Because this definition refers to both “a census of population” and “matters relating to population,” the latter concept must include more than a “census of population” in the strict sense of a head count. And it seems obvious that what this additional information must include is the sort of basic demographic information that has long been sought in the census. So the statute clearly authorizes the Secretary to gather such information. The second phrase, “in such form and content as he may determine,” specifies how this information is to be gathered, namely, by a method having the “form and content” that the Secretary “may determine.” In other words, this is left purely to the Secretary’s discretion. A clearer and less restricted conferral of discretion is hard to imagine. It is instructive to compare this delegation of authority to the statutory language at issue in one of our most well-known §701(a)(2) cases, Webster v. Doe , 486 U.S. 592 . There, the relevant statute allowed termination of a Central Intelligence Agency employee whenever the Director “shall deem such termination necessary or advisable in the interests of the United States.” Id. , at 600 (internal quotation marks omitted and emphasis deleted). Reasoning that the statute’s “shall deem ” standard “fairly exudes deference to the Director,” the Court concluded that the text of the statute “appear[ed] . . . to foreclose the application of any meaningful judicial standard of review.” Ibid. The §141(a) language discussed above is even more sweeping than that of the statute in Webster. Unlike the Census Act, the statute in Webster placed a condition on the Director’s action—in particular, the requirement that he terminate an employee only after concluding that doing so would further the “interests of the United States.” No such condition applies to the Secretary’s determination about the form and content of the decennial census, a fact that distinguishes the statute at issue here from others this Court has found to fall outside §701(a)(2) and thus within courts’ power to review. See, e.g., Weyerhaeuser Co. , 586 U. S., at ___ (slip op., at 10) (statute conditioning agency power to exclude land from critical habitat designation on agency’s consideration of “ ‘economic impact’ ” of designation and “ ‘determin[ation] that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat’ ”). B Those arguing in favor of judicial review contend that the §141(a) language that I have discussed so far is limited by language that follows immediately after. That part of §141(a) states: “In connection with any such census [ i.e. , the decennial “census of population”], the Secretary is authorized to obtain such other census information as necessary .” (Emphasis added.) This means, it is argued, that information about citizenship may be obtained by means of the census only if that is “necessary.” But this argument is clearly wrong. The information that must be “necessary” (whatever that means in this context) is “ other census information.” That refers to information other than that obtained in the “census of population,” and as explained, the term “census of population” includes not just a head count but other “matters relating to population,” a category that encompasses basic demographic information such as citizenship. Accordingly, this argument is definitively refuted by the text of §141. And although it is not necessary to look beyond that text, it is worth noting that this argument, if accepted, would require that the term “necessary” be given a less than strictly literal meaning; otherwise, it would run contrary to the broad delegation effected by the first portion of §141(a) by making it all but impossible for the Secretary to include on the census anything other than questions relating to the number of persons living at a particular address. That would be so because it will often not be “necessary” to obtain this information via the census rather than by some other means. C Another argument in favor of review relies on 13 U. S. C. §195, which states: “Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as ‘sampling’ in carrying out the provisions of this title.” Justice Breyer, for example, interprets this provision to mean that “the Secretary must, if feasible, obtain demographic information through a survey sent to a sample of households, rather than through the short-form census questionnaire to which every household must respond.” Ante , at 3 (opinion concurring in part and dissenting in part). Under that reading of §195, it is asserted, the provision sets forth a judicially reviewable limit on the Secretary’s authority to obtain information through direct inquiries. This argument fails to take into account that the current version of §195 was enacted as part of the same Act of Congress that included the present version of §141[ 8 ] and that the two provisions are both parts of a unified scheme regarding the use of sampling. Section 141, a provision concerned exclusively with the census, addresses the use of sampling in that particular context. I previously quoted the relevant language, but I repeat it now so that it is clearly in mind. Section 141(a) provides that the Secretary “shall, in the year 1980 and every 10 years thereafter, take a decennial census of population . . . in such form and content as he may determine, including the use of sampling procedures and special surveys .” (Emphasis added.) What this means is that the Secretary, in conducting the “census of population,” has discretion to choose the form and content of the vehicles used in that project, and among the methods that he may employ, if he sees fit, are sampling and special surveys. Section 195 is not a census-specific provision, but it does have one (important) thing to say specifically about the census: It prohibits the use of sampling “for the determination of population for purposes of apportionment of Representatives in Congress.” In this one way, it qualifies the Secretary’s discretion regarding the “form and content” of the vehicles used in conducting the “census of population.” And that is what we meant in Department of Commerce v. United States House of Representatives , 525 U.S. 316 , 338 (1999), when we said that §141(a)’s “broad grant of authority . . . is informed . . . by the narrower and more specific §195.” Otherwise, the text of §195 does not deal specifically with the census. It addresses all the many information-gathering activities conducted by the Commerce Department, and as to these, it says that the Secretary shall use sampling if he deems it “feasible.” If §195 were read to mean that no information other than a head count can be sought by means of a census questionnaire unless it is not “feasible” to get that information by sampling, then there would be little if anything left of the broad discretion “to use sampling techniques” conferred on the Secretary by §141(a). “Feasible” means “capable of being done, executed, or effected,” Webster’s Third New International Dictionary 831 (1961), and it is not clear that the gathering of any core demographic information is not “capable of being done” by sampling. So if that were what §195 means, then Congress, in the same Act, would have given the Secretary discretion to use sampling in the census “as he may determine” but also compelled him to use sampling in almost all instances. That is no way to read the provisions of a single Act. A law’s provisions should be read to work together. See A. Scalia & B. Garner, Reading Law 180 (2012) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory”). See also, e.g. , Parker Drilling Management Services, Ltd. v. Newton , 587 U. S. ___, ___–___ (2019) (slip op., at 5–6); Star Athletica, L. L. C. v. Varsity Brands, Inc. , 580 U. S. ___, ___–___ (2017) (slip op., at 6–7); Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. , 561 U.S. 89 , 108 (2010). And if there is tension between a specific provision, like §141’s instruction regarding the use of sampling in the decennial census, and a general one, like §195’s directive regarding the use of sampling in all data-collection activities, the specific provision must take precedence. Cf. NLRB v. SW General, Inc. , 580 U. S. ___, ___ (2017) (slip op., at 14). When §§141 and 195 are read in this way, it is easy to see how they fit together. In using the census to gather information “relating to population” for any use other than the actual enumeration, the Secretary may use sampling “as he may determine.” In conducting all the Department’s efforts to collect data by other means, he may authorize the use of sampling if he thinks that is “feasible.” The upshot for present purposes is that §195 does not require the “counterintuitive resul[t]” of barring the Secretary from including on the census questionnaire the kinds of basic demographic questions that have been asked as part of every census in U. S. history. RJR Nabisco, Inc. v. European Community , 579 U. S. ___, ___ (2016) (slip op., at 15). D One additional provision, 13 U. S. C. §6(c),[ 9 ] requires close consideration. This provision, which was enacted in 1976 in the same Act as §§141(a) and 195, has three subsections. Subsection (a) provides that the Secretary may call on other components of the Federal Government to obtain information that is “pertinent to” the Department’s work. Subsection (b) authorizes the Secretary to “acquire, by purchase or otherwise” from state and local governments and private sources “such copies of records, reports, and other material as may be required for the efficient and economical conduct of the censuses and surveys provided for in this title.” Finally, subsection (c) provides: “To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries.” The District Court interpreted subsection (c) to mean that the Secretary must turn to another federal agency or outside source for demographic information (rather than seeking the information on the census) unless doing so would not be “possible” or “consistent with the kind, timeliness, quality and scope of the statistics required.” This argument fails for reasons similar to those that sank the §195 argument just discussed. Section 6(c) is not a census- specific provision but instead applies generally to all the Commerce Department’s information-gathering activities. If it is read to apply to the “census of population,” it cannot be reconciled with §141(a), which, as noted, broadly authorizes the Secretary to use that vehicle for obtaining information “relating to population,” i.e. , core demographic information. If §6(c) applied to the gathering of such information, it would make it hard to justify the inclusion of any demographic questions on the census, even though this has been done since 1790. (Is it not possible to get information about age and sex, for example, from any outside source (or combination of sources), even if the Department offers to acquire it from a private source by purchase?) Reading §6(c) to mean what the District Court thought would turn it into the proverbial elephant stuffed into a mouse hole. Section 6(c), however, is a decidedly mouse-like provision. It was enacted with no fanfare and no real explanation,[ 10 ] and remained in the shadows, vir- tually unused and unnoticed, for more than 40 years. E Respondents and the Court cite two other provisions in support of reviewability, but neither has anything to do with the issue of putting a citizenship question on the census. In determining whether statutory provisions include standards that could provide a basis for judicial review, it is necessary to focus on the precise claims at issue, see, e.g., Webster , 486 U. S., at 601–602 (distinguishing between statutory and constitutional claims); Locomotive Engineers , 482 U. S., at 277–279 (parsing claims under different prongs of reopener statute); Heckler , 470 U. S., at 836 (rejecting as “irrelevant” to the agency decision at issue two statutory provisions that were argued to provide “ ‘law to apply’ ”). And when viewed in this way, the remaining statutory provisions cited in support of reviewability are of no value. Respondents point to §141(b), which requires the Secretary to complete the tabulation of total population by States “within 9 months after the census date” and then to report the results to the President. That provision sets out an easily administered deadline, and it has nothing to do with the content of the census questionnaire. Respondents also claim that §141(f) is relevant to the question of judicial review, but that provision concerns congressional review. It directs the Secretary to report to Congress, at specified times, the subjects and questions that he intends to include on the census. According to respondents, the Secretary’s compliance with those requirements is judicially reviewable, and that, they contend, takes the Secretary’s decision to include a citizenship question out from under §701(a)(2). Respondents fundamentally misunderstand the signifi- cance of congressional reporting requirements in evaluating whether a particular agency action is subject to judicial review. Congressional reporting requirements are “legion in federal law,” Natural Resources Defense Council, Inc. v. Hodel , 865 F.2d 288, 317 (CADC 1988), and their purpose is to permit Congress to monitor and, if it sees fit, to correct Executive Branch actions to which it objects. When a congressional reporting requirement “[l]ack[s] a provision for judicial review,” compliance “by its nature seems singularly committed to congressional discretion in measuring the fidelity of the Executive Branch actor to legislatively mandated requirements.” Id. , at 318. In other words, it is Congress, not the Judiciary, that is best situated to determine whether an agency’s responses to Congress are sufficient and, if not, to “take what it deems to be the appropriate action.” Id. , at 319. In that respect, §141(f) actually cuts against judicial review. The Constitution gives Congress the authority to “direct” the “Manner” in which the census is conducted, and by imposing the §141(f) reporting requirements, Congress retained some of that supervisory authority. It did not transfer it to the courts.[ 11 ] Respondents protest that congressional review may not be enough to guard against a Secretary’s abuses, especially when the party in control of Congress stands to benefit. But that complaint simply expresses disagreement with the Framers’ choice to vest power over the census in a political body, cf. Baldrige v. Shapiro , 455 U.S. 345 , 347–348 (1982) (“Under [the] Constitution, responsibility for conducting the decennial census rests with Congress”), and the manner in which Congress has chosen to exercise that power, see Wisconsin v. City of New York , 517 U.S. 1 , 19 (1996) (Congress has delegated its “virtually unlimited discretion” in conducting the census to the Secretary). In any event, the ability to press constitutional challenges to the Secretary’s decisions, see n. 7, supra, answers many of the examples in respondents’ parade of horribles. In short, the relevant text of §141(a) “fairly exudes deference” to the Secretary. Webster , 486 U. S., at 600. And no other provision of law cited by respondents or my colleagues provides any “meaningful judicial standard” for reviewing the Secretary’s selection of demographic questions for inclusion on the census. Ibid. III In addition to requiring an examination of the text and structure of the relevant statutes, our APA §701(a)(2) cases look to whether the agency action in question is a type that has traditionally been viewed as committed to agency discretion or whether it is instead one that “federal courts regularly review.” Weyerhaeuser Co. , 586 U. S., at ___ (slip op., at 12). In cases where the Court has found that agency action is committed to agency discretion by law, an important factor has been the absence of an established record of judicial review prior to the adoption of the APA. See Heckler , 470 U. S., at 832–833 (agency nonenforcement); Locomotive Engineers , 482 U. S., at 282 (agency decision not to reopen final decision based on material error); Lincoln , 508 U. S., at 192 (agency use of lump-sum appropriations). Here, there is no relevant record of judicial review. We are confronted with a practice that reaches back two centuries. The very first census went beyond a mere head count and gathered additional demographic information, and during virtually the entire period prior to the enactment of the APA, a citizenship question was asked of everyone. Notably absent from that long record is any practice of judicial review of the content of the census. Indeed, this Court has never before encountered a direct challenge to a census question. App. to Pet. for Cert. 416a. And litigation in the lower courts about the census is sparse and generally of relatively recent vintage. Not only is this sort of history significant in all §701(a)(2) cases, see Locomotive Engineers , supra , at 282, but we have previously stressed the particular “importance of historical practice” when it comes to evaluating the Secretary’s authority over the census. Wisconsin , supra , at 21; see also ante, at 13 (opinion of the Court). Moreover, where the relevant question is not whether review may be had at all, but rather the branch with the authority to exercise review, the absence of any substantial record of judicial review is especially revealing. See, e.g., NLRB v. Noel Canning , 573 U.S. 513, 525 (2014) (it is “neither new nor controversial” that “longstanding practice of the government can inform our determination of what the law is” (internal quotation marks and citation omitted)); United States v. Midwest Oil Co. , 236 U.S. 459 , 473 (1915) (“in determining . . . the existence of a power, weight [is] given to . . . usage”). Thus, the absence of any real tradition of judicial review of decisions regarding the content of the census counsels against review in this case. In an attempt to show that there is no relevant “tradition of nonreviewability,” Locomotive Engineers , supra , at 282, respondents contend that this Court has recently engaged in review of the “conduct of the census,” Brief for Government Respondents 26–27. But in none of the cases they cite did the Court address an APA challenge to the content of census questions.[ 12 ] Some involved constitu- tional claims about enumeration and apportionment. See Franklin v. Massachusetts , 505 U.S. 788 , 790, 801 (1992) (constitutional challenge to “method used for counting federal employees serving overseas” as part of “reapportionment determination”); Wisconsin , 517 U. S., at 20 (constitutional challenge to Secretary’s decision not to adjust count). Others concerned enforcement of statutes with specific directives. See Department of Commerce , 525 U. S., at 343 (holding that §195 bars use of “sampling” to reach actual enumeration for apportionment); Utah v. Evans , 536 U.S. 452 , 464–465 (2002) (considering whether statistical method violated §195’s bar on use of “sampling” in apportionment enumeration). According to respondents, these cases mean that all the Secretary’s census-related decisions are suitable for judicial review and thus fall outside of §701(a)(2), and the Court apparently agrees, rejecting the Government’s §701(a)(2) argument in part because “[w]e and other courts have entertained both constitutional and statutory challenges to census-related decisionmaking.” Ante , at 15. This argument misses the point of §701(a)(2). The question under that provision is whether the challenged action “is committed to agency discretion by law,” not whether a different action by the same agency is review- able under the APA, much less whether an action taken by the same agency can be challenged under the Constitution. Take the example of Heckler v. Chaney , supra , where the Court considered whether a particular Food and Drug Administration (FDA) decision was reviewable under the APA. Many FDA actions are subject to APA review, see, e.g., Weinberger v. Hynson, Westcott & Dunning, Inc. , 412 U.S. 609 , 627 (1973), but that did not prevent the Heckler Court from holding that the particular FDA decision at issue there fell within §701(a)(2). See also, e.g. , Heckler , supra, at 836–837. Respondents and some of their amici contend that the Secretary’s decision is at least amenable to judicial review for consistency with the APA’s reasoned-explanation requirement. See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983) (describing requirement). Thus, the argument goes, even if no statute sets out a standard that can be used in reviewing the particular agency action in question, a court may review an agency’s explanation of the reasons for its action and set it aside if the court finds those reasons to be arbitrary or irrational. This argument would obliterate §701(a)(2). Even if a statute expressly gave an agency absolute, unrestricted, unfettered, unlimited, and unqualified discretion with respect to a particular decision, a court could still review the agency’s explanation of the reasons for its decision. That is not what §701(a)(2) means. As we put it previously in answering a similar argument against application of §701(a)(2), it is “fals[e]” to suggest “that if the agency gives a ‘reviewable’ reason for otherwise unreviewable action, the action becomes reviewable.” Locomotive Engineers , 482 U. S., at 283. That is because when an action “is committed to agency discretion by law,” the Judiciary has no role to play, even when an agency sets forth “an eminently ‘reviewable’ proposition.” Id., at 282–283. IV In sum, neither respondents nor my colleagues have been able to identify any relevant, judicially manageable limits on the Secretary’s decision to put a core demographic question back on the census. And without an “adequate standard of review for such agency action,” id. , at 282, courts reviewing decisions about the “form and content” of the census would inevitably be drawn into second-guessing the Secretary’s assessment of complicated policy tradeoffs,[ 13 ] another indicator of “general unsuitability” for judicial review. Heckler , supra , at 831. Indeed, if this litigation is any indication, widespread judicial review of the Secretary’s conduct of the census will usher in an era of “disruptive practical consequences,” and this too weighs against review. Seaboard Allied Milling Corp. , 442 U. S., at 457. Cf. Tucker v. United States Dept. of Commerce , 958 F.2d 1411, 1418 (CA7 1992) (expressing doubt about “both the provenance and the practicability” of allowing judicial review of census-related decisions). Respondents protest that the importance of the census provides a compelling reason to allow APA review. See also ante, at 22–23 (opinion of Breyer, J.). But this argument overlooks the fact that the Secretary is account- able in other ways for census-related decisionmaking.[ 14 ] If the Secretary violates the Constitution or any applicable statutory provision related to the census, his action is reviewable. The Secretary is also accountable to Congress with respect to the administration of the census since he has that power only because Congress has found it appropriate to entrust it to him. And the Secretary is always answerable to the President, who is, in turn, accountable to the people. *  *  * Throughout our Nation’s history, the Executive Branch has decided without judicial supervision or interference whether and, if so, in what form the decennial census should inquire about the citizenship of the inhabitants of this country. Whether to put a citizenship question on the 2020 census questionnaire is a question that is committed by law to the discretion of the Secretary of Commerce and is therefore exempt from APA review. The District Court had the authority to decide respondents’ constitutional claims, but the remainder of their complaint should have been dismissed. I join Parts I, II, III, IV–B, and IV–C[ 15 ] of the opinion of the Court. I do not join the remainder, and insofar as the Court holds that the Secretary’s decision is reviewable under the APA, I respectfully dissent. Notes 1 As a 2016 Census Bureau guidance document explained, obtaining citizenship statistics is “essential for agencies and policy makers setting and evaluating immigration policies and laws, understanding how different immigrant groups are assimilated, and monitoring against discrimination.” Dept. of Commerce, Census Bureau, American Community Survey, Why We Ask: Place of Birth, Citizenship and Year of Entry, www2.census. gov /programs - surveys / acs / about / qbyqfact / 2016 /Citizenship.pdf (all Internet materials as last visited June 25, 2019). 2 United Nations, Dept. of Economic and Social Affairs Statistics Div., Principles and Recommendations for Population and Housing Censuses 163, 191 (rev. 3, 2017). 3 See, e.g. , Brief for Petitioners 29 (“ ‘[O]ther major democracies inquire about citizenship on their census, including Australia, Canada, France, Germany, Indonesia, Ireland, Mexico, Spain, and the United Kingdom, to name a few’ ” (quoting App. to Pet. for Cert. 561a)). 4 See Act of Mar. 14, 1820, ch. 24, 3Stat. 550; Wright, History and Growth of the United States Census, S. Doc. No. 194, 56th Cong., 1st Sess., 133–137. 5 See Dept. of Commerce, Census Bureau, History: 1830 Census Questionnaire, https: / /www . census . gov /history /www /through _ the _ decades /questionnaires/1830_2.html. 6 Because the §701(a)(2) analysis dictates whether APA review may be had, Justice Breyer’s assertion that the APA “supplies [a] limit” on the Secretary’s otherwise “broad” delegation, ante , at 22 (opinion concurring in part and dissenting in part), mistakenly assumes the answer to the reviewability question. Cf. Heckler v. Chaney , 470 U.S. 821 , 828 (1985) (“[B]efore any review at all may be had, a party must first clear the hurdle of §701(a)”). 7 The Government concedes that courts may review constitutional challenges to the Secretary’s actions. Cf. Webster v. Doe , 486 U.S. 592 , 603 (1988). For the reasons given in the Court’s opinion, see ante , at 11–13, I agree that the only remaining constitutional claim at issue—respondents’ Enumeration Clause claim—lacks merit and thus does not constitute a basis for enjoining the addition of the citizenship question. 8 See 90Stat. 2459. 9 Section 6 states: “(a) The Secretary, whenever he considers it advisable, may call upon any other department, agency, or establishment of the Federal Government, or of the government of the District of Columbia, for information pertinent to the work provided for in this title. “(b) The Secretary may acquire, by purchase or otherwise, from States, counties, cities, or other units of government, or their instrumentalities, or from private persons and agencies, such copies of records, reports, and other material as may be required for the efficient and economical conduct of the censuses and surveys provided for in this title. “(c) To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information available from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries.” 10 The most respondents can muster are snippets from the legislative history of the 1976 Census Act indicating that §6(c) was enacted to decrease the Secretary’s use of “direct inquiries” in the interest of “reducing respondent burden.” H. R. Rep. No. 94–1719, p. 10 (1976). Even accepting that premise, it simply raises the same question just discussed—namely, whether Congress’s desire to reduce respondent burden, as reflected by §6(c), yields to the Secretary’s broad authorization in §141(a) to “determine” the “form and content” of any direct inquiries on the census. Cf. id., at 11 (characterizing §141 as a “provisio[n] directly related to decennial . . . census”). 11 It is notable that Congress, pursuant to its supervisory authority, has in some cases limited the particular demographic characteristics about which the Secretary may require information through census questionnaires. In §221(c), for example, Congress has dictated that “no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.” Similarly, in a series of appropriation Acts, Congress has specified that “none of the funds provided in this or any other Act for any fiscal year may be used for the collection of census data on race identification that does not include ‘some other race’ as a category.” 123Stat. 3115, note following 13 U. S. C. §5. Those examples highlight that when Congress wishes to limit the Secretary’s authority to require responses to particular demographic questions, it “knows precisely how to do so.” Limelight Networks, Inc. v. Akamai Technologies, Inc. , 572 U.S. 915, 923 (2014). 12 The same can be said for the lower court cases on which respondents rely. See, e.g., Brief for Government Respondents 26, and n. 6 (collecting cases, none of which “involved the census questionnaire” or the Secretary’s selection of questions). 13 In determining how the census is to be conducted, the Secretary must make decisions about a bevy of matters, such as the best way to count particular persons or categories of persons with an adequate degree of accuracy ( e.g. , by face-to-face interviews, telephone calls, questionnaires to be mailed back, contacts with neighbors, or use of existing records); the use of followup procedures and other quality control measures; which persons should be included in which households; and issues concerning where a person should be enumerated. These and countless other factors may affect whether an individual receives or responds to the census questionnaire. 14 Since the time Secretary Ross publicly announced his intent to add the citizenship question, “Congress has questioned the Secretary about his decision in public hearings on several occasions.” Brief for Petitioners 50 (collecting examples). 15 Although I would hold that the Secretary’s decision is not review-able under the APA, in the alternative I would conclude that the decision survives review under the applicable standards. I join Parts IV–B and IV–C on that understanding.

The Supreme Court ruled that the Secretary of Commerce has the authority to add a citizenship question to the census, as it falls under their broad authorization to conduct the census and determine its content. This decision overturns lower court rulings that blocked the question from being added, with the majority opinion stating that Congress has the power to limit the Secretary's authority on specific questions if desired. The court also noted that the Secretary must make various decisions about conducting the census, and their choice to include the citizenship question is within their discretion.

Government Agencies

Kisor v. Wilkie

https://supreme.justia.com/cases/federal/us/588/18-15/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–15 _________________ james l. kisor, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the federal circuit [June 26, 2019] Justice Kagan announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, and an opinion with respect to Parts II–A and III–A, in which Justice Ginsburg, Justice Breyer, and Justice Sotomayor join. This Court has often deferred to agencies’ reasonable readings of genuinely ambiguous regulations. We call that practice Auer deference, or sometimes Seminole Rock deference, after two cases in which we employed it. See Auer v. Robbins , 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410 (1945). The only question presented here is whether we should overrule those decisions, discarding the deference they give to agencies. We answer that question no. Auer deference retains an important role in construing agency regulations. But even as we uphold it, we reinforce its limits. Auer deference is sometimes appropriate and sometimes not. Whether to apply it depends on a range of considerations that we have noted now and again, but compile and further develop today. The deference doctrine we describe is potent in its place, but cabined in its scope. On remand, the Court of Appeals should decide whether it applies to the agency interpretation at issue. I We begin by summarizing how petitioner James Kisor’s case made its way to this Court. Truth be told, nothing recounted in this Part has much bearing on the rest of our decision. The question whether to overrule Auer does not turn on any single application, whether right or wrong, of that decision’s deference doctrine. But a recitation of the facts and proceedings below at least shows how the question presented arose. Kisor is a Vietnam War veteran seeking disability benefits from the Department of Veterans Affairs (VA). He first applied in 1982, alleging that he had developed post-traumatic stress disorder (PTSD) as a result of his participation in a military action called Operation Harvest Moon. The report of the agency’s evaluating psychiatrist noted Kisor’s involvement in that battle, but found that he “d[id] not suffer from PTSD.” App. 12, 14. The VA thus denied Kisor benefits. There matters stood until 2006, when Kisor moved to reopen his claim. Based on a new psychiatric report, the VA this time agreed that Kisor suffered from PTSD. But it granted him benefits only from the date of his motion to reopen, rather than (as he requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA, represented in Kisor’s case by a single administrative judge—affirmed that timing decision, based on its interpretation of an agency rule. Under the VA’s regulation, the agency could grant Kisor retroactive benefits if it found there were “relevant official service department records” that it had not considered in its initial denial. See 38 CFR §3.156(c)(1) (2013). The Board acknowledged that Kisor had come up with two new service records, both confirming his participation in Operation Harvest Moon. But according to the Board, those records were not “relevant” because they did not go to the reason for the de- nial—that Kisor did not have PTSD. See App. to Pet. for Cert. 43a (“[The] documents were not relevant to the decision in May 1983 because the basis of the denial was that a diagnosis of PTSD was not warranted, not a dispute as to whether or not the Veteran engaged in combat”). The Court of Appeals for Veterans Claims, an independent Article I court that initially reviews the Board’s decisions, affirmed for the same reason. The Court of Appeals for the Federal Circuit also affirmed, but it did so based on deference to the Board’s interpretation of the VA rule. See Kisor v. Shulkin , 869 F.3d 1360, 1368 (2017). Kisor had argued to the Federal Circuit that to count as “relevant,” a service record need not (as the Board thought) “counter[ ] the basis of the prior denial”; instead, it could relate to some other criterion for obtaining disability benefits. Id., at 1366 (internal quotation marks omitted). The Federal Circuit found the regulation “ambiguous” as between the two readings. Id., at 1367. The rule, said the court, does not specifically address “whether ‘relevant’ records are those casting doubt on the agency’s prior [rationale or] those relating to the veteran’s claim more broadly.” Ibid. So how to choose between the two views? The court continued: “Both parties insist that the plain regulatory language supports their case, and neither party’s position strikes us as unreasonable.” Id. , at 1368. Because that was so, the court believed Auer deference appropriate: The agency’s construction of its own regulation would govern unless “plainly erroneous or inconsistent with the VA’s regulatory framework.” Ibid. (internal quotation marks omitted). Applying that standard, the court upheld the Board’s reading—and so approved the denial of retroactive benefits. We then granted certiorari to decide whether to overrule Auer and (its predecessor) Seminole Rock . 586 U. S. ___ (2018). II Before addressing that question directly, we spend some time describing what Auer deference is, and is not, for. You might view this Part as “just background” because we have made many of its points in prior decisions. But even if so, it is background that matters. For our account of why the doctrine emerged—and also how we have limited it—goes a long way toward explaining our view that it is worth preserving. A Begin with a familiar problem in administrative law: For various reasons, regulations may be genuinely ambiguous. They may not directly or clearly address every issue; when applied to some fact patterns, they may prove susceptible to more than one reasonable reading. Sometimes, this sort of ambiguity arises from careless drafting—the use of a dangling modifier, an awkward word, an opaque construction. But often, ambiguity reflects the well-known limits of expression or knowledge. The subject matter of a rule “may be so specialized and varying in nature as to be impossible”—or at any rate, impracticable—to capture in its every detail. SEC v. Chenery Corp. , 332 U.S. 194 , 203 (1947). Or a “problem[ ] may arise” that the agency, when drafting the rule, “could not [have] reasonably foresee[n].” Id., at 202. Whichever the case, the result is to create real uncertainties about a regulation’s meaning. Consider these examples: In a rule issued to implement the Americans with Disabilities Act (ADA), the Department of Justice requires theaters and stadiums to provide people with disabilities “lines of sight comparable to those for members of the general public.” 28 CFR pt. 36, App. A, p. 563 (1996). Must the Washington Wiz- ards construct wheelchair seating to offer lines of sight over spectators when they rise to their feet? Or is it enough that the facility offers comparable views so long as everyone remains seated? See Paralyzed Veterans of Am. v. D. C. Arena L. P. , 117 F.3d 579 , 581–582 (CADC 1997). The Transportation Security Administration (TSA) requires that liquids, gels, and aerosols in carry-on baggage be packed in containers smaller than 3.4 ounces and carried in a clear plastic bag. Does a traveler have to pack his jar of truffle pâté in that way? See Laba v. Copeland , 2016 WL 5958241, *1 (WDNC, Oct. 13, 2016). The Mine Safety and Health Administration issues a rule requiring employers to report occupational diseases within two weeks after they are “diagnosed.” 30 CFR §50.20(a) (1993). Do chest X-ray results that “scor[e]” above some level of opacity count as a “diagnosis”? What level, exactly? See American Min. Congress v. Mine Safety and Health Admin. , 995 F.2d 1106, 1107–1108 (CADC 1993). An FDA regulation gives pharmaceutical companies exclusive rights to drug products if they contain “no active moiety that has been approved by FDA in any other” new drug application. 21 CFR §314.108(a) (2010). Has a company created a new “active moiety” by joining a previously approved moiety to lysine through a non-ester covalent bond? See Actavis Elizabeth LLC v. FDA , 625 F.3d 760, 762–763 (CADC 2010); Tr. of Oral Arg. 12, 35.[ 1 ] Or take the facts of Auer itself. An agency must decide whether police captains are eligible for overtime under the Fair Labor Standards Act. According to the agency’s regulations, employees cannot receive overtime if they are paid on a “salary basis.” 29 CFR §541.118(a) (1996). And in deciding whether an employee is salaried, one question is whether his pay is “subject to reduction” based on performance. Ibid. A police department’s manual informs its officers that their pay might be docked if they commit a disciplinary infraction.  Does that fact alone make them “subject to” pay deductions? Or must the department have a practice of docking officer pay, so that the possibility of that happening is more than theoretical? 519 U. S., at 459–462. In each case, interpreting the regulation involves a choice between (or among) more than one reasonable reading. To apply the rule to some unanticipated or unresolved situation, the court must make a judgment call. How should it do so? In answering that question, we have often thought that a court should defer to the agency’s construction of its own regulation. For the last 20 or so years, we have referred to that doctrine as Auer deference, and applied it often.[ 2 ] But the name is something of a misnomer. Before the doctrine was called Auer deference, it was called Seminole Rock deference—for the 1945 decision in which we declared that when “the meaning of [a regulation] is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 325 U. S., at 414.[ 3 ] And Seminole Rock itself was not built on sand. Deference to administrative agencies traces back to the late nineteenth century, and perhaps beyond. See United States v. Eaton , 169 U.S. 331 , 343 (1898) (“The interpretation given to the regulations by the department charged with their execution . . . is en- titled to the greatest weight”); see Brief for Administrative Law Scholars as Amici Curiae 5, n. 3 (collecting early cases); Brief for AFL–CIO as Amicus Curiae 8 (same). We have explained Auer deference (as we now call it) as rooted in a presumption about congressional intent—a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities. See Martin v. Occupational Safety and Health Review Comm’n , 499 U.S. 144 , 151–153 (1991). Congress, we have pointed out, routinely delegates to agencies the power to implement statutes by issuing rules. See id., at 151. In doing so, Congress knows (how could it not?) that regulations will sometimes contain ambiguities. See supra, at 4. But Congress almost never explicitly assigns responsibility to deal with that problem, either to agencies or to courts. Hence the need to presume, one way or the other, what Congress would want. And as between those two choices, agencies have gotten the nod. We have adopted the presumption—though it is always rebut- table—that “the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Martin , 499 U. S., at 151. Or otherwise said, we have thought that when granting rulemaking power to agencies, Congress usually intends to give them, too, considerable latitude to interpret the ambiguous rules they issue. In part, that is because the agency that promulgated a rule is in the “better position [to] reconstruct” its original meaning. Id., at 152. Consider that if you don’t know what some text (say, a memo or an e-mail) means, you would probably want to ask the person who wrote it. And for the same reasons, we have thought, Congress would too (though the person is here a collective actor). The agency that “wrote the regulation” will often have direct insight into what that rule was intended to mean. Mullins Coal Co. of Va. v. Director, Office of Workers’ Compensation Programs , 484 U.S. 135 , 159 (1987). The drafters will know what it was supposed to include or exclude or how it was supposed to apply to some problem. To be sure, this justification has its limits. It does not work so well, for example, when the agency failed to anticipate an issue in crafting a rule ( e.g., if the agency never thought about whether and when chest X-rays would count as a “diagnosis”). See supra, at 5. Then, the agency will not be uncovering a specific intention; at most (though this is not nothing), it will be offering insight into the analogous issues the drafters considered and the purposes they designed the regulation to serve. And the defense works yet less well when lots of time has passed between the rule’s issuance and its interpretation—especially if the interpretation differs from one that has come before. All that said, the point holds good for a significant category of “contemporaneous” readings. Lyng v. Payne , 476 U.S. 926 , 939 (1986). Want to know what a rule means? Ask its author. In still greater measure, the presumption that Congress intended Auer deference stems from the awareness that resolving genuine regulatory ambiguities often “entail[s] the exercise of judgment grounded in policy concerns.” Thomas Jefferson Univ. v. Shalala , 512 U.S. 504 , 512 (1994) (internal quotation marks omitted). Return to our TSA example. See supra, at 5. In most of their applications, terms like “liquids” and “gels” are clear enough. (Traveler checklist: Pretzels OK; water not.) But resolving the uncertain issues—the truffle pâtés or olive tapenades of the world—requires getting in the weeds of the rule’s policy: Why does TSA ban liquids and gels in the first instance? What makes them dangerous? Can a potential hijacker use pâté jars in the same way as soda cans? Or take the less specialized-seeming ADA example. See supra, at 4–5. It is easy enough to know what “comparable lines of sight” means in a movie theater—but more complicated when, as in sports arenas, spectators sometimes stand up. How costly is it to insist that the stadium owner take that sporadic behavior into account, and is the viewing value received worth the added expense? That cost-benefit calculation, too, sounds more in policy than in law. Or finally, take the more technical “moiety” example. See supra, at 5–6. Or maybe, don’t. If you are a judge, you probably have no idea of what the FDA’s rule means, or whether its policy is implicated when a previously approved moiety is connected to lysine through a non-ester covalent bond. And Congress, we have thought, knows just that: It is attuned to the comparative advantages of agencies over courts in making such policy judgments. Agencies (unlike courts) have “unique expertise,” often of a scientific or technical nature, relevant to applying a regulation “to complex or changing circumstances.” Martin , 499 U. S., at 151; see Thomas Jefferson , 512 U. S., at 512. Agencies (unlike courts) can conduct factual investigations, can consult with affected parties, can consider how their experts have handled similar issues over the long course of administering a regulatory program. See Long Island Care at Home, Ltd. v. Coke , 551 U.S. 158 , 167–168 (2007). And agencies (again unlike courts) have political accountability, because they are subject to the supervision of the President, who in turn answers to the public. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 561 U.S. 477 , 499 (2010); Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680 , 696 (1991) (discussing as a matter of democratic accountability the “proper roles of the political and judicial branches” in filling regulatory gaps). It is because of those features that Congress, when first enacting a statute, assigns rulemaking power to an agency and thus authorizes it to fill out the statutory scheme. And so too, when new issues demanding new policy calls come up within that scheme, Congress presumably wants the same agency, rather than any court, to take the laboring oar. Finally, the presumption we use reflects the well-known benefits of uniformity in interpreting genuinely ambiguous rules. We have noted Congress’s frequent “preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal by litigation.” Ford Motor Credit Co. v. Milhollin , 444 U.S. 555 , 568 (1980). That preference may be strongest when the interpretive issue arises in the context of a “complex and highly technical regulatory program.” Thomas Jefferson , 512 U. S., at 512. After all, judges are most likely to come to divergent conclusions when they are least likely to know what they are doing. (Is there anything to be said for courts all over the country trying to figure out what makes for a new active moiety?) But the uniformity justification retains some weight even for more accessible rules, because their language too may give rise to more than one eminently reasonable reading. Consider Auer itself. See supra, at 6. There, four Circuits held that police captains were “subject to” pay deductions for disciplinary infractions if a police manual said they were, even if the department had never docked anyone. Two other Circuits held that captains were “subject to” pay deductions only if the department’s actual practice made that punishment a realistic possibility. See Auer , 519 U. S., at 460. Had the agency issued an interpretation before all those rulings (rather than, as actually happened, in a brief in this Court), a deference rule would have averted most of that conflict and uncertainty. See Christopher v. SmithKline Beecham Corp. , 567 U.S. 142 , 158, n. 17 (2012) (noting for this reason that Auer deference imparts “predictability to the administrative process” (internal quotation marks omitted)). Auer deference thus serves to ensure consistency in federal regulatory law, for everyone who needs to know what it requires. B But all that said, Auer deference is not the answer to every question of interpreting an agency’s rules. Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. See supra, at 7–11. But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the “power to persuade.” Christopher , 567 U. S., at 159 (quoting Skidmore v. Swift & Co. , 323 U.S. 134 , 140 (1944)). We have thus cautioned that Auer deference is just a “general rule”; it “does not apply in all cases.” Christopher , 567 U. S., at 155. And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is “unwarranted.” Ibid . In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, “fair[, or] considered judgment.” Ibid. (quoting Auer , 519 U. S., at 462); cf. United States v. Mead Corp. , 533 U.S. 218 , 229–231 (2001) (adopting a similar approach to Chevron deference). We take the opportunity to restate, and somewhat expand on, those principles here to clear up some mixed messages we have sent. At times, this Court has applied Auer deference without significant analysis of the underlying regulation. See, e.g., United States v. Larionoff , 431 U.S. 864 , 872 (1977) (stating that the Court “need not tarry” over the regulation’s language given Seminole Rock ). At other times, the Court has given Auer deference without careful attention to the nature and context of the interpretation. See, e.g., Thorpe v. Housing Authority of Durham , 393 U.S. 268 , 276, and nn. 22–23 (1969) (deferring to an agency’s view as expressed in letters to third parties). And in a vacuum, our most classic formulation of the test—whether an agency’s construction is “plainly erroneous or inconsistent with the regulation,” Seminole Rock , 325 U. S., at 414—may suggest a caricature of the doctrine, in which deference is “reflexive.” Pereira v. Sessions , 585 U. S. ___, ___ (2018) (Kennedy, J., concurring) (slip op., at 2). So we cannot deny that Kisor has a bit of grist for his claim that Auer “bestows on agencies expansive, unreviewable” authority. Brief for Petitioner 25. But in fact Auer does no such thing: It gives agencies their due, while also allowing—indeed, obligating—courts to perform their reviewing and restraining functions. So before we turn to Kisor’s specific grievances, we think it worth reinforcing some of the limits inherent in the Auer doctrine.[ 4 ] First and foremost, a court should not afford Auer deference unless the regulation is genuinely ambiguous. See Christensen v. Harris County , 529 U.S. 576 , 588 (2000); Seminole Rock , 325 U. S., at 414 (deferring only “if the meaning of the words used is in doubt”). If uncertainty does not exist, there is no plausible reason for deference. The regulation then just means what it means—and the court must give it effect, as the court would any law. Otherwise said, the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over. See supra, at 9–10. But if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense. Deference in that circumstance would “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” See Christensen , 529 U. S., at 588. Auer does not, and indeed could not, go that far. And before concluding that a rule is genuinely ambiguous, a court must exhaust all the “traditional tools” of construction. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 , 843, n. 9 (1984) (adopting the same approach for ambiguous statutes). For again, only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is “more [one] of policy than of law.” Pauley , 501 U. S., at 696. That means a court cannot wave the ambiguity flag just because it found the regulation impenetrable on first read. Agency regulations can sometimes make the eyes glaze over. But hard interpretive conundrums, even relating to complex rules, can often be solved. See id., at 707 (Scalia, J., dissenting) (A regulation is not ambiguous merely because “discerning the only possible interpretation requires a taxing inquiry”). To make that effort, a court must “carefully consider[ ]” the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on. Ibid. Doing so will resolve many seeming ambiguities out of the box, without resort to Auer deference. If genuine ambiguity remains, moreover, the agency’s reading must still be “reasonable.” Thomas Jefferson , 512 U. S., at 515. In other words, it must come within the zone of ambiguity the court has identified after employing all its interpretive tools. (Note that serious application of those tools therefore has use even when a regulation turns out to be truly ambiguous. The text, structure, history, and so forth at least establish the outer bounds of permissible interpretation.) Some courts have thought (perhaps because of Seminole Rock ’s “plainly erroneous” formulation) that at this stage of the analysis, agency constructions of rules receive greater deference than agency constructions of statutes. See, e.g., Ohio Dept. of Medicaid v. Price , 864 F.3d 469, 477 (CA6 2017). But that is not so. Under Auer , as under Chevron , the agency’s reading must fall “within the bounds of reasonable interpretation.” Arlington v. FCC , 569 U.S. 290 , 296 (2013). And let there be no mistake: That is a requirement an agency can fail. Still, we are not done—for not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. We have recognized in applying Auer that a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight. See Christopher , 567 U. S., at 155; see also Mead , 533 U. S., at 229–231, 236–237 (requiring an analogous though not identical inquiry for Chevron deference). As explained above, we give Auer deference because we presume, for a set of reasons relating to the comparative attributes of courts and agencies, that Congress would have wanted us to. See supra, at 7–11. But the administrative realm is vast and varied, and we have understood that such a presumption cannot always hold. Cf. Mead , 533 U. S., at 236 (“tailor[ing] deference to [the] variety” of administrative action); Arlington , 569 U. S., at 309–310 (Breyer, J., concurring in part and concurring in judgment) (noting that “context-specific[ ] factors” may show that “Congress would [not] have intended the agency to resolve [some] ambiguity”). The inquiry on this dimension does not reduce to any exhaustive test. But we have laid out some especially important markers for identifying when Auer deference is and is not appropriate. To begin with, the regulatory interpretation must be one actually made by the agency. In other words, it must be the agency’s “authoritative” or “official position,” rather than any more ad hoc statement not reflecting the agency’s views. Mead , 533 U. S., at 257–259, and n. 6 (Scalia, J., dissenting). That constraint follows from the logic of Auer deference—because Congress has delegated rulemaking power, and all that typically goes with it, to the agency alone. Of course, the requirement of “authoritative” action must recognize a reality of bureaucratic life: Not everything the agency does comes from, or is even in the name of, the Secretary or his chief advisers. So, for example, we have deferred to “official staff memoranda” that were “published in the Federal Register,” even though never approved by the agency head. Ford Motor Credit , 444 U. S., at 566, n. 9, 567, n. 10 (declining to “draw a radical distinction between” agency heads and staff for Auer deference). But there are limits. The interpretation must at the least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context. See, e.g., Paralyzed Veterans , 117 F. 3d, at 587 (refusing to consider a “speech of a mid-level official” as an “authoritative departmental position”); N. Y. State Dept. of Social Servs. v. Bowen , 835 F.2d 360, 365–366 (CADC 1987) (rejecting the idea that an “informal memorandum” recounting a telephone conversation between employees could count as an “authoritative pronouncement”); Exelon Generation Co. v. Local 15 , Int’l Brotherhood of Elec. Workers, AFL–CIO , 676 F.3d 566, 576–578 (CA7 2012) (declining deference when the agency had itself “disclaimed the use of regulatory guides as authoritative”). If the interpretation does not do so, a court may not defer. Next, the agency’s interpretation must in some way implicate its substantive expertise. Administrative knowledge and experience largely “account [for] the presumption that Congress delegates interpretive lawmaking power to the agency.” Martin , 499 U. S., at 153. So the basis for deference ebbs when “[t]he subject matter of the [dispute is] distan[t] from the agency’s ordinary” duties or “fall[s] within the scope of another agency’s authority.” Arlington , 569 U. S., at 309 (opinion of Breyer, J.). This Court indicated as much when it analyzed a “split enforcement” scheme, in which Congress divided regulatory power between two entities. Martin , 499 U. S., at 151. To decide “ whose reasonable interpretation” of a rule controlled, we “presum[ed] Congress intended to invest interpretive power” in whichever actor was “best position[ed] to develop” expertise about the given problem. Id. , at 149, 153. The same idea holds good as between agencies and courts. “Generally, agencies have a nuanced understanding of the regulations they administer.” Brief for Respondent 33. That point is most obvious when a rule is technical; think back to our “moiety” or “diagnosis” examples. See supra , at 5–6. But more prosaic-seeming questions also commonly implicate policy expertise; consider the TSA assessing the security risks of pâté or a disabilities office weighing the costs and benefits of an accommodation. See ibid. Once again, though, there are limits. Some interpretive issues may fall more naturally into a judge’s bailiwick. Take one requiring the elucidation of a simple common-law property term, see Jicarilla Apache Tribe v. FERC , 578 F.2d 289, 292–293 (CA10 1978), or one concerning the award of an attorney’s fee, see West Va. Highlands Conservancy, Inc. v. Norton , 343 F.3d 239 (CA4 2003). Cf. Adams Fruit Co. v. Barrett , 494 U.S. 638 , 649–650 (1990) (declining to award Chevron deference when an agency interprets a judicial-review provision). When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.[ 5 ] Finally, an agency’s reading of a rule must reflect “fair and considered judgment” to receive Auer deference. Christopher , 567 U. S., at 155 (quoting Auer , 519 U. S., at 462). That means, we have stated, that a court should decline to defer to a merely “convenient litigating position” or “ post hoc rationalizatio[n] advanced” to “defend past agency action against attack.” Christopher , 567 U. S., at 155 (quoting Bowen v. Georgetown Univ. Hospital , 488 U.S. 204 , 213 (1988) and Auer , 519 U. S., at 462).[ 6 ] And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates “unfair surprise” to regulated parties. Long Island Care , 551 U. S., at 170. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction “conflict[ing] with a prior” one. Thomas Jefferson , 512 U. S., at 515. Or the upending of reliance may happen without such an explicit interpretive change. This Court, for example, recently refused to defer to an interpretation that would have imposed retroactive liability on parties for longstanding conduct that the agency had never before addressed. See Christopher , 567 U. S., at 155–156. Here too the lack of “fair warning” outweighed the reasons to apply Auer. Id., at 156 (internal quotation marks omitted). *  *  * The upshot of all this goes something as follows. When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase “when it applies” is important—because it often doesn’t. As described above, this Court has cabined Auer ’s scope in varied and critical ways—and in exactly that measure, has maintained a strong judicial role in interpreting rules. What emerges is a deference doctrine not quite so tame as some might hope, but not nearly so menacing as they might fear. III That brings us to the lone question presented here—whether we should abandon the longstanding doctrine just described. In contending that we should, Kisor raises statutory, policy, and constitutional claims (in that order). But he faces an uphill climb. He must first convince us that Auer deference is wrong. And even then, he must overcome stare decisis —the special care we take to preserve our precedents. In the event, Kisor fails at the first step: None of his arguments provide good reason to doubt Auer deference. And even if that were not so, Kisor does not offer the kind of special justification needed to overrule Auer, and Seminole Rock, and all our many other decisions deferring to reasonable agency constructions of ambiguous rules. A Kisor first attacks Auer as inconsistent with the judicial review provision of the Administrative Procedure Act (APA). See 5 U. S. C. §706. As Kisor notes, Congress enacted the APA in 1946—the year after Seminole Rock —to serve as “the fundamental charter of the administrative state.” Brief for Petitioner 26 (internal quotation marks omitted). Section 706 of the Act, governing judicial review of agency action, states (among other things) that reviewing courts shall “determine the meaning or applicability of the terms of an agency action” (including a regulation). According to Kisor, Auer violates that edict by thwarting “meaningful judicial review” of agency rules. Brief for Petitioner 29. Courts under Auer , he asserts (now in the language of Section 706), “abdicate their office of determining the meaning” of a regulation. Id., at 27 (internal quotation marks omitted). To begin with, that argument ignores the many ways, discussed above, that courts exercise independent review over the meaning of agency rules. See supra, at 13–18. As we have explained, a court must apply all traditional methods of interpretation to any rule, and must enforce the plain meaning those methods uncover. There can be no thought of deference unless, after performing that thoroughgoing review, the regulation remains genuinely susceptible to multiple reasonable meanings and the agency’s interpretation lines up with one of them. And even if that is the case, courts must on their own determine whether the nature or context of the agency’s construction reverses the usual presumption of deference. Most notably, a court must consider whether the interpretation is authoritative, expertise-based, considered, and fair to regulated parties. All of that figures as “meaningful judicial review.” Brief for Petitioner 29. And even when a court defers to a regulatory reading, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in “determin[ing] the meaning” of an ambiguous rule. 5 U. S. C. §706. One possibility, as Kisor says, is to review the issue de novo . But another is to review the agency’s reading for reasonableness. To see the point, assume that a regulatory (say, an employment) statute expressly instructed courts to apply Auer deference when reviewing an agency’s interpretations of its ambiguous rules. Nothing in that statute would conflict with Section 706. Instead, the employment law would simply make clear how a court is to “determine the meaning” of such a rule—by deferring to an agency’s reasonable reading. Ibid . Of course, that is not the world we know: Most substantive statutes do not say anything about Auer deference, one way or the other. But for all the reasons spelled out above, we have long presumed (subject always to rebuttal) that the Congress delegating regulatory authority to an agency intends as well to give that agency considerable latitude to construe its ambiguous rules. See supra, at 7–11. And that presumption operates just like the hypothesized statute above. Because of it, once again, courts do not violate Section 706 by applying Auer. To the contrary, they fulfill their duty to “determine the meaning” of a rule precisely by deferring to the agency’s reasonable reading. See Sunstein & Vermeule, The Unbearable Rightness of Auer , 84 U. Chi. L. Rev. 297, 306 (2017) (If Congress intends “that the meaning of a regulation turns on the agency’s interpretation of its meaning,” then courts comply with Section 706’s command to “ ‘determine the meaning’ [of the regulation] by deferring to that view”); cf. Arlington , 569 U. S., at 317 (Roberts, C. J., dissenting) (similarly addressing why Chevron deference comports with Section 706). Section 706 and Auer thus go hand in hand. That is especially so given the practice of judicial review at the time of the APA’s enactment. Section 706 was understood when enacted to “restate[] the present law as to the scope of judicial review.” See Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947); see also Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U.S. 519 , 546 (1978) (noting that this Court gives some deference to the Manual “because of the role played by the Department of Justice in drafting the legislation”). We have thus interpreted the APA not to “significantly alter the common law of judicial review of agency action.” Heckler v. Chaney , 470 U.S. 821 , 832 (1985) (internal quotation marks omitted). That pre-APA common law included Seminole Rock itself (decided the year before) along with prior decisions foretelling that ruling. See supra, at 7. Even assume that the deference regime laid out in those cases had not yet fully taken hold. At a minimum, nothing in the law of that era required all judicial review of agency interpretations to be de novo . Cf. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 635–636 (1996) (arguing that courts before the APA used “flexible, common law methods to review administrative action”). And so nothing suggests that Section 706 imposes that requirement. Or otherwise said: If Section 706 did not change the law of judicial review (as we have long recognized), then it did not proscribe a deferential standard then known and in use. Kisor next claims that Auer circumvents the APA’s rulemaking requirements. Section 553, as Kisor notes, mandates that an agency use notice-and-comment procedures before issuing legislative rules. See 5 U. S. C. §§553(b), (c). But the section allows agencies to issue “interpret[ive]” rules without notice and comment. See §553(b)(A). A key feature of those rules is that (unlike legislative rules) they are not supposed to “have the force and effect of law”—or, otherwise said, to bind private parties. Perez v. Mortgage Bankers Assn. , 575 U.S. 92, ___ (2015) (slip op., at 3) (internal quotation marks omitted). Instead, interpretive rules are meant only to “advise the public” of how the agency understands, and is likely to apply, its binding statutes and legislative rules. Ibid. But consider, Kisor argues, what happens when a court gives Auer deference to an interpretive rule. The result, he asserts, is to make a rule that has never gone through notice and comment binding on the public. See Brief for Petitioner 21, 29. Or put another way, the interpretive rule ends up having the “force and effect of law” without ever paying the procedural cost. Mortgage Bankers , 575 U. S., at ___ (slip op., at 3). But this Court rejected the identical argument just a few years ago, and for good reason. In Mortgage Bankers , we held that interpretive rules, even when given Auer deference, do not have the force of law. See 575 U. S., at ___, and n. 4 (slip op., at 10, and n. 4). An interpretive rule itself never forms “the basis for an enforcement action”—because, as just noted, such a rule does not impose any “legally binding requirements” on private parties. National Min. Assn. v. McCarthy , 758 F.3d 243, 251 (CADC 2014). An enforcement action must instead rely on a legislative rule, which (to be valid) must go through notice and comment. And in all the ways discussed above, the meaning of a legislative rule remains in the hands of courts, even if they sometimes divine that meaning by looking to the agency’s interpretation. See supra, at 13–18. Courts first decide whether the rule is clear; if it is not, whether the agency’s reading falls within its zone of ambiguity; and even if the reading does so, whether it should receive deference. In short, courts retain the final authority to approve—or not—the agency’s reading of a notice-and-comment rule. See Mortgage Bankers, 575 U. S., at ___, n. 4 (slip op., at 10, n. 4) (“[I]t is the court that ultimately decides whether a given regulation means what the agency says”). No binding of anyone occurs merely by the agency’s say-so. And indeed, a court deciding whether to give Auer deference must heed the same procedural values as Section 553 reflects. Remember that a court may defer to only an agency’s authoritative and considered judgments. See supra, at 15–18. No ad hoc statements or post hoc rationalizations need apply. And recall too that deference turns on whether an agency’s interpretation creates unfair surprise or upsets reliance interests. See supra, at 18. So an agency has a strong incentive to circulate its interpretations early and widely. In such ways, the doctrine of Auer deference reinforces, rather than undermines, the ideas of fairness and informed decisionmaking at the core of the APA. To supplement his two APA arguments, Kisor turns to policy, leaning on a familiar claim about the incentives Auer creates. According to Kisor, Auer encourages agencies to issue vague and open-ended regulations, confident that they can later impose whatever interpretation of those rules they prefer. See Brief for Petitioner 37–41. That argument received its fullest elaboration in a widely respected law review article pre-dating Auer . See Manning, 96 Colum. L. Rev., at 654–669. More recently, the concern about such self-delegation has appeared in opinions from this Court, starting with several from Justice Scalia calling for Auer ’s reconsideration. See, e.g., Christopher, 567 U. S., at 158 (citing Manning, supra, at 655–668); Decker v. Northwest Environmental Defense Center , 568 U.S. 597 , 620–621 (2013) (Scalia, J., concurring in part and dissenting in part) (citing Manning, supra ); Talk America, Inc. v. Michigan Bell Telephone Co. , 564 U.S. 50 , 69 (2011) (Scalia, J., concurring) (principally relying on Manning, supra ). But the claim has notable weaknesses, empirical and theoretical alike. First, it does not survive an encounter with experience. No real evidence—indeed, scarcely an anecdote—backs up the assertion. As two noted scholars (one of whom reviewed thousands of rules during four years of government service) have written: “[W]e are unaware of, and no one has pointed to, any regulation in American history that, because of Auer , was designed vaguely.” Sunstein & Vermeule, 84 U. Chi. L. Rev., at 308. And even the argument’s theoretical allure dissipates upon reflection. For strong (almost surely stronger) incentives and pressures cut in the opposite direction. “[R]egulators want their regulations to be effective, and clarity promotes compliance.” Brief for Administrative Law Scholars as Amici Curiae 18–19. Too, regulated parties often push for precision from an agency, so that they know what they can and cannot do. And ambiguities in rules pose risks to the long-run survival of agency pol- icy. Vagueness increases the chance of adverse judicial rulings. And it enables future administrations, with different views, to reinterpret the rules to their own liking. Add all of that up and Kisor’s ungrounded theory of incentives contributes nothing to the case against Auer . Finally, Kisor goes big, asserting (though fleetingly) that Auer deference violates “separation-of-powers principles.” See Brief for Petitioner 43. In his view, those principles prohibit “vest[ing] in a single branch the law-making and law-interpreting functions.” Id., at 45. If that objection is to agencies’ usurping the interpretive role of courts, this opinion has already met it head-on. Properly understood and applied, Auer does no such thing. In all the ways we have described, courts retain a firm grip on the interpretive function. See supra, at 13–18; Mortgage Bankers, 575 U. S., at ___, n. 4 (slip op., at 10, n. 4). If Kisor’s objection is instead to the supposed commingling of functions (that is, the legislative and judicial) within an agency, this Court has answered it often before. See, e.g., Withrow v. Larkin , 421 U.S. 35 , 54 (1975) (permitting such a combination of functions); FTC v. Cement Institute , 333 U.S. 683 , 702 (1948) (same). That sort of mixing is endemic in agencies, and has been “since the beginning of the Republic.” Arlington , 569 U. S., at 304–305, n. 4. It does not violate the separation of powers, we have explained, because even when agency “activities take ‘legislative’ and ‘judicial’ forms,” they continue to be “exercises of[ ] the ‘executive Power’ ”—or otherwise said, ways of executing a statutory plan. Ibid. (quoting U. S. Const., Art. II, §1, cl. 1). So Kisor’s last argument to dispatch Auer deference fails as roundly as the rest. B If all that were not enough, stare decisis cuts strongly against Kisor’s position. “Overruling precedent is never a small matter.” Kimble v. Marvel Entertainment, LLC , 576 U. S. ___, ___ (2015) (slip op., at 7). Adherence to precedent is “a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community , 572 U.S. 782, 798 (2014). “[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee , 501 U.S. 808 , 827 (1991). To be sure, stare decisis is “not an inexorable command.” Id., at 828. But any departure from the doctrine demands “special justification”—something more than “an argument that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 266 (2014). And that is even more than usually so in the circumstances here. First, Kisor asks us to overrule not a single case, but a “long line of precedents”—each one reaffirming the rest and going back 75 years or more. Bay Mills , 572 U. S., at 798; see nn. 2, 3, supra . This Court alone has applied Auer or Seminole Rock in dozens of cases, and lower courts have done so thousands of times. Deference to reasonable agency interpretations of ambiguous rules pervades the whole corpus of administrative law. Second, because that is so, abandoning Auer deference would cast doubt on many settled constructions of rules. As Kisor acknowledged at oral argument, a decision in his favor would allow relitigation of any decision based on Auer , forcing courts to “wrestle [with] whether or not Auer ” had actually made a difference. Tr. of Oral Arg. 30; see id., at 47 (Solicitor General agreeing that “every single regulation that’s currently on the books whose interpretation has been established under Seminole Rock now [would have] to be relitigated anew”). It is the rare overruling that introduces so much instability into so many areas of law, all in one blow. And third, even if we are wrong about Auer , “Congress remains free to alter what we have done.” Patterson v. McLean Credit Union , 491 U.S. 164 , 172–173 (1989) (stating that when that is so, “[c]onsiderations of stare decisis have special force”). In a constitutional case, only we can correct our error. But that is not so here. Our deference decisions are “balls tossed into Congress’s court, for acceptance or not as that branch elects.” Kimble , 576 U. S., at ___ (slip op., at 8). And so far, at least, Congress has chosen acceptance. It could amend the APA or any specific statute to require the sort of de novo review of regulatory interpretations that Kisor favors. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. See Martin , 499 U. S., at 151; supra , at 7–8. And it has done so even after Members of this Court began to raise questions about the doctrine. See, e.g., Talk America , 564 U. S., at 67–69 (Scalia, J., concurring). Given that his- tory—and Congress’s continuing ability to take up Kisor’s arguments—we would need a particularly “special justification” to now reverse Auer. Kisor offers nothing of that ilk. Nearly all his arguments about abandoning precedent are variants of his merits claims. We hear again, if in different parts of his briefs, that Auer deference frustrates “the policies embodied in the APA” and violates the separation of powers. Reply Brief 13, and n. 5; Brief for Petitioner 47–48. More generally, we learn that Seminole Rock was “wrong on its own terms” and “badly reasoned.” Id., at 47 (internal quotation marks omitted). Of course, it is good—and important—for our opinions to be right and well-reasoned. But that is not the test for overturning precedent. Kisor does not claim that Auer deference is “unworkable,” a traditional basis for overruling a case. Patterson , 491 U. S., at 173. Nor does he point to changes in legal rules that make Auer a “doctrinal dinosaur.” Kimble , 576 U. S., at ___ (slip op., at 11). All he can muster is that “[t]he administrative state has evolved substantially since 1945.” Brief for Petitioner 53. We do not doubt the point (al- though we note that Auer and other key deference decisions came along after most of that evolution took place). Still more, we agree with Kisor that administrative law doctrines must take account of the far-reaching influence of agencies and the opportunities such power carries for abuse. That is one reason we have taken care today to reinforce the limits of Auer deference, and to emphasize the critical role courts retain in interpreting rules. But it is no answer to the growth of agencies for courts to take over their expertise-based, policymaking functions. Who knows? Maybe in 1945, the FDA was not thinking about “active moieties.” See supra, at 5–6. But still, today—just as Seminole Rock and Auer held—it should have leeway to say what that term means. IV With that, we can finally return to Kisor’s own case. You may remember that his retroactive benefits depend on the meaning of the term “relevant” records in a VA regulation. See supra, at 2–3. The Board of Veterans’ Appeals, through a single judge’s opinion, understood records to be relevant only if they relate to the basis of the VA’s initial denial of benefits. By contrast, Kisor argued that records are relevant if they go to any benefits criterion, even one that was uncontested. The Federal Circuit upheld the Board’s interpretation based on Auer deference. Applying the principles outlined in this opinion, we hold that a redo is necessary for two reasons. First, the Federal Circuit jumped the gun in declaring the regulation ambiguous. We have insisted that a court bring all its interpretive tools to bear before finding that to be so. See supra, at 13–14. It is not enough to casually remark, as the court did here, that “[b]oth parties insist that the plain regulatory language supports their case, and neither party’s position strikes us as unreasonable.” 869 F. 3d, at 1368; see supra, at 13–14. Rather, the court must make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning. The Solicitor General argued in this Court that the Board’s reading is the only reasonable one. See Brief for Respondent 49–50. Perhaps Kisor will make the converse claim below. Before even considering deference, the court must seriously think through those positions. And second, the Federal Circuit assumed too fast that Auer deference should apply in the event of genuine ambiguity. As we have explained, that is not always true. A court must assess whether the interpretation is of the sort that Congress would want to receive deference. See supra, at 15–18. The Solicitor General suggested at oral argument that the answer in this case might be no. He explained that all 100 or so members of the VA Board act individually (rather than in panels) and that their roughly 80,000 annual decisions have no “precedential value.” Tr. of Oral Arg. 64. He thus questioned whether a Board member’s ruling “reflects the considered judgment of the agency as a whole.” Ibid. ; cf. Mead , 533 U. S., at 233 (declining to give Chevron deference to rulings “being churned out at a rate of 10,000 a year at an agency’s 46 scattered offices”). We do not know what position the Government will take on that issue below. But the questions the Solicitor General raised are exactly the kind the court must consider in deciding whether to award Auer deference to the Board’s interpretation. We accordingly vacate the judgment below and remand the case for further proceedings. It is so ordered. Notes 1 In case you’re wondering, the regulatory definition of active moiety is “[t]he molecule or ion, excluding those appended portions of the molecule that cause the drug to be an ester, salt (including a salt with hydrogen or coordination bonds), or the noncovalent derivative (such as a complex, chelate, or clathrate) of the molecule, responsible for the physiological or pharmacological action of the drug substance.” 21 CFR §314.3(b) (2018). 2 See, e.g. , PLIVA, Inc. v. Mensing , 564 U.S. 604 , 613 (2011); Chase Bank USA, N. A. v. McCoy , 562 U.S. 195 , 208–210 (2011); Coeur Alaska, Inc. v. Southeast Alaska Conservation Council , 557 U.S. 261 , 274–275 (2009); Riegel v. Medtronic, Inc. , 552 U.S. 312 , 328 (2008); Long Island Care at Home, Ltd. v. Coke , 551 U.S. 158 , 171 (2007); Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler , 537 U.S. 371 , 387–388 (2003). 3 Our (pre- Auer ) decisions applying Seminole Rock deference are legion. See, e.g. , Shalala v. Guernsey Memorial Hospital , 514 U.S. 87 , 94–95 (1995); Thomas Jefferson Univ . v. Shalala , 512 U.S. 504 , 512 (1994); Stinson v. United States , 508 U.S. 36 , 44–45 (1993); INS v. National Center for Immigrants’ Rights, Inc. , 502 U.S. 183 , 189–190 (1991); Robertson v. Methow Valley Citizens Council , 490 U.S. 332 , 358–359 (1989); Mullins Coal Co. of Va. v. Director, Office of Workers’ Compensation Programs , 484 U.S. 135 , 159 (1987); Lyng v. Payne , 476 U.S. 926 , 939 (1986); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta , 458 U.S. 141 , 158, n. 13 (1982); Blanding v. DuBose , 454 U.S. 393 , 401 (1982) ( per curiam ); Ford Motor Credit Co. v. Milhollin , 444 U.S. 555 , 566 (1980); United States v. Larionoff , 431 U.S. 864 , 872 (1977); Northern Indiana Public Service Co. v. Porter County Chapter of Izaak Walton League of America, Inc. , 423 U.S. 12 , 15 (1975) ( per curiam ); Ehlert v. United States , 402 U.S. 99 , 105 (1971); INS v. Stanisic , 395 U.S. 62 , 72 (1969); Thorpe v. Housing Authority of Durham , 393 U.S. 268 , 276 (1969); Udall v. Tallman , 380 U.S. 1 , 16–17 (1965). 4 The proper understanding of the scope and limits of the Auer doctrine is, of course, not set out in any of the opinions that concur only in the judgment. 5 For a similar reason, this Court has denied Auer deference when an agency interprets a rule that parrots the statutory text. See Gonzales v. Oregon , 546 U.S. 243 , 257 (2006). An agency, we explained, gets no “special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Ibid. 6 The general rule, then, is not to give deference to agency interpretations advanced for the first time in legal briefs. See Bowen , 488 U. S., at 212–213. But we have not entirely foreclosed that practice. Auer itself deferred to a new regulatory interpretation presented in an amicus curiae brief in this Court. There, the agency was not a party to the litigation, and had expressed its views only in response to the Court’s request. “[I]n the circumstances,” the Court explained, “[t]here [was] simply no reason to suspect that the interpretation [did] not reflect the agency’s fair and considered judgment on the matter in question.” Auer , 519 U. S., at 462. SUPREME COURT OF THE UNITED STATES _________________ No. 18–15 _________________ james l. kisor, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the federal circuit [June 26, 2019] Chief Justice Roberts, concurring in part. I join Parts I, II–B, III–B, and IV of the Court’s opinion. We took this case to consider whether to overrule Auer v. Robbins , 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410 (1945). For the reasons the Court discusses in Part III–B, I agree that overruling those precedents is not warranted. I also agree with the Court’s treatment in Part II–B of the bounds of Auer deference. I write separately to suggest that the distance between the majority and Justice Gorsuch is not as great as it may initially appear. The majority catalogs the prerequisites for, and limitations on, Auer deference: The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and the agency must take account of reliance interests and avoid unfair surprise. Justice Gorsuch, meanwhile, lists the reasons that a court might be persuaded to adopt an agency’s interpretation of its own regulation: The agency thoroughly considered the problem, offered a valid rationale, brought its expertise to bear, and interpreted the regulation in a manner consistent with earlier and later pronouncements. Accounting for variations in verbal formulation, those lists have much in common. That is not to say that Auer deference is just the same as the power of persuasion discussed in Skidmore v. Swift & Co. , 323 U.S. 134 (1944); there is a difference between holding that a court ought to be persuaded by an agency’s interpretation and holding that it should defer to that interpretation under certain conditions. But it is to say that the cases in which Auer deference is warranted largely overlap with the cases in which it would be unreasonable for a court not to be persuaded by an agency’s interpre- tation of its own regulation. One further point: Issues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). I do not re- gard the Court’s decision today to touch upon the latter question. SUPREME COURT OF THE UNITED STATES _________________ No. 18–15 _________________ james l. kisor, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the federal circuit [June 26, 2019] Justice Gorsuch, with whom Justice Thomas joins, with whom Justice Kavanaugh joins as to Parts I, II, III, IV, and V, and with whom Justice Alito joins as to Parts I, II, and III, concurring in the judgment. It should have been easy for the Court to say goodbye to Auer v. Robbins .[ 1 ] In disputes involving the relationship between the government and the people, Auer requires judges to accept an executive agency’s interpretation of its own regulations even when that interpretation doesn’t represent the best and fairest reading. This rule creates a “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.”[ 2 ] Nor is Auer ’s biased rule the product of some congressional mandate we are powerless to correct: This Court invented it, almost by accident and without any meaningful effort to reconcile it with the Administrative Procedure Act or the Constitution. A legion of academics, lower court judges, and Members of this Court—even Auer ’s author—has called on us to abandon Auer . Yet today a bare majority flinches, and Auer lives on. Still, today’s decision is more a stay of execution than a pardon. The Court cannot muster even five votes to say that Auer is lawful or wise. Instead, a majority retains Auer only because of stare decisis . And yet, far from standing by that precedent, the majority proceeds to impose so many new and nebulous qualifications and limitations on Auer that The Chief Justice claims to see little practical difference between keeping it on life support in this way and overruling it entirely. So the doctrine emerges maimed and enfeebled—in truth, zombified. Respectfully, we owe our colleagues on the lower courts more candid and useful guidance than this. And judges owe the people who come before them nothing less than a fair contest, where every party has an equal chance to persuade the court of its interpretation of the law’s demands. One can hope that The Chief Justice is right, and that whether we formally overrule Auer or merely neuter it, the results in most cases will prove the same. But means, not just ends, matter, and retaining even this debilitated version of Auer threatens to force litigants and lower courts to jump through needless and perplexing new hoops and in the process deny the people the independent judicial decisions they deserve. All to what end? So that we may pretend to abide stare decisis ? Consider this case. Mr. Kisor is a Marine who lost out on benefits for post-traumatic stress disorder when the court of appeals deferred to a regulatory interpretation advanced by the Department of Veterans Affairs. The court of appeals was guilty of nothing more than faithfully following Auer . But the majority today invokes stare decisis , of all things, to vacate that judgment and tell the court of appeals to try again using its newly retooled, multi-factored, and far less determinate version of Auer . Respectfully, I would stop this business of making up excuses for judges to abdicate their job of interpreting the law, and simply allow the court of appeals to afford Mr. Kisor its best independent judgment of the law’s meaning. The Court’s failure to be done with Auer , and its decision to adorn Auer with so many new and ambiguous limitations, all but guarantees we will have to pass this way again. When that day comes, I hope this Court will find the nerve it lacks today and inter Auer at last. Until then, I hope that our judicial colleagues on other courts will take courage from today’s ruling and realize that it has transformed Auer into a paper tiger. I. How We Got Here Where did Auer come from? Not from the Constitution, some ancient common law tradition, or even a modern statute. Instead, it began as an unexplained aside in a decision about emergency price controls at the height of the Second World War. Even then, the dictum sat on the shelf, little noticed, for years. Only in the last few decades of the 20th century did lawyers and courts really begin to dust it off and shape it into the reflexive rule of deference to regulatory agencies we know today. And they did so without ever pausing to consider whether a rule like that could be legally justified or even made sense. Auer is really little more than an accident. A Before the mid-20th century, few federal agencies engaged in extensive rulemaking, and those that did rarely sought deference for their regulatory interpretations.[ 3 ] But when the question arose, this Court did not hesitate to say that judges reviewing administrative action should decide all questions of law, including questions concerning the meaning of regulations. As Justice Brandeis put it, “[t]he inexorable safeguard which the due process clause assures is . . . that there will be opportunity for a court to determine whether the applicable rules of law . . . were observed.”[ 4 ] Unsurprisingly, the government’s early, longstanding, and consistent interpretation of a statute, regulation, or other legal instrument could count as powerful evidence of its original public meaning.[ 5 ] But courts respected executive interpretations only because and to the extent “they embodied understandings made roughly contemporaneously with . . . enactment and stably maintained and practiced since that time,” not “because they were executive as such.”[ 6 ] Writing for four Members of the Court, Justice Kagan suggests that Auer ’s very different approach to the interpretation of agency regulations was foreshadowed as early as this Court’s 1898 decision in United States v. Eaton .[ 7 ] Ante , at 7. But this is mistaken. The question in that case was whether Mr. Eaton’s appointment as temporary vice-consul to Siam was consistent with State Department regulations. After several pages of careful and independent legal analysis, the Court held that the regulations did authorize the appointment. That conclusion, the Court explained, was “rendered necessary by a consideration of the text.”[ 8 ] Only after reaching this conclusion did the Court observe that the State Department had previously adopted the same construction, noting along the way that the Department’s views were “entitled to the greatest weight” and that the Court saw “no reason in this case to doubt [their] correctness.”[ 9 ] Eaton thus simply followed the well-worn path of acknowledging that an agency’s interpretation of a regulation can supply evidence of its meaning.[ 10 ] Nowhere did the Court even hint that it would have deferred to the State Department’s views about the meaning of the law if its own independent textual analysis had not led it to the same conclusion. All this is borne out by the Court’s later teachings in Skidmore v. Swift & Co. in 1944.[ 11 ] The question there was whether the time overnight employees spent waiting to respond to fire alarms could amount to compensable overtime under the Fair Labor Standards Act. The lower courts had held as a matter of law that it could not. In an opinion by Justice Jackson, this Court reversed. The Court first held, based on its own independent analysis, that “no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time.”[ 12 ] Only then did the Court consider “what, if any, deference courts should pay” to the views of the Administrator of the Labor Department’s Wage and Hour Division.[ 13 ] And on that question the Court reaffirmed the traditional rule that an agency’s interpretation of the law is “not controlling upon the courts” and is entitled only to a weight proportional to “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”[ 14 ] At the time, the influential administrative law scholar Kenneth Culp Davis considered this “[a]n entirely reliable statement” of the law.[ 15 ] B In truth, the seeds of the Auer doctrine were first planted only in 1945, in Bowles v. Seminole Rock & Sand Co. [ 16 ] That case involved regulations issued by the Office of Price Administration (OPA), which Congress had tasked with stabilizing the national economy during the Second World War through the use of emergency price controls. It was in that context that the Court declared—for the first time and without citing any authority—that “if the meaning of [the regulation were] in doubt,” the agency’s interpretation would merit “controlling weight unless it is plainly erroneous or inconsistent with the regulation.”[ 17 ] Yet even then it was far from clear how much weight the Court really placed on the agency’s interpretation. As it had in Eaton , the Court in Seminole Rock began with an extended discussion of “the plain words of the regulation,” which led it to conclude that the text “clearly” supported the government’s position.[ 18 ] Only after reaching that conclusion based on its own independent analysis did the Court proceed to add that “[a]ny doubts . . . are removed by reference to the administrative construction.”[ 19 ] So confused was all this that readers at the time didn’t perceive Seminole Rock ’s dictum as changing anything. Professor Davis observed that the Court’s discussion about giving “controlling weight” to the agency’s interpretation was an unexplained aside that made no difference to the case’s outcome.[ 20 ] The dictum, too, was readily explained as reflecting the unusual factual context in which the case arose, involving an emergency government program created to deal with “unique circumstances of war and economic depression.”[ 21 ] And the Court decided Seminole Rock the same Term it issued Skidmore , where it reaffirmed the traditional rule that an agency’s views about the law may persuade a court but can never control its judgment. In fact, the Court in Seminole Rock was careful to note that the OPA interpretation before it bore many of the characteristics Skidmore would have recognized as increasing its persuasive force: It had been announced concurrently with the regulation, disseminated widely to the regulated community, and adhered to consistently by the agency.[ 22 ] No wonder, then, that for many years after the decision, courts “connected Seminole Rock more closely with the deference framework . . . under Skidmore ” and generally engaged in a Skidmore -type analysis, accepting the agency’s interpretation “only after independently examining the regulation and concluding that the agency interpretation was sound.”[ 23 ] If Seminole Rock ’s “controlling weight” dictum was afforded any force, it was usually only in the price control context; even then it was ordinarily extended only to “official” agency interpretations that were published contemporaneously with the regulation and widely distributed.[ 24 ] The Fourth Circuit exemplified the early understanding of Seminole Rock when it observed—citing both Seminole Rock and Skidmore —that “under settled principles” an official agency interpretation in an opinion letter was entitled only to “respectful consideration.”[ 25 ] The letter, the court stressed, did not “have the effect of law,” and “[i]t would be absurd to hold that the courts must subordinate their judgment as to the meaning of a . . . regulation to the mere unsupported opinion of an associate counsel in an administrative department.”[ 26 ] C This Court did not cite Seminole Rock ’s “controlling weight” dictum again until 1965, in Udall v. Tallman .[ 27 ] And though Tallman “did very little to advance the jurisprudential understanding of Seminole Rock ,” it certainly helped fuel the expansion of so-called “ Seminole Rock deference.”[ 28 ] From the 1960s on, this Court and lower courts began to cite the Seminole Rock dictum with increasing frequency and in a wider variety of circumstances, but still without much explanation. They also increasingly divorced Seminole Rock from Skidmore .[ 29 ] Auer represents the apotheosis of this line of cases. In the name of what some now call the Auer doctrine, courts have in recent years “mechanically applied and reflexively treated” Seminole Rock ’s dictum “as a constraint upon the careful inquiry that one might ordinarily expect of courts engaged in textual analysis.”[ 30 ] Under Auer , judges are forced to subordinate their own views about what the law means to those of a political actor, one who may even be a party to the litigation before the court. After all, if the court agrees that the agency’s reading is the best one, Auer does no real work; the doctrine matters only when a court would conclude that the agency’s interpretation is not the best or fairest reading of the regulation. To be sure, Justice Kagan paints a very different picture of Auer , asking us to imagine it riding to the rescue only in cases where the scales of justice are evenly balanced between two equally persuasive readings. But that’s a fantasy: “If nature knows of such equipoise in legal arguments, the courts at least do not.”[ 31 ] In the real world the judge uses his traditional interpretive toolkit, full of canons and tiebreaking rules, to reach a decision about the best and fairest reading of the law. Of course, there are close cases and reasonable judges will sometimes disagree. But every day, in courts throughout this country, judges manage with these traditional tools to reach conclusions about the meaning of statutes, rules of procedure, contracts, and the Constitution. Yet when it comes to interpreting federal regulations, Auer displaces this process and requires judges instead to treat the agency’s interpretation as controlling even when it is “not . . . the best one.”[ 32 ] If that were not troubling enough, Auer has also become “a doctrine of uncertain scope and application.”[ 33 ] This Court has never offered meaningful guidance on how to decide whether the agency’s reading is “reasonable” enough to demand judicial deference—and lower courts have drawn that line in wildly different places.[ 34 ] Deepening the confusion, this Court and lower courts have, over time, tried to soften Auer ’s rigidity by declaring that it “might” not apply in some ill-defined circumstances, such as when the agency’s interpretation “conflicts with a prior interpretation” or reflects a “convenient litigating position” or a “ post hoc rationalization” for past agency action.[ 35 ] All this has resulted in “widespread confusion” about when and how to apply Auer deference.[ 36 ] In light of Auer ’s many problems, it should come as no surprise that several Members of this Court,[ 37 ] along with a great many lower court judges[ 38 ] and members of the legal academy,[ 39 ] have questioned Auer ’s validity and pleaded with this Court to reconsider it. D That’s where things stood when James Kisor asked the Department of Veterans Affairs to reopen his disability benefits claim. Mr. Kisor served as a United States Marine from 1962 through 1966 and saw combat in Vietnam. In the early 1980s, a VA counselor observed that Mr. Kisor was battling depression and suicidal thoughts and suggested he might be suffering from post-traumatic stress disorder. In light of this, Mr. Kisor filed a claim for disability benefits in 1982. But, in the end, the VA denied the claim. In 2006, Mr. Kisor sought to reopen the matter. In connection with that request, he presented new evidence, including a psychiatrist’s report diagnosing him with PTSD and additional records documenting his service in Vietnam. The VA reopened Mr. Kisor’s claim and granted him disability benefits effective June 5, 2006, the date he had submitted his new request. Mr. Kisor argued that a VA regulation entitled him to an earlier effective date for disability benefits, one tracing back to his original submission in 1982. But the Board of Veterans Appeals concluded that the applicable regulation didn’t authorize that relief. Mr. Kisor appealed the Board’s ruling all the way to the Federal Circuit, arguing that the Board had misinterpreted the relevant regulation. The Federal Circuit affirmed. Relying on the Auer doctrine, the court held that it had no choice but to treat the Board’s interpretation as “ ‘controlling’ ” unless that interpretation was “ ‘plainly erroneous or inconsistent with the regulatio[n].’ ”[ 40 ] Without even trying to determine who had the better reading of the regulation, the Board or Mr. Kisor, the court declared that “[t]he Board’s interpretation does not strike us as either plainly erroneous or inconsistent with the VA’s regulatory framework.”[ 41 ] Case closed. Mr. Kisor sought and was denied rehearing en banc. Three judges dissented and joined those who have questioned “the logic behind continued adherence to the [ Auer ] doctrine”; they argued that, without Auer deference, Mr. Kisor’s reading of the regulation would likely prevail.[ 42 ] Mr. Kisor then asked us to grant certiorari to reconsider Auer . Thinking it past time to do so, we granted the petition.[ 43 ] II. The Administrative Procedure Act When this Court speaks about the rules governing judicial review of federal agency action, we are not (or shouldn’t be) writing on a blank slate or exercising some common-law-making power. We are supposed to be applying the Administrative Procedure Act. The APA is a “seminal” statute that Congress wrote to define the relationship between courts and agencies.[ 44 ] Some have even described it as a kind of constitution for our “administrative state.” Yet, remarkably, until today this Court has never made any serious effort to square the Auer doctrine with the APA. Even now, only four Justices make the attempt. And for at least two reasons, their arguments are wholly unpersuasive. A The first problem lies in §706. That provision instructs reviewing courts to “decide all relevant questions of law” and “set aside agency action . . . found to be . . . not in accordance with law.”[ 45 ] Determining the meaning of a statute or regulation, of course, presents a classic legal question. But in case these directives were not clear enough, the APA further directs courts to “determine the meaning” of any relevant “agency action,” including any rule issued by the agency.[ 46 ] The APA thus requires a reviewing court to resolve for itself any dispute over the proper interpretation of an agency regulation. A court that, in deference to an agency, adopts something other than the best reading of a regulation isn’t “decid[ing]” the relevant “questio[n] of law” or “determin[ing] the meaning” of the regulation. Instead, it’s allowing the agency to dictate the answer to that question. In doing so, the court is abdicating the duty Congress assigned to it in the APA.[ 47 ] Justice Kagan seeks to address the glaring inconsistency between our judge-made rule and the controlling statute this way. On her account, the APA tells a reviewing court to “determine the meaning” of regulations, but it does not tell the court “ how ” to do that. Thus, we are told, reading the regulation for itself and deferring to the agency’s reading are just two equally valid ways for a court to fulfill its statutory duty to “determine the meaning” of the regulation. Ante , at 20–21. But the APA isn’t as anemic as that. Its unqualified command requires the court to determine legal questions—including questions about a regulation’s meaning—by its own lights, not by those of political appointees or bureaucrats who may even be self-interested litigants in the case at hand. Nor can there be any doubt that, when Congress wrote the APA, it knew perfectly well how to require judicial deference to an agency when it wished—in fact, Congress repeatedly specified deferential standards for judicial review elsewhere in the statute.[ 48 ] But when it comes to the business of interpreting regulations, no such command exists; instead, Congress told courts to “determine” those matters for themselves. Though one hardly needs to be an academic to recognize the point, “commentators in administrative law have ‘generally acknowledged’ that Section 706 seems to require de novo review on questions of law.”[ 49 ] What the statutory language suggests, experience confirms. If Auer deference were really just another way for courts to “determine the meaning” of regulations under §706, you might expect that a final judicial “determination” would at least settle, as a matter of precedent, the question of what the regulation “means.” Of course, even after one court has spoken on a regulation’s meaning, that court or another might properly give weight to a new agency interpretation as part of the court’s own decision-making process. See supra , at 6. But in light of National Cable & Telecommunications Assn. v. Brand X Internet Services ,[ 50 ] courts have interpreted Auer as forbidding a court from ever “determin[ing] the meaning” of a regulation with the force that normally attaches to precedent, because an agency is always free to adopt a different view and insist on judicial deference to its new judgment.[ 51 ] And if an agency can not only control the court’s initial decision but also revoke that decision at any time, how can anyone honestly say the court, rather than the agency, ever really “determine[s]” what the regulation means? To test the point further, consider a statute that tells a court to “determin[e]” an appropriate sentence in a criminal case.[ 52 ] If the judge said he was sending a defendant to prison for longer than he believed appropriate only in deference to the government’s “reasonable” sentencing recommendation, would anyone really think that complied with the law? Or take a statute that instructs a court to “determine” whether a consent judgment proposed by the government in a civil antitrust case “is in the public interest.”[ 53 ] If a court thought the proposed judgment harmful to the public but decided to defer to the government’s “reasonable” contrary view anyway, would anyone suggest the court had complied with Congress’s instruction? Nor does Justice Kagan’s reading of §706 offer any logical stopping point. If courts can “determine the meaning” of a regulation by deferring to any “reasonable” agency reading, then why not by deferring to any agency reading? If it were really true that the APA has nothing to say about how courts decide what regulations mean, then it would follow that the APA tolerates a rule that “the agency is always right.” And if you find yourself in a place as absurd as that, you might want to consider whether you’ve taken a wrong turn along the way. B The problems don’t end there. Auer is also incompatible with the APA’s instructions in §553. That provision requires agencies to follow notice-and-comment procedures when issuing or amending legally binding regulations (what the APA calls “substantive rules”), but not when offering mere interpretations of those regulations.[ 54 ] An agency wishing to adopt or amend a binding regulation thus must publish a proposal in the Federal Register, give interested members of the public an opportunity to submit written comments on the proposal, and consider those comments before issuing the final regulation. Under the APA, that regulation then carries the force of law unless and until it is amended or repealed.[ 55 ] By contrast, an agency can announce an interpretation of an existing substantive regulation without advance warning and in pretty much whatever form it chooses. Auer effectively nullifies the distinction Congress drew here. Under Auer , courts must treat as “controlling” not only an agency’s duly promulgated rules but also its mere interpretations—even ones that appear only in a legal brief, press release, or guidance document issued without affording the public advance notice or a chance to comment. For all practical purposes, “the new interpretation might as well be a new regulation.”[ 56 ] Auer thus oblit- erates a distinction Congress thought vital and supplies agencies with a shortcut around the APA’s required procedures for issuing and amending substantive rules that bind the public with the full force and effect of law.[ 57 ] Think of it this way. We’ve held that the Constitution’s specification of a “single, finely wrought” procedure for the enactment of statutes (bicameralism and presentment) necessarily implies that Congress cannot amend an enacted statute without following that procedure—say, by allowing a single House to change what the law requires.[ 58 ] By the same logic, Congress’s specification in the APA of procedures for the creation of new substantive rules (like notice and comment) necessarily implies that an agency cannot amend a substantive rule without following those procedures. To hold otherwise, as Auer demands, subverts the APA’s design. Certain amici contend this argument is “out of place” in this particular case because the VA happened to issue the interpretation challenged here in an adjudicative proceeding.[ 59 ] But the premise on which they proceed—that the APA permits agencies to issue “controlling” amendments to their regulations in adjudicative proceedings—is not correct. Once an agency issues a substantive rule through notice and comment, it can amend that rule only by following the same notice-and-comment procedures.[ 60 ] Whether an agency issues its interpretation in a press release or something it chooses to call an “adjudication,” all we have is the agency’s opinion about what an existing rule means, something that the APA tells us is not binding in a court of law or on the American people. If that won’t work, Justice Kagan tries an alternative argument from nearly the opposite direction. She replies that affording Auer deference to an agency’s interpretation of its own rules never offends the APA because the agency’s interpretation lacks “the force of law” associated with substantive rules. Agency interpretations lack this force, we are told, because a court always retains the power to decide at least whether the interpretation is entitled to deference. Ante , at 22–23. But this argument rests on an implausibly narrow understanding of what it means for an agency action to bear the force of law. Under Justice Kagan’s logic, even a binding substantive rule would lack the force of law because a court retains the power to decide whether the rule is arbitrary and capricious and thus invalid under the APA. But no one believes that. While an agency interpretation, just like a substantive rule, “must meet certain conditions before it gets deference,” “once it does so [ Auer makes it] every bit as binding as a substantive rule.”[ 61 ] To suggest that Auer does not make an agency’s interpretive guidance “binding o[n] anyone,” ante , at 23, is linguistic hocus-pocus. C If Auer cannot be squared with the text of the APA, Justice Kagan suggests it at least conforms to a reason- able “presumption about congressional intent.” Ante , at 7. The theory seems to be that whenever Congress grants an agency “rulemaking power,” it also implicitly gives the agency “ ‘the power authoritatively to interpret’ ” whatever rules the agency chooses to adopt. Ante , at 8. But against the clear statutory commands Congress gave us in the APA, what sense does it make to “presume” that Congress really, secretly, wanted courts to treat agency interpretations as binding? Normally, this Court does not allow hidden legislative intentions to “muddy” such plainly expressed statutory directives.[ 62 ] Even on its own terms, too, this argument proves pretty muddy. It goes something like this: The drafters of the APA did not intend to “ ‘significantly alter’ ” established law governing judicial review of agency action as of 1946; the Auer doctrine was part of that established law; therefore, the APA implicitly requires courts to afford agencies Auer deference. Ante , at 21–22. But neither of this syllogism’s essential premises stands on solid ground. Take the major premise—that those who adopted the APA intended to work no change in the established law of judicial review of agency action. Justice Kagan is right, of course, that Attorney General Clark claimed as much shortly after the APA’s passage. Ante , at 21. But his view, which reflected the interests of the executive branch, was far from universally shared. Others, including many members of Congress, thought the APA would clarify, if not expand, the scope of judicial review. For example, Senator McCarran, the Chairman of the Judiciary Committee, wrote that it would be “hard . . . for anyone to argue that this Act did anything other than cut down the ‘cult of discretion’ so far as federal law is concerned.”[ 63 ] And both the House and Senate reports on the APA said it was intended to “provid[e] that questions of law are for courts rather than agencies to decide in the last analysis.”[ 64 ] Just five years after the APA’s passage, this Court seemed to side with those who thought the APA was intended to do more than just summarize existing law. In an opinion by Justice Frankfurter, the Court opined that the APA required courts to assume “ more responsibility” for reviewing agency decisions “than some courts ha[d] shown in the past.”[ 65 ] One early commentator likewise observed that the APA seemed designed to eliminate all doubt that questions of law “shall be decided by the reviewing Court for itself, and in the exercise of its own independent judgment”; “[m]ore explicit words to impose this mandate,” he thought, “could hardly be found.”[ 66 ] Justice Kagan’s syllogism runs into even more trouble with its minor premise—that the Auer doctrine was a well-established part of the common law background when Congress enacted the APA in 1946. As we’ve seen, this Court planted the seeds of Auer deference for the first time in dictum in Seminole Rock , just a year before Congress passed the APA. See Part I–B, supra . And that dictum did not somehow immediately become an entrenched part of the common law: For years following Seminole Rock , courts and “commentators largely ignored” it,[ 67 ] and those who took notice weren’t sure what to make of it. Professor Davis, for example, doubted that the dictum could be “taken at face value” given that it seemed “irreconcilable” with the Court’s approach in other cases.[ 68 ] In truth, when Congress passed the APA the law of judicial review of agency action was in a confused state. During the congressional hearings on the bill, one witness’s suggestion that Congress should leave the scope of judicial review “as it now is” drew this fair reply from Representative Walter, chairman of the House Subcommittee on Administrative Law and author of the House Report on the APA: “You say ‘as it now is.’ Frankly, I do not know what it now is . . . . [T]he Supreme Court apparently changes its mind daily.”[ 69 ] III. The Constitution Not only is Auer incompatible with the APA; it also sits uneasily with the Constitution. Article III, §1 provides that the “judicial Power of the United States” is vested exclusively in this Court and the lower federal courts. A core component of that judicial power is “ ‘the duty of interpreting [the laws] and applying them in cases properly brought before the courts.’ ”[ 70 ] As Chief Justice Marshall put it, “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[ 71 ] And never, this Court has warned, should the “judicial power . . . be shared with [the] Executive Branch.”[ 72 ] Yet that seems to be exactly what Auer requires. A Our Nation’s founders were painfully aware of the dangers of executive and legislative intrusion on judicial decision-making. One of the abuses of royal power that led to the American Revolution was King George’s attempt to gain influence over colonial judges.[ 73 ] Colonial legislatures, too, had interfered with the courts’ independence “at the behest of private interests and factions.”[ 74 ] These experiences had taught the founders that “ ‘there is no liberty if the power of judgment be not separated from the legislative and executive powers.’ ”[ 75 ] They knew that when political actors are left free not only to adopt and enforce written laws, but also to control the interpretation of those laws, the legal rights of “litigants with unpopular or minority causes or . . . who belong to despised or suspect classes” count for little.[ 76 ] Maybe the powerful, well-heeled, popular, and connected can wheedle favorable outcomes from a system like that—but what about everyone else? They are left always a little unsure what the law is, at the mercy of political actors and the shifting winds of popular opinion, and without the chance for a fair hearing before a neutral judge. The rule of law begins to bleed into the rule of men. Experiencing all this in their own time, the founders sought to ensure that those who came after them would not. Believing that “[n]o maxim was better established” than “that the power of making ought to be kept distinct from that of expounding, the laws,”[ 77 ] they designed a judiciary that would be able to interpret the laws “free from potential domination by other branches of government.”[ 78 ] To that end, they resisted proposals that would have subjected judicial decisions to review by political actors.[ 79 ] And they rejected the British tradition of using the upper house of the legislature as a court of last resort, out of fear that a body with “even a partial agency in passing bad laws” would operate under the “same spirit” in “interpreting them.”[ 80 ] Instead, they gave federal judges life tenure, subject only to removal by impeachment; and they guaranteed that the other branches could not reduce judges’ compensation so long as they remained in office. The founders afforded these extraordinary powers and protections not for the comfort of judges, but so that an independent judiciary could better guard the people from the arbitrary use of governmental power. And sitting atop the judicial branch, this Court has always carried a special duty to “jealously guar[d]” the Constitution’s promise of judicial independence.[ 81 ] So we have long resisted any effort by the other branches to “ ‘usurp a court’s power to interpret and apply the law to the circumstances before it.’ ”[ 82 ] The judicial power to interpret the law, this Court has held, “can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto.”[ 83 ] Auer represents no trivial threat to these foundational principles. Under the APA, substantive rules issued by federal agencies through notice-and-comment procedures bear “the ‘force and effect of law’ ”[ 84 ] and are part of the body of federal law, binding on private individuals, that the Constitution charges federal judges with interpreting. Yet Auer tells the judge that he must interpret these binding laws to mean not what he thinks they mean, but what an executive agency says they mean. Unlike Article III judges, executive officials are not, nor are they supposed to be, “wholly impartial.”[ 85 ] They have their own interests, their own constituencies, and their own policy goals—and when interpreting a regulation, they may choose to “press the case for the side [they] represen[t]” instead of adopting the fairest and best reading.[ 86 ] Auer thus means that, far from being “kept distinct,” the powers of making, enforcing, and interpreting laws are united in the same hands—and in the process a cornerstone of the rule of law is compromised. Consider an analogy. The Court has long held that Congress cannot “ ‘indirectly control the action of the courts, by requiring of them a construction of the law according to its own views.’ ”[ 87 ] If Congress disagrees with how courts are interpreting an existing statute, it is free to amend the statute to establish a different rule going forward. What it cannot do is issue “a mandate . . . to compel the courts to construe and apply [existing law], not according to the judicial, but according to the legislative judgment.”[ 88 ] As early as 1804, when a lawyer argued before this Court that an Act of the North Carolina legislature could not control the Court’s construction of an earlier North Carolina statute because “[t]o declare what the law is, or has been, is a judicial power,” not a legislative power, the Court stopped him, deeming the point too plain for argument.[ 89 ] But if the legislature can’t control a judge’s interpretation of an existing statute, how can an executive agency control a judge’s interpretation of an existing and equally binding regulation? Auer allows an agency to do exactly what this Court has always said a legislature cannot do: “compel the courts to construe and apply” a law on the books, “not according to the judicial . . . judgment,” but according to the judgment of another branch.[ 90 ] When we defer to an agency interpretation that differs from what we believe to be the best interpretation of the law, we compromise our judicial independence and deny the people who come before us the impartial judgment that the Constitution guarantees them. And we mislead those whom we serve by placing a judicial imprimatur on what is, in fact, no more than an exercise of raw political executive power.[ 91 ] B What do our colleagues have to say about these concerns? A majority has nothing to offer, and Justice Kagan dismisses them out of hand. In fact, she barely mentions the Constitution, other than to assure us that Auer does not allow agencies to “usur[p] the interpretive role of courts” because “courts retain a firm grip on the interpretive function” through their ability to decide whether Auer deference applies. Ante , at 25. But that is no assurance at all. The judicial power has always been understood to provide the people with a neutral arbiter who bears the responsibility and duty to “expound and interpret” the governing law, not just the power to say whether someone else’s interpretation, let alone the interpretation of a self-interested political actor, is “reasonable.”[ 92 ] To be sure, it’s conceivable that Congress might seek to limit the ability of judges to remedy an adverse agency action. It might, for example, provide that a court shall have power to set aside agency action pursuant to a regulation only if the action was based on an unreasonable interpretation of the regulation. But even assuming the constitutionality of a hypothetical statute like that, Auer is different. It does not limit the scope of the judicial power; instead, it seeks to coopt the judicial power by requiring an Article III judge to decide a case before him according to principles that he believes do not accurately reflect the law. Under Auer , a judge is required to lay aside his independent judgment and declare affirmatively that a regulation means what the agency says it means—and, thus, that the law is what the agency says it is. Then the judge is compelled to exercise his judicial authority to adjust private rights and obligations based on the agency’s (mis)understanding of the law. If Auer were a statute, it would not be an exercise of Congress’s “power (within limits) to tell the courts what classes of cases they may decide,” or what relief they may supply, but a forbidden attempt “to prescribe or superintend how they decide those cases.”[ 93 ] And in the absence of any statute like that, this Court surely should not so freely give away to the executive branch its assigned responsibility to interpret the laws. “Abdication of responsibility is not part of the constitutional design.”[ 94 ] In the end, Justice Kagan’s only real reply is this: However misguided it may be to hand over our interpretive powers to executive agencies, at least there isn’t a mountain of empirical evidence showing that agencies have used this power to deliberately write “vague and open-ended” regulations to maximize their interpretive leeway. Ante , at 24. But even this misses the point. Whether or not regulations are “ ‘designed’ ” to be vague, ibid. , many can be read in different ways, especially when new and unanticipated applications arise; cases like that come before the courts all the time. Without Auer ’s shadow hanging over them, parties would receive a fair hearing before an impartial judge. The agency’s interpretation would sometimes be rejected; and that, in turn, might lead it to solicit public comment on possible amendments to the regulation, which would provide an opportunity for public input that might produce better policy. But with Auer , there is no fair hearing and no need for the agency to amend the regulation through notice and comment. Whether purposeful or not, the agency’s failure to write a clear regulation winds up increasing its power, allowing it to both write and interpret rules that bear the force of law—in the process uniting powers the Constitution deliberately separated and denying the people their right to an independent judicial determination of the law’s meaning. IV. Policy Arguments Lacking support elsewhere, Justice Kagan is forced to resort to policy arguments to defend Auer . But even the most sensible policy argument would not empower us to ignore the plain language of the APA or the demands of the Constitution. And as we’ve seen, those documents reflect a very different “policy” judgment by the people and their representatives. Besides, the policy argu- ments offered today are not just unpersuasive, they are troubling. Take the first and boldest offering. Justice Kagan suggests that determining the meaning of a regulation is largely a matter of figuring out what the “person who wrote it . . . intended.” Ante , at 8. In this way, we’re told, a legally binding regulation isn’t all that different from “a memo or an e-mail”—if you “[w]ant to know what [it] means,” you’d better “[a]sk its author.” Ante , at 8–9. But the federal government’s substantive rules are not like memos or e-mails; they are binding edicts that carry the force of law for all citizens. And if the rule of law means anything, it means that we are governed by the public meaning of the words found in statutes and regulations, not by their authors’ private intentions. This is a vital part of what it means to have “a government of laws, and not of men.”[ 95 ] When judges interpret a regulation, what we are trying to get at, as Justice Holmes explained long ago, is not the “particular intent” of those who wrote it, but “what [its] words would mean [to] a normal speaker of English . . . in the circumstances in which they were used.”[ 96 ] If the best reading of the regulation turns out to be something other than what the agency claims to have intended, the agency is free to rewrite the regulation; but its secret intentions are not the law. Nor does Justice Kagan’s account of the interpretive process even wind up supporting Auer . If a court’s goal in interpreting a regulation really were to determine what its author “intended,” Auer would be an almost complete mismatch with the goal. Agency personnel change over time, and an agency’s policy priorities may shift dramatically from one presidential administration to another. Yet Auer tells courts that they must defer to the agency’s current view of what the regulation ought to mean, which may or may not correspond to the views of those who actually wrote it. If interpreting a regulation really were just like reading an e-mail, Auer would be like seeking guidance about the e-mail’s meaning, years or decades later, from the latest user of the computer from which the e-mail was sent. We’ve repeatedly rejected that approach in the context of statutory interpretation. While Members of this Court sometimes disagree about the usefulness of pre-enactment legislative history, we all agree that legislators’ statements about the meaning of an already-enacted statute are not “a legitimate tool of statutory interpretation,’ ” much less a controlling one.[ 97 ] So why on earth would we give “controlling weight” to an agency’s statements about the meaning of an already-promulgated regulation? Proceeding farther down this doubtful path, Justice Kagan asserts that resolving ambiguities in a regulation “sounds more in policy than in law” and is thus a task more suited to executive officials than judges. Ante , at 9. But this claim, too, contradicts a basic premise of our legal order: that we are governed not by the shifting whims of politicians and bureaucrats, but by written laws whose meaning is fixed and ascertainable—if not by all members of the public, then at least by lawyers who can advise them and judges who must apply the law to individual cases guided by the neutral principles found in our traditional tools of interpretation. The text of the regulation is treated as the law, and the agency’s policy judgment has the force of law only insofar as it is embodied in the regulatory text. If “new issues demanding new policy calls” arise that aren’t addressed in existing regulations, ante , at 10, the solution is for the agency to promulgate new regulations using the notice-and-comment procedures set forth in the APA. But an agency has no warrant to compel judges to change the law to conform with the agency’s current policy preferences. To be sure, during the period of Auer ’s ascendancy some suggested that the meaning of written law is always “radically indeterminate” and that judges expounding it are “for the most part, guided by policy—not text.”[ 98 ] And in an environment like that it was perhaps thought a small step to conclude that, if legal disputes are going to be resolved on political grounds, then they ought to be resolved by real politicians in the executive branch rather than ersatz politicians on the bench. But the proposed cure proved worse than the disease. Arguments like these surrendered the judgment embodied in our Constitution and the APA that courts owe the people they serve their independent legal judgment about the law’s meaning. Besides, we’ve long since come to realize that the real cure doesn’t lie in turning judges into rubber stamps for politicians, but in redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation judges have employed for centuries to elucidate the law’s original public meaning. Today it is even said that we judges are, to one degree or another, “all textualists now.”[ 99 ] Pursuing a more modest tack, Justice Kagan next suggests that Auer is justified by the respect due agencies’ “technical” expertise. Ante , at 10. But no one doubts that courts should pay close attention to an expert agency’s views on technical questions in its field. Just as a court “would want to know what John Henry Wigmore said about an issue of evidence law [or] what Arthur Corbin thought about a matter of contract law,” so too should courts carefully consider what the Food and Drug Administration thinks about how its prescription drug safety regulations operate.[ 100 ] The fact remains, however, that even agency experts “can be wrong; even Homer nodded.”[ 101 ] Skidmore and the traditional approach it embodied recognized both of these facts of life long ago, explaining that, while courts should of course afford respectful consideration to the expert agency’s views, they must remain open to competing expert and other evidence supplied in an adversarial setting. Respect for an agency’s technical expertise demands no more. Justice Kagan’s final policy argument is that Auer promotes “consistency” and “uniformity” in the interpretation of regulations. Ante , at 10–11. If we let courts decide what regulations mean, she warns, they might disagree, and it might take some time for higher courts to resolve those disagreements. But consistency and uniformity are hardly grounds on which Auer ’s advocates should wish to fight. The judicial process is how we settle disputes about the meaning of written law, and our judicial system is more than capable of producing a single, uniform, and stable interpretation that will last until the regulation is amended or repealed. Meanwhile, under Auer courts often disagree about whether deference is warranted, see supra , at 10–11, and a regulation’s “meaning” can be transformed with the stroke of a pen any time there is a new presidential administration. “Consistency,” “uniformity,” and stability in the law are hardly among Auer ’s crowning achievements. V. Stare Decisis In the end, a majority declines to endorse Justice Kagan’s arguments and insists only that, even if Auer is not “right and well-reasoned,” we’re stuck with it because of the respect due precedent. Ante , at 27. But notice: While pretending to bow to stare decisis , the majority goes about reshaping our precedent in new and experimental ways. True, the majority admits, this Court has in the past accorded Auer deference “ ‘reflexive[ly],’ ” “without significant analysis of the underlying regulation” or “careful attention to [its] nature and context,” and encouraged lower courts to do the same. Ante , at 12–13. But no more. From now on, the majority says, not only must judges “exhaust all the ‘traditional tools’ of construction” to decide whether the agency’s interpretation is “reasonable,” they must also make “an independent inquiry into whether the character and context of the agency interpretation” justifies deference. Ante , at 13–15. The majority candidly admits that it finds it impossible to “reduce” this new inquiry “to any exhaustive test,” so it settles for laying out some “markers.” Ante , at 15. What are the markers? We are told that courts should often—but not always—withhold deference from an interpretation offered by mid-level agency staff; often—but not always—withhold deference from a nontechnical, “prosaic-seeming” interpretation; often—but not always—withhold deference from an interpretation advanced for the first time in an amicus brief; and often—but not always—withhold deference from an interpretation that conflicts with an earlier one. See ante , at 15–18. The only certainty in all this is that the majority isn’t really much moved by stare decisis ; everyone recognizes, to one degree or another, that Auer cannot stand. And between our remaining choices—continuing to make up new deference rules, or returning to the text of the APA and the approach to judicial review that prevailed for most of our history—the answer should have been easy. A There are serious questions about whether stare decisis should apply here at all. To be sure, Auer ’s narrow holding about the meaning of the regulation at issue in that case may be entitled to stare decisis effect. The same may be true for the specific holdings in other cases where this Court has applied Auer deference. But does stare decisis extend beyond those discrete holdings and bind future Members of this Court to apply Auer ’s broader deference framework? It seems doubtful that stare decisis demands that much. We are not dealing with a precedent that purported to settle the meaning of a single statute or regulation or resolve a particular case. The Auer doctrine claims to do much more than that—to prescribe an interpretive methodology governing every future dispute over the meaning of every regulation. In other contexts, we do not regard statements in our opinions about such generally applicable interpretive methods, like the proper weight to afford historical practice in constitutional cases or legislative history in statutory cases, as binding future Justices with the full force of horizontal stare decisis .[ 102 ] Why, then, should we regard as binding Auer ’s statements about the weight to afford agencies’ interpretations in regulatory cases? To the extent Auer purports to dictate “the interpretive inferences that future Justices must draw in construing statutes and regulations that the Court has never engaged,” it may well “exceed the limits of stare decisis.”[ 103 ] Even if our past expressions of support for Auer deference bear some precedential force, they certainly are not entitled (as the majority suggests, ante , at 26–27) to the special, heightened form of stare decisis we reserve for narrow statutory decisions. In contrast to precedents that fix the meaning of particular statutes and generate reliance interests in the process, the Auer doctrine is an abstract default rule of interpretive methodology that settles nothing of its own force. And this Court has recognized that it is “inconsistent with the Court’s proper role” to insist that Congress exercise its legislative power to overturn such erroneous and judicially invented “default rule[s].”[ 104 ] That should be especially so here because Auer ’s default rule undermines judicial independence, which this Court has a special responsibility to defend. Nor is it entirely clear that Congress could overturn the Auer doctrine legislatively. The majority describes Auer as a “presumption” about how courts should interpret statutes granting rulemaking power to agencies. Ante , at 12. Congress can, of course, rebut the presumption on a statute-by-statute basis, or even for all past statutes. But can Congress eliminate the Auer presumption for future statutes? Perhaps—but legislation like that would raise questions, which the majority does not address, about the ability of one Congress to entrench its preferences by attempting to control the interpretation of legislation enacted by future Congresses.[ 105 ] We should not be in the business of tossing “ ‘balls . . . into Congress’s court,’ ” ante , at 27, that would explode with constitutional questions if Congress tried to pick them up. B Even assuming for argument’s sake that standard stare decisis considerations apply, they still do not require us to retain Auer . Even the majority implicitly recognizes this much, as it proceeds to vacate a lower court judgment that faithfully applied Auer and instruct that court to try again using the majority’s new directions. If stare decisis allows us so freely to remodel Auer , it’s hard to see on what account it might require us to retain it. We do not lightly overturn precedents, and we seek always to honor the thoughtful guidance of those who have preceded us. At the same time, everyone agrees that stare decisis is not an “ ‘inexorable command,’ ”[ 106 ] and this Court should not always remain bound to decisions whose “rationale no longer withstands ‘careful analysis.’ ”[ 107 ] Recognizing the need for balance in this area, the Court has, over time, fashioned principles to guide our treatment of precedent. Those principles call on us to consider factors such as “the quality of [the precedent’s] reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.”[ 108 ] As applied to Auer , all of these considerations weigh strongly in favor of bidding farewell to the doctrine rather than keeping it on life support. First , we’ve already seen that no persuasive rationale supports Auer . From its humble origins as an unexplained bit of dictum in a wartime case about emergency price controls, the Auer doctrine evolved into a rigid rule of deference—all without any serious attempt by this Court to rationalize it or reconcile it with the APA, the Constitution, or traditional modes of judicial review. See Part I, supra . Even its fiercest defenders acknowledge that “ Auer deference has not remained static over time” and urge the Court to continue to “shape” and “refin[e]” the doctrine.[ 109 ] Today’s decision attempts just such a “refinement” by hedging Auer with new qualifications and limitations. See ante , at 11–18. This shifting ground “undermin[es] the force of stare decisis .”[ 110 ] Second , today’s ruling all but admits that Auer has not proved to be a workable standard. Even before this latest overhaul, uncertainty surrounding Auer ’s scope and application had caused many to question whether there was any “practical benefit” in continuing to apply Auer “rather than a less deferential but more flexible and open-ended standard like Skidmore .”[ 111 ] See supra , at 10–11. Nor does the majority’s kinder, gentler version of Auer promise to solve the problem. On the contrary, its newly mandated inquiry into the “character and context of the agency interpretation,” which it admits cannot be reduced “to any exhaustive test,” ante , at 15, seems destined only to compound the confusion. See supra , at 35. Many words come to mind to describe the tasks we assign lower court judges today, but “workable” is not among them. Third , the Auer doctrine is, as we have also already seen, out of step with how courts normally interpret written laws. When we interpret a regulation, we typically (at least when there is no agency say-so) proceed in the same way we would when interpreting any other written law: We “begin our interpretation of the regulation with its text” and, if the text is unclear, we “turn to other canons of interpretation” and tie-breaking rules to resolve the ambiguity.[ 112 ] And when we interpret an ambiguous statute , we never ask what current members of Congress think it means; in fact, we’ve held unanimously that legislators’ post-enactment views about a statute’s meaning are not even a “ ‘legitimate tool of statutory interpretation.’ ”[ 113 ] Affording “controlling weight” to regulators’ post-promulgation views about the meaning of an ambiguous regulation is hard to square with these usual judicial practices.[ 114 ] Fourth , the explosive growth of the administrative state over the last half-century has exacerbated Auer ’s potential for mischief. When the Court first uttered its dictum in Seminole Rock , the administrative state was new and the APA was only a gleam in Congress’s eye. Even 20 years later, when the Court began reviving the Seminole Rock dictum and turning it into a new deference doctrine, it was not yet apparent how pervasive the administrative state would become in the lives of ordinary Americans. Now, in the 21st century, “[t]he administrative state wields vast power and touches almost every aspect of daily life.”[ 115 ] Among other things, it produces “ ‘reams of regulations’ ”[ 116 ]—so many that they dwarf the statutes enacted by Congress. As of 2018, the Code of Federal Regulations filled 242 volumes and was about 185,000 pages long, almost quadruple the length of the most recent edition of the U. S. Code.[ 117 ] And agencies add thousands more pages of regulations every year. Whether you think this administrative fecundity is a good or a bad thing, it surely means that the cost of continuing to deny citizens an impartial judicial hearing on the meaning of disputed regulations has increased dramatically since this Court started down this road. Fifth , Auer has generated no serious reliance interests. The only parties that might have relied on Auer ’s promise of deference are agencies that use post hoc interpretations to bypass the APA’s notice-and-comment procedures. But this Court has never suggested that the convenience of government officials should count in the balance of stare decisis , especially when weighed against the interests of citizens in a fair hearing before an independent judge and a stable and knowable set of laws. In short, “ ‘[t]he fact that [agencies] may view [ Auer deference] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest’ ” of all citizens “ ‘in having their constitutional rights fully protected.’ ”[ 118 ] Coming closer to the mark, the majority worries that “abandoning Auer deference would cast doubt on many settled constructions” of regulations on which regulated parties might have relied. Ante , at 26. But, again, decisions construing particular regulations might retain stare decisis effect even if the Court announced that it would no longer adhere to Auer ’s interpretive methodology. After all, decisions construing particular statutes continue to command respect even when the interpretive methods that led to those constructions fall out of favor. Besides, if the majority is correct that abandoning Auer would require revisiting regulatory constructions that were upheld based on Auer deference, the majority’s revision of Auer will yield exactly the same result. There are innumerable lower court decisions that have followed this Court’s lead and afforded Auer deference mechanically, without conducting the inquiry the Court now holds is required. Today’s ruling casts no less doubt on the continuing validity of those decisions than we would if we simply moved on from Auer . * Overruling Auer would have taken us directly back to Skidmore , liberating courts to decide cases based on their independent judgment and “follow [the] agency’s [view] only to the extent it is persuasive.”[ 119 ] By contrast, the majority’s attempt to remodel Auer ’s rule into a multi-step, multi-factor inquiry guarantees more uncertainty and much litigation. Proceeding in this convoluted way burdens our colleagues on the lower courts, who will have to spend time debating deference that they could have spent interpreting disputed regulations. It also continues to deny the people who come before us the neutral forum for their disputes that they rightly expect and deserve. But this cloud may have a silver lining: The majority leaves Auer so riddled with holes that, when all is said and done, courts may find that it does not constrain their independent judgment any more than Skidmore . As reengineered, Auer requires courts to “exhaust all the ‘traditional tools’ of construction” before they even consider deferring to an agency. Ante , at 13–14. And those tools include all sorts of tie-breaking rules for resolving ambiguity even in the closest cases. Courts manage to make do with these tools in many other areas of the law, so one might hope they will hardly ever find them inadequate here. And if they do, they will now have to conduct a further inquiry that includes so few firm guides and so many cryptic “markers” that they will rarely, if ever, have to defer to an agency regulatory interpretation that differs from what they believe is the best and fairest reading. But whatever happens, this case hardly promises to be this Court’s last word on Auer . If today’s opinion ends up reducing Auer to the role of a tin god—officious, but ultimately powerless—then a future Court should candidly admit as much and stop requiring litigants and lower courts to pay token homage to it. Alternatively, if Auer proves more resilient, this Court should reassert its responsibility to say what the law is and afford the people the neutral forum for their disputes that they expect and deserve. Notes 1 519 U.S. 452 (1997). 2 Larkin & Slattery, The World After Seminole Rock and Auer , 42 Harv. J. L. & Pub. Pol’y 625, 641 (2019) (internal quotation marks omitted). 3 See Knudsen & Wildermuth, Unearthing the Lost History of Seminole Rock , 65 Emory L. J. 47, 55, 65, 68 (2015) (Lost History). 4 St. Joseph Stock Yards Co. v. United States , 298 U.S. 38 , 73 (1936) (concurring opinion). See also FTC v. Gratz , 253 U.S. 421 , 427 (1920); ICC v. Union Pacific R. Co. , 222 U.S. 541 , 547 (1912); Belden v. Chase , 150 U.S. 674 , 698 (1893); Decatur v. Paulding , 14 Pet. 497, 515 (1840); accord, Woolhandler, Judicial Deference to Administrative Action—A Revisionist History, 43 Admin. L. Rev. 197, 206–207 (1991). 5 Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 930–947 (2017) (Origins). 6 Id. , at 943, 962; cf. NLRB v. Noel Canning , 573 U.S. 513, 572–573 (2014) (Scalia, J., concurring in judgment) (an “open, widespread, and unchallenged” governmental practice can “guide [courts’] interpretation” of an ambiguous text, but it cannot “alter” the meaning of that text); Edward’s Lessee v. Darby , 12 Wheat. 206, 210 (1827) (“In the construction of a doubtful and ambiguous law, the cotemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect”). 7 169 U.S. 331 . 8 Id. , at 342. 9 Id. , at 342–343. 10 Cf. Newman, How Courts Interpret Regulations, 35 Cal. L. Rev. 509, 521, and n. 78 (1947) (noting that Eaton suggested administrative interpretations could be “ ‘persuasive’ but not binding”). 11 323 U.S. 134 . 12 Id. , at 136–137. Much of the legal analysis supporting this conclusion was contained in the companion case, Armour & Co. v. Wantock , 323 U.S. 126 (1944), which made no mention of any administrative interpretations. Id. , at 129–134; see Skidmore , 323 U. S., at 136 (citing the “reasons set forth in the Armour case decided herewith”). 13 Id. , at 139. 14 Id. , at 140; see also id. , at 139 (the agency’s views “are not, of course, conclusive, even in the cases with which they directly deal” and do not “bin[d] a district court’s processes, as an authoritative pronouncement of a higher court might do”). 15 Davis, Administrative Rules—Interpretative, Legislative, and Retroactive, 57 Yale L. J. 919, 936–939, and n. 86 (1948); see also K. Davis, Administrative Law §249, p. 901 (1951) (“[S]ubstitution of judicial judgment on the content of interpretative rules is always permissible, even though the reviewing court may give ‘weight’ or ‘great weight’ to the rule. The best guide may be the Court’s formula in Skidmore . . . ”). 16 325 U.S. 410 . 17 Id. , at 414. 18 Id. , at 414–417. 19 Id. , at 417. 20 See Davis, Scope of Review of Federal Administrative Action, 50 Colum. L. Rev. 559, 597 (1950). 21 Lost History 60; see also Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1, 12 (1996). 22 325 U. S., at 417–418; see Pojanowski, Revisiting Seminole Rock , 16 Geo. J. L. & Pub. Pol’y 87, 88 (2018) (“A closer look at Seminole Rock suggests an unremarkable application of the less-deferential standard of review of Skidmore ”). 23 Lost History 94–97; see Pojanowski, supra , at 92–96. 24 Lost History 65–68. 25 Southern Goods Corp. v. Bowles , 158 F.2d 587, 590 (1946). 26 Ibid. 27 380 U.S. 1 , 4, 17–18 (accepting a regulatory interpretation by the Secretary of the Interior that was consistent, widely disseminated, and heavily relied upon, while not suggesting any disagreement with the Secretary’s interpretation). 28 Lost History 80. 29 See generally id. , at 68–92, 98. 30 Id. , at 53. 31 Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 520. 32 Decker v. Northwest Environmental Defense Center , 568 U.S. 597 , 613 (2013); see Pauley v. BethEnergy Mines , Inc. , 501 U.S. 680 , 702 (1991) (the agency’s interpretation “need not be the best or most natural one by grammatical or other standards”). 33 Hickman & Thomson, The Chevron ization of Auer , 103 Minn. L. Rev. Headnotes 103, 105 (2019). 34 See Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2134–2144 (2016). 35 Christopher v. SmithKline Beecham Corp. , 567 U.S. 142 , 155 (2012) (alterations and internal quotation marks omitted). 36 Leske, Splits in the Rock : The Conflicting Interpretations of the Seminole Rock Deference Doctrine by the U. S. Courts of Appeals, 66 Admin. L. Rev. 787, 832 (2014); see Hickman & Thomson, supra , at 111 (noting a “glut of recent cases in which members of the same court are openly divided on the proper application of Auer ”). 37 See Perez v. Mortgage Bankers Assn. , 575 U.S. 92, ___–___ (2015) (Alito, J., concurring in part and concurring in judgment) (slip op., at 1–2); id. , at ___–___ (Scalia, J., concurring in judgment) (slip op., at 1–5); id. , at ___–___ (Thomas, J., concurring in judgment) (slip op., at 8–23); Decker , 568 U. S., at 615–616 (Roberts, C. J., joined by Alito, J., concurring); id. , at 616–621 (Scalia, J., concurring in part and dissenting in part); Talk America , Inc. v. Michigan Bell Telephone Co. , 564 U.S. 50 , 67–69 (2011) (Scalia, J., concurring); see also Kavanaugh, Keynote Address: Justice Scalia and Deference 19:06 (June 2, 2016), http://‌vimeo.com/‌169758593 (predicting “that Auer will someday be overruled and that Justice Scalia’s dissent in Decker will be the law of the land”). 38 See, e.g. , Forrest Gen. Hospital v. Azar , ___ F. 3d ___, ___, 2019 WL 2417409, *7 (CA5 2019); San Diego Gas & Elec. Co. v. FERC , 913 F.3d 127, 145, n. 4 (CADC 2019) (Randolph, J., dissenting); United States v. Havis , 907 F.3d 439, 450–452 (CA6 2018) (Thapar, J., concurring), vacated, 921 F.3d 628, on reh’g en banc, ___ F. 3d ___ (CA6 2019); Marsh v. J. Alexander’s LLC , 905 F.3d 610, 652–653 (CA9 2018) (Ikuta, J., dissenting); Egan v. Delaware River Port Auth. , 851 F.3d 263, 279 (CA3 2017) (Jordan, J., concurring in judgment); Perez v. Loren Cook Co. , 803 F.3d 935, 938, n. 2 (CA8 2015) (en banc); Johnson v. McDonald , 762 F.3d 1362, 1366–1368 (CA Fed. 2014) (O’Malley, J., concurring); Exelon Generation Co. v. Local 15 , Int’l Brotherhood of Elec. Workers , AFL–CIO , 676 F.3d 566, 576, n. 5 (CA7 2012). 39 See, e.g. , Hickman & Thomson, supra , at 111–113; Adler, Auer Evasions, 16 Geo. J. L. & Pub. Pol’y 1, 26 (2018); Pojanowski, 16 Geo. J. L. & Pub. Pol’y, at 99; Knudsen & Wildermuth, Lessons From the Lost History of Seminole Rock , 22 Geo. Mason L. Rev. 647, 667 (2015); Leske, supra , at 789–793; Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 53 Stan. L. Rev. 1, 108–110 (2000); Anthony, 10 Admin. L. J., at 4–12; Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 696 (1996). 40 Kisor v. Shulkin , 869 F.3d 1360, 1367 (2017). 41 Id. , at 1368. 42 Kisor v. Shulkin , 880 F.3d 1378, 1379 (CA Fed. 2018) (opinion of O’Malley, J.). 43 586 U. S. ___ (2018). 44 Abbott Laboratories v. Gardner , 387 U.S. 136 , 140 (1967). 45 5 U. S. C. §706. 46 Ibid. ; see §551(13) (defining “agency action”). 47 The case before us doesn’t arise under the APA, but the statute that governs here is plainly modeled on the APA and contains essentially the same commands. It directs a reviewing court to “decide all relevant questions of law” and to “set aside any regulation or any interpretation thereof ” that is “not in accordance with law.” 38 U. S. C. §7292(d)(1). 48 See, e.g. , §706(2)(A) (arbitrary and capricious, abuse of discretion); §706(2)(E) (substantial evidence); see also Universal Camera Corp. v. NLRB , 340 U.S. 474 , 482, n. 14 (1951) (noting that as originally proposed, the APA’s judicial review provision would have included an explicit requirement for courts to accord “due weight” to “the experience, technical competence, specialized knowledge, and legislative policy of the agency involved as well as the discretionary authority conferred upon it” (internal quotation marks omitted)). 49 Duffy, Administrative Common Law in Judicial Review, 77 Texas L. Rev. 113, 194–195 (1998); see Merrill, Capture Theory and the Courts: 1967–1983, 72 Chi.-Kent L. Rev. 1039, 1085–1086 (1997) (noting the “embarrassing” fact that “the APA appears to compel th[e] conclusion” that “courts should decide all questions of law de novo”). See also, e.g. , Origins 985; Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo L. Rev. 2241, 2243 (2011); Garrett, Legislating Chevron, 101 Mich. L. Rev. 2637, 2640 (2003); Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 Nw. U. L. Rev. 1239, 1249 (2002); Anthony, 10 Admin. L. J. Am. U., at 9–10; Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 473, and n. 85 (1989); Starr, Sunstein, Willard, & Morrison, Judicial Review of Administrative Action in a Conservative Era, 39 Admin. L. Rev. 353, 368 (1987) (remarks of Prof. Sunstein); Pierce & Shapiro, Political and Judicial Review of Agency Action, 59 Texas L. Rev. 1175, 1182 (1981); 4 K. Davis, Administrative Law §30.01, pp. 190–191 (1958). 50 545 U.S. 967 (2005). 51 See, e.g. , In re Lovin , 652 F.3d 1349, 1353–1354 (CA Fed. 2011); Levy v. Sterling Holding Co. , 544 F.3d 493, 502–503 (CA3 2008). 52 18 U. S. C. §3553(a). 53 15 U. S. C. §16(e)(1). 54 See Perez , 575 U. S., at ___–___ (slip op., at 2–3). 55 United States v. Nixon , 418 U.S. 683 , 695–696 (1974). 56 Perez , 575 U. S., at ___ (Thomas, J., concurring in judgment) (slip op., at 16). 57 Ibid. ; see id. , at ___ (Scalia, J., concurring in judgment) (slip op., at 3) ( Auer lets agencies “use [interpretive] rules not just to advise the public, but also to bind them”). 58 See INS v. Chadha , 462 U.S. 919 , 951, 954 (1983). 59 Brief for Administrative Law Scholars as Amici Curiae 9–10, n. 4. 60 See Perez , 575 U. S., at ___ (slip op., at 8); Marseilles Land & Water Co. v. FERC , 345 F.3d 916 , 920 (CADC 2003). 61 Perez , 575 U. S., at ___ (Scalia, J., concurring in judgment) (slip op., at 3). 62 Milner v. Department of Navy , 562 U.S. 562 , 572 (2011). 63 McCarran, Improving “Administrative Justice”: Hearings and Evidence; Scope of Judicial Review, 32 A. B. A. J. 827, 893 (1946). 64 H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946); accord, S. Rep. No. 752, 79th Cong., 1st Sess., 28 (1945); 92 Cong. Rec. 5654 (1946) (statement of Rep. Walter). See also Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics, 90 Nw. U. L. Rev. 1557, 1662–1666 (1996). 65 Universal Camera , 340 U. S., at 490 (emphasis added). 66 Dickinson, Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947). See also Origins 990–991 (critiquing the Attorney General’s characterization of the APA as “inherently question begging” and unsupported by any analysis). 67 Adler, 16 Geo. J. L. & Pub. Pol’y, at 7; see Lost History 63; Pojanowski, 16 Geo. J. L. & Pub. Pol’y, at 95–96. 68 Davis, 50 Colum. L. Rev., at 597–598; see also Davis, 57 Yale L. J., at 936, n. 72; Newman, 35 Cal. L. Rev., at 521–522. 69 Hearings on H. R. 184 et al. before the House Committee on the Judiciary, 79th Cong., 1st Sess., 38 (1945); see Origins 988–989. 70 Patchak v. Zinke , 583 U. S. ___, ___ (2018) (plurality opinion) (slip op., at 5) (quoting Massachusetts v. Mellon , 262 U.S. 447 , 488 (1923)). 71 Marbury v. Madison , 1 Cranch 137, 177 (1803); see also Wayman v. Southard , 10 Wheat. 1, 46 (1825) (“[T]he legislature makes, the executive executes, and the judiciary construes the law”); The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). 72 Miller v. Johnson , 515 U.S. 900 , 922 (1995). 73 See Declaration of Independence ¶11. 74 Plaut v. Spendthrift Farm , Inc. , 514 U.S. 211 , 220–221 (1995). 75 The Federalist No. 78, at 466. 76 Palmore v. United States , 411 U.S. 389 , 412 (1973) (Douglas, J., dissenting); see Oil States Energy Services , LLC v. Greene’s Energy Group , LLC , 584 U. S. ___, ___ (2018) (Gorsuch, J., dissenting) (slip op., at 3) (“[W]hen an independent judiciary gives ground to bureaucrats in the adjudication of cases, the losers will often prove the unpopular and vulnerable”); United States v. Hatter , 532 U.S. 557 , 568–569 (2001) (quoting John Marshall’s admonition that a judge who may be called on to decide a dispute “ ‘between the most powerful individual in the community, and the poorest and most unpopular’ ” must be “ ‘perfectly and completely independent, with nothing to influence or control him but God and his conscience’ ” (alterations omitted)); Jackson, The Meaning of Statutes: What Congress Says or What the Court Says, 34 A. B. A. J. 535, 536 (1948) (“[T]he interpretation of [the laws’] fair meaning . . . should be made by judges as independent of politics as humanly possible and not serving the interests of the class for whom, or a majority by whom, legislation is enacted”). 77 2 Records of the Federal Convention of 1787, p. 75 (M. Farrand ed. 1911); see also Manning, 96 Colum. L. Rev., at 640–648. 78 United States v. Will , 449 U.S. 200 , 218 (1980). 79 See The Federalist No. 81, at 482 (A. Hamilton). 80 Id. , at 483. 81 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. , 458 U.S. 50 , 60 (1982) (plurality opinion). 82 Bank Markazi v. Peterson , 578 U. S. ___, ___ (2016) (slip op., at 12) (alterations omitted). 83 Stern v. Marshall , 564 U.S. 462 , 483 (2011) (internal quotation marks omitted). 84 Perez , 575 U. S., at ___ (slip op., at 2); see Chrysler Corp. v. Brown , 441 U.S. 281 , 295–296 (1979). To be sure, our precedent allowing executive agencies to issue legally binding regulations to govern private conduct may raise constitutional questions of its own. See, e.g. , Department of Transportation v. Association of American Railroads , 575 U.S. 43, ___–___ (2015) (Thomas, J., concurring in judgment) (slip op., at 4–11). 85 Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370, 390 (1947). 86 Id. , at 390–391, and n. 58; see also Kavanaugh, 129 Harv. L. Rev., at 2151 (in pursuing their policy goals, “[e]xecutive branch agencies often think they can take a particular action unless it is clearly forbidden ”). 87 Plaut , 514 U. S., at 225 (quoting T. Cooley, Constitutional Limitations 95 (1868)). 88 Id. , at 95; see also Bank Markazi , 578 U. S., at ___, n. 17 (slip op., at 12, n. 17). 89 Ogden v. Blackledge , 2 Cranch 272, 277. 90 Cooley, supra , at 95. 91 Cf. Cary v. Curtis , 3 How. 236, 253, 257 (1845) (Story, J., dissenting) (if the “right to interpret the laws” is taken away from courts and “confided to an executive functionary,” then “the judicial power, designed by the Constitution to be the final and appellate jurisdiction to interpret our laws, is superseded in its most vital and important functions”). 92 Marbury , 1 Cranch, at 177. 93 Arlington v. FCC , 569 U.S. 290 , 297 (2013) (emphasis added). 94 Clinton v. City of New York , 524 U.S. 417 , 452 (1998) (Kennedy, J., concurring). 95 Marbury , 1 Cranch, at 163. 96 Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417–418 (1899); see INS v. Cardoza-Fonseca , 480 U.S. 421 , 452–453 (1987) (Scalia, J., concurring in judgment) (“Judges interpret laws rather than reconstruct legislators’ intentions”); H. Hart & A. Sacks, The Legal Process 1375 (1994) (“Unenacted intentions or wishes cannot be given effect as law”). 97 United States v. Woods , 571 U.S. 31, 48 (2013). 98 O’Scannlain, “We Are All Textualists Now”: The Legacy of Justice Antonin Scalia, 91 St. John’s L. Rev. 303, 304–305 (2017) (contesting the radical indeterminacy of legal texts). 99 Id. , at 313; see Siegel, Textualism and Contextualism in Administrative Law, 78 B. U. L. Rev. 1023, 1057 (1998). 100 Larkin & Slattery, 42 Harv. J. L. & Pub. Pol’y, at 647. 101 Ibid. 102 See Criddle & Staszewski, Against Methodological Stare Decisis, 102 Geo. L. J. 1573, 1577, and n. 12 (2014); C. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 135–136 (C. Peters ed. 2013). 103 Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Texas L. Rev. 1125, 1159 (2019); see Raso & Eskridge, Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727, 1765–1766 (2010) (concluding that in practice, this Court has not treated administrative-deference regimes such as Chevron and Auer as binding precedents). 104 South Dakota v. Wayfair , Inc. , 585 U. S. ___, ___ (2018) (slip op., at 18). 105 See, e.g. , Alexander & Prakash, Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, 20 Const. Comment. 97 (2003); Elhauge, Preference-Estimating Statutory Default Rules, 102 Colum. L. Rev. 2027, 2109–2110, and nn. 231–233 (2002). 106 Pearson v. Callahan , 555 U.S. 223 , 233 (2009). 107 Arizona v. Gant , 556 U.S. 332 , 348 (2009) (quoting Lawrence v. Texas , 539 U.S. 558 , 577 (2003)). 108 Janus v. State , County , and Municipal Employees , 585 U. S. ___, ___–___ (2018) (slip op., at 34–35). 109 Brief for Administrative Law Scholars as Amici Curiae 13. 110 Knick v. Township of Scott , ante , at 22; see Janus , 585 U. S., at ___ (slip op., at 23). See also Lost History 54–92; Knudsen & Wildermuth, 22 Geo. Mason L. Rev., at 658–664. 111 Hickman & Thomson, 103 Minn. L. Rev. Headnotes, at 110. 112 Green v. Brennan , 578 U. S. ___, ___ (2016) (slip op., at 5); see, e.g. , National Assn. of Home Builders v. Defenders of Wildlife , 551 U.S. 644 , 668–669 (2007) (construing regulation in light of text, history, and canon against surplusage). 113 Woods , 571 U. S., at 48; see also Bruesewitz v. Wyeth LLC , 562 U.S. 223 , 242 (2011); Jones v. United States , 526 U.S. 227 , 238 (1999); United States v. Mine Workers , 330 U.S. 258 , 281–282 (1947). 114 To be sure, under Chevron U. S. A. Inc. v. Natural Resources Defense Council , Inc. , 467 U.S. 837 (1984), we sometimes defer to an agency’s construction of a statute . But there are serious questions, too, about whether that doctrine comports with the APA and the Constitution. See, e.g. , Pereira v. Sessions , 585 U. S. ___, ___–___ (2018) (Kennedy, J., concurring); Michigan v. EPA , 576 U. S. ___, ___–___ (2015) (Thomas, J., concurring); Perez , 575 U. S., at ___–___ (Scalia, J., concurring in judgment) (slip op., at 2–3). Regardless, it would be a mistake to suppose that Auer is in any way a “logical corollary to Chevron .” Decker , 568 U. S., at 620 (Scalia, J., concurring in part and dissenting in part). 115 Arlington , 569 U. S., at 313 (Roberts, C. J., dissenting) (internal quotation marks omitted). 116 Federal Maritime Comm’n v. South Carolina Ports Authority , 535 U.S. 743 , 755 (2002). 117 See Office of the Federal Register, Code of Federal Regulations: Total Pages 1938–1949, and Total Volumes and Pages 1950–2018, http://‌www.‌federalregister.‌gov/‌uploads/‌2019/‌04/‌cfrTotalPages2018.pdf; United States v. Secretary , Fla. Dept. of Corrections , 778 F.3d 1223, 1225 (CA11 2015). 118 Janus , 585 U. S., at ___ (slip op., at 45) (quoting Gant , 556 U. S., at 349). 119 Gonzales v. Oregon , 546 U.S. 243 , 269 (2006); see Christopher , 567 U. S., at 159 (applying Skidmore after concluding that agency’s interpretation did not merit Auer deference). SUPREME COURT OF THE UNITED STATES _________________ No. 18–15 _________________ james l. kisor, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the federal circuit [June 26, 2019] Justice Kavanaugh, with whom Justice Alito joins, concurring in the judgment. I agree with Justice Gorsuch’s conclusion that the Auer deference doctrine should be formally retired. I write separately to emphasize two points. First , I agree with The Chief Justice that “the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” Ante, at 1 (opinion concurring in part). The majority’s approach in Part II−B of its opinion closely resembles the argument advanced by the Solicitor General to “clarif[y] and narro[w]” Auer . Brief for Respondent 15. Importantly, the majority borrows from footnote 9 of this Court’s opinion in Chevron to say that a reviewing court must “exhaust all the ‘traditional tools’ of construction” before concluding that an agency rule is ambiguous and deferring to an agency’s reasonable interpretation. Ante, at 14 (quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 , 843, n. 9 (1984)). If a reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion about the best interpretation of the regulation at issue. After doing so, the court then will have no need to adopt or defer to an agency’s contrary interpretation. In other words, the footnote 9 principle, taken seriously, means that courts will have no reason or basis to put a thumb on the scale in favor of an agency when courts interpret agency regulations. Formally rejecting Auer would have been a more direct approach, but rigorously applying footnote 9 should lead in most cases to the same general destination. Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here. To be sure, some cases involve regulations that employ broad and open-ended terms like “reasonable,” “appropriate,” “feasible,” or “practicable.” Those kinds of terms afford agencies broad policy discretion, and courts allow an agency to reasonably exercise its discretion to choose among the options allowed by the text of the rule. But that is more State Farm than Auer . See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 (1983). In short, after today’s decision, a judge should engage in appropriately rigorous scrutiny of an agency’s interpretation of a regulation, and can simultaneously be appropriately deferential to an agency’s reasonable policy choices within the discretion allowed by a regulation. Second , I also agree with The Chief Justice that “[i]ssues surrounding judicial deference to agency interpretations of their own regulations are distinct from those raised in connection with judicial deference to agency interpretations of statutes enacted by Congress.” Ante, at 2. Like The Chief Justice, “I do not regard the Court’s decision” not to formally overrule Auer “ to touch upon the latter question.” Ibid.

The Supreme Court upheld the use of Auer deference, which defers to an agency's interpretation of its own ambiguous regulations, but clarified its limits. Justices emphasized rigorous scrutiny of agency interpretations and the exhaustion of traditional construction tools before applying deference. Justices Gorsuch and Thomas dissented, arguing for the formal rejection of Auer deference.

Government Agencies

American Hospital Ass'n v. Becerra

https://supreme.justia.com/cases/federal/us/596/20-1114/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1114 _________________ AMERICAN HOSPITAL ASSOCIATION, et al., PETITIONERS v. XAVIER BECERRA, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 15, 2022] Justice Kavanaugh delivered the opinion of the Court. Under the Medicare statute, the Department of Health and Human Services must reimburse hospitals for certain outpatient prescription drugs that the hospitals provide to Medicare patients. HHS’s total reimbursements to hospitals for prescription drugs add up to tens of billions of dollars every year. To set the reimbursement rates for the prescription drugs, HHS has two options under the statute. First, if HHS has conducted a survey of hospitals’ acquisition costs for the drugs, HHS may set the reimbursement rates based on the hospitals’ average acquisition costs—that is, the amount that hospitals pay to acquire the prescription drugs—and may vary the reimbursement rates for different groups of hospitals. Second and alternatively, if HHS has not conducted such a survey, HHS must instead set the reimbursement rates based on the average sales price charged by manufacturers for the drugs (with certain adjustments), and HHS may not vary the reimbursement rates for different groups of hospitals. For 2018 and 2019, HHS did not conduct a survey of hospitals’ acquisition costs for outpatient prescription drugs. But HHS nonetheless substantially reduced the reimbursement rates for one group of hospitals—Section 340B hospitals, which generally serve low-income or rural communities. For those 340B hospitals, this case has immense economic consequences, about $1.6 billion annually. The question is whether the statute affords HHS discretion to vary the reimbursement rates for that one group of hospitals when, as here, HHS has not conducted the required survey of hospitals’ acquisition costs. The answer is no. We therefore reverse the judgment of the U. S. Court of Appeals for the D. C. Circuit. I A In 2003, Congress passed and President George W. Bush signed landmark legislation expanding Medicare to cover prescription drugs. See Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 117Stat. 2066, 42 U. S. C. §1395. Under that 2003 law, HHS must annually set reimbursement rates for certain outpatient prescription drugs provided by hospitals. §1395 l (t)(14). The Medicare statute meticulously lays out the formula that HHS must employ to set those reimbursement rates. As relevant here, the agency’s reimbursement rate for each covered outpatient prescription drug “shall be equal” to one of two measures: “(I) to the average acquisition cost for the drug for that year ( which, at the option of the Secretary, may vary by hospital group (as defined by the Secretary based on volume of covered OPD services or other relevant characteristics)), as determined by the Secretary taking into account the hospital acquisition cost survey data under subparagraph (D); or “(II) if hospital acquisition cost data are not available, the average price for the drug in the year established under section 1395u( o ) of this title, section 1395w–3a of this title, or section 1395w–3b of this title, as the case may be, as calculated and adjusted by the Secretary as necessary for purposes of this paragraph.” §1395 l (t)(14)(A)(iii) (emphasis added). To simplify a bit: Congress afforded HHS two options to set the reimbursement rates for hospitals. Option 1 applies if the agency has conducted a survey of hospitals’ acquisition costs—that is, the amount that hospitals pay to acquire the prescription drugs. If the agency has conducted a survey and collected that data, HHS may set reimbursement rates based on the hospitals’ “average acquisition cost” for each drug. See §1395 l (t)(14)(A)(iii)(I); see also §1395 l (t)(14)(D) (requirements for conducting surveys of hospitals’ drug acquisition costs). Importantly for present purposes, if HHS has conducted a survey of hospitals’ acquisition costs, option 1 authorizes HHS to vary those reimbursement rates for different groups of hospitals. Option 2 applies if HHS has not conducted a survey of hospitals’ acquisition costs. In that circumstance, the agency must set reimbursement rates based on “the average price” charged by manufacturers for the drug, as “calculated and adjusted by the Secretary as necessary for purposes of ” this statutory provision. §1395 l (t)(14)(A)(iii)(II). The statute in turn sets “the average price” as 106 percent of the drug’s average sales price. See ibid . (citing §1395w–3a). Critically, option 2 does not authorize HHS to vary reimbursement rates for different groups of hospitals. For more than a decade after those provisions took effect in 2006, HHS did not conduct a survey of hospitals’ acquisition costs. Indeed, HHS has only once attempted to conduct such a survey—in 2020, after this litigation commenced. At oral argument in this Court, the Government explained that HHS had not previously attempted to conduct such surveys because the surveys are “very burdensome on the study takers,” are “very burdensome on the hospitals,” and do not “produce results that are all that accurate.” Tr. of Oral Arg. 41–42. As a result, until 2018, HHS consistently relied on option 2 and set reimbursement rates for each drug based on the average-sales-price data provided by manufacturers. Every year, HHS set the reimbursement rates at about 106 percent of each covered drug’s average sales price, and HHS used the same reimbursement rates for all hospitals. In other words, until 2018, HHS never varied the reimbursement rates by hospital group. See Medicare Program: Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs, 82 Fed. Reg. 52490, 52494–52495 (2017). During its rulemaking for 2018, HHS proposed a change to reduce the reimbursement rates only for 340B hospitals. Importantly, HHS did not conduct a survey of hospital acquisition costs. As a policy matter, HHS said that its existing reimbursement rates resulted in what the agency viewed as overpayments to hospitals that serve low-income or rural populations through the federal 340B program. Federal law requires drug manufacturers to sell prescription drugs to those 340B hospitals at prices below those paid by other hospitals. See 42 U. S. C. §256b(a)(1) (setting a “ceiling price” that manufacturers can charge to 340B hospitals). Consistent with the Medicare statute, however, HHS historically had reimbursed 340B hospitals for covered outpatient prescription drugs at the same reimbursement rates that were set for all other hospitals. For 2018, HHS said that the uniform reimbursement rates combined with the discounted prices paid by 340B hospitals for prescription drugs meant that 340B hospitals were able to “generate significant profits” when they provided the prescription drugs to Medicare patients. 82 Fed. Reg. 52494. In response to HHS’s proposed change, the 340B hospitals countered that, under the Medicare statute, HHS could not single out 340B hospitals without conducting a survey of hospitals’ acquisition costs. With respect to HHS’s policy arguments, the 340B hospitals explained that the reimbursement payments for prescription drugs helped those hospitals offset the considerable costs of providing healthcare to the uninsured and underinsured in low- income and rural communities. The 340B hospitals pointed out, moreover, that Congress had long been aware of the situation. Indeed, the hospitals claimed that Members of Congress not only were aware, but actually intended for the 340B program’s drug reimbursements to subsidize other services provided by 340B hospitals. The hospitals noted that Congress had never singled out 340B hospitals for lower Medicare reimbursements for outpatient prescription drugs. Nor, until 2018, had HHS ever done so. Furthermore, the 340B hospitals asserted that reducing their reimbursement rates for prescription drugs would force those hospitals to eliminate or dramatically curtail other crucial programs that provide a wide range of medical services in low-income and rural communities—such as treatments for cancer, mental health issues, opioid addiction, and diabetes. In the final rule for 2018, HHS decided to establish two separate reimbursement rates: one rate for non-340B hospitals and another rate for 340B hospitals. The reimbursement rate for non-340B hospitals remained at the historical rate of approximately 106 percent of the average sales price for each drug. But HHS established a substantially reduced rate for 340B hospitals—a rate equal to 77.5 percent of the average sales price for each drug. In setting that rate, HHS relied on an estimate from the Medicare Payment Advisory Commission that 340B hospitals obtained prescription drugs at an average discount of at least 22.5 percent below the average sales price charged by manufacturers. Id ., at 52496, 52499. HHS estimated that the reduction in the reimbursement rates for 340B hospitals would save Medicare (and deprive 340B hospitals of ) about $1.6 billion annually, which by law would be re-allocated for other Medicare services. Id., at 52509–52510. For 2019, HHS set reimbursement rates for 340B hospitals in the same way. When setting the 2018 and 2019 reimbursement rates, HHS acknowledged that it had not conducted a survey of hospitals’ acquisition costs—the statutory prerequisite for varying the reimbursement rates by hospital group. Id., at 52496. Nonetheless, HHS pointed to its statutory authority under option 2 to “adjust” the average price “  ‘as necessary for purposes of ’ ” this statutory provision. Id., at 52499. HHS claimed that its authority to “adjust” the average price for each drug also implicitly encompassed the authority to vary the reimbursement rates by hospital group. Ibid . B The American Hospital Association, along with two other hospital industry groups and several hospitals, sued in U. S. District Court to challenge HHS’s 2018 and 2019 reimbursement rates for 340B hospitals. Among other things, the Hospitals asserted that HHS did not conduct a survey of hospitals’ acquisition costs and therefore could not impose different reimbursement rates on different groups of hospitals. In response, HHS first contended that various statutory provisions precluded judicial review of the 2018 and 2019 reimbursement rates. As relevant here, HHS further argued that it could vary the reimbursement rates by hospital group under its authority to “adjust” the price-based reimbursement rates, even though HHS had not conducted a survey of hospitals’ acquisition costs. The District Court ruled for the Hospitals. The court rejected HHS’s argument that the statute precluded judicial review. On the merits, the court concluded that HHS had acted outside its statutory authority, and the court remanded to HHS for the agency to consider an appropriate remedy. See American Hospital Assn. v. Azar , 385 F. Supp. 3d 1 (DC 2019) (remedy); American Hospital Assn. v. Azar , 348 F. Supp. 3d 62 (DC 2018) (merits). A divided panel of the U. S. Court of Appeals for the D. C. Circuit reversed. On the question of judicial review, the court unanimously ruled that the statute did not preclude judicial review. See American Hospital Assn. v. Azar , 967 F.3d 818, 824 (2020). On the merits, however, the court upheld HHS’s reduced reimbursement rates for 340B hospitals. Id., at 828. In dissent, Judge Pillard contended that HHS’s reduced reimbursement rates for 340B hospitals contravened the text and structure of the statute. Id ., at 835. In her view, “HHS may institute its large reductions, tailored for a distinct hospital group,” only if the agency has conducted the required survey of hospitals’ acquisition costs. Ibid. This Court granted certiorari. 594 U. S. ___ (2021). II HHS first argues that the Medicare statute precludes judicial review of the 2018 and 2019 reimbursement rates. See 42 U. S. C. §1395 l (t)(12). The Court of Appeals rejected HHS’s preclusion argument, as did the District Court. We likewise conclude that the statute does not preclude judicial review of HHS’s reimbursement rates. This Court has long recognized a “strong presumption” in favor of judicial review of final agency action. Weyerhaeuser Co. v. United States Fish and Wildlife Serv ., 586 U. S. ___, ___ (2018) (slip op., at 11) (quoting Mach Mining, LLC v. EEOC , 575 U.S. 480, 489 (2015)). Judicial review of final agency action in an otherwise justiciable case is traditionally available unless “a statute’s language or structure” precludes judicial review. Mach Mining , 575 U. S., at 486. No provision in the Medicare statute precludes judicial review of the 2018 and 2019 reimbursement rates. More-over, the detailed statutory formula for the reimbursement rates undermines HHS’s suggestion that Congress implicitly granted the agency judicially unreviewable discretion to set the reimbursement rates. Cf. Weyerhaeuser Co., 586 U. S., at ___−___ (slip op., at 13−14). HHS cites two provisions—§§1395 l (t)(12)(A) and (C)—that preclude judicial review of HHS’s “development of the classification system under paragraph (2)” and “periodic adjustments made under paragraph [(9)].” But both of those provisions refer to the general payment methodology that HHS employs to set rates for other Medicare outpatient services. By contrast, when HHS sets rates for outpatient prescription drugs, it uses a different payment methodology—namely, the methodology specified by paragraph (14) of §1395 l (t). And nothing in the statute precludes judicial review of reimbursement rates set under paragraph (14). HHS further argues that allowing judicial review of the 2018 and 2019 reimbursement rates would be impractical because the agency is required to operate the program on a budget-neutral basis. Due to that budget-neutrality requirement, HHS says that a judicial ruling invalidating the 2018 and 2019 reimbursement rates for certain hospitals would require offsets elsewhere in the program. The Hospitals respond that various potential remedies could make 340B hospitals whole for the past shortfalls without running afoul of the budget-neutrality provision. At this stage, we need not address potential remedies. Regardless, HHS’s arguments against judicial review cannot override the text of the statute and the traditional presumption in favor of judicial review of administrative action. In sum, HHS’s preclusion argument lacks any textual basis. We agree with the District Court and the Court of Appeals that the Medicare statute does not preclude judicial review of the 2018 and 2019 reimbursement rates. III We turn next to the merits. The question is this: If HHS has not conducted a survey of hospitals’ acquisition costs, may HHS still vary the reimbursement rates for outpatient prescription drugs by hospital group? The answer is no. The 2003 Medicare Act authorizes HHS to set reimbursement rates for covered outpatient prescription drugs provided by hospitals. The Act also specifies how HHS must set those reimbursement rates. 42 U. S. C. §1395 l (t)(14)(A). The statute therefore reflects a careful congressional focus not only on the goal of proper reimbursement rates, but also on the appropriate means to that end. To reiterate, the statute affords HHS two options for setting reimbursement rates for outpatient drugs. Option 1 applies if HHS collects “hospital acquisition cost survey data” from hospitals. §1395 l (t)(14)(A)(iii)(I). If the agency has conducted a survey and collected that data, then HHS may use the data to set reimbursement rates equal to “the average acquisition cost for the drug.” Ibid. Importantly, in that circumstance, HHS may “vary” reimbursement rates “by hospital group.” Ibid . By contrast, if HHS does not conduct a survey of hospitals’ acquisition costs and if acquisition cost data are therefore “not available,” HHS must instead proceed under option 2 and obtain price data from drug manufacturers. §1395 l (t)(14)(A)(iii)(II). And in that circumstance, HHS must set reimbursement rates based on “the average price for the drug” as “calculated and adjusted by the Secretary as necessary for purposes of ” this statutory provision. Ibid . Critically, that second option does not authorize HHS to vary reimbursement rates by hospital group. Instead, HHS must set uniform reimbursement rates for all hospitals for each covered drug, and the rates must be equal to the average price for that drug for that year. HHS’s authority to proceed under option 1 and to vary reimbursement rates by hospital group thus depends on whether HHS has obtained acquisition cost survey data from hospitals. The statute expressly authorizes HHS to vary rates by hospital group if HHS has conducted such a survey. But the statute does not authorize such a variance in rates if HHS has not conducted a survey. Cf. Babb v. Wilkie , 589 U. S. ___, ____ (2020) (slip op., at 12); Sandoz Inc. v. Amgen Inc. , 582 U. S. ___, ___ (2017) (slip op., at 16); Russello v. United States , 464 U.S. 16 , 23 (1983). The statute thus protects all hospitals by imposing an important procedural prerequisite—namely, a survey of hospitals’ acquisition costs for prescription drugs—before HHS may target particular groups of hospitals for lower reimbursement rates. The survey allows the agency to determine whether there is in fact meaningful, statistically significant variation among hospitals’ acquisition costs. The data regarding variation in hospitals’ acquisition costs in turn help HHS determine whether and how much it should vary the reimbursement rate among hospital groups. See §§1395 l (t)(14)(D)(iii)–(iv). But absent that survey data, as Congress determined, HHS may not make “billion-dollar decisions differentiating among particular hospital groups.” 967 F. 3d, at 837 (Pillard, J., dissenting). In this case, all agree that HHS did not conduct a survey of hospitals’ acquisition costs. See, e.g., 82 Fed. Reg. 52501. HHS nonetheless varied the rates by hospital group, fixing a substantially lower reimbursement rate for 340B hospitals than for non-340B hospitals. Under the text and structure of the statute, this case is therefore straightforward: Because HHS did not conduct a survey of hospitals’ acquisition costs, HHS acted unlawfully by reducing the reimbursement rates for 340B hospitals. HHS maintains that there is more to the case than that straightforward analysis would suggest. HHS emphasizes that even when it does not conduct a survey of acquisition costs and thus is required to employ option 2 (based on price), the agency still may “adjus[t]” the average price “as necessary for purposes of ” this statutory provision. §1395 l (t)(14)(A)(iii)(II). It is true that the statutory text of option 2 affords HHS discretion to adjust the average price. The parties here vigorously debate how much HHS may adjust the price. To resolve this case, however, we need not determine the scope of HHS’s authority to adjust the price up or down. Regardless of the scope of HHS’s authority to “adjust” the average price up or down under the statute, the statute does not grant HHS authority to vary the reimbursement rates by hospital group unless HHS has conducted the required survey of hospitals’ acquisition costs. Under the statute, varying a rate by hospital group is not a lesser- included power of adjusting price. Otherwise stated, HHS’s power to increase or decrease the price is distinct from its power to set different rates for different groups of hospitals. The text of option 2 confirms the point. It requires reimbursement in an “amount” that is equal to “the average price for the drug in the year.” Ibid . The text thus requires the reimbursement rate to be set drug by drug, not hospital by hospital or hospital group by hospital group. The only item that the agency is allowed to adjust is the “average price for the drug in the year.” Ibid . Such an adjustment can consist of moving the average-price number up or down, but it cannot consist of giving a single drug two different average prices for two different groups of hospitals. (Tellingly, before 2018, the agency never used its adjustment authority to vary reimbursement rates by hospital group.) Moreover, HHS’s contrary interpretation of the statute—and its broad understanding of its adjustment authority—would make little sense given the statute’s overall structure. To proceed under option 1 (based on cost) and vary the rate by hospital group, HHS must conduct a survey. In HHS’s view, the agency can decline to conduct a survey and can proceed under option 2, and then can still do everything under option 2 that it could do under option 1—including varying the reimbursement rates by hospital group. So under HHS’s interpretation, the agency would never need to conduct a survey of hospitals’ acquisition costs. But why, then, would Congress have constructed this elaborate statute premised on HHS’s surveys of hospitals’ acquisition costs, including specifying when HHS could vary reimbursement rates by hospital group? HHS has no good answer to that question. HHS’s interpretation not only would render irrelevant the survey prerequisite for varying reimbursement rates by hospital group, but also would render largely irrelevant the provision of the statute that precisely details the requirements for surveys of hospitals’ acquisition costs. See §1395 l (t)(14)(D). We must hesitate to adopt an interpretation that would eviscerate such significant aspects of the statutory text. See, e.g., Chicago v. Fulton , 592 U. S. ___, ___ (2021) (slip op., at 5); Maine Community Health Options v. United States , 590 U. S. ___, ___ (2020) (slip op., at 16); Whitman v. American Trucking Assns., Inc. , 531 U.S. 457 , 484−485 (2001). In short, the statute allows HHS to set reimbursement rates based on average price and affords the agency discretion to “adjust” the price up or down. But unless HHS conducts a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates by hospital group. As a final argument, HHS insists that Congress could not have intended for the agency to “overpay” 340B hospitals for prescription drugs. But when enacting this statute in 2003, Congress was well aware that 340B hospitals paid less for covered prescription drugs. After all, that had been the law for the duration of the 340B program, which began in 1992. In 2003, Congress nonetheless did not see fit to differentiate 340B hospitals from other hospitals when requiring that the reimbursement rates be uniform under option 2. And for more than a decade after this statute took effect, HHS employed option 2 but did not differentiate 340B hospitals from other hospitals—an agency practice that was known in the wider hospital industry and in Congress. If HHS believes that this Medicare reimbursement program overpays 340B hospitals, it may conduct a survey of hospitals’ acquisition costs to determine whether and how much the data justify varying the reimbursement rates by hospital group—for example, reducing reimbursement rates paid to 340B hospitals as compared to other hospitals. Or if the statute’s requirement of an acquisition cost survey is bad policy or is working in unintended ways, HHS can ask Congress to change the law. Of course, if HHS went to Congress, the agency would presumably have to confront the other side of the policy story here: 340B hospitals perform valuable services for low-income and rural communities but have to rely on limited federal funding for support. As amici before this Court, many 340B hospitals contend that the Medicare reimbursement payments at issue here “help offset the considerable costs” that 340B providers “incur by providing health care to the uninsured, underinsured, and those who live far from hospitals and clinics.” Brief for 37 State and Regional Hospital Associations as Amici Curiae 7. As the 340B hospitals see it, the “net effect” of HHS’s 2018 and 2019 rules is “to redistribute funds from financially strapped, public and nonprofit safety-net hospitals serving vulnerable populations—including patients without any insurance at all—to facilities and individuals who are relatively better off.” 967 F. 3d, at 840 (Pillard, J., dissenting). In other words, in the view of those hospitals, HHS’s new rates eliminate the federal subsidy that has helped keep 340B hospitals afloat. All of which is to say that the 340B story may be more complicated than HHS portrays it. In all events, this Court is not the forum to resolve that policy debate. In sum, after employing the traditional tools of statutory interpretation, we do not agree with HHS’s interpretation of the statute. We conclude that, absent a survey of hospitals’ acquisition costs, HHS may not vary the reimbursement rates for 340B hospitals. HHS’s 2018 and 2019 reimbursement rates for 340B hospitals were therefore contrary to the statute and unlawful. *  *  * We reverse the judgment of the U. S. Court of Appeals for the D. C. Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

The Department of Health and Human Services (HHS) must reimburse hospitals for providing outpatient prescription drugs to Medicare patients, with rates based on either a survey of hospitals' acquisition costs or the average sales price charged by manufacturers. In 2018 and 2019, HHS reduced reimbursement rates for Section 340B hospitals serving low-income or rural communities without conducting the required survey. The Supreme Court ruled that HHS may not vary reimbursement rates for these hospitals without the survey and reversed the lower court's judgment, finding HHS's actions unlawful.

Free Speech

Schenck v. U.S.

https://supreme.justia.com/cases/federal/us/249/47/

U.S. Supreme Court Schenck v. United States, 249 U.S. 47 (1919) Schenck v. United States Nos. 437, 438 Argued January 9, 10, 1919 Decided March 3, 1919 249 U.S. 47 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA Syllabus Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917. P 249 U. S. 49 . Page 249 U. S. 48 Incriminating document seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal prosecution against the general secretary of a Socialist party, who had charge of the office. P. 249 U. S. 50 . Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done. P. 249 U. S. 51 . A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars, is within the power of Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 249 U. S. 52 . The word "recruiting," as used in the Espionage Act, § 3, means the gaining of fresh supplies of men for the military forces, as well by draft a otherwise. P. 249 U. S. 52 The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the prosecution of offenses under the former. P. 249 U. S. 53 . Affirmed. The case is stated in the opinion. MR. JUSTICE HOLMES delivered the opinion of the court. This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting Page 249 U. S. 49 to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose. It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony, Schenck said he was general secretary of the Socialist party, and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On Page 249 U. S. 50 August 20, the general secretary's report said "Obtained new leaflets from printer and started work addressing envelopes" &c., and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular, and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer, there was evidence that she was a member of the Executive Board, and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence. It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U. S. 585 ; Weeks v. United States, 232 U. S. 383 , 232 U. S. 395 , 232 U. S. 396 . The search warrant did not issue against the defendant, but against the Socialist headquarters at 1326 Arch Street, and it would seem that the documents technically were not even in the defendants' possession. See Johnson v. United States, 228 U. S. 457 . Notwithstanding some protest in argument, the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U. S. 245 , 218 U. S. 252 , 218 U. S. 253 . The document in question, upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a Page 249 U. S. 51 convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country." Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point. But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the Page 249 U. S. 52 main purpose, as intimated in Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 . We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U. S. 194 , 195 U. S. 205 , 195 U. S. 206 . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418 , 221 U. S. 439 . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U. S. 474 , 245 U. S. 477 . Indeed, that case might be said to dispose of the present contention if the precedent covers all media concludendi. But, as the right to free speech was not referred to specially, we have thought fit to add a few words. It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The Page 249 U. S. 53 words are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers, the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment, and would not even if the former act had been repealed. Rev.Stats., § 13. Judgments affirmed.

In the case of Schenck v. United States (1919), the US Supreme Court upheld the conviction of Schenck, who had been charged with conspiring to distribute anti-war leaflets and obstruct the military draft during World War I. The Court, in an opinion by Justice Holmes, established the "clear and present danger" test, stating that the First Amendment's protection of free speech does not extend to speech that poses a clear and present danger of causing harm or substantive evil. In this case, the Court found that Schenck's actions, in the context of a nation at war, created a danger of obstructing the draft and hindering the war effort, and thus fell outside the protections of the First Amendment.

Government Agencies

Loper Bright Enterprises v. Raimondo

https://supreme.justia.com/cases/federal/us/603/22-451/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–451 and 22–1219 _________________ LOPER BRIGHT ENTERPRISES, et al., PETITIONERS 22–451 v. GINA RAIMONDO, SECRETARY OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit RELENTLESS, INC., et al., PETITIONERS 22–1219 v. DEPARTMENT OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the first circuit [June 28, 2024] Chief Justice Roberts delivered the opinion of the Court. Since our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), we have sometimes required courts to defer to “permissible” agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently. In these cases we consider whether that doctrine should be overruled. I Our Chevron doctrine requires courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfies the various preconditions we have set for Chevron to apply, a reviewing court must first assess “whether Congress has directly spoken to the precise question at issue.” Id. , at 842. If, and only if, congressional intent is “clear,” that is the end of the inquiry. Ibid. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron ’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.” Id. , at 843. The reviewing courts in each of the cases before us applied Chevron ’s framework to resolve in favor of the Government challenges to the same agency rule. A Before 1976, unregulated foreign vessels dominated fishing in the international waters off the U. S. coast, which began just 12 nautical miles offshore. See, e.g. , S. Rep. No. 94–459, pp. 2–3 (1975). Recognizing the resultant overfishing and the need for sound management of fishery resources, Congress enacted the Magnuson-Stevens Fishery Conservation and Management Act (MSA). See 90 Stat. 331 (codified as amended at 16 U. S. C. §1801 et seq .). The MSA and subsequent amendments extended the jurisdiction of the United States to 200 nautical miles beyond the U. S. territorial sea and claimed “exclusive fishery management authority over all fish” within that area, known as the “exclusive economic zone.” §1811(a); see Presidential Proclamation No. 5030, 3 CFR 22 (1983 Comp.); §§101, 102, 90 Stat. 336. The National Marine Fisheries Service (NMFS) administers the MSA under a delegation from the Secretary of Commerce. The MSA established eight regional fishery management councils composed of representatives from the coastal States, fishery stakeholders, and NMFS. See 16 U. S. C. §§1852(a), (b). The councils develop fishery management plans, which NMFS approves and promulgates as final regulations. See §§1852(h), 1854(a). In service of the statute’s fishery conservation and management goals, see §1851(a), the MSA requires that certain provisions—such as “a mechanism for specifying annual catch limits . . . at a level such that overfishing does not occur,” §1853(a)(15)—be included in these plans, see §1853(a). The plans may also include additional discretionary provisions. See §1853(b). For example, plans may “prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment,” §1853(b)(4); “reserve a portion of the allowable biological catch of the fishery for use in scientific research,” §1853(b)(11); and “prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery,” §1853(b)(14). Relevant here, a plan may also require that “one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.” §1853(b)(8). The MSA specifies three groups that must cover costs associated with observers: (1) foreign fishing vessels operating within the exclusive economic zone (which must carry observers), see §§1821(h)(1)(A), (h)(4), (h)(6); (2) vessels participating in certain limited access privilege programs, which impose quotas permitting fishermen to harvest only specific quantities of a fishery’s total allowable catch, see §§1802(26), 1853a(c)(1)(H), (e)(2), 1854(d)(2); and (3) vessels within the jurisdiction of the North Pacific Council, where many of the largest and most successful commercial fishing enterprises in the Nation operate, see §1862(a). In the latter two cases, the MSA expressly caps the relevant fees at two or three percent of the value of fish harvested on the vessels. See §§1854(d)(2)(B), 1862(b)(2)(E). And in general, it authorizes the Secretary to impose “sanctions” when “any payment required for observer services provided to or contracted by an owner or operator . . . has not been paid.” §1858(g)(1)(D). The MSA does not contain similar terms addressing whether Atlantic herring fishermen may be required to bear costs associated with any observers a plan may mandate. And at one point, NMFS fully funded the observer coverage the New England Fishery Management Council required in its plan for the Atlantic herring fishery. See 79 Fed. Reg. 8792 (2014). In 2013, however, the council proposed amending its fishery management plans to empower it to require fishermen to pay for observers if federal funding became unavailable. Several years later, NMFS promulgated a rule approving the amendment. See 85 Fed. Reg. 7414 (2020). With respect to the Atlantic herring fishery, the Rule created an industry funded program that aims to ensure observer coverage on 50 percent of trips undertaken by vessels with certain types of permits. Under that program, vessel representatives must “declare into” a fishery before beginning a trip by notifying NMFS of the trip and announcing the species the vessel intends to harvest. If NMFS determines that an observer is required, but declines to assign a Government-paid one, the vessel must contract with and pay for a Government-certified third-party observer. NMFS estimated that the cost of such an observer would be up to $710 per day, reducing annual returns to the vessel owner by up to 20 percent. See id. , at 7417–7418. B Petitioners Loper Bright Enterprises, Inc., H&L Axelsson, Inc., Lund Marr Trawlers LLC, and Scombrus One LLC are family businesses that operate in the Atlantic herring fishery. In February 2020, they challenged the Rule under the MSA, 16 U. S. C. §1855(f ), which incorporates the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq. In relevant part, they argued that the MSA does not authorize NMFS to mandate that they pay for observers required by a fishery management plan. The District Court granted summary judgment to the Government. It concluded that the MSA authorized the Rule, but noted that even if these petitioners’ “arguments were enough to raise an ambiguity in the statutory text,” deference to the agency’s interpretation would be warranted under Chevron . 544 F. Supp. 3d 82, 107 (DC 2021); see id. , at 103–107. A divided panel of the D. C. Circuit affirmed. See 45 F. 4th 359 (2022). The majority addressed various provisions of the MSA and concluded that it was not “wholly unambiguous” whether NMFS may require Atlantic herring fishermen to pay for observers. Id. , at 366. Because there remained “some question” as to Congress’s intent, id. , at 369, the court proceeded to Chevron ’s second step and deferred to the agency’s interpretation as a “reasonable” construction of the MSA, 45 F. 4th, at 370. In dissent, Judge Walker concluded that Congress’s silence on industry funded observers for the Atlantic herring fishery—coupled with the express provision for such observers in other fisheries and on foreign vessels—unambiguously indicated that NMFS lacked the authority to “require [Atlantic herring] fishermen to pay the wages of at-sea monitors.” Id. , at 375. C Petitioners Relentless Inc., Huntress Inc., and Seafreeze Fleet LLC own two vessels that operate in the Atlantic herring fishery: the F/V Relentless and the F/V Persistence .[ 1 ] These vessels use small-mesh bottom-trawl gear and can freeze fish at sea, so they can catch more species of fish and take longer trips than other vessels (about 10 to 14 days, as opposed to the more typical 2 to 4). As a result, they generally declare into multiple fisheries per trip so they can catch whatever the ocean offers up. If the vessels declare into the Atlantic herring fishery for a particular trip, they must carry an observer for that trip if NMFS selects the trip for coverage, even if they end up harvesting fewer herring than other vessels—or no herring at all. This set of petitioners, like those in the D. C. Circuit case, filed a suit challenging the Rule as unauthorized by the MSA. The District Court, like the D. C. Circuit, deferred to NMFS’s contrary interpretation under Chevron and thus granted summary judgment to the Government. See 561 F. Supp. 3d 226, 234–238 (RI 2021). The First Circuit affirmed. See 62 F. 4th 621 (2023). It relied on a “default norm” that regulated entities must bear compliance costs, as well as the MSA’s sanctions provision, Section 1858(g)(1)(D). See id. , at 629–631. And it rejected petitioners’ argument that the express statutory authorization of three industry funding programs demonstrated that NMFS lacked the broad implicit authority it asserted to impose such a program for the Atlantic herring fishery. See id. , at 631–633. The court ultimately concluded that the “[a]gency’s interpretation of its authority to require at-sea monitors who are paid for by owners of regulated vessels does not ‘exceed[ ] the bounds of the permissible.’ ” Id. , at 633–634 (quoting Barnhart v. Walton , 535 U.S. 212 , 218 (2002); alteration in original). In reaching that conclusion, the First Circuit stated that it was applying Chevron ’s two-step framework. 62 F. 4th, at 628. But it did not explain which aspects of its analysis were relevant to which of Chevron ’s two steps. Similarly, it declined to decide whether the result was “a product of Chevron step one or step two.” Id. , at 634. We granted certiorari in both cases, limited to the question whether Chevron should be overruled or clarified. See 601 U. S. ___ (2023); 598 U. S. ___ (2023).[ 2 ] II A Article III of the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences for the parties involved. The Framers appreciated that the laws judges would necessarily apply in resolving those disputes would not always be clear. Cognizant of the limits of human language and foresight, they anticipated that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation,” would be “more or less obscure and equivocal, until their meaning” was settled “by a series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke ed. 1961) (J. Madison). The Framers also envisioned that the final “interpretation of the laws” would be “the proper and peculiar province of the courts.” Id. , No. 78, at 525 (A. Hamilton). Unlike the political branches, the courts would by design exercise “neither Force nor Will, but merely judgment.” Id. , at 523. To ensure the “steady, upright and impartial administration of the laws,” the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches. Id. , at 522; see id. , at 522–524; Stern v. Marshall , 564 U.S. 462 , 484 (2011). This Court embraced the Framers’ understanding of the judicial function early on. In the foundational decision of Marbury v. Madison , Chief Justice Marshall famously declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the Judiciary. United States v. Dickson , 15 Pet. 141, 162 (1841) (Story, J., for the Court). When the meaning of a statute was at issue, the judicial role was to “interpret the act of Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding , 14 Pet. 497, 515 (1840). The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes. For example, in Edwards’ Lessee v. Darby , 12 Wheat. 206 (1827), the Court explained that “[i]n the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.” Id. , at 210; see also United States v. Vowell , 5 Cranch 368, 372 (1809) (Marshall, C. J., for the Court). Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. See Dickson , 15 Pet., at 161; United States v. Alabama Great Southern R. Co. , 142 U.S. 615 , 621 (1892); National Lead Co. v. United States , 252 U.S. 140 , 145–146 (1920). That is because “the longstanding ‘practice of the government’ ”—like any other interpretive aid—“can inform [a court’s] determination of ‘what the law is.’ ” NLRB v. Noel Canning , 573 U.S. 513 , 525 (2014) (first quoting McCulloch v. Maryland , 4 Wheat. 316, 401 (1819); then quoting Marbury , 1 Cranch, at 177). The Court also gave “the most respectful consideration” to Executive Branch interpretations simply because “[t]he officers concerned [were] usually able men, and masters of the subject,” who were “[n]ot unfrequently . . . the draftsmen of the laws they [were] afterwards called upon to interpret.” United States v. Moore , 95 U.S. 760 , 763 (1878); see also Jacobs v. Prichard , 223 U.S. 200 , 214 (1912). “Respect,” though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it. Whatever respect an Executive Branch interpretation was due, a judge “certainly would not be bound to adopt the construction given by the head of a department.” Decatur , 14 Pet., at 515; see also Burnet v. Chicago Portrait Co. , 285 U.S. 1 , 16 (1932). Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in cases where [a court’s] own judgment . . . differ[ed] from that of other high functionaries,” the court was “not at liberty to surrender, or to waive it.” Dickson , 15 Pet., at 162. B The New Deal ushered in a “rapid expansion of the administrative process.” United States v. Morton Salt Co. , 338 U.S. 632 , 644 (1950). But as new agencies with new powers proliferated, the Court continued to adhere to the traditional understanding that questions of law were for courts to decide, exercising independent judgment. During this period, the Court often treated agency determinations of fact as binding on the courts, provided that there was “evidence to support the findings.” St. Joseph Stock Yards Co. v. United States , 298 U.S. 38 , 51 (1936). “When the legislature itself acts within the broad field of legislative discretion,” the Court reasoned, “its determinations are conclusive.” Ibid. Congress could therefore “appoint[ ] an agent to act within that sphere of legislative authority” and “endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency are met, as in according a fair hearing and acting upon evidence and not arbitrarily.” Ibid. (emphasis added). But the Court did not extend similar deference to agency resolutions of questions of law . It instead made clear, repeatedly, that “[t]he interpretation of the meaning of statutes, as applied to justiciable controversies,” was “exclusively a judicial function.” United States v. American Trucking Assns., Inc. , 310 U.S. 534 , 544 (1940); see also Social Security Bd. v. Nierotko , 327 U.S. 358 , 369 (1946); Medo Photo Supply Corp. v. NLRB , 321 U.S. 678 , 681–682, n. 1 (1944). The Court understood, in the words of Justice Brandeis, that “[t]he supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied.” St. Joseph Stock Yards , 298 U. S., at 84 (concurring opinion). It also continued to note, as it long had, that the informed judgment of the Executive Branch—especially in the form of an interpretation issued contemporaneously with the enactment of the statute—could be entitled to “great weight.” American Trucking Assns. , 310 U. S., at 549. Perhaps most notably along those lines, in Skidmore v. Swift & Co. , 323 U.S. 134 (1944), the Court explained that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. Id. , at 139–140. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. , at 140. On occasion, to be sure, the Court applied deferential review upon concluding that a particular statute empowered an agency to decide how a broad statutory term applied to specific facts found by the agency. For example, in Gray v. Powell , 314 U.S. 402 (1941), the Court deferred to an administrative conclusion that a coal-burning railroad that had arrangements with several coal mines was not a coal “producer” under the Bituminous Coal Act of 1937. Congress had “specifically” granted the agency the authority to make that determination. Id. , at 411. The Court thus reasoned that “[w]here, as here, a determination has been left to an administrative body, this delegation will be respected and the administrative conclusion left untouched” so long as the agency’s decision constituted “a sensible exercise of judgment.” Id. , at 412–413. Similarly, in NLRB v. Hearst Publications, Inc. , 322 U.S. 111 (1944), the Court deferred to the determination of the National Labor Relations Board that newsboys were “employee[s]” within the meaning of the National Labor Relations Act. The Act had, in the Court’s judgment, “assigned primarily” to the Board the task of marking a “definitive limitation around the term ‘employee.’ ” Id. , at 130. The Court accordingly viewed its own role as “limited” to assessing whether the Board’s determination had a “ ‘warrant in the record’ and a reasonable basis in law.” Id. , at 131. Such deferential review, though, was cabined to factbound determinations like those at issue in Gray and Hearst . Neither Gray nor Hearst purported to refashion the longstanding judicial approach to questions of law. In Gray , after deferring to the agency’s determination that a particular entity was not a “producer” of coal, the Court went on to discern, based on its own reading of the text, whether another statutory term—“other disposal” of coal—encompassed a transaction lacking a transfer of title. See 314 U. S., at 416–417. The Court evidently perceived no basis for deference to the agency with respect to that pure legal question. And in Hearst , the Court proclaimed that “[u]ndoubtedly questions of statutory interpretation . . . are for the courts to resolve, giving appropriate weight to the judgment of those whose special duty is to administer the questioned statute.” 322 U. S., at 130–131. At least with respect to questions it regarded as involving “statutory interpretation,” the Court thus did not disturb the traditional rule. It merely thought that a different approach should apply where application of a statutory term was sufficiently intertwined with the agency’s factfinding. In any event, the Court was far from consistent in reviewing deferentially even such factbound statutory determinations. Often the Court simply interpreted and applied the statute before it. See K. Davis, Administrative Law §248, p. 893 (1951) (“The one statement that can be made with confidence about applicability of the doctrine of Gray v. Powell is that sometimes the Supreme Court applies it and sometimes it does not.”); B. Schwartz, Gray vs. Powell and the Scope of Review, 54 Mich. L. Rev. 1, 68 (1955) (noting an “embarrassingly large number of Supreme Court decisions that do not adhere to the doctrine of Gray v. Powell ”). In one illustrative example, the Court rejected the U. S. Price Administrator’s determination that a particular warehouse was a “public utility” entitled to an exemption from the Administrator’s General Maximum Price Regulation. Despite the striking resemblance of that administrative determination to those that triggered deference in Gray and Hearst , the Court declined to “accept the Administrator’s view in deference to administrative construction.” Davies Warehouse Co. v. Bowles , 321 U.S. 144 , 156 (1944). The Administrator’s view, the Court explained, had “hardly seasoned or broadened into a settled administrative practice,” and thus did not “overweigh the considerations” the Court had “set forth as to the proper construction of the statute.” Ibid. Nothing in the New Deal era or before it thus resembled the deference rule the Court would begin applying decades later to all varieties of agency interpretations of statutes. Instead, just five years after Gray and two after Hearst , Congress codified the opposite rule: the traditional understanding that courts must “decide all relevant questions of law.” 5 U. S. C. §706.[ 3 ] C Congress in 1946 enacted the APA “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt , 338 U. S., at 644. It was the culmination of a “comprehensive rethinking of the place of administrative agencies in a regime of separate and divided powers.” Bowen v. Michigan Academy of Family Physicians , 476 U.S. 667 , 670–671 (1986). In addition to prescribing procedures for agency action, the APA delineates the basic contours of judicial review of such action. As relevant here, Section 706 directs that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U. S. C. §706. It further requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law.” §706(2)(A). The APA thus codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury : that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide “ all relevant questions of law” arising on review of agency action, §706 (emphasis added)—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions. That omission is telling, because Section 706 does mandate that judicial review of agency policymaking and factfinding be deferential. See §706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of discretion”); §706(2)(E) (agency factfinding in formal proceedings to be set aside if “unsupported by substantial evidence”). In a statute designed to “serve as the fundamental charter of the administrative state,” Kisor v. Wilkie , 588 U.S. 558, 580 (2019) (plurality opinion) (internal quotation marks omitted), Congress surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart from the settled pre-APA understanding that deciding such questions was “exclusively a judicial function,” American Trucking Assns. , 310 U. S., at 544. But nothing in the APA hints at such a dramatic departure. On the contrary, by directing courts to “interpret constitutional and statutory provisions” without differentiating between the two, Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution—are not entitled to deference. Under the APA, it thus “remains the responsibility of the court to decide whether the law means what the agency says.” Perez v. Mortgage Bankers Assn. , 575 U.S. 92 , 109 (2015) (Scalia, J., concurring in judgment).[ 4 ] The text of the APA means what it says. And a look at its history if anything only underscores that plain meaning. According to both the House and Senate Reports on the legislation, Section 706 “provide[d] that questions of law are for courts rather than agencies to decide in the last analysis.” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946) (emphasis added); accord, S. Rep. No. 752, 79th Cong., 1st Sess., 28 (1945). Some of the legislation’s most prominent supporters articulated the same view. See 92 Cong. Rec. 5654 (1946) (statement of Rep. Walter); P. McCarran, Improving “Administrative Justice”: Hearings and Evidence; Scope of Judicial Review, 32 A. B. A. J. 827, 831 (1946). Even the Department of Justice—an agency with every incentive to endorse a view of the APA favorable to the Executive Branch—opined after its enactment that Section 706 merely “restate[d] the present law as to the scope of judicial review.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947); see also Kisor , 588 U. S., at 582 (plurality opinion) (same). That “present law,” as we have described, adhered to the traditional conception of the judicial function. See supra , at 9–13. Various respected commentators contemporaneously maintained that the APA required reviewing courts to exercise independent judgment on questions of law. Professor John Dickinson, for example, read the APA to “impose a clear mandate that all [questions of law] shall be decided by the reviewing Court itself, and in the exercise of its own independent judgment.” Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947). Professor Bernard Schwartz noted that §706 “would seem . . . to be merely a legislative restatement of the familiar review principle that questions of law are for the reviewing court, at the same time leaving to the courts the task of determining in each case what are questions of law.” Mixed Questions of Law and Fact and the Administrative Procedure Act, 19 Ford. L. Rev. 73, 84–85 (1950). And Professor Louis Jaffe, who had served in several agencies at the advent of the New Deal, thought that §706 leaves it up to the reviewing “court” to “decide as a ‘question of law’ whether there is ‘discretion’ in the premises”—that is, whether the statute at issue delegates particular discretionary authority to an agency. Judicial Control of Administrative Action 570 (1965). The APA, in short, incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions. In exercising such judgment, though, courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes. Such interpretations “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance” consistent with the APA. Skidmore , 323 U. S., at 140. And interpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute’s meaning. See ibid. ; American Trucking Assns. , 310 U. S., at 549. In a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate[ ]” to an agency the authority to give meaning to a particular statutory term. Batterton v. Francis , 432 U.S. 416 , 425 (1977) (emphasis deleted).[ 5 ] Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme, Wayman v. Southard , 10 Wheat. 1, 43 (1825), or to regulate subject to the limits imposed by a term or phrase that “leaves agencies with flexibility,” Michigan v. EPA , 576 U.S. 743 , 752 (2015), such as “appropriate” or “reasonable.”[ 6 ] When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27 (1983), and ensuring the agency has engaged in “ ‘reasoned decisionmaking’ ” within those boundaries, Michigan , 576 U. S., at 750 (quoting Allentown Mack Sales & Service, Inc. v. NLRB , 522 U.S. 359 , 374 (1998)); see also Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 (1983). By doing so, a court upholds the traditional conception of the judicial function that the APA adopts. III The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA. A In the decades between the enactment of the APA and this Court’s decision in Chevron , courts generally continued to review agency interpretations of the statutes they administer by independently examining each statute to determine its meaning. Cf. T. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 972–975 (1992). As an early proponent (and later critic) of Chevron recounted, courts during this period thus identified delegations of discretionary authority to agencies on a “statute-by-statute basis.” A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 516. Chevron , decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach. The question in the case was whether an EPA regulation “allow[ing] States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single ‘bubble’ ” was consistent with the term “stationary source” as used in the Clean Air Act. 467 U. S., at 840. To answer that question of statutory interpretation, the Court articulated and employed a now familiar two-step approach broadly applicable to review of agency action. The first step was to discern “whether Congress ha[d] directly spoken to the precise question at issue.” Id. , at 842. The Court explained that “[i]f the intent of Congress is clear, that is the end of the matter,” ibid. , and courts were therefore to “reject administrative constructions which are contrary to clear congressional intent,” id. , at 843, n. 9. To discern such intent, the Court noted, a reviewing court was to “employ[ ] traditional tools of statutory construction.” Ibid. Without mentioning the APA, or acknowledging any doctrinal shift, the Court articulated a second step applicable when “Congress ha[d] not directly addressed the precise question at issue.” Id. , at 843. In such a case—that is, a case in which “the statute [was] silent or ambiguous with respect to the specific issue” at hand — a reviewing court could not “simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Ibid. (footnote omitted). A court instead had to set aside the traditional interpretive tools and defer to the agency if it had offered “a permissible construction of the statute,” ibid. , even if not “the reading the court would have reached if the question initially had arisen in a judicial proceeding,” ibid. , n. 11. That directive was justified, according to the Court, by the understanding that administering statutes “requires the formulation of policy” to fill statutory “gap[s]”; by the long judicial tradition of according “considerable weight” to Executive Branch interpretations; and by a host of other considerations, including the complexity of the regulatory scheme, EPA’s “detailed and reasoned” consideration, the policy-laden nature of the judgment supposedly required, and the agency’s indirect accountability to the people through the President. Id. , at 843, 844, and n. 14, 865. Employing this new test, the Court concluded that Congress had not addressed the question at issue with the necessary “level of specificity” and that EPA’s interpretation was “entitled to deference.” Id. , at 865. It did not matter why Congress, as the Court saw it, had not squarely addressed the question, see ibid. , or that “the agency ha[d] from time to time changed its interpretation,” id. , at 863. The latest EPA interpretation was a permissible reading of the Clean Air Act, so under the Court’s new rule, that reading controlled. Initially, Chevron “seemed destined to obscurity.” T. Merrill, The Story of Chevron : The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 276 (2014). The Court did not at first treat it as the watershed decision it was fated to become; it was hardly cited in cases involving statutory questions of agency authority. See ibid. But within a few years, both this Court and the courts of appeals were routinely invoking its two-step framework as the governing standard in such cases. See id. , at 276–277. As the Court did so, it revisited the doctrine’s justifications. Eventually, the Court decided that Chevron rested on “a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Smiley v. Citibank (South Dakota), N. A. , 517 U.S. 735 , 740–741 (1996); see also, e.g. , Cuozzo Speed Technologies, LLC v. Lee , 579 U.S. 261, 276–277 (2016); Utility Air Regulatory Group v. EPA , 573 U.S. 302 , 315 (2014); National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U.S. 967 , 982 (2005). B Neither Chevron nor any subsequent decision of this Court attempted to reconcile its framework with the APA. The “law of deference” that this Court has built on the foundation laid in Chevron has instead been “[h]eedless of the original design” of the APA. Perez , 575 U. S., at 109 (Scalia, J., concurring in judgment). 1 Chevron defies the command of the APA that “the reviewing court”—not the agency whose action it reviews—is to “decide all relevant questions of law” and “interpret . . . statutory provisions.” §706 (emphasis added). It requires a court to ignore , not follow, “the reading the court would have reached” had it exercised its independent judgment as required by the APA. Chevron , 467 U. S., at 843, n. 11. And although exercising independent judgment is consistent with the “respect” historically given to Executive Branch interpretations, see, e.g. , Edwards’ Lessee , 12 Wheat., at 210; Skidmore , 323 U. S., at 140, Chevron insists on much more. It demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. See 467 U. S., at 863. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else—unless the prior court happened to also say that the statute is “unambiguous.” Brand X , 545 U. S., at 982. That regime is the antithesis of the time honored approach the APA prescribes. In fretting over the prospect of “allow[ing]” a judicial interpretation of a statute “to override an agency’s” in a dispute before a court, ibid. , Chevron turns the statutory scheme for judicial review of agency action upside down. Chevron cannot be reconciled with the APA, as the Government and the dissent contend, by presuming that statutory ambiguities are implicit delegations to agencies. See Brief for Respondents in No. 22–1219, pp. 13, 37–38; post , at 4–15 (opinion of Kagan, J.). Presumptions have their place in statutory interpretation, but only to the extent that they approximate reality. Chevron ’s presumption does not, because “[a]n ambiguity is simply not a delegation of law-interpreting power. Chevron confuses the two.” C. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989). As Chevron itself noted, ambiguities may result from an inability on the part of Congress to squarely answer the question at hand, or from a failure to even “consider the question” with the requisite precision. 467 U. S., at 865. In neither case does an ambiguity necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. And many or perhaps most statutory ambiguities may be unintentional. As the Framers recognized, ambiguities will inevitably follow from “the complexity of objects, . . . the imperfection of the human faculties,” and the simple fact that “no language is so copious as to supply words and phrases for every complex idea.” The Federalist No. 37, at 236. Courts, after all, routinely confront statutory ambiguities in cases having nothing to do with Chevron —cases that do not involve agency interpretations or delegations of authority. Of course, when faced with a statutory ambiguity in such a case, the ambiguity is not a delegation to anybody, and a court is not somehow relieved of its obligation to independently interpret the statute. Courts in that situation do not throw up their hands because “Congress’s instructions have” supposedly “run out,” leaving a statutory “gap.” Post , at 2 (opinion of Kagan, J.). Courts instead understand that such statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning. That is the whole point of having written statutes; “every statute’s meaning is fixed at the time of enactment.” Wisconsin Central Ltd. v. United States , 585 U.S. 274, 284 (2018) (emphasis deleted). So instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity. In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. Chevron , 467 U. S., at 843, n. 11. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible. Perhaps most fundamentally, Chevron ’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. The Framers, as noted, anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. And even Chevron itself reaffirmed that “[t]he judiciary is the final authority on issues of statutory construction” and recognized that “in the absence of an administrative interpretation,” it is “necessary” for a court to “impose its own construction on the statute.” Id. , at 843, and n. 9. Chevron gravely erred, though, in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate. 2 The Government responds that Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise regarding the statutes they administer; because deferring to agencies purportedly promotes the uniform construction of federal law; and because resolving statutory ambiguities can involve policymaking best left to political actors, rather than courts. See Brief for Respondents in No. 22–1219, pp. 16–19. The dissent offers more of the same. See post , at 9–14. But none of these considerations justifies Chevron ’s sweeping presumption of congressional intent. Beginning with expertise, we recently noted that interpretive issues arising in connection with a regulatory scheme often “may fall more naturally into a judge’s bailiwick” than an agency’s. Kisor , 588 U. S., at 578 (opinion of the Court). We thus observed that “[w]hen the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.” Ibid. Chevron ’s broad rule of deference, though, demands that courts presume just the opposite. Under that rule, ambiguities of all stripes trigger deference. Indeed, the Government and, seemingly, the dissent continue to defend the proposition that Chevron applies even in cases having little to do with an agency’s technical subject matter expertise. See Brief for Respondents in No. 22–1219, p. 17; post , at 10. But even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Congress expects courts to handle technical statutory questions. “[M]any statutory cases” call upon “courts [to] interpret the mass of technical detail that is the ordinary diet of the law,” Egelhoff v. Egelhoff , 532 U.S. 141 , 161 (2001) (Breyer, J., dissenting), and courts did so without issue in agency cases before Chevron , see post , at 30 (Gorsuch, J., concurring). Courts, after all, do not decide such questions blindly. The parties and amici in such cases are steeped in the subject matter, and reviewing courts have the benefit of their perspectives. In an agency case in particular, the court will go about its task with the agency’s “body of experience and informed judgment,” among other information, at its disposal. Skidmore , 323 U. S., at 140. And although an agency’s interpretation of a statute “cannot bind a court,” it may be especially informative “to the extent it rests on factual premises within [the agency’s] expertise.” Bureau of Alcohol, Tobacco and Firearms v. FLRA , 464 U.S. 89 , 98, n. 8 (1983). Such expertise has always been one of the factors which may give an Executive Branch interpretation particular “power to persuade, if lacking power to control.” Skidmore , 323 U. S., at 140; see, e.g. , County of Maui v. Hawaii Wildlife Fund , 590 U.S. 165, 180 (2020); Moore , 95 U. S., at 763. For those reasons, delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute. Nor does a desire for the uniform construction of federal law justify Chevron . Given inconsistencies in how judges apply Chevron , see infra , at 30–33, it is unclear how much the doctrine as a whole (as opposed to its highly deferential second step) actually promotes such uniformity. In any event, there is little value in imposing a uniform interpretation of a statute if that interpretation is wrong. We see no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the laws it enacts. The view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rather than courts is especially mistaken, for it rests on a profound misconception of the judicial role. It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation. That task does not suddenly become policymaking just because a court has an “agency to fall back on.” Kisor , 588 U. S., at 575 (opinion of the Court). Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. Indeed, the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. See The Federalist, No. 78, at 522–525. They were to construe the law with “[c]lear heads . . . and honest hearts,” not with an eye to policy preferences that had not made it into the statute. 1 Works of James Wilson 363 (J. Andrews ed. 1896). That is not to say that Congress cannot or does not confer discretionary authority on agencies. Congress may do so, subject to constitutional limits, and it often has. But to stay out of discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA. By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging. 3 In truth, Chevron ’s justifying presumption is, as Members of this Court have often recognized, a fiction. See Buffington v. McDonough , 598 U. S. ___, ___ (2022) (Gorsuch, J., dissenting from denial of certiorari) (slip op., at 11); Cuozzo , 579 U. S., at 286 (Thomas, J., concurring); Scalia, 1989 Duke L. J., at 517; see also post , at 15 (opinion of Kagan, J.). So we have spent the better part of four decades imposing one limitation on Chevron after another, pruning its presumption on the understanding that “where it is in doubt that Congress actually intended to delegate particular interpretive authority to an agency, Chevron is ‘inapplicable.’ ” United States v. Mead Corp. , 533 U.S. 218 , 230 (2001) (quoting Christensen v. Harris County , 529 U.S. 576 , 597 (2000) (Breyer, J., dissenting)); see also Adams Fruit Co. v. Barrett , 494 U.S. 638 , 649 (1990). Consider the many refinements we have made in an effort to match Chevron ’s presumption to reality. We have said that Chevron applies only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead , 533 U. S., at 226–227. In practice, that threshold requirement—sometimes called Chevron “step zero”—largely limits Chevron to “the fruits of notice-and-comment rulemaking or formal adjudication.” 533 U. S., at 230. But even when those processes are used, deference is still not warranted “where the regulation is ‘procedurally defective’—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.” Encino Motorcars, LLC v. Navarro , 579 U.S. 211, 220 (2016) (quoting Mead , 533 U. S., at 227). Even where those procedural hurdles are cleared, substantive ones remain. Most notably, Chevron does not apply if the question at issue is one of “deep ‘economic and political significance.’ ” King v. Burwell , 576 U.S. 473 , 486 (2015). We have instead expected Congress to delegate such authority “expressly” if at all, ibid. , for “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s],’ ” West Virginia v. EPA , 597 U.S. 697, 723 (2022) (quoting Whitman v. American Trucking Assns., Inc. , 531 U.S. 457 , 468 (2001); alteration in original). Nor have we applied Chevron to agency interpretations of judicial review provisions, see Adams Fruit Co. , 494 U. S., at 649–650, or to statutory schemes not administered by the agency seeking deference, see Epic Systems Corp. v. Lewis , 584 U.S. 497, 519–520 (2018). And we have sent mixed signals on whether Chevron applies when a statute has criminal applications. Compare Abramski v. United States , 573 U.S. 169 , 191 (2014), with Babbitt v. Sweet Home Chapter, Communities for Great Ore. , 515 U.S. 687 , 704, n. 18 (1995). Confronted with this byzantine set of preconditions and exceptions, some courts have simply bypassed Chevron , saying it makes no difference for one reason or another.[ 7 ] And even when they do invoke Chevron , courts do not always heed the various steps and nuances of that evolving doctrine. In one of the cases before us today, for example, the First Circuit both skipped “step zero,” see 62 F. 4th, at 628, and refused to “classify [its] conclusion as a product of Chevron step one or step two”—though it ultimately appears to have deferred under step two, id. , at 634. This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. See Cuozzo , 579 U. S., at 280 (most recent occasion). But Chevron remains on the books. So litigants must continue to wrestle with it, and lower courts—bound by even our crumbling precedents, see Agostini v. Felton , 521 U.S. 203 , 238 (1997)—understandably continue to apply it. The experience of the last 40 years has thus done little to rehabilitate Chevron . It has only made clear that Chevron ’s fictional presumption of congressional intent was always unmoored from the APA’s demand that courts exercise independent judgment in construing statutes administered by agencies. At best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court ,” to “decide all relevant questions of law” and “interpret . . . statutory provisions.” §706 (emphasis added). IV The only question left is whether stare decisis , the doctrine governing judicial adherence to precedent, requires us to persist in the Chevron project. It does not. Stare decisis is not an “inexorable command,” Payne v. Tennessee , 501 U.S. 808 , 828 (1991), and the stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established, . . . and reliance on the decision,” Knick v. Township of Scott , 588 U.S. 180, 203 (2019) (quoting Janus v. State, County, and Municipal Employees , 585 U.S. 878, 917 (2018))—all weigh in favor of letting Chevron go. Chevron has proved to be fundamentally misguided. Despite reshaping judicial review of agency action, neither it nor any case of ours applying it grappled with the APA—the statute that lays out how such review works. Its flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application. It has launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning. And Members of this Court have long questioned its premises. See, e . g ., Pereira v. Sessions , 585 U.S. 198, 219–221 (2018) (Kennedy, J., concurring); Michigan , 576 U. S., at 760–764 (Thomas, J., concurring); Buffington , 598 U. S. ___ (opinion of Gorsuch, J.); B. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150–2154 (2016). Even Justice Scalia, an early champion of Chevron , came to seriously doubt whether it could be reconciled with the APA. See Perez , 575 U. S., at 109–110 (opinion concurring in judgment). For its entire existence, Chevron has been a “rule in search of a justification,” Knick , 588 U. S., at 204, if it was ever coherent enough to be called a rule at all. Experience has also shown that Chevron is unworkable. The defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doctrine’s second step. But the concept of ambiguity has always evaded meaningful definition. As Justice Scalia put the dilemma just five years after Chevron was decided: “How clear is clear?” 1989 Duke L. J., at 521. We are no closer to an answer to that question than we were four decades ago. “ ‘[A]mbiguity’ is a term that may have different meanings for different judges.” Exxon Mobil Corp. v. Allapattah Services, Inc. , 545 U.S. 546 , 572 (2005) (Stevens, J., dissenting). One judge might see ambiguity everywhere; another might never encounter it. Compare L. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 822 (1990), with R. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017). A rule of law that is so wholly “in the eye of the beholder,” Exxon Mobil Corp. , 545 U. S., at 572 (Stevens, J., dissenting), invites different results in like cases and is therefore “arbitrary in practice,” Gulfstream Aerospace Corp. v. Mayacamas Corp. , 485 U.S. 271 , 283 (1988). Such an impressionistic and malleable concept “cannot stand as an every-day test for allocating” interpretive authority between courts and agencies. Swift & Co. v. Wickham , 382 U.S. 111 , 125 (1965). The dissent proves the point. It tells us that a court should reach Chevron ’s second step when it finds, “at the end of its interpretive work,” that “Congress has left an ambiguity or gap.” Post , at 1–2. (The Government offers a similar test. See Brief for Respondents in No. 22–1219, pp. 7, 10, 14; Tr. of Oral Arg. 113–114, 116.) That is no guide at all. Once more, the basic nature and meaning of a statute does not change when an agency happens to be involved. Nor does it change just because the agency has happened to offer its interpretation through the sort of procedures necessary to obtain deference, or because the other preconditions for Chevron happen to be satisfied. The statute still has a best meaning, necessarily discernible by a court deploying its full interpretive toolkit. So for the dissent’s test to have any meaning, it must think that in an agency case (unlike in any other), a court should give up on its “interpretive work” before it has identified that best meaning. But how does a court know when to do so? On that point, the dissent leaves a gap of its own. It protests only that some other interpretive tools—all with pedigrees more robust than Chevron ’s, and all designed to help courts identify the meaning of a text rather than allow the Executive Branch to displace it—also apply to ambiguous texts. See post , at 27. That this is all the dissent can come up with, after four decades of judicial experience attempting to identify ambiguity under Chevron , reveals the futility of the exercise.[ 8 ] Because Chevron in its original, two-step form was so indeterminate and sweeping, we have instead been forced to clarify the doctrine again and again. Our attempts to do so have only added to Chevron ’s unworkability, transforming the original two-step into a dizzying breakdance. See Adams Fruit Co. , 494 U. S., at 649–650; Mead , 533 U. S., at 226–227; King , 576 U. S., at 486; Encino Motorcars , 579 U. S., at 220; Epic Systems , 584 U. S., at 519–520; on and on. And the doctrine continues to spawn difficult threshold questions that promise to further complicate the inquiry should Chevron be retained. See, e . g ., Cargill v. Garland , 57 F. 4th 447, 465–468 (CA5 2023) (plurality opinion) (May the Government waive reliance on Chevron ? Does Chevron apply to agency interpretations of statutes imposing criminal penalties? Does Chevron displace the rule of lenity?), aff ’d, 602 U. S. ___ (2024). Four decades after its inception, Chevron has thus become an impediment, rather than an aid, to accomplishing the basic judicial task of “say[ing] what the law is.” Marbury , 1 Cranch, at 177. And its continuing import is far from clear. Courts have often declined to engage with the doctrine, saying it makes no difference. See n. 7, supra . And as noted, we have avoided deferring under Chevron since 2016. That trend is nothing new; for decades, we have often declined to invoke Chevron even in those cases where it might appear to be applicable. See W. Eskridge & L. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations From Chevron to Hamdan , 96 Geo. L. J. 1083, 1125 (2008). At this point, all that remains of Chevron is a decaying husk with bold pretensions. Nor has Chevron been the sort of “ ‘stable background’ rule” that fosters meaningful reliance. Post , at 8, n. 1 (opinion of Kagan, J.) (quoting Morrison v. National Australia Bank Ltd. , 561 U.S. 247 , 261 (2010)). Given our constant tinkering with and eventual turn away from Chevron , and its inconsistent application by the lower courts, it instead is hard to see how anyone—Congress included—could reasonably expect a court to rely on Chevron in any particular case. And even if it were possible to predict accurately when courts will apply Chevron , the doctrine “does not provide ‘a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced.’ ” Janus , 585 U. S., at 927 (quoting South Dakota v. Wayfair, Inc. , 585 U.S. 162, 186 (2018)). To plan on Chevron yielding a particular result is to gamble not only that the doctrine will be invoked, but also that it will produce readily foreseeable outcomes and the stability that comes with them. History has proved neither bet to be a winning proposition. Rather than safeguarding reliance interests, Chevron affirmatively destroys them. Under Chevron , a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with “[u]nexplained inconsistency” being “at most . . . a reason for holding an interpretation to be . . . arbitrary and capricious.” Brand X , 545 U. S., at 981. But statutory ambiguity, as we have explained, is not a reliable indicator of actual delegation of discretionary authority to agencies. Chevron thus allows agencies to change course even when Congress has given them no power to do so. By its sheer breadth, Chevron fosters unwarranted instability in the law, leaving those attempting to plan around agency action in an eternal fog of uncertainty. Chevron accordingly has undermined the very “rule of law” values that stare decisis exists to secure. Michigan v. Bay Mills Indian Community , 572 U.S. 782 , 798 (2014). And it cannot be constrained by admonishing courts to be extra careful, or by tacking on a new batch of conditions. We would need to once again “revis[e] its theoretical basis . . . in order to cure its practical deficiencies.” Montejo v. Louisiana , 556 U.S. 778 , 792 (2009). Stare decisis does not require us to do so, especially because any refinements we might make would only point courts back to their duties under the APA to “decide all relevant questions of law” and “interpret . . . statutory provisions.” §706. Nor is there any reason to wait helplessly for Congress to correct our mistake. The Court has jettisoned many precedents that Congress likewise could have legislatively overruled. See, e.g. , Patterson v. McLean Credit Union , 485 U.S. 617 , 618 (1988) ( per curiam ) (collecting cases). And part of “judicial humility,” post , at 3, 25 (opinion of Kagan, J.,), is admitting and in certain cases correcting our own mistakes, especially when those mistakes are serious, see post , at 8–9 (opinion of Gorsuch, J.). This is one of those cases. Chevron was a judicial invention that required judges to disregard their statutory duties. And the only way to “ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion,” Vasquez v. Hillery , 474 U.S. 254 , 265 (1986), is for us to leave Chevron behind. By doing so, however, we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology. See CBOCS West, Inc. v. Humphries , 553 U.S. 442 , 457 (2008). Mere reliance on Chevron cannot constitute a “ ‘special justification’ ” for overruling such a holding, because to say a precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258 , 266 (2014) (quoting Dickerson v. United States , 530 U.S. 428 , 443 (2000)). That is not enough to justify overruling a statutory precedent. *  *  * The dissent ends by quoting Chevron : “ ‘Judges are not experts in the field.’ ” Post , at 31 (quoting 467 U. S., at 865). That depends, of course, on what the “field” is. If it is legal interpretation, that has been, “emphatically,” “the province and duty of the judicial department” for at least 221 years. Marbury , 1 Cranch, at 177. The rest of the dissent’s selected epigraph is that judges “ ‘are not part of either political branch.’ ” Post , at 31 (quoting Chevron , 467 U. S., at 865). Indeed. Judges have always been expected to apply their “judgment” independent of the political branches when interpreting the laws those branches enact. The Federalist No. 78, at 523. And one of those laws, the APA, bars judges from disregarding that responsibility just because an Executive Branch agency views a statute differently. Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous. Because the D. C. and First Circuits relied on Chevron in deciding whether to uphold the Rule, their judgments are vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 For any landlubbers, “F/V” is simply the designation for a fishing vessel. 2 Both petitions also presented questions regarding the consistency of the Rule with the MSA. See Pet. for Cert. in No. 22–451, p. i; Pet. for Cert. in No. 22–1219, p. ii. We did not grant certiorari with respect to those questions and thus do not reach them. 3 The dissent plucks out Gray , Hearst , and—to “gild the lily,” in its telling—three more 1940s decisions, claiming they reflect the relevant historical tradition of judicial review. Post , at 21–22, and n. 6 (opinion of Kagan, J.). But it has no substantial response to the fact that Gray and Hearst themselves endorsed, implicitly in one case and explicitly in the next, the traditional rule that “questions of statutory interpretation . . . are for the courts to resolve, giving appropriate weight”—not outright deference—“to the judgment of those whose special duty is to administer the questioned statute.” Hearst , 322 U. S., at 130–131. And it fails to recognize the deep roots that this rule has in our Nation’s judicial tradition, to the limited extent it engages with that tradition at all. See post , at 20–21, n. 5. Instead, like the Government, it strains to equate the “respect” or “weight” traditionally afforded to Executive Branch interpretations with binding deference. See ibid. ; Brief for Respondents in No. 22–1219, pp. 21–24. That supposed equivalence is a fiction. The dissent’s cases establish that a “ contemporaneous construction” shared by “not only . . . the courts” but also “the departments” could be “controlling,” Schell’s Executors v. Fauché , 138 U.S. 562 , 572 (1891) (emphasis added), and that courts might “lean in favor” of a “contemporaneous” and “continued” construction of the Executive Branch as strong evidence of a statute’s meaning, United States v. Alabama Great Southern R. Co. , 142 U.S. 615 , 621 (1892). They do not establish that Executive Branch interpretations of ambiguous statutes—no matter how inconsistent, late breaking, or flawed—always bound the courts. In reality, a judge was never “bound to adopt the construction given by the head of a department.” Decatur v. Paulding , 14 Pet. 497, 515 (1840). 4 The dissent observes that Section 706 does not say expressly that courts are to decide legal questions using “a de novo standard of review.” Post , at 16. That much is true. But statutes can be sensibly understood only “by reviewing text in context.” Pulsifer v. United States , 601 U.S. 124, 133 (2024). Since the start of our Republic, courts have “decide[d] . . . questions of law” and “interpret[ed] constitutional and statutory provisions” by applying their own legal judgment. §706. Setting aside its misplaced reliance on Gray and Hearst , the dissent does not and could not deny that tradition. But it nonetheless insists that to codify that tradition, Congress needed to expressly reject a sort of deference the courts had never before applied—and would not apply for several decades to come. It did not. “The notion that some things ‘go without saying’ applies to legislation just as it does to everyday life.” Bond v. United States , 572 U.S. 844 , 857 (2014). 5 See, e.g. , 29 U. S. C. §213(a)(15) (exempting from provisions of the Fair Labor Standards Act “any employee employed on a casual basis in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves ( as such terms are defined and delimited by regulations of the Secretary )” (emphasis added)); 42 U. S. C. §5846(a)(2) (requiring notification to Nuclear Regulatory Commission when a facility or activity licensed or regulated pursuant to the Atomic Energy Act “contains a defect which could create a substantial safety hazard, as defined by regulations which the Commission shall promulgate ” (emphasis added)). 6 See, e.g. , 33 U. S. C. §1312(a) (requiring establishment of effluent limitations “[w]henever, in the judgment of the [Environmental Protection Agency (EPA)] Administrator . . . , discharges of pollutants from a point source or group of point sources . . . would interfere with the attainment or maintenance of that water quality . . . which shall assure” various outcomes, such as the “protection of public health” and “public water supplies”); 42 U. S. C. §7412(n)(1)(A) (directing EPA to regulate power plants “if the Administrator finds such regulation is appropriate and necessary”). 7 See, e . g ., Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives , 45 F. 4th 306, 313–314 (CADC 2022), abrogated by Garland v. Cargill , 602 U. S. ___ (2024); County of Amador v. United States Dept. of Interior , 872 F.3d 1012, 1021–1022 (CA9 2017); Estrada-Rodriguez v. Lynch , 825 F.3d 397, 403–404 (CA8 2016); Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 220 (CA2 2014); Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co. , 747 F.3d 673, 685, n. 52 (CA9 2014); Jurado-Delgado v. Attorney Gen. of U. S. , 498 Fed. Appx. 107, 117 (CA3 2009); see also D. Brookins, Confusion in the Circuit Courts: How the Circuit Courts Are Solving the Mead -Puzzle by Avoiding It Altogether, 85 Geo. Wash. L. Rev. 1484, 1496–1499 (2017) (documenting Chevron avoidance by the lower courts); A. Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095, 1127–1129 (2009) (same); L. Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443, 1464–1466 (2005) (same). 8 Citing an empirical study, the dissent adds that Chevron “fosters agreement among judges.” Post , at 28. It is hardly surprising that a study might find as much; Chevron ’s second step is supposed to be hospitable to agency interpretations. So when judges get there, they tend to agree that the agency wins. That proves nothing about the supposed ease or predictability of identifying ambiguity in the first place. SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–451 and 22–1219 _________________ LOPER BRIGHT ENTERPRISES, et al., PETITIONERS 22–451 v. GINA RAIMONDO, SECRETARY OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit RELENTLESS, INC., et al., PETITIONERS 22–1219 v. DEPARTMENT OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the first circuit [June 28, 2024] Justice Thomas, concurring. I join the Court’s opinion in full because it correctly concludes that Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), must finally be overruled. Under Chevron , a judge was required to adopt an agency’s interpretation of an ambiguous statute, so long as the agency had a “permissible construction of the statute.” See id. , at 843. As the Court explains, that deference does not comport with the Administrative Procedure Act, which requires judges to decide “all relevant questions of law” and “interpret constitutional and statutory provisions” when reviewing an agency action. 5 U. S. C. §706; see also ante, at 18–23; Baldwin v. United States , 589 U. S. ___, ___–___ (2020) (Thomas, J., dissenting from denial of certiorari) (slip op., at 4–5). I write separately to underscore a more fundamental problem: Chevron deference also violates our Constitution’s separation of powers, as I have previously explained at length. See Baldwin , 589 U. S., at ___–___ (dissenting opinion) (slip op., at 2–4); Michigan v. EPA , 576 U.S. 743 , 761–763 (2015) (concurring opinion); see also Perez v. Mortgage Bankers Assn. , 575 U.S. 92 , 115–118 (2015) (opinion concurring in judgment). And, I agree with Justice Gorsuch that we should not overlook Chevron ’s constitutional defects in overruling it.[ 1 ]* Post , at 15–20 (concurring opinion). To provide “practical and real protections for individual liberty,” the Framers drafted a Constitution that divides the legislative, executive, and judicial powers between three branches of Government. Perez , 575 U. S., at 118 (opinion of Thomas, J.). Chevron deference compromises this separation of powers in two ways. It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits. Chevron compels judges to abdicate their Article III “judicial Power.” §1. “[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.” Perez , 575 U. S., at 119 (opinion of Thomas, J.); accord, post , at 17–18 (opinion of Gorsuch, J.). The Framers understood that “legal texts . . . often contain ambiguities,” and that the judicial power included “the power to resolve these ambiguities over time.” Perez , 575 U. S., at 119 (opinion of Thomas, J.); accord, ante, at 7–9. But, under Chevron , a judge must accept an agency’s interpretation of an ambiguous law, even if he thinks another interpretation is correct. Ante , at 19. Chevron deference thus prevents judges from exercising their independent judgment to resolve ambiguities. Baldwin , 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 3); see also Michigan , 576 U. S., at 761 (opinion of Thomas, J.); see also Perez , 575 U. S., at 123 (opinion of Thomas, J.). By tying a judge’s hands, Chevron prevents the Judiciary from serving as a constitutional check on the Executive. It allows “the Executive . . . to dictate the outcome of cases through erroneous interpretations.” Baldwin , 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 4); Michigan , 576 U. S., at 763, n. 1 (opinion of Thomas, J.); see also Perez , 575 U. S., at 124 (opinion of Thomas, J.). Because the judicial power requires judges to exercise their independent judgment, the deference that Chevron requires contravenes Article III’s mandate. Chevron deference also permits the Executive Branch to exercise powers not given to it. “When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.” Department of Transportation v. Association of American Railroads , 575 U.S. 43 , 68 (2015) (Thomas, J., concurring in judgment). Because the Constitution gives the Executive Branch only “[t]he executive Power,” executive agencies may constitutionally exercise only that power. Art. II, §1, cl. 1. But, Chevron gives agencies license to exercise judicial power. By allowing agencies to definitively interpret laws so long as they are ambiguous, Chevron “transfer[s]” the Judiciary’s “interpretive judgment to the agency.” Perez , 575 U. S., at 124 (opinion of Thomas, J.); see also Baldwin , 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 4); Michigan , 576 U. S., at 761–762 (opinion of Thomas, J.); post , at 18 (Gorsuch, J., concurring). Chevron deference “cannot be salvaged” by recasting it as deference to an agency’s “formulation of policy.” Baldwin , 589 U. S., at ___ (opinion of Thomas, J.) (internal quotation marks omitted) (slip op., at 3). If that were true, Chevron would mean that “agencies are unconstitutionally exercising ‘legislative Powers’ vested in Congress.” Baldwin , 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 3) (quoting Art. I, §1). By “giv[ing] the force of law to agency pronouncements on matters of private conduct as to which Congress did not actually have an intent,” Chevron “permit[s] a body other than Congress to perform a function that requires an exercise of legislative power.” Michigan , 576 U. S., at 762 (opinion of Thomas, J.) (internal quotation marks omitted). No matter the gloss put on it, Chevron expands agencies’ power beyond the bounds of Article II by permitting them to exercise powers reserved to another branch of Government. Chevron deference was “not a harmless transfer of power.” Baldwin , 589 U. S., at ___ (opinion of Thomas, J.) (slip op., at 3). “The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.” Ibid . In particular, the Founders envisioned that “the courts [would] check the Executive by applying the correct interpretation of the law.” Id ., at ___ (slip op., at 4). Chevron was thus a fundamental disruption of our separation of powers. It improperly strips courts of judicial power by simultaneously increasing the power of executive agencies. By overruling Chevron , we restore this aspect of our separation of powers. To safeguard individual liberty, “[s]tructure is everything.” A. Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 Notre Dame L. Rev. 1417, 1418 (2008). Although the Court finally ends our 40-year misadventure with Chevron deference, its more profound problems should not be overlooked. Regardless of what a statute says, the type of deference required by Chevron violates the Constitution. Notes 1 *There is much to be commended in Justice Gorsuch’s careful consideration from first principles of the weight we should afford to our precedent. I agree with the lion’s share of his concurrence. See generally Gamble v. United States , 587 U.S. 678, 710 (2019) (Thomas, J., concurring). SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–451 and 22–1219 _________________ LOPER BRIGHT ENTERPRISES, et al., PETITIONERS 22–451 v. GINA RAIMONDO, SECRETARY OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit RELENTLESS, INC., et al., PETITIONERS 22–1219 v. DEPARTMENT OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the first circuit [June 28, 2024] Justice Gorsuch, concurring. In disputes between individuals and the government about the meaning of a federal law, federal courts have traditionally sought to offer independent judgments about “what the law is” without favor to either side. Marbury v. Madison , 1 Cranch 137, 177 (1803). Beginning in the mid-1980s, however, this Court experimented with a radically different approach. Applying Chevron deference, judges began deferring to the views of executive agency officials about the meaning of federal statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984). With time, the error of this approach became widely appreciated. So much so that this Court has refused to apply Chevron deference since 2016. Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding. I write separately to address why the proper application of the doctrine of stare decisis supports that course. I A Today, the phrase “common law judge” may call to mind a judicial titan of the past who brilliantly devised new legal rules on his own. The phrase “ stare decisis ” might conjure up a sense that judges who come later in time are strictly bound to follow the work of their predecessors. But neither of those intuitions fairly describes the traditional common-law understanding of the judge’s role or the doctrine of stare decisis . At common law, a judge’s charge to decide cases was not usually understood as a license to make new law. For much of England’s early history, different rulers and different legal systems prevailed in different regions. As England consolidated into a single kingdom governed by a single legal system, the judge’s task was to examine those pre-existing legal traditions and apply in the disputes that came to him those legal rules that were “common to the whole land and to all Englishmen.” F. Maitland, Equity, Also the Forms of Action at Common Law 2 (1929). That was “common law” judging. This view of the judge’s role had consequences for the authority due judicial decisions. Because a judge’s job was to find and apply the law, not make it, the “opinion of the judge” and “the law” were not considered “one and the same thing.” 1 W. Blackstone, Commentaries on the Laws of England 71 (1765) (Blackstone) (emphasis deleted). A judge’s decision might bind the parties to the case at hand. M. Hale, The History and Analysis of the Common Law of England 68 (1713) (Hale). But none of that meant the judge had the power to “make a Law properly so called” for society at large, “for that only the King and Parliament can do.” Ibid. Other consequences followed for the role precedent played in future judicial proceedings. Because past decisions represented something “less than a Law,” they did not bind future judges. Ibid. At the same time, as Matthew Hale put it, a future judge could give a past decision “Weight” as “Evidence” of the law. Ibid. Expressing the same idea, William Blackstone conceived of judicial precedents as “evidence” of “the common law.” 1 Blackstone 69, 71. And much like other forms of evidence, precedents at common law were thought to vary in the weight due them. Some past decisions might supply future courts with considerable guidance. But others might be entitled to lesser weight, not least because judges are no less prone to error than anyone else and they may sometimes “mistake” what the law demands. Id. , at 71 (emphasis deleted). In cases like that, both men thought, a future judge should not rotely repeat a past mistake but instead “vindicate” the law “from misrepresentation.” Id ., at 70 . When examining past decisions as evidence of the law, common law judges did not, broadly speaking, afford overwhelming weight to any “single precedent.” J. Baker, An Introduction to English Legal History 209–210 (5th ed. 2019). Instead, a prior decision’s persuasive force depended in large measure on its “Consonancy and Congruity with Resolutions and Decisions of former Times.” Hale 68. An individual decision might reflect the views of one court at one moment in time, but a consistent line of decisions representing the wisdom of many minds across many generations was generally considered stronger evidence of the law’s meaning. Ibid. With this conception of precedent in mind, Lord Mansfield cautioned against elevating “particular cases” above the “general principles” that “run through the cases, and govern the decision of them.” Rust v. Cooper , 2 Cowp. 629, 632, 98 Eng. Rep. 1277, 1279 (K. B. 1777). By discarding aberrational rulings and pursuing instead the mainstream of past decisions, he observed, the common law tended over time to “wor[k] itself pure.” Omychund v. Barker , 1 Atk. 22, 33, 26 Eng. Rep. 15, 23 (Ch. 1744) (emphasis deleted). Reflecting similar thinking, Edmund Burke offered five principles for the evaluation of past judicial decisions: “They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles.” Speech of Dec. 23, 1790, in 3 The Speeches of the Right Honourable Edmund Burke 513 (1816). Not only did different decisions carry different weight, so did different language within a decision. An opinion’s holding and the reasoning essential to it (the ratio decidendi ) merited careful attention. Dicta, stray remarks, and digressions warranted less weight. See N. Duxbury, The Intricacies of Dicta and Dissent 19–24 (2021) (Duxbury). These were no more than “the vapours and fumes of law.” F. Bacon, The Lord Keeper’s Speech in the Exchequer (1617), in 2 The Works of Francis Bacon 478 (B. Montagu ed. 1887) (Bacon). That is not to say those “vapours” were worthless. Often dicta might provide the parties to a particular dispute a “fuller understanding of the court’s decisional path or related areas of concern.” B. Garner et al., The Law of Judicial Precedent 65 (2016) (Precedent). Dicta might also provide future courts with a source of “thoughtful advice.” Ibid. But future courts had to be careful not to treat every “hasty expression . . . as a serious and deliberate opinion.” Steel v. Houghton , 1 Bl. H. 51, 53, 126 Eng. Rep. 32, 33 (C. P. 1788). To do so would work an “injustice to [the] memory” of their predecessors who could not expect judicial remarks issued in one context to apply perfectly in others, perhaps especially ones they could not foresee. Ibid. Also, the limits of the adversarial process, a distinctive feature of English law, had to be borne in mind. When a single judge or a small panel reached a decision in a case, they did so based on the factual record and legal arguments the parties at hand have chosen to develop. Attuned to those constraints, future judges had to proceed with an open mind to the possibility that different facts and different legal arguments might dictate different outcomes in later disputes. See Duxbury 19–24. B Necessarily, this represents just a quick sketch of traditional common-law understandings of the judge’s role and the place of precedent in it. It focuses, too, on the horizontal, not vertical, force of judicial precedents. But there are good reasons to think that the common law’s understandings of judges and precedent outlined above crossed the Atlantic and informed the nature of the “judicial Power” the Constitution vests in federal courts. Art. III, §1. Not only was the Constitution adopted against the backdrop of these understandings and, in light of that alone, they may provide evidence of what the framers meant when they spoke of the “judicial Power.” Many other, more specific provisions in the Constitution reflect much the same distinction between lawmaking and lawfinding functions the common law did. The Constitution provides that its terms may be amended only through certain prescribed democratic processes. Art. V. It vests the power to enact federal legislation exclusively in the people’s elected representatives in Congress. Art. I, §1. Meanwhile, the Constitution describes the judicial power as the power to resolve cases and controversies. Art. III, §2, cl. 1. As well, it delegates that authority to life-tenured judges, see §1, an assignment that would have made little sense if judges could usurp lawmaking powers vested in periodically elected representatives. But one that makes perfect sense if what is sought is a neutral party “to interpret and apply” the law without fear or favor in a dispute between others. 2 The Works of James Wilson 161 (J. Andrews ed. 1896) (Wilson); see Osborn v. Bank of United States , 9 Wheat. 738, 866 (1824). The constrained view of the judicial power that runs through our Constitution carries with it familiar implications, ones the framers readily acknowledged. James Madison, for example, proclaimed that it would be a “fallacy” to suggest that judges or their precedents could “repeal or alter” the Constitution or the laws of the United States. Letter to N. Trist (Dec. 1831), in 9 The Writings of James Madison 477 (G. Hunt ed. 1910). A court’s opinion, James Wilson added, may be thought of as “effective la[w]” “[a]s to the parties.” Wilson 160–161. But as in England, Wilson said, a prior judicial decision could serve in a future dispute only as “evidence” of the law’s proper construction. Id ., at 160; accord, 1 J. Kent, Commentaries on American Law 442–443 (1826). The framers also recognized that the judicial power described in our Constitution implies, as the judicial power did in England, a power (and duty) of discrimination when it comes to assessing the “evidence” embodied in past decisions. So, for example, Madison observed that judicial rulings “ repeatedly confirmed ” may supply better evidence of the law’s meaning than isolated or aberrant ones. Letter to C. Ingersoll (June 1831), in 4 Letters and Other Writings of James Madison 184 (1867) (emphasis added). Extending the thought, Thomas Jefferson believed it would often take “numerous decisions” for the meaning of new statutes to become truly “settled.” Letter to S. Jones (July 1809), in 12 The Writings of Thomas Jefferson 299 (A. Bergh ed. 1907). From the start, too, American courts recognized that not everything found in a prior decision was entitled to equal weight. As Chief Justice Marshall warned, “It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Cohens v. Virginia , 6 Wheat. 264, 399 (1821). To the extent a past court offered views “beyond the case,” those expressions “may be respected” in a later case “but ought not to control the judgment.” Ibid. One “obvious” reason for this, Marshall continued, had to do with the limits of the adversarial process we inherited from England: Only “[t]he question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Id. , at 399–400. Abraham Lincoln championed these traditional understandings in his debates with Stephen Douglas. Douglas took the view that a single decision of this Court—no matter how flawed—could definitively resolve a contested issue for everyone and all time. Those who thought otherwise, he said, “aim[ed] a deadly blow to our whole Republican system of government.” Speech at Springfield, Ill. (June 26, 1857), in 2 The Collected Works of Abraham Lincoln 401 (R. Basler ed. 1953) (Lincoln Speech). But Lincoln knew better. While accepting that judicial decisions “absolutely determine” the rights of the parties to a court’s judgment, he refused to accept that any single judicial decision could “fully settl[e]” an issue, particularly when that decision departs from the Constitution. Id ., at 400–401. In cases such as these, Lincoln explained, “it is not resistance, it is not factious, it is not even disrespectful, to treat [the decision] as not having yet quite established a settled doctrine for the country.” Id. , at 401. After the Civil War, the Court echoed some of these same points. It stressed that every statement in a judicial opinion “must be taken in connection with its immediate context,” In re Ayers , 123 U.S. 443 , 488 (1887), and stray “remarks” must not be elevated above the written law, see The Belfast , 7 Wall. 624, 641 (1869); see also, e . g ., Trebilcock v. Wilson , 12 Wall. 687, 692–693 (1872); Mason v. Eldred , 6 Wall. 231, 236–238 (1868). During Chief Justice Chase’s tenure, it seems a Justice writing the Court’s majority opinion would generally work alone and present his work orally and in summary form to his colleagues at conference, which meant that other Justices often did not even review the opinion prior to publication. 6 C. Fairman, History of the Supreme Court of the United States 69–70 (1971). The Court could proceed in this way because it understood that a single judicial opinion may resolve a “case or controversy,” and in so doing it may make “effective law” for the parties, but it does not legislate for the whole of the country and is not to be confused with laws that do. C From all this, I see at least three lessons about the doctrine of stare decisis relevant to the decision before us today. Each concerns a form of judicial humility. First , a past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain. Instead, the Constitution promises, the American people are sovereign and they alone may, through democratically responsive processes, amend our foundational charter or revise federal legislation. Unelected judges enjoy no such power. Part I–B, supra . Recognizing as much, this Court has often said that stare decisis is not an “ ‘inexorable command.’ ” State Oil Co. v. Khan , 522 U.S. 3 , 20 (1997). And from time to time it has found it necessary to correct its past mistakes. When it comes to correcting errors of constitutional interpretation, the Court has stressed the importance of doing so, for they can be corrected otherwise only through the amendment process. See, e.g. , Franchise Tax Bd. of Cal. v. Hyatt , 587 U.S. 230, 248 (2019). When it comes to fixing errors of statutory interpretation, the Court has proceeded perhaps more circumspectly. But in that field, too, it has overruled even longstanding but “flawed” decisions. See, e.g. , Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 551 U.S. 877 , 904, 907 (2007). Recent history illustrates all this. During the tenures of Chief Justices Warren and Burger, it seems this Court overruled an average of around three cases per Term, including roughly 50 statutory precedents between the 1960s and 1980s alone. See W. Eskridge, Overruling Statutory Precedents, 76 Geo. L. J. 1361, 1427–1434 (1988) (collecting cases). Many of these decisions came in settings no less consequential than today’s. In recent years, we have not approached the pace set by our predecessors, overruling an average of just one or two prior decisions each Term.[ 1 ] But the point remains: Judicial decisions inconsistent with the written law do not inexorably control. Second , another lesson tempers the first. While judicial decisions may not supersede or revise the Constitution or federal statutory law, they merit our “respect as embodying the considered views of those who have come before.” Ramos v. Louisiana , 590 U.S. 83, 105 (2020). As a matter of professional responsibility, a judge must not only avoid confusing his writings with the law. When a case comes before him, he must also weigh his view of what the law demands against the thoughtful views of his predecessors. After all, “[p]recedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” Precedent 9. Doubtless, past judicial decisions may, as they always have, command “greater or less authority as precedents, according to circumstances.” Lincoln Speech 401. But, like English judges before us, we have long turned to familiar considerations to guide our assessment of the weight due a past decision. So, for example, as this Court has put it, the weight due a precedent may depend on the quality of its reasoning, its consistency with related decisions, its workability, and reliance interests that have formed around it. See Ramos , 590 U. S., at 106. The first factor recognizes that the primary power of any precedent lies in its power to persuade—and poorly reasoned decisions may not provide reliable evidence of the law’s meaning. The second factor reflects the fact that a precedent is more likely to be correct and worthy of respect when it reflects the time-tested wisdom of generations than when it sits “unmoored” from surrounding law. Ibid. The remaining factors, like workability and reliance, do not often supply reason enough on their own to abide a flawed decision, for almost any past decision is likely to benefit some group eager to keep things as they are and content with how things work. See, e.g. , id ., at 108. But these factors can sometimes serve functions similar to the others, by pointing to clues that may suggest a past decision is right in ways not immediately obvious to the individual judge. When asking whether to follow or depart from a precedent, some judges deploy adverbs. They speak of whether or not a precedent qualifies as “demonstrably erroneous,” Gamble v. United States , 587 U.S. 678, 711 (2019) (Thomas, J., concurring), or “egregiously wrong,” Ramos , 590 U. S., at 121 (Kavanaugh, J., concurring in part). But the emphasis the adverb imparts is not meant for dramatic effect. It seeks to serve instead as a reminder of a more substantive lesson. The lesson that, in assessing the weight due a past decision, a judge is not to be guided by his own impression alone, but must self-consciously test his views against those who have come before, open to the possibility that a precedent might be correct in ways not initially apparent to him. Third , it would be a mistake to read judicial opinions like statutes. Adopted through a robust and democratic process, statutes often apply in all their particulars to all persons. By contrast, when judges reach a decision in our adversarial system, they render a judgment based only on the factual record and legal arguments the parties at hand have chosen to develop. A later court assessing a past decision must therefore appreciate the possibility that different facts and different legal arguments may dictate a different outcome. They must appreciate, too, that, like anyone else, judges are “innately digressive,” and their opinions may sometimes offer stray asides about a wider topic that may sound nearly like legislative commands. Duxbury 4. Often, enterprising counsel seek to exploit such statements to maximum effect. See id ., at 25. But while these digressions may sometimes contain valuable counsel, they remain “vapours and fumes of law,” Bacon 478, and cannot “control the judgment in a subsequent suit,” Cohens , 6 Wheat., at 399. These principles, too, have long guided this Court and others. As Judge Easterbrook has put it, an “opinion is not a comprehensive code; it is just an explanation for the Court’s disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration.” United States v. Skoien , 614 F.3d 638, 640 (CA7 2010) (en banc); see also Reiter v. Sonotone Corp. , 442 U.S. 330 , 341 (1979) (stressing that an opinion is not “a statute,” and its language should not “be parsed” as if it were); Nevada v. Hicks , 533 U.S. 353 , 372 (2001) (same). If stare decisis counsels respect for the thinking of those who have come before, it also counsels against doing an “injustice to [their] memory” by overreliance on their every word. Steel , 1 Bl. H., at 53, 126 Eng. Rep., at 33. As judges, “[w]e neither expect nor hope that our successors will comb” through our opinions, searching for delphic answers to matters we never fully explored. Brown v. Davenport , 596 U.S. 118, 141 (2022). To proceed otherwise risks “turn[ing] stare decisis from a tool of judicial humility into one of judicial hubris.” Ibid. II Turning now directly to the question what stare decisis effect Chevron deference warrants, each of these lessons seem to me to weigh firmly in favor of the course the Court charts today: Lesson 1, because Chevron deference contravenes the law Congress prescribed in the Administrative Procedure Act. Lesson 2, because Chevron deference runs against mainstream currents in our law regarding the separation of powers, due process, and centuries-old interpretive rules that fortify those constitutional commitments. And Lesson 3, because to hold otherwise would effectively require us to endow stray statements in Chevron with the authority of statutory language, all while ignoring more considered language in that same decision and the teachings of experience. A Start with Lesson 1. The Administrative Procedure Act of 1946 (APA) directs a “reviewing court” to “decide all relevant questions of law” and “interpret” relevant “constitutional and statutory provisions.” 5 U. S. C. §706. When applying Chevron deference, reviewing courts do not interpret all relevant statutory provisions and decide all relevant questions of law. Instead, judges abdicate a large measure of that responsibility in favor of agency officials. Their interpretations of “ambiguous” laws control even when those interpretations are at odds with the fairest reading of the law an independent “reviewing court” can muster. Agency officials, too, may change their minds about the law’s meaning at any time, even when Congress has not amended the relevant statutory language in any way. National Cable & Telecommunications Assn. v. Brand X Internet Services , 545 U.S. 967 , 982–983 (2005). And those officials may even disagree with and effectively overrule not only their own past interpretations of a law but a court’s past interpretation as well. Ibid. None of that is consistent with the APA’s clear mandate. The hard fact is Chevron “did not even bother to cite” the APA, let alone seek to apply its terms. United States v. Mead Corp. , 533 U.S. 218 , 241 (2001) (Scalia, J., dissenting). Instead, as even its most ardent defenders have conceded, Chevron deference rests upon a “ fictionalized statement of legislative desire,” namely, a judicial supposition that Congress implicitly wishes judges to defer to executive agencies’ interpretations of the law even when it has said nothing of the kind. D. Barron & E. Kagan, Chevron’s Nondelegation Doctrine, 2001 S. Ct. Rev. 201, 212 (Kagan) (emphasis added). As proponents see it, that fiction represents a “policy judgmen[t] about what . . . make[s] for good government.” Ibid. [ 2 ] But in our democracy unelected judges possess no authority to elevate their own fictions over the laws adopted by the Nation’s elected representatives. Some might think the legal directive Congress provided in the APA unwise; some might think a different arrangement preferable. See, e.g. , post , at 9–11 (Kagan, J., dissenting). But it is Congress’s view of “good government,” not ours, that controls. Much more could be said about Chevron ’s inconsistency with the APA. But I have said it in the past. See Buffington v. McDonough , 598 U. S. ___, ___–___ (2022) (opinion dissenting from denial of certiorari) (slip op., at 5–6); Gutierrez-Brizuela v. Lynch , 834 F.3d 1142, 1151–1153 (CA10 2016) (concurring opinion). And the Court makes many of the same points at length today. See ante , at 18–22. For present purposes, the short of it is that continuing to abide Chevron deference would require us to transgress the first lesson of stare decisis —the humility required of judges to recognize that our decisions must yield to the laws adopted by the people’s elected representatives.[ 3 ] B Lesson 2 cannot rescue Chevron deference. If stare decisis calls for judicial humility in the face of the written law, it also cautions us to test our present conclusions carefully against the work of our predecessors. At the same time and as we have seen, this second form of humility counsels us to remember that precedents that have won the endorsement of judges across many generations, demonstrated coherence with our broader law, and weathered the tests of time and experience are entitled to greater consideration than those that have not. See Part I, supra . Viewed by each of these lights, the case for Chevron deference only grows weaker still. 1 Start with a look to how our predecessors traditionally understood the judicial role in disputes over a law’s meaning. From the Nation’s founding, they considered “[t]he interpretation of the laws” in cases and controversies “the proper and peculiar province of the courts.” The Federalist No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Perhaps the Court’s most famous early decision reflected exactly that view. There, Chief Justice Marshall declared it “emphatically the province and duty of the judicial department to say what the law is.” Marbury , 1 Cranch, at 177. For judges “have neither FORCE nor WILL but merely judgment”—and an obligation to exercise that judgment independently. The Federalist No. 78, at 465. No matter how “disagreeable that duty may be,” this Court has said, a judge “is not at liberty to surrender, or to waive it.” United States v. Dickson , 15 Pet. 141, 162 (1841) (Story, J.). This duty of independent judgment is perhaps “the defining characteristi[c] of Article III judges.” Stern v. Marshall , 564 U.S. 462 , 483 (2011). To be sure, this Court has also long extended “great respect” to the “contemporaneous” and consistent views of the coordinate branches about the meaning of a statute’s terms. Edwards’ Lessee v. Darby , 12 Wheat. 206, 210 (1827); see also McCulloch v. Maryland , 4 Wheat. 316, 401 (1819); Stuart v. Laird , 1 Cranch 299, 309 (1803).[ 4 ] But traditionally, that did not mean a court had to “defer” to any “reasonable” construction of an “ambiguous” law that an executive agency might offer. It did not mean that the government could propound a “reasonable” view of the law’s meaning one day, a different one the next, and bind the judiciary always to its latest word. Nor did it mean the executive could displace a pre-existing judicial construction of a statute’s terms, replace it with its own, and effectively overrule a judicial precedent in the process. Put simply, this Court was “not bound” by any and all reasonable “administrative construction[s]” of ambiguous statutes when resolving cases and controversies. Burnet v. Chicago Portrait Co. , 285 U.S. 1 , 16 (1932). While the executive’s consistent and contemporaneous views warranted respect, they “by no means control[led] the action or the opinion of this court in expounding the law with reference to the rights of parties litigant before them.” Irvine v. Marshall , 20 How. 558, 567 (1858); see also A. Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 987 (2017). Sensing how jarringly inconsistent Chevron is with this Court’s many longstanding precedents discussing the nature of the judicial role in disputes over the law’s meaning, the government and dissent struggle for a response. The best they can muster is a handful of cases from the early 1940s in which, they say, this Court first “put [deference] principles into action.” Post , at 21 (Kagan, J., dissenting). And, admittedly, for a period this Court toyed with a form of deference akin to Chevron , at least for so-called mixed questions of law and fact. See, e.g. , Gray v. Powell , 314 U.S. 402 , 411–412 (1941); NLRB v. Hearst Publications, Inc. , 322 U.S. 111 , 131 (1944). But, as the Court details, even that limited experiment did not last. See ante , at 10–12 . Justice Roberts, in his Gray dissent, decried these decisions for “abdicat[ing our] function as a court of review” and “complete[ly] revers[ing] . . . the normal and usual method of construing a statute.” 314 U. S., at 420–421. And just a few years later, in Skidmore v. Swift & Co. , 323 U.S. 134 (1944), the Court returned to its time-worn path. Echoing themes that had run throughout our law from its start, Justice Robert H. Jackson wrote for the Court in Skidmore . There, he said, courts may extend respectful consideration to another branch’s interpretation of the law, but the weight due those interpretations must always “depend upon the[ir] thoroughness . . . , the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade.” Id. , at 140. In another case the same year, and again writing for the Court, Justice Jackson expressly rejected a call for a judge-made doctrine of deference much like Chevron , offering that, “[i]f Congress had deemed it necessary or even appropriate” for courts to “defe[r] to administrative construction[,] . . . it would not have been at a loss for words to say so.” Davies Warehouse Co. v. Bowles , 321 U.S. 144 , 156 (1944). To the extent proper respect for precedent demands, as it always has, special respect for longstanding and mainstream decisions, Chevron scores badly. It represented not a continuation of a long line of decisions but a break from them. Worse, it did not merely depart from our precedents. More nearly, Chevron defied them. 2 Consider next how uneasily Chevron deference sits alongside so many other settled aspects of our law. Having witnessed first-hand King George’s efforts to gain influence and control over colonial judges, see Declaration of Independence ¶ 11, the framers made a considered judgment to build judicial independence into the Constitution’s design. They vested the judicial power in decisionmakers with life tenure. Art. III, §1. They placed the judicial salary beyond political control during a judge’s tenure. Ibid. And they rejected any proposal that would subject judicial decisions to review by political actors. The Federalist No. 81, at 482; United States v. Hansen , 599 U.S. 762, 786–791 (2023) (Thomas, J., concurring). All of this served to ensure the same thing: “A fair trial in a fair tribunal.” In re Murchison , 349 U.S. 133 , 136 (1955). One in which impartial judges, not those currently wielding power in the political branches, would “say what the law is” in cases coming to court. Marbury , 1 Cranch, at 177. Chevron deference undermines all that. It precludes courts from exercising the judicial power vested in them by Article III to say what the law is. It forces judges to abandon the best reading of the law in favor of views of those presently holding the reins of the Executive Branch. It requires judges to change, and change again, their interpretations of the law as and when the government demands. And that transfer of power has exactly the sort of consequences one might expect. Rather than insulate adjudication from power and politics to ensure a fair hearing “without respect to persons” as the federal judicial oath demands, 28 U. S. C. §453, Chevron deference requires courts to “place a finger on the scales of justice in favor of the most powerful of litigants, the federal government.” Buffington , 598 U. S., at ___ (slip op., at 9). Along the way, Chevron deference guarantees “systematic bias” in favor of whichever political party currently holds the levers of executive power. P. Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187, 1212 (2016). Chevron deference undermines other aspects of our settled law, too. In this country, we often boast that the Constitution’s promise of due process of law, see Amdts. 5, 14, means that “ ‘no man can be a judge in his own case.’ ” Williams v. Pennsylvania , 579 U.S. 1, 8–9 (2016); Calder v. Bull , 3 Dall. 386, 388 (1798) (opinion of Chase, J.). That principle, of course, has even deeper roots, tracing far back into the common law where it was known by the Latin maxim nemo iudex in causa sua . See 1 E. Coke, Institutes of the Laws of England §212, *141a. Yet, under the Chevron regime, all that means little, for executive agencies may effectively judge the scope of their own lawful powers. See, e.g., Arlington v. FCC , 569 U.S. 290 , 296–297 (2013). Traditionally, as well, courts have sought to construe statutes as a reasonable reader would “when the law was made.” Blackstone 59; see United States v. Fisher , 2 Cranch 358, 386 (1805). Today, some call this “textualism.” But really it’s a very old idea, one that constrains judges to a lawfinding rather than lawmaking role by focusing their work on the statutory text, its linguistic context, and various canons of construction. In that way, textualism serves as an essential guardian of the due process promise of fair notice. If a judge could discard an old meaning and assign a new one to a law’s terms, all without any legislative revision, how could people ever be sure of the rules that bind them? New Prime Inc. v. Oliveira , 586 U.S. 105, 113 (2019). Were the rules otherwise, Blackstone warned, the people would be rendered “slaves to their magistrates.” 4 Blackstone 371. Yet, replace “magistrates” with “bureaucrats,” and Blackstone’s fear becomes reality when courts employ Chevron deference. Whenever we confront an ambiguity in the law, judges do not seek to resolve it impartially according to the best evidence of the law’s original meaning. Instead, we resort to a far cruder heuristic: “The reasonable bureaucrat always wins.” And because the reasonable bureaucrat may change his mind year-to-year and election-to-election, the people can never know with certainty what new “interpretations” might be used against them. This “fluid” approach to statutory interpretation is “as much a trap for the innocent as the ancient laws of Caligula,” which were posted so high up on the walls and in print so small that ordinary people could never be sure what they required. United States v. Cardiff , 344 U.S. 174 , 176 (1952). The ancient rule of lenity is still another of Chevron ’s victims. Since the founding, American courts have construed ambiguities in penal laws against the government and with lenity toward affected persons. Wooden v. United States , 595 U.S. 360, 388–390 (2022) (Gorsuch, J., concurring in judgment). That principle upholds due process by safeguarding individual liberty in the face of ambiguous laws. Ibid. And it fortifies the separation of powers by keeping the power of punishment firmly “ ‘in the legislative, not in the judicial department.’ ” Id. , at 391 (quoting United States v. Wiltberger , 5 Wheat. 76, 95 (1820)). But power begets power. And pressing Chevron deference as far as it can go, the government has sometimes managed to leverage “ambiguities” in the written law to penalize conduct Congress never clearly proscribed. Compare Guedes v. ATF , 920 F.3d 1, 27–28, 31 (CADC 2019), with Garland v. Cargill , 602 U.S. 604 (2024). In all these ways, Chevron ’s fiction has led us to a strange place. One where authorities long thought reserved for Article III are transferred to Article II, where the scales of justice are tilted systematically in favor of the most powerful, where legal demands can change with every election even though the laws do not, and where the people are left to guess about their legal rights and responsibilities. So much tension with so many foundational features of our legal order is surely one more sign that we have “taken a wrong turn along the way.” Kisor v. Wilkie , 588 U.S. 558, 607 (2019) (Gorsuch, J., concurring in judgment).[ 5 ] 3 Finally, consider workability and reliance. If, as I have sought to suggest, these factors may sometimes serve as useful proxies for the question whether a precedent comports with the historic tide of judicial practice or represents an aberrational mistake, see Part I–C, supra , they certainly do here. Take Chevron ’s “workability.” Throughout its short life, this Court has been forced to supplement and revise Chevron so many times that no one can agree on how many “steps” it requires, nor even what each of those “steps” entails. Some suggest that the analysis begins with “step zero” (perhaps itself a tell), an innovation that traces to United States v. Mead Corp. , 533 U.S. 218 . Mead held that, before even considering whether Chevron applies, a court must determine whether Congress meant to delegate to the agency authority to interpret the law in a given field. 533 U. S., at 226–227. But that exercise faces an immediate challenge: Because Chevron depends on a judicially implied, rather than a legislatively expressed, delegation of interpretive authority to an executive agency, Part II–A, supra , when should the fiction apply and when not? Mead fashioned a multifactor test for judges to use. 533 U. S., at 229–231. But that test has proved as indeterminate in application as it was contrived in origin. Perhaps for these reasons, perhaps for others, this Court has sometimes applied Mead and often ignored it. See Brand X , 545 U. S., at 1014, n. 8 (Scalia, J., dissenting). Things do not improve as we move up the Chevron ladder. At “step one,” a judge must defer to an executive official’s interpretation when the statute at hand is “ambiguous.” But even today, Chevron ’s principal beneficiary—the federal government—still cannot say when a statute is sufficiently ambiguous to trigger deference. See, e.g. , Tr. of Oral Arg. in American Hospital Assn. v. Becerra , O. T. 2021, No. 20–1114, pp. 71–72. Perhaps thanks to this particular confusion, the search for ambiguity has devolved into a sort of Snark hunt: Some judges claim to spot it almost everywhere, while other equally fine judges claim never to have seen it. Compare L. Silberman, Chevron —The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 826 (1990), with R. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017). Nor do courts agree when it comes to “step two.” There, a judge must assess whether an executive agency’s interpretation of an ambiguous statute is “reasonable.” But what does that inquiry demand? Some courts engage in a comparatively searching review; others almost reflexively defer to an agency’s views. Here again, courts have pursued “wildly different” approaches and reached wildly different conclusions in similar cases. See B. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2152 (2016) (Kavanaugh). Today’s cases exemplify some of these problems. We have before us two circuit decisions, three opinions, and at least as many interpretive options on the Chevron menu. On the one hand, we have the D. C. Circuit majority, which deemed the Magnuson-Stevens Act “ambiguous” and upheld the agency’s regulation as “ ‘permissible.’ ” 45 F. 4th 359, 365 (2022). On the other hand, we have the D. C. Circuit dissent, which argues the statute is “unambiguou[s]” and that it plainly forecloses the agency’s new rule. Id. , at 372 (opinion of Walker, J.). And on yet a third hand, we have the First Circuit, which claimed to have identified “clear textual support” for the regulation, yet refused to say whether it would “classify [its] conclusion as a product of Chevron step one or step two.” 62 F. 4th 621, 631, 634 (2023). As these cases illustrate, Chevron has turned statutory interpretation into a game of bingo under blindfold, with parties guessing at how many boxes there are and which one their case might ultimately fall in. Turn now from workability to reliance. Far from engendering reliance interests, the whole point of Chevron deference is to upset them. Under Chevron , executive officials can replace one “reasonable” interpretation with another at any time, all without any change in the law itself. The result: Affected individuals “can never be sure of their legal rights and duties.” Buffington , 598 U. S., at ___ (slip op., at 12). How bad is the problem? Take just one example. Brand X concerned a law regulating broadband internet services. There, the Court upheld an agency rule adopted by the administration of President George W. Bush because it was premised on a “reasonable” interpretation of the statute. Later, President Barack Obama’s administration rescinded the rule and replaced it with another. Later still, during President Donald J. Trump’s administration, officials replaced that rule with a different one, all before President Joseph R. Biden, Jr.’s administration declared its intention to reverse course for yet a fourth time. See Safeguarding and Securing the Open Internet, 88 Fed. Reg. 76048 (2023); Brand X , 545 U. S., at 981–982. Each time, the government claimed its new rule was just as “reasonable” as the last. Rather than promoting reliance by fixing the meaning of the law, Chevron deference engenders constant uncertainty and convulsive change even when the statute at issue itself remains unchanged. Nor are these antireliance harms distributed equally. Sophisticated entities and their lawyers may be able to keep pace with rule changes affecting their rights and responsibilities. They may be able to lobby for new “ ‘reasonable’ ” agency interpretations and even capture the agencies that issue them. Buffington , 598 U. S., at ___, ___ (slip op., at 8, 13). But ordinary people can do none of those things. They are the ones who suffer the worst kind of regulatory whiplash Chevron invites. Consider a couple of examples. Thomas Buffington, a veteran of the U. S. Air Force, was injured in the line of duty. For a time after he left the Air Force, the Department of Veterans Affairs (VA) paid disability benefits due him by law. But later the government called on Mr. Buffington to reenter active service. During that period, everyone agreed, the VA could (as it did) suspend his disability payments. After he left active service for a second time, however, the VA turned his patriotism against him. By law, Congress permitted the VA to suspend disability pay only “for any period for which [a servicemember] receives active service pay.” 38 U. S. C. §5304(c). But the VA had adopted a self-serving regulation requiring veterans to file a form asking for the resumption of their disability pay after a second (or subsequent) stint in active service. 38 CFR §3.654(b)(2) (2021). Unaware of the regulation, Mr. Buffington failed to reapply immediately. When he finally figured out what had happened and reapplied, the VA agreed to resume payments going forward but refused to give Mr. Buffington all of the past disability payments it had withheld. Buffington , 598 U. S., at ___–___ (slip op., at 1–4). Mr. Buffington challenged the agency’s action as inconsistent with Congress’s direction that the VA may suspend disability payments only for those periods when a veteran returns to active service. But armed with Chevron , the agency defeated Mr. Buffington’s claim. Maybe the self-serving regulation the VA cited as justification for its action was not premised on the best reading of the law, courts said, but it represented a “ ‘permissible’ ” one. 598 U. S., at ___ (slip op., at 7). In that way, the Executive Branch was able to evade Congress’s promises to someone who took the field repeatedly in the Nation’s defense. In another case, one which I heard as a court of appeals judge, De Niz Robles v. Lynch , 803 F.3d 1165 (CA10 2015), the Board of Immigration Appeals invoked Chevron to overrule a judicial precedent on which many immigrants had relied, see In re Briones , 24 I. & N. Dec. 355, 370 (BIA 2007) (purporting to overrule Padilla–Caldera v. Gonzales , 426 F.3d 1294 (CA10 2005)). The agency then sought to apply its new interpretation retroactively to punish those immigrants—including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U. S. wife and four children. See 803 F. 3d, at 1168–1169. Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated Mr. De Niz Robles’s due process rights. Id. , at 1172. But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different “reasonable” one and in that way deny relief to countless future immigrants. Those are just two stories among so many that federal judges could tell (and have told) about what Chevron deference has meant for ordinary people interacting with the federal government. See, e.g. , Lambert v. Saul , 980 F.3d 1266, 1268–1276 (CA9 2020); Valent v. Commissioner of Social Security , 918 F.3d 516, 525–527 (CA6 2019) (Kethledge, J., dissenting); Gonzalez v. United States Atty. Gen. , 820 F.3d 399, 402–405 (CA11 2016) ( per curiam ). What does the federal government have to say about this? It acknowledges that Chevron sits as a heavy weight on the scale in favor of the government, “oppositional” to many “categories of individuals.” Tr. of Oral Arg. in No. 22–1219, p. 133 (Relentless Tr.). But, according to the government, Chevron deference is too important an innovation to undo. In its brief reign, the government says, it has become a “fundamenta[l] . . . ground rul[e] for how all three branches of the government are operating together.” Relentless Tr. 102. But, in truth, the Constitution, the APA, and our longstanding precedents set those ground rules some time ago. And under them, agencies cannot invoke a judge-made fiction to unsettle our Nation’s promise to individuals that they are entitled to make their arguments about the law’s demands on them in a fair hearing, one in which they stand on equal footing with the government before an independent judge. C How could a Court, guided for 200 years by Chief Justice Marshall’s example, come to embrace a counter- Marbury revolution, one at war with the APA, time honored precedents, and so much surrounding law? To answer these questions, turn to Lesson 3 and witness the temptation to endow a stray passage in a judicial decision with extraordinary authority. Call it “power quoting.” Chevron was an unlikely place for a revolution to begin. The case concerned the Clean Air Act’s requirement that States regulate “stationary sources” of air pollution in their borders. See 42 U. S. C. §7401 et seq . At the time, it was an open question whether entire industrial plants or their constituent polluting parts counted as “stationary sources.” The Environmental Protection Agency had defined entire plants as sources, an approach that allowed companies to replace individual plant parts without automatically triggering the permitting requirements that apply to new sources. Chevron , 467 U. S., at 840. This Court upheld the EPA’s definition as consistent with the governing statute. Id ., at 866. The decision, issued by a bare quorum of the Court, without concurrence or dissent, purported to apply “well-settled principles.” Id ., at 845. “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue,” Chevron provided, then “that intention is the law and must be given effect.” Id ., at 843, n. 9. Many of the cases Chevron cited to support its judgment stood for the traditional proposition that courts afford respectful consideration, not deference, to executive interpretations of the law. See, e.g. , Burnet , 285 U. S., at 16; United States v. Moore , 95 U.S. 760 , 763 (1878). And the decision’s sole citation to legal scholarship was to Roscoe Pound, who long championed de novo judicial review. 467 U. S., at 843, n. 10; see R. Pound, The Place of the Judiciary in a Democratic Polity, 27 A. B. A. J. 133, 136–137 (1941). At the same time, of course, the opinion contained bits and pieces that spoke differently. The decision also said that, “if [a] statute is silent or ambiguous with respect to [a] specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” 467 U. S., at 843. But it seems the government didn’t advance this formulation in its brief, so there was no adversarial engagement on it. T. Merrill, The Story of Chevron : The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 268 (2014) (Merrill). As we have seen, too, the Court did not pause to consider (or even mention) the APA. See Part II–A, supra. It did not discuss contrary precedents issued by the Court since the founding, let alone purport to overrule any of them. See Part II–B–1, supra. Nor did the Court seek to address how its novel rule of deference might be squared with so much surrounding law. See Part II–B–2, supra . As even its defenders have acknowledged, “ Chevron barely bothered to justify its rule of deference, and the few brief passages on this matter pointed in disparate directions.” Kagan 212–213. “[T]he quality of the reasoning,” they acknowledge, “was not high,” C. Sunstein, Chevron as Law, 107 Geo. L. J. 1613, 1669 (2019). If Chevron meant to usher in a revolution in how judges interpret laws, no one appears to have realized it at the time. Chevron ’s author, Justice Stevens, characterized the decision as a “simpl[e] . . . restatement of existing law, nothing more or less.” Merrill 255, 275. In the “19 argued cases” in the following Term “that presented some kind of question about whether the Court should defer to an agency interpretation of statutory law,” this Court cited Chevron just once. Merrill 276. By some accounts, the decision seemed “destined to obscurity.” Ibid . It was only three years later when Justice Scalia wrote a concurrence that a revolution began to take shape. Buffington , 598 U. S., at ___ (slip op., at 8). There, he argued for a new rule requiring courts to defer to executive agency interpretations of the law whenever a “ ‘statute is silent or ambiguous.’ ” NLRB v. Food & Commercial Workers , 484 U.S. 112 , 133–134 (1987) (opinion of Scalia, J.). Eventually, a majority of the Court followed his lead. Buffington , 598 U. S., at ___ (slip op., at 8). But from the start, Justice Scalia made no secret about the scope of his ambitions. See Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 521 (1989) (Scalia). The rule he advocated for represented such a sharp break from prior practice, he explained, that many judges of his day didn’t yet “understand” the “old criteria” were “no longer relevant.” Ibid . Still, he said, overthrowing the past was worth it because a new deferential rule would be “easier to follow.” Ibid. Events proved otherwise. As the years wore on and the Court’s new and aggressive reading of Chevron gradually exposed itself as unworkable, unfair, and at odds with our separation of powers, Justice Scalia could have doubled down on the project. But he didn’t. He appreciated that stare decisis is not a rule of “if I thought it yesterday, I must think it tomorrow.” And rather than cling to the pride of personal precedent, the Justice began to express doubts over the very project that he had worked to build. See Perez v. Mortgage Bankers Assn. , 575 U.S. 92 , 109–110 (2015) (opinion concurring in judgment); cf. Decker v. Northwest Environmental Defense Center , 568 U.S. 597 , 617–618, 621 (2013) (opinion concurring in part and dissenting in part). If Chevron ’s ascent is a testament to the Justice’s ingenuity, its demise is an even greater tribute to his humility.[ 6 ] Justice Scalia was not alone in his reconsideration. After years spent laboring under Chevron , trying to make sense of it and make it work, Member after Member of this Court came to question the project. See, e.g. , Pereira v. Sessions , 585 U.S. 198, 219–221 (2018) (Kennedy, J., concurring); Michigan v. EPA , 576 U.S. 743 , 760–764 (2015) (Thomas, J., concurring); Kisor , 588 U. S., at 591 (Roberts, C. J., concurring in part); Gutierrez-Brizuela , 834 F. 3d, at 1153; Buffington , 598 U. S., at ___–___ (slip op., at 14–15); Kavanaugh 2150–2154. Ultimately, the Court gave up. Despite repeated invitations, it has not applied Chevron deference since 2016. Relentless Tr. 81; App. to Brief for Respondents in No. 22–1219, p. 68a. So an experiment that began only in the mid-1980s effectively ended eight years ago. Along the way, an unusually large number of federal appellate judges voiced their own thoughtful and extensive criticisms of Chevron . Buffington , 598 U. S., at ___–___ (slip op., at 14–15) (collecting examples). A number of state courts did, too, refusing to import Chevron deference into their own administrative law jurisprudence. See 598 U. S., at ___ (slip op., at 15). Even if all that and everything else laid out above is true, the government suggests we should retain Chevron deference because judges simply cannot live without it; some statutes are just too “technical” for courts to interpret “intelligently.” Post , at 9, 32 (dissenting opinion). But that objection is no answer to Chevron ’s inconsistency with Congress’s directions in the APA, so much surrounding law, or the challenges its multistep regime have posed in practice. Nor does history counsel such defeatism. Surely, it would be a mistake to suggest our predecessors before Chevron ’s rise in the mid-1980s were unable to make their way intelligently through technical statutory disputes. Following their lead, over the past eight years this Court has managed to resolve even highly complex cases without Chevron deference, and done so even when the government sought deference. Nor, as far as I am aware, did any Member of the Court suggest Chevron deference was necessary to an intelligent resolution of any of those matters.[ 7 ] If anything, by affording Chevron deference a period of repose before addressing whether it should be retained, the Court has enabled its Members to test the propriety of that precedent and reflect more deeply on how well it fits into the broader architecture of our law. Others may see things differently, see post , at 26–27 (dissenting opinion), but the caution the Court has exhibited before overruling Chevron may illustrate one of the reasons why the current Court has been slower to overrule precedents than some of its predecessors, see Part I–C, supra . None of this, of course, discharges any Member of this Court from the task of deciding for himself or herself today whether Chevron deference itself warrants deference. But when so many past and current judicial colleagues in this Court and across the country tell us our doctrine is misguided, and when we ourselves managed without Chevron for centuries and manage to do so today, the humility at the core of stare decisis compels us to pause and reflect carefully on the wisdom embodied in that experience. And, in the end, to my mind the lessons of experience counsel wisely against continued reliance on Chevron ’s stray and unconsidered digression. This Court’s opinions fill over 500 volumes, and perhaps “some printed judicial word may be found to support almost any plausible proposition.” R. Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944). It is not for us to pick and choose passages we happen to like and demand total obedience to them in perpetuity. That would turn stare decisis from a doctrine of humility into a tool for judicial opportunism. Brown , 596 U. S., at 141. III Proper respect for precedent helps “keep the scale of justice even and steady,” by reinforcing decisional rules consistent with the law upon which all can rely. 1 Blackstone 69. But that respect does not require, nor does it readily tolerate, a steadfast refusal to correct mistakes. As early as 1810, this Court had already overruled one of its cases. See Hudson v. Guestier , 6 Cranch 281, 284 (overruling Rose v. Himely , 4 Cranch 241 (1808)). In recent years, the Court may have overruled precedents less frequently than it did during the Warren and Burger Courts. See Part I–C, supra . But the job of reconsidering past decisions remains one every Member of this Court faces from time to time.[ 8 ] Justice William O. Douglas served longer on this Court than any other person in the Nation’s history. During his tenure, he observed how a new colleague might be inclined initially to “revere” every word written in an opinion issued before he arrived. W. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949). But, over time, Justice Douglas reflected, his new colleague would “remembe[r] . . . that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.” Ibid. And “[s]o he [would] com[e] to formulate his own views, rejecting some earlier ones as false and embracing others.” Ibid. This process of reexamination, Justice Douglas explained, is a “necessary consequence of our system” in which each judge takes an oath—both “personal” and binding—to discern the law’s meaning for himself and apply it faithfully in the cases that come before him. Id. , at 736–737. Justice Douglas saw, too, how appeals to precedent could be overstated and sometimes even overwrought. Judges, he reflected, would sometimes first issue “new and startling decision[s],” and then later spin around and “acquire an acute conservatism” in their aggressive defense of “their new status quo .” Id ., at 737. In that way, even the most novel and unlikely decisions became “coveted anchorage[s],” defended heatedly, if ironically, under the banner of “ stare decisis .” Ibid. ; see also Edwards v. Vannoy , 593 U.S. 255, 294, n. 7 (2021) (Gorsuch, J., concurring). That is Chevron ’s story: A revolution masquerading as the status quo. And the defense of it follows the same course Justice Douglas described. Though our dissenting colleagues have not hesitated to question other precedents in the past, they today manifest what Justice Douglas called an “acute conservatism” for Chevron ’s “startling” development, insisting that if this “coveted anchorage” is abandoned the heavens will fall. But the Nation managed to live with busy executive agencies of all sorts long before the Chevron revolution began to take shape in the mid-1980s. And all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor. Proper respect for precedent does not begin to suggest otherwise. Instead, it counsels respect for the written law, adherence to consistent teachings over aberrations, and resistance to the temptation of treating our own stray remarks as if they were statutes. And each of those lessons points toward the same conclusion today: Chevron deference is inconsistent with the directions Congress gave us in the APA. It represents a grave anomaly when viewed against the sweep of historic judicial practice. The decision undermines core rule-of-law values ranging from the promise of fair notice to the promise of a fair hearing. Even on its own terms, it has proved unworkable and operated to undermine rather than advance reliance interests, often to the detriment of ordinary Americans. And from the start, the whole project has relied on the overaggressive use of snippets and stray remarks from an opinion that carried mixed messages. Stare decisis ’s true lesson today is not that we are bound to respect Chevron ’s “startling development,” but bound to inter it. Notes 1 For relevant databases of decisions, see Congressional Research Service, Table of Supreme Court Decisions Overruled by Subsequent Decisions, Constitution Annotated, https://constitution.congress.gov/resources/decisions-overruled/; see also H. Spaeth et al., 2023 Supreme Court Database, http://supremecourtdatabase.org. 2 See also A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 516–517 (1989) (describing Chevron ’s theory that Congress “delegat[ed]” interpretive authority to agencies as “fictional”); S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) (describing the notion that there exists a “ ‘legislative intent to delegate the law-interpreting function’ as a kind of legal fiction”). 3 The dissent suggests that we need not take the APA’s directions quite so seriously because the “finest administrative law scholars” from Harvard claim to see in them some wiggle room. Post , at 18 (opinion of Kagan, J.). But nothing in the APA commands deference to the views of professors any more than it does the government. Nor is the dissent’s list of Harvard’s finest administrative law scholars entirely complete. See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7th ed. 2011) (acknowledging that Chevron deference “seems in conflict with . . . the apparently contrary language of 706”); Kagan 212 (likewise acknowledging Chevron deference rests upon a “fictionalized statement of legislative desire”). 4 Accord, National Lead Co. v. United States , 252 U.S. 140 , 145–146 (1920) (affording “great weight” to a “contemporaneous construction” by the executive that had “been long continued”); Jacobs v. Prichard , 223 U.S. 200 , 214 (1912) (“find[ing] no ambiguity in the act” but also finding “strength” for the Court’s interpretation in the executive’s “immediate and continued construction of the act”); Schell’s Executors v. Fauché , 138 U.S. 562 , 572 (1891) (treating as “controlling” a “contemporaneous construction” of a law endorsed “not only [by] the courts but [also by] the departments”). 5 The dissent suggests that Chevron deference bears at least something in common with surrounding law because it resembles a presumption or traditional canon of construction, and both “are common.” Post , at 8, n. 1, 28–29 (opinion of Kagan, J.). But even that thin reed wavers at a glance. Many of the presumptions and interpretive canons the dissent cites—including lenity, contra proferentem , and others besides—“ ‘embod[y] . . . legal doctrine[s] centuries older than our Republic.’ ” Opati v. Republic of Sudan , 590 U.S. 418, 425 (2020). Chevron deference can make no such boast. Many of the presumptions and canons the dissent cites also serve the Constitution, protecting the lines of authority it draws. Take just two examples: The federalism canon tells courts to presume federal statutes do not preempt state laws because of the sovereignty States enjoy under the Constitution. Bond v. United States , 572 U.S. 844 , 858 (2014). The presumption against retroactivity serves as guardian of the Constitution’s promise of due process and its ban on ex post facto laws, Landgraf v. USI Film Products , 511 U.S. 244 , 265 (1994). Once more, however, Chevron deference can make no similar claim. Rather than serve the Constitution’s usual rule that litigants are entitled to have an independent judge interpret disputed legal terms, Chevron deference works to undermine that promise. As explored above, too, Chevron deference sits in tension with many traditional legal presumptions and interpretive principles, representing nearly the inverse of the rules of lenity, nemo iudex , and contra proferentem . 6 It should be recalled that, when Justice Scalia launched the Chevron revolution, there were many judges who “abhor[red] . . . ‘plain meaning’ ” and preferred instead to elevate “legislative history” and their own curated accounts of a law’s “purpose[s]” over enacted statutory text. Scalia 515, 521. Chevron , he predicted, would provide a new guardrail against that practice. Scalia 515, 521 . As the Justice’s later writings show, he had the right diagnosis, just the wrong cure. The answer for judges eliding statutory terms is not deference to agencies that may seek to do the same, but a demand that all return to a more faithful adherence to the written law. That was, of course, another project Justice Scalia championed. And as we like to say, “we’re all textualists now.” 7 See, e.g., Becerra v. Empire Health Foundation, for Valley Hospital Medical Center , 597 U.S. 424, 434 (2022) (resolving intricate Medicare dispute by reference solely to “text,” “context,” and “structure”); see also Sackett v. EPA , 598 U.S. 651 (2023) (same in a complex Clean Water Act dispute); Johnson v. Guzman Chavez , 594 U.S. 523 (2021) (same in technical immigration case). 8 Today’s dissenters are no exceptions. They have voted to overrule precedents that they consider “wrong,” Hurst v. Florida , 577 U.S. 92 , 101 (2016) (opinion for the Court by Sotomayor, J., joined by, inter alios , Kagan, J.); Obergefell v. Hodges , 576 U.S. 644 , 665, 675 (2015) (opinion for the Court, joined by, inter alios , Sotomayor and Kagan, JJ.); that conflict with the Constitution’s “original meaning,” Alleyne v. United States , 570 U.S. 99 , 118 (2013) (Sotomayor, J., joined by, inter alias , Kagan, J., concurring); and that have proved “unworkable,” Johnson v. United States , 576 U.S. 591 , 605 (2015) (opinion for the Court, joined by, inter alios , Sotomayor and Kagan, JJ.); see also Erlinger v. United States , 602 U. S. ___, ___ (2024) (Jackson, J., dissenting) (slip op., at 1) (arguing Apprendi v. New Jersey , 530 U.S. 466 (2000), and the many cases applying it were all “wrongly decided”). SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–451 and 22–1219 _________________ LOPER BRIGHT ENTERPRISES, et al., PETITIONERS 22–451 v. GINA RAIMONDO, SECRETARY OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit RELENTLESS, INC., et al., PETITIONERS 22–1219 v. DEPARTMENT OF COMMERCE, et al. on writ of certiorari to the united states court of appeals for the first circuit [June 28, 2024] Justice Kagan, with whom Justice Sotomayor and Justice Jackson join,[ 1 ]* dissenting. For 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), has served as a cornerstone of administrative law, allocating responsibility for statutory construction between courts and agencies. Under Chevron , a court uses all its normal interpretive tools to determine whether Congress has spoken to an issue. If the court finds Congress has done so, that is the end of the matter; the agency’s views make no difference. But if the court finds, at the end of its interpretive work, that Congress has left an ambiguity or gap, then a choice must be made. Who should give content to a statute when Congress’s instructions have run out? Should it be a court? Or should it be the agency Congress has charged with administering the statute? The answer Chevron gives is that it should usually be the agency, within the bounds of reasonableness. That rule has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest. And the rule is right. This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not. And some present policy choices, including trade-offs between competing goods. Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy. And of course Congress has conferred on that expert, experienced, and politically accountable agency the authority to administer—to make rules about and otherwise implement—the statute giving rise to the ambiguity or gap. Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A. , 517 U.S. 735 , 740–741 (1996). Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. See, e.g. , National Federation of Independent Business v. OSHA , 595 U.S. 109 (2022); West Virginia v. EPA , 597 U.S. 697 (2022); Biden v. Nebraska , 600 U.S. 477 (2023). But evidently that was, for this Court, all too piecemeal. In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice. And the majority cannot destroy one doctrine of judicial humility without making a laughing-stock of a second. (If opinions had titles, a good candidate for today’s would be Hubris Squared.) Stare decisis is, among other things, a way to remind judges that wisdom often lies in what prior judges have done. It is a brake on the urge to convert “every new judge’s opinion” into a new legal rule or regime. Dobbs v. Jackson Women’s Health Organization , 597 U.S. 215, 388 (2022) (joint opinion of Breyer, Sotomayor, and Kagan, JJ., dissenting) (quoting 1 W. Blackstone, Commentaries on the Laws of England 69 (7th ed. 1775)). Chevron is entrenched precedent, entitled to the protection of stare decisis , as even the majority acknowledges. In fact, Chevron is entitled to the supercharged version of that doctrine because Congress could always overrule the decision, and because so many governmental and private actors have relied on it for so long. Because that is so, the majority needs a “particularly special justification” for its action. Kisor v. Wilkie , 588 U.S. 558, 588 (2019) (opinion of the Court). But the majority has nothing that would qualify. It barely tries to advance the usual factors this Court invokes for overruling precedent. Its justification comes down, in the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power. I Begin with the problem that gave rise to Chevron (and also to its older precursors): The regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress “consciously desired” the administering agency to fill in aspects of the legislative scheme, believing that regulatory experts would be “in a better position” than legislators to do so. Chevron , 467 U. S., at 865. Or “perhaps Congress was unable to forge a coalition on either side” of a question, and the contending parties “decided to take their chances with” the agency’s resolution. Ibid. Sometimes, though, the gaps or ambiguities are what might be thought of as predictable accidents. They may be the result of sloppy drafting, a not infrequent legislative occurrence. Or they may arise from the well-known limits of language or foresight. Accord, ante , at 7, 22. “The subject matter” of a statutory provision may be too “specialized and varying” to “capture in its every detail.” Kisor , 588 U. S., at 566 (plurality opinion). Or the provision may give rise, years or decades down the road, to an issue the enacting Congress could not have anticipated. Whichever the case—whatever the reason—the result is to create uncertainty about some aspect of a provision’s meaning. Consider a few examples from the caselaw. They will help show what a typical Chevron question looks like—or really, what a typical Chevron question is . Because when choosing whether to send some class of questions mainly to a court, or mainly to an agency, abstract analysis can only go so far; indeed, it may obscure what matters most. So I begin with the concrete: Under the Public Health Service Act, the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” 42 U. S. C. §262(i)(1). When does an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA , 514 F. Supp. 3d 66, 79–80, 93–106 (DC 2020). Under the Endangered Species Act, the Fish and Wildlife Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population segment[s]” of those species. 16 U. S. C. §1532(16); see §1533. What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” 00because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest? See Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv. , 475 F.3d 1136, 1140–1145, 1149 (CA9 2007). Under the Medicare program, reimbursements to hospitals are adjusted to reflect “differences in hospital wage levels” across “geographic area[s].” 42 U. S. C. §1395ww(d)(3)(E)(i). How should the Department of Health and Human Services measure a “geographic area”? By city? By county? By metropolitan area? See Bellevue Hospital Center v. Leavitt , 443 F.3d 163 , 174–176 (CA2 2006). Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to “provide for substantial restoration of the natural quiet.” §3(b)(1), 101 Stat. 676; see §3(b)(2). How much noise is consistent with “the natural quiet”? And how much of the park, for how many hours a day, must be that quiet for the “substantial restoration” requirement to be met? See Grand Canyon Air Tour Coalition v. FAA , 154 F.3d 455 , 466–467, 474–475 (CADC 1998). Or take Chevron itself. In amendments to the Clean Air Act, Congress told States to require permits for modifying or constructing “stationary sources” of air pollution. 42 U. S. C. §7502(c)(5). Does the term “stationary source[ ]” refer to each pollution-emitting piece of equipment within a plant? Or does it refer to the entire plant, and thus allow escape from the permitting requirement when increased emissions from one piece of equipment are offset by reductions from another? See 467 U. S., at 857, 859. In each case, a statutory phrase has more than one reasonable reading. And Congress has not chosen among them: It has not, in any real-world sense, “fixed” the “single, best meaning” at “the time of enactment” (to use the majority’s phrase). Ante , at 22. A question thus arises: Who decides which of the possible readings should govern? This Court has long thought that the choice should usually fall to agencies, with courts broadly deferring to their judgments. For the last 40 years, that doctrine has gone by the name of Chevron deference, after the 1984 decision that formalized and canonized it. In Chevron , the Court set out a simple two-part framework for reviewing an agency’s interpretation of a statute that it administers. First, the reviewing court must determine whether Congress has “directly spoken to the precise question at issue.” 467 U. S., at 842. That inquiry is rigorous: A court must exhaust all the “traditional tools of statutory construction” to divine statutory meaning. Id. , at 843, n. 9. And when it can find that meaning—a “single right answer”—that is “the end of the matter”: The court cannot defer because it “must give effect to the unambiguously expressed intent of Congress.” Kisor , 588 U. S., at 575 (opinion of the Court); Chevron , 467 U. S., at 842–843. But if the court, after using its whole legal toolkit, concludes that “the statute is silent or ambiguous with respect to the specific issue” in dispute—for any of the not-uncommon reasons discussed above—then the court must cede the primary interpretive role. Ibid. ; see supra , at 4–5. At that second step, the court asks only whether the agency construction is within the sphere of “reasonable” readings. Chevron , 467 U. S., at 844. If it is, the agency’s interpretation of the statute that it every day implements will control. That rule, the Court has long explained, rests on a presumption about legislative intent—about what Congress wants when a statute it has charged an agency with implementing contains an ambiguity or a gap. See id. , at 843–845; Smiley , 517 U. S., at 740–741. An enacting Congress, as noted above, knows those uncertainties will arise, even if it does not know what they will turn out to be. See supra , at 4–5. And every once in a while, Congress provides an explicit instruction for dealing with that contingency—assigning primary responsibility to the courts, or else to an agency. But much more often, Congress does not say. Thus arises the need for a presumption—really, a default rule—for what should happen in that event. Does a statutory silence or ambiguity then go to a court for resolution? Or to an agency? This Court has long thought Congress would choose an agency, with courts serving only as a backstop to make sure the agency makes a reasonable choice among the possible readings. Or said otherwise, Congress would select the agency it has put in control of a regulatory scheme to exercise the “degree of discretion” that the statute’s lack of clarity or completeness allows. Smiley , 517 U. S., at 741. Of course, Congress can always refute that presumptive choice—can say that, really, it would prefer courts to wield that discretionary power. But until then, the presumption cuts in the agency’s favor.[ 2 ] The next question is why. For one, because agencies often know things about a statute’s subject matter that courts could not hope to. The point is especially stark when the statute is of a “scientific or technical nature.” Kisor , 588 U. S., at 571 (plurality opinion). Agencies are staffed with “experts in the field” who can bring their training and knowledge to bear on open statutory questions. Chevron , 467 U. S., at 865. Consider, for example, the first bulleted case above. When does an alpha amino acid polymer qualify as a “protein”? See supra , at 5. I don’t know many judges who would feel confident resolving that issue. (First question: What even is an alpha amino acid polymer?) But the FDA likely has scores of scientists on staff who can think intelligently about it, maybe collaborate with each other on its finer points, and arrive at a sensible answer. Or take the perhaps more accessible-sounding second case, involving the Endangered Species Act. See supra , at 5–6. Deciding when one squirrel population is “distinct” from another (and thus warrants protection) requires knowing about species more than it does consulting a dictionary. How much variation of what kind—geographic, genetic, morphological, or behavioral—should be required? A court could, if forced to, muddle through that issue and announce a result. But wouldn’t the Fish and Wildlife Service, with all its specialized expertise, do a better job of the task—of saying what, in the context of species protection, the open-ended term “distinct” means? One idea behind the Chevron presumption is that Congress—the same Congress that charged the Service with implementing the Act—would answer that question with a resounding “yes.” A second idea is that Congress would value the agency’s experience with how a complex regulatory regime functions, and with what is needed to make it effective. Let’s stick with squirrels for a moment, except broaden the lens. In construing a term like “distinct” in a case about squirrels, the Service likely would benefit from its “historical familiarity” with how the term has covered the population segments of other species. Martin v. Occupational Safety and Health Review Comm’n , 499 U.S. 144 , 153 (1991); see, e.g. , Center for Biological Diversity v. Zinke , 900 F.3d 1053, 1060–1062 (CA9 2018) (arctic grayling); Center for Biological Diversity v. Zinke , 868 F.3d 1054, 1056 (CA9 2017) (desert eagle). Just as a common-law court makes better decisions as it sees multiple variations on a theme, an agency’s construction of a statutory term benefits from its unique exposure to all the related ways the term comes into play. Or consider, for another way regulatory familiarity matters, the example about adjusting Medicare reimbursement for geographic wage differences. See supra , at 6. According to a dictionary, the term “geographic area” could be as large as a multi-state region or as small as a census tract. How to choose? It would make sense to gather hard information about what reimbursement levels each approach will produce, to explore the ease of administering each on a nationwide basis, to survey how regulators have dealt with similar questions in the past, and to confer with the hospitals themselves about what makes sense. See Kisor , 588 U. S., at 571 (plurality opinion) (noting that agencies are able to “conduct factual investigations” and “consult with affected parties”). Congress knows the Department of Health and Human Services can do all those things—and that courts cannot. Still more, Chevron ’s presumption reflects that resolving statutory ambiguities, as Congress well knows, is “often more a question of policy than of law.” Pauley v. BethEnergy Mines, Inc. , 501 U.S. 680 , 696 (1991). The task is less one of construing a text than of balancing competing goals and values. Consider the statutory directive to achieve “substantial restoration of the [Grand Canyon’s] natural quiet.” See supra , at 6. Someone is going to have to decide exactly what that statute means for air traffic over the canyon. How many flights, in what places and at what times, are consistent with restoring enough natural quiet on the ground? That is a policy trade-off of a kind familiar to agencies—but peculiarly unsuited to judges. Or consider Chevron itself. As the Court there understood, the choice between defining a “stationary source” as a whole plant or as a pollution-emitting device is a choice about how to “reconcile” two “manifestly competing interests.” 467 U. S., at 865. The plantwide definition relaxes the permitting requirement in the interest of promoting economic growth; the device-specific definition strengthens that requirement to better reduce air pollution. See id. , at 851, 863, 866. Again, that is a choice a judge should not be making, but one an agency properly can. Agencies are “subject to the supervision of the President, who in turn answers to the public.” Kisor , 588 U. S., at 571–572 (plurality opinion). So when faced with a statutory ambiguity, “an agency to which Congress has delegated policymaking responsibilities” may rely on an accountable actor’s “views of wise policy to inform its judgments.” Chevron , 467 U. S., at 865. None of this is to say that deference to agencies is always appropriate. The Court over time has fine-tuned the Chevron regime to deny deference in classes of cases in which Congress has no reason to prefer an agency to a court. The majority treats those “refinements” as a flaw in the scheme, ante , at 27, but they are anything but. Consider the rule that an agency gets no deference when construing a statute it is not responsible for administering. See Epic Systems Corp. v. Lewis , 584 U.S. 497, 519–520 (2018). Well, of course not—if Congress has not put an agency in charge of implementing a statute, Congress would not have given the agency a special role in its construction. Or take the rule that an agency will not receive deference if it has reached its decision without using—or without using properly—its rulemaking or adjudicatory authority. See United States v. Mead Corp. , 533 U.S. 218 , 226–227 (2001); Encino Motorcars, LLC v. Navarro , 579 U.S. 211, 220 (2016). Again, that should not be surprising: Congress expects that authoritative pronouncements on a law’s meaning will come from the procedures it has enacted to foster “fairness and deliberation” in agency decision-making. Mead , 533 U. S., at 230. Or finally, think of the “extraordinary cases” involving questions of vast “economic and political significance” in which the Court has declined to defer. King v. Burwell , 576 U.S. 473 , 485–486 (2015). The theory is that Congress would not have left matters of such import to an agency, but would instead have insisted on maintaining control. So the Chevron refinements proceed from the same place as the original doctrine. Taken together, they give interpretive primacy to the agency when—but only when—it is acting, as Congress specified, in the heartland of its delegated authority. That carefully calibrated framework “reflects a sensitivity to the proper roles of the political and judicial branches.” Pauley , 501 U. S., at 696. Where Congress has spoken, Congress has spoken; only its judgments matter. And courts alone determine when that has happened: Using all their normal interpretive tools, they decide whether Congress has addressed a given issue. But when courts have decided that Congress has not done so, a choice arises. Absent a legislative directive, either the administering agency or a court must take the lead. And the matter is more fit for the agency. The decision is likely to involve the agency’s subject-matter expertise; to fall within its sphere of regulatory experience; and to involve policy choices, including cost-benefit assessments and trade-offs between conflicting values. So a court without relevant expertise or experience, and without warrant to make policy calls, appropriately steps back. The court still has a role to play: It polices the agency to ensure that it acts within the zone of reasonable options. But the court does not insert itself into an agency’s expertise-driven, policy-laden functions. That is the arrangement best suited to keep every actor in its proper lane. And it is the one best suited to ensure that Congress’s statutes work in the way Congress intended. The majority makes two points in reply, neither convincing. First, it insists that “agencies have no special competence” in filling gaps or resolving ambiguities in regulatory statutes; rather, “[c]ourts do.” Ante , at 23. Score one for self-confidence; maybe not so high for self-reflection or -knowledge. Of course courts often construe legal texts, hopefully well. And Chevron ’s first step takes full advantage of that talent: There, a court tries to divine what Congress meant, even in the most complicated or abstruse statutory schemes. The deference comes in only if the court cannot do so—if the court must admit that standard legal tools will not avail to fill a statutory silence or give content to an ambiguous term. That is when the issues look like the ones I started off with: When does an alpha amino acid polymer qualify as a “protein”? How distinct is “distinct” for squirrel populations? What size “geographic area” will ensure appropriate hospital reimbursement? As between two equally feasible understandings of “stationary source,” should one choose the one more protective of the environment or the one more favorable to economic growth? The idea that courts have “special competence” in deciding such questions whereas agencies have “no[ne]” is, if I may say, malarkey. Answering those questions right does not mainly demand the interpretive skills courts possess. Instead, it demands one or more of: subject-matter expertise, long engagement with a regulatory scheme, and policy choice. It is courts (not agencies) that “have no special competence”—or even legitimacy—when those are the things a decision calls for. Second, the majority complains that an ambiguity or gap does not “necessarily reflect a congressional intent that an agency” should have primary interpretive authority. Ante , at 22. On that score, I’ll agree with the premise: It doesn’t “necessarily” do so. Chevron is built on a presumption . The decision does not maintain that Congress in every case wants the agency, rather than a court, to fill in gaps. The decision maintains that when Congress does not expressly pick one or the other, we need a default rule; and the best default rule—agency or court?—is the one we think Congress would generally want. As to why Congress would generally want the agency: The answer lies in everything said above about Congress’s delegation of regulatory power to the agency and the agency’s special competencies. See supra , at 9–11. The majority appears to think it is a showstopping rejoinder to note that many statutory gaps and ambiguities are “unintentional.” Ante , at 22. But to begin, many are not; the ratio between the two is uncertain. See supra , at 4–5. And to end, why should that matter in any event? Congress may not have deliberately introduced a gap or ambiguity into the statute; but it knows that pretty much everything it drafts will someday be found to contain such a “flaw.” Given that knowledge, Chevron asks, what would Congress want? The presumed answer is again the same (for the same reasons): The agency. And as with any default rule, if Congress decides otherwise, all it need do is say. In that respect, the proof really is in the pudding: Congress basically never says otherwise, suggesting that Chevron chose the presumption aligning with legislative intent (or, in the majority’s words, “approximat[ing] reality,” ante , at 22). Over the last four decades, Congress has authorized or reauthorized hundreds of statutes. The drafters of those statutes knew all about Chevron . See A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 928 (fig. 2), 994 (2013). So if they had wanted a different assignment of interpretive responsibility, they would have inserted a provision to that effect. With just a pair of exceptions I know of, they did not. See 12 U. S. C. §25b(b)(5)(A) (exception #1); 15 U. S. C. §8302(c)(3)(A) (exception #2). Similarly, Congress has declined to enact proposed legislation that would abolish Chevron across the board. See S. 909, 116th Cong., 1st Sess., §2 (2019) (still a bill, not a law); H. R. 5, 115th Cong., 1st Sess., §202 (2017) (same). So to the extent the majority is worried that the Chevron presumption is “fiction[al],” ante , at 26—as all legal presumptions in some sense are—it has gotten less and less so every day for 40 years. The congressional reaction shows as well as anything could that the Chevron Court read Congress right. II The majority’s principal arguments are in a different vein. Around 80 years after the APA was enacted and 40 years after Chevron , the majority has decided that the former precludes the latter. The APA’s Section 706, the majority says, “makes clear” that agency interpretations of statutes “are not entitled to deference.” Ante , at 14–15 (emphasis in original). And that provision, the majority continues, codified the contemporaneous law, which likewise did not allow for deference. See ante, at 9–13, 15–16. But neither the APA nor the pre-APA state of the law does the work that the majority claims. Both are perfectly compatible with Chevron deference. Section 706, enacted with the rest of the APA in 1946, provides for judicial review of agency action. It states: “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U. S. C. §706. That text, contra the majority, “does not resolve the Chevron question.” C. Sunstein, Chevron As Law, 107 Geo. L. J. 1613, 1642 (2019) (Sunstein). Or said a bit differently, Section 706 is “generally indeterminate” on the matter of deference. A. Vermeule, Judging Under Uncertainty 207 (2006) (Vermeule). The majority highlights the phrase “decide all relevant questions of law” (italicizing the “all”), and notes that the provision “prescribes no deferential standard” for answering those questions. Ante , at 14. But just as the provision does not prescribe a deferential standard of review, so too it does not prescribe a de novo standard of review (in which the court starts from scratch, without giving deference). In point of fact, Section 706 does not specify any standard of review for construing statutes. See Kisor , 588 U. S., at 581 (plurality opinion). And when a court uses a deferential standard—here, by deciding whether an agency reading is reasonable—it just as much “decide[s]” a “relevant question[ ] of law” as when it uses a de novo standard. §706. The deferring court then conforms to Section 706 “by determining whether the agency has stayed within the bounds of its assigned discretion—that is, whether the agency has construed [the statute it administers] reasonably.” J. Manning, Chevron and the Reasonable Legislator, 128 Harv. L. Rev. 457, 459 (2014); see Arlington v. FCC , 569 U.S. 290 , 317 (2013) (Roberts, C. J., dissenting) (“We do not ignore [Section 706’s] command when we afford an agency’s statutory interpretation Chevron deference; we respect it”).[ 3 ] Section 706’s references to standards of review in other contexts only further undercut the majority’s argument. The majority notes that Section 706 requires deferential review for agency fact-finding and policy-making (under, respectively, a substantial-evidence standard and an arbitrary-and-capricious standard). See ante , at 14. Congress, the majority claims, “surely would have articulated a similarly deferential standard applicable to questions of law had it intended to depart” from de novo review. Ibid. Surely? In another part of Section 706, Congress explicitly referred to de novo review. §706(2)(F). With all those references to standards of review—both deferential and not—running around Section 706, what is “telling” ( ante , at 14) is the absence of any standard for reviewing an agency’s statutory constructions. That silence left the matter, as noted above, “generally indeterminate”: Section 706 neither mandates nor forbids Chevron -style deference. Vermeule 207.[ 4 ] And contra the majority, most “respected commentators” understood Section 706 in that way—as allowing, even if not requiring, deference. Ante , at 16. The finest administrative law scholars of the time (call them that generation’s Manning, Sunstein, and Vermeule) certainly did. Professor Louis Jaffe described something very like the Chevron two-step as the preferred method of reviewing agency interpretations under the APA. A court, he said, first “must decide as a ‘question of law’ whether there is ‘discretion’ in the premises.” Judicial Control of Administrative Action 570 (1965). That is akin to step 1: Did Congress speak to the issue, or did it leave openness? And if the latter, Jaffe continued, the agency’s view “if ‘reasonable’ is free of control.” Ibid. That of course looks like step 2: defer if reasonable. And just in case that description was too complicated, Jaffe conveyed his main point this way: The argument that courts “must decide all questions of law”—as if there were no agency in the picture—“is, in my opinion, unsound.” Id. , at 569. Similarly, Professor Kenneth Culp Davis, author of the then-preeminent treatise on administrative law, noted with approval that “reasonableness” review of agency interpretations—in which courts “refused to substitute judgment”—had “survived the APA.” Administrative Law 880, 883, 885 (1951) (Davis). Other contemporaneous scholars and experts agreed. See R. Levin, The APA and the Assault on Deference, 106 Minn. L. Rev. 125, 181–183 (2021) (Levin) (listing many of them). They did not see in their own time what the majority finds there today.[ 5 ] Nor, evidently, did the Supreme Court. In the years after the APA was enacted, the Court “never indicated that section 706 rejected the idea that courts might defer to agency interpretations of law.” Sunstein 1654. Indeed, not a single Justice so much as floated that view of the APA. To the contrary, the Court issued a number of decisions in those years deferring to an agency’s statutory interpretation. See, e.g. , Unemployment Compensation Comm’n of Alaska v. Aragon , 329 U.S. 143 , 153–154 (1946); NLRB v. E. C. Atkins & Co. , 331 U.S. 398 , 403 (1947); Cardillo v. Liberty Mut. Ins. Co. , 330 U.S. 469 , 478–479 (1947). And that continued right up until Chevron . See, e.g. , Mitchell v. Budd , 350 U.S. 473 , 480 (1956); Zenith Radio Corp. v. United States , 437 U.S. 443 , 450 (1978). To be clear: Deference in those years was not always given to interpretations that would receive it under Chevron . The practice then was more inconsistent and less fully elaborated than it later became. The point here is only that the Court came nowhere close to accepting the majority’s view of the APA. Take the language from Section 706 that the majority most relies on: “decide all relevant questions of law.” See ante , at 14. In the decade after the APA’s enactment, those words were used only four times in Supreme Court opinions (all in footnotes)—and never to suggest that courts could not defer to agency interpretations. See Sunstein 1656. The majority’s view of Section 706 likewise gets no support from how judicial review operated in the years leading up to the APA. That prior history matters: As the majority recognizes, Section 706 was generally understood to “restate[ ] the present law as to the scope of judicial review.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 108 (1947); ante , at 15–16. The problem for the majority is that in the years preceding the APA, courts became ever more deferential to agencies. New Deal administrative programs had by that point come into their own. And this Court and others, in a fairly short time, had abandoned their initial resistance and gotten on board. Justice Breyer, wearing his administrative-law-scholar hat, characterized the pre-APA period this way: “[J]udicial review of administrative action was curtailed, and particular agency decisions were frequently sustained with judicial obeisance to the mysteries of administrative expertise.” S. Breyer et al., Administrative Law and Regulatory Policy 21 (7th ed. 2011). And that description extends to review of an agency’s statutory constructions. An influential study of administrative practice, published five years before the APA’s enactment, described the state of play: Judicial “review may, in some instances at least, be limited to the inquiry whether the administrative construction is a permissible one.” Final Report of Attorney General’s Committee on Administrative Procedure (1941), reprinted in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., 78 (1941). Or again: “[W]here the statute is reasonably susceptible of more than one interpretation, the court may accept that of the administrative body.” Id. , at 90–91.[ 6 ] Two prominent Supreme Court decisions of the 1940s put those principles into action. Gray v. Powell , 314 U.S. 402 (1941), was then widely understood as “the leading case” on review of agency interpretations. Davis 882; see ibid. (noting that it “establish[ed] what is known as ‘the doctrine of Gray v. Powell’ ”). There, the Court deferred to an agency construction of the term “producer” as used in a statutory exemption from price controls. Congress, the Court explained, had committed the scope of the exemption to the agency because its “experience in [the] field gave promise of a better informed, more equitable, adjustment of the conflicting interests.” Gray , 314 U. S., at 412. Accordingly, the Court concluded that it was “not the province of a court” to “substitute its judgment” for the agency’s. Ibid. Three years later, the Court decided NLRB v. Hearst Publications, Inc. , 322 U.S. 111 (1944), another acknowledged “leading case.” Davis 882; see id. , at 884. The Court again deferred, this time to an agency’s construction of the term “employee” in the National Labor Relations Act. The scope of that term, the Court explained, “belong[ed] to” the agency to answer based on its “[e]veryday experience in the administration of the statute.” Hearst , 322 U. S., at 130. The Court therefore “limited” its review to whether the agency’s reading had “warrant in the record and a reasonable basis in law.” Id. , at 131.[ 7 ] Recall here that even the majority accepts that Section 706 was meant to “restate[ ] the present law” as to judicial review. See ante , at 15–16; supra , at 19–20. Well then? It sure would seem that the provision allows a deference regime. The majority has no way around those two noteworthy decisions. It first appears to distinguish between “pure legal question[s]” and the so-called mixed questions in Gray and Hearst , involving the application of a legal standard to a set of facts. Ante , at 11. If in drawing that distinction, the majority intends to confine its holding to the pure type of legal issue—thus enabling courts to defer when law and facts are entwined—I’d be glad. But I suspect the majority has no such intent, because that approach would preserve Chevron in a substantial part of its current domain. Cf. Wilkinson v. Garland , 601 U.S. 209, 230 (2024) (Alito, J., dissenting) (noting, in the immigration context, that the universe of mixed questions swamps that of pure legal ones). It is frequently in the consideration of mixed questions that the scope of statutory terms is established and their meaning defined. See H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory norm”). How does a statutory interpreter decide, as in Hearst , what an “employee” is? In large part through cases asking whether the term covers people performing specific jobs, like (in that case) “newsboys.” 322 U. S., at 120. Or consider one of the examples I offered above. How does an interpreter decide when one population segment of a species is “distinct” from another? Often by considering that requirement with respect to particular species, like western gray squirrels. So the distinction the majority offers makes no real-world (or even theoretical) sense. If the Hearst Court was deferring to an agency on whether the term “employee” covered newsboys, it was deferring to the agency on the scope and meaning of the term “employee.” The majority’s next rejoinder—that “the Court was far from consistent” in deferring—falls equally flat. Ante , at 12. I am perfectly ready to acknowledge that in the pre-APA period, a deference regime had not yet taken complete hold. I’ll go even further: Let’s assume that deference was then an on-again, off-again function (as the majority seems to suggest, see ante , at 11–12, and 13, n. 3). Even on that assumption, the majority’s main argument—that Section 706 prohibited deferential review—collapses. Once again, the majority agrees that Section 706 was not meant to change the then-prevailing law. See ante , at 15–16. And even if inconsistent, that law cannot possibly be thought to have prohibited deference. Or otherwise said: “If Section 706 did not change the law of judicial review (as we have long recognized), then it did not proscribe a deferential standard then known and in use.” Kisor , 588 U. S., at 583 (plurality opinion). The majority’s whole argument for overturning Chevron relies on Section 706. But the text of Section 706 does not support that result. And neither does the contemporaneous practice, which that text was supposed to reflect. So today’s decision has no basis in the only law the majority deems relevant. It is grounded on air. III And still there is worse, because abandoning Chevron subverts every known principle of stare decisis . Of course, respecting precedent is not an “inexorable command.” Payne v. Tennessee , 501 U.S. 808 , 828 (1991). But overthrowing it requires far more than the majority has offered up here. Chevron is entitled to stare decisis ’s strongest form of protection. The majority thus needs an exceptionally strong reason to overturn the decision, above and beyond thinking it wrong. And it has nothing approaching such a justification, proposing only a bewildering theory about Chevron ’s “unworkability.” Ante , at 32. Just five years ago, this Court in Kisor rejected a plea to overrule Auer v. Robbins , 519 U.S. 452 (1997), which requires judicial deference to agencies’ interpretations of their own regulations. See 588 U. S., at 586–589 (opinion of the Court). The case against overruling Chevron is at least as strong. In particular, the majority’s decision today will cause a massive shock to the legal system, “cast[ing] doubt on many settled constructions” of statutes and threatening the interests of many parties who have relied on them for years. 588 U. S., at 587 (opinion of the Court). Adherence to precedent is “a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community , 572 U.S. 782 , 798 (2014). Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles.” Payne , 501 U. S., at 827. It enables people to order their lives in reliance on judicial decisions. And it “contributes to the actual and perceived integrity of the judicial process,” by ensuring that those decisions are founded in the law, and not in the “personal preferences” of judges. Id. , at 828; Dobbs , 597 U. S., at 388 (dissenting opinion). Perhaps above all else, stare decisis is a “doctrine of judicial modesty.” Id. , at 363. In that, it shares something important with Chevron . Both tell judges that they do not know everything, and would do well to attend to the views of others. So today, the majority rejects what judicial humility counsels not just once but twice over. And Chevron is entitled to a particularly strong form of stare decisis , for two separate reasons. First, it matters that “Congress remains free to alter what we have done.” Patterson v. McLean Credit Union , 491 U.S. 164 , 173 (1989); see Kisor , 588 U. S., at 587 (opinion of the Court) (making the same point for Auer deference). In a constitutional case, the Court alone can correct an error. But that is not so here. “Our deference decisions are balls tossed into Congress’s court, for acceptance or not as that branch elects.” 588 U. S., at 587–588 (opinion of the Court). And for generations now, Congress has chosen acceptance. Throughout those years, Congress could have abolished Chevron across the board, most easily by amending the APA. Or it could have eliminated deferential review in discrete areas, by amending old laws or drafting new laws to include an anti- Chevron provision. Instead, Congress has “spurned multiple opportunities” to do a comprehensive rejection of Chevron , and has hardly ever done a targeted one. Kimble v. Marvel Entertainment, LLC , 576 U.S. 446 , 456 (2015); see supra , at 14–15. Or to put the point more affirmatively, Congress has kept Chevron as is for 40 years. It maintained that position even as Members of this Court began to call Chevron into question. See ante , at 30. From all it appears, Congress has not agreed with the view of some Justices that they and other judges should have more power. Second, Chevron is by now much more than a single decision. This Court alone, acting as Chevron allows, has upheld an agency’s reasonable interpretation of a statute at least 70 times. See Brief for United States in No. 22–1219, p. 27; App. to id ., at 68a–72a (collecting cases). Lower courts have applied the Chevron framework on thousands upon thousands of occasions. See K. Barnett & C. Walker, Chevron and Stare Decisis, 31 Geo. Mason L. Rev. 475, 477, and n. 11 (2024) (noting that at last count, Chevron was cited in more than 18,000 federal-court decisions). The Kisor Court observed, when upholding Auer , that “[d]eference to reasonable agency interpretations of ambiguous rules pervades the whole corpus of administrative law.” 588 U. S., at 587 (opinion of the Court). So too does deference to reasonable agency interpretations of ambiguous statutes—except more so. Chevron is as embedded as embedded gets in the law. The majority says differently, because this Court has ignored Chevron lately; all that is left of the decision is a “decaying husk with bold pretensions.” Ante , at 33. Tell that to the D. C. Circuit, the court that reviews a large share of agency interpretations, where Chevron remains alive and well. See, e.g. , Lissack v. Commissioner , 68 F. 4th 1312, 1321–1322 (2023); Solar Energy Industries Assn. v. FERC , 59 F. 4th 1287, 1291–1294 (2023). But more to the point: The majority’s argument is a bootstrap. This Court has “avoided deferring under Chevron since 2016” ( ante , at 32) because it has been preparing to overrule Chevron since around that time. That kind of self-help on the way to reversing precedent has become almost routine at this Court. Stop applying a decision where one should; “throw some gratuitous criticisms into a couple of opinions”; issue a few separate writings “question[ing the decision’s] premises” ( ante , at 30); give the whole process a few years . . . and voila!—you have a justification for overruling the decision. Janus v. State, County, and Municipal Employees , 585 U.S. 878, 950 (2018) (Kagan, J., dissenting) (discussing the overruling of Abood v. Detroit Bd. of Ed. , 431 U.S. 209 (1977)); see also, e.g. , Kennedy v. Bremerton School Dist. , 597 U.S. 507, 571–572 (2022) (Sotomayor, J., dissenting) (similar for Lemon v. Kurtzman , 403 U.S. 602 (1971)); Shelby County v. Holder , 570 U.S. 529 , 587–588 (2013) (Ginsburg, J., dissenting) (similar for South Carolina v. Katzenbach , 383 U.S. 301 (1966)). I once remarked that this overruling-through-enfeeblement technique “mock[ed] stare decisis .” Janus , 585 U. S., at 950 (dissenting opinion). I have seen no reason to change my mind. The majority does no better in its main justification for overruling Chevron —that the decision is “unworkable.” Ante , at 30. The majority’s first theory on that score is that there is no single “answer” about what “ambiguity” means: Some judges turn out to see more of it than others do, leading to “different results.” Ante , at 30–31. But even if so, the legal system has for many years, in many contexts, dealt perfectly well with that variation. Take contract law. It is hornbook stuff that when (but only when) a contract is ambiguous, a court interpreting it can consult extrinsic evidence. See CNH Industrial N.V. v. Reese , 583 U.S. 133, 139 (2018) ( per curiam ). And when all interpretive tools still leave ambiguity, the contract is construed against the drafter. See Lamps Plus, Inc. v. Varela , 587 U.S. 176, 186–187 (2019). So I guess the contract rules of the 50 States are unworkable now. Or look closer to home, to doctrines this Court regularly applies. In deciding whether a government has waived sovereign immunity, we construe “[a]ny ambiguities in the statutory language” in “favor of immunity.” FAA v. Cooper , 566 U.S. 284 , 290 (2012). Similarly, the rule of lenity tells us to construe ambiguous statutes in favor of criminal defendants. See United States v. Castleman , 572 U.S. 157 , 172–173 (2014). And the canon of constitutional avoidance instructs us to construe ambiguous laws to avoid difficult constitutional questions. See United States v. Oakland Cannabis Buyers’ Cooperative , 532 U.S. 483 , 494 (2001). I could go on, but the point is made. There are ambiguity triggers all over the law. Somehow everyone seems to get by. And Chevron is an especially puzzling decision to criticize on the ground of generating too much judicial divergence. There’s good empirical—meaning, non-impressionistic—evidence on exactly that subject. And it shows that, as compared with de novo review, use of the Chevron two-step framework fosters agreement among judges. See K. Barnett, C. Boyd, & C. Walker, Administrative Law’s Political Dynamics, 71 Vand. L. Rev. 1463, 1502 (2018) (Barnett). More particularly, Chevron has a “powerful constraining effect on partisanship in judicial decisionmaking.” Barnett 1463 (italics deleted); see Sunstein 1672 (“[A] predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines”). So if consistency among judges is the majority’s lodestar, then the Court should not overrule Chevron , but return to using it. The majority’s second theory on workability is likewise a makeweight. Chevron , the majority complains, has some exceptions, which (so the majority says) are “difficult” and “complicate[d]” to apply. Ante , at 32. Recall that courts are not supposed to defer when the agency construing a statute (1) has not been charged with administering that law; (2) has not used deliberative procedures— i.e., notice-and-comment rulemaking or adjudication; or (3) is intervening in a “major question,” of great economic and political significance. See supra , at 11–12; ante , at 27–28. As I’ve explained, those exceptions—the majority also aptly calls them “refinements”—fit with Chevron ’s rationale: They define circumstances in which Congress is unlikely to have wanted agency views to govern. Ante , at 27; see supra , at 11–12. And on the difficulty scale, they are nothing much. Has Congress put the agency in charge of administering the statute? In 99 of 100 cases, everyone will agree on the answer with scarcely a moment’s thought. Did the agency use notice-and-comment or an adjudication before rendering an interpretation? Once again, I could stretch my mind and think up a few edge cases, but for the most part, the answer is an easy yes or no. The major questions exception is, I acknowledge, different: There, many judges have indeed disputed its nature and scope. Compare, e . g ., West Virginia , 597 U. S., at 721–724, with id ., at 764–770 (Kagan, J., dissenting). But that disagreement concerns, on everyone’s view, a tiny subset of all agency interpretations. For the most part, the exceptions that so upset the majority require merely a rote, check-the-box inquiry. If that is the majority’s idea of a “dizzying breakdance,” ante , at 32, the majority needs to get out more. And anyway, difficult as compared to what? The majority’s prescribed way of proceeding is no walk in the park. First, the majority makes clear that what is usually called Skidmore deference continues to apply. See ante , at 16–17. Under that decision, agency interpretations “constitute a body of experience and informed judgment” that may be “entitled to respect.” Skidmore v. Swift & Co. , 323 U.S. 134 , 140 (1944). If the majority thinks that the same judges who argue today about where “ambiguity” resides (see ante , at 30) are not going to argue tomorrow about what “respect” requires, I fear it will be gravely disappointed. Second, the majority directs courts to comply with the varied ways in which Congress in fact “delegates discretionary authority” to agencies. Ante , at 17–18. For example, Congress may authorize an agency to “define[ ]” or “delimit[ ]” statutory terms or concepts, or to “fill up the details” of a statutory scheme. Ante , at 17, and n. 5. Or Congress may use, in describing an agency’s regulatory authority, inherently “flexib[le]” language like “appropriate” or “reasonable.” Ante , at 17, and n. 6. Attending to every such delegation, as the majority says, is necessary in a world without Chevron . But that task involves complexities of its own. Indeed, one reason Justice Scalia supported Chevron was that it replaced such a “statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation) with an across-the-board presumption.” A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 516. As a lover of the predictability that rules create, Justice Scalia thought the latter “unquestionably better.” Id. , at 517. On the other side of the balance, the most important stare decisis factor—call it the “jolt to the legal system” issue—weighs heavily against overruling Chevron . Dobbs , 597 U. S., at 357 (Roberts, C. J., concurring in judgment). Congress and agencies alike have relied on Chevron —have assumed its existence—in much of their work for the last 40 years. Statutes passed during that time reflect the expectation that Chevron would allocate interpretive authority between agencies and courts. Rules issued during the period likewise presuppose that statutory ambiguities were the agencies’ to (reasonably) resolve. Those agency interpretations may have benefited regulated entities; or they may have protected members of the broader public. Either way, private parties have ordered their affairs—their business and financial decisions, their health-care decisions, their educational decisions—around agency actions that are suddenly now subject to challenge. In Kisor , this Court refused to overrule Auer because doing so would “cast doubt on” many longstanding constructions of rules, and thereby upset settled expectations. 588 U. S., at 587 (opinion of the Court). Overruling Chevron , and thus raising new doubts about agency constructions of statutes, will be far more disruptive. The majority tries to alleviate concerns about a piece of that problem: It states that judicial decisions that have upheld agency action as reasonable under Chevron should not be overruled on that account alone. See ante , at 34–35. That is all to the good: There are thousands of such decisions, many settled for decades. See supra , at 26. But first, reasonable reliance need not be predicated on a prior judicial decision. Some agency interpretations never challenged under Chevron now will be; expectations formed around those constructions thus could be upset, in a way the majority’s assurance does not touch. And anyway, how good is that assurance, really? The majority says that a decision’s “[m]ere reliance on Chevron ” is not enough to counter the force of stare decisis ; a challenger will need an additional “special justification.” Ante , at 34. The majority is sanguine; I am not so much. Courts motivated to overrule an old Chevron -based decision can always come up with something to label a “special justification.” Maybe a court will say “the quality of [the precedent’s] reasoning” was poor. Ante , at 29. Or maybe the court will discover something “unworkable” in the decision—like some exception that has to be applied. Ante , at 30. All a court need do is look to today’s opinion to see how it is done. IV Judges are not experts in the field, and are not part of either political branch of the Government. — Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 , 865 (1984) Those were the days, when we knew what we are not. When we knew that as between courts and agencies, Congress would usually think agencies the better choice to resolve the ambiguities and fill the gaps in regulatory statutes. Because agencies are “experts in the field.” And because they are part of a political branch, with a claim to making interstitial policy. And because Congress has charged them, not us, with administering the statutes containing the open questions. At its core, Chevron is about respecting that allocation of responsibility—the conferral of primary authority over regulatory matters to agencies, not courts. Today, the majority does not respect that judgment. It gives courts the power to make all manner of scientific and technical judgments. It gives courts the power to make all manner of policy calls, including about how to weigh competing goods and values. (See Chevron itself.) It puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import. What actions can be taken to address climate change or other environmental challenges? What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.? In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given to them, in the APA or any other statute. It is a role this Court has now claimed for itself, as well as for other judges. And that claim requires disrespecting, too, this Court’s precedent. There are no special reasons, of the kind usually invoked for overturning precedent, to eliminate Chevron deference. And given Chevron ’s pervasiveness, the decision to do so is likely to produce large-scale disruption. All that backs today’s decision is the majority’s belief that Chevron was wrong—that it gave agencies too much power and courts not enough. But shifting views about the worth of regulatory actors and their work do not justify overhauling a cornerstone of administrative law. In that sense too, today’s majority has lost sight of its proper role. And it is impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent. As to the first, this very Term presents yet another example of the Court’s resolve to roll back agency authority, despite congressional direction to the contrary. See SEC v. Jarkesy , 603 U. S. ___ (2024); see also supra , at 3. As to the second, just my own defenses of stare decisis —my own dissents to this Court’s reversals of settled law—by now fill a small volume. See Dobbs , 597 U. S., at 363–364 (joint opinion of Breyer, Sotomayor, and Kagan, JJ.); Edwards v. Vannoy , 593 U.S. 255, 296–297 (2021); Knick v. Township of Scott , 588 U.S. 180, 207–208 (2019); Janus , 585 U. S. , at 931–932. Once again, with respect, I dissent. Notes 1 *Justice Jackson did not participate in the consideration or decision of the case in No. 22–451 and joins this opinion only as it applies to the case in No. 22–1219. 2 Note that presumptions of this kind are common in the law. In other contexts, too, the Court responds to a congressional lack of direction by adopting a presumption about what Congress wants, rather than trying to figure that out in every case. And then Congress can legislate, with “predictable effects,” against that “stable background” rule. Morrison v. National Australia Bank Ltd. , 561 U.S. 247 , 261 (2010). Take the presumption against extraterritoriality: The Court assumes Congress means for its statutes to apply only within the United States, absent a “clear indication” to the contrary. Id. , at 255. Or the presumption against retroactivity: The Court assumes Congress wants its laws to apply only prospectively, unless it “unambiguously instruct[s]” something different. Vartelas v. Holder , 566 U.S. 257 , 266 (2012). Or the presumption against repeal of statutes by implication: The Court assumes Congress does not intend a later statute to displace an earlier one unless it makes that intention “clear and manifest.” Epic Systems Corp. v. Lewis , 584 U.S. 497, 510 (2018). Or the (so far unnamed) presumption against treating a procedural requirement as “jurisdictional” unless “Congress clearly states that it is.” Boechler v. Commissioner , 596 U.S. 199, 203 (2022). I could continue, except that this footnote is long enough. The Chevron deference rule is to the same effect: The Court generally assumes that Congress intends to confer discretion on agencies to handle statutory ambiguities or gaps, absent a direction to the contrary. The majority calls that presumption a “fiction,” ante , at 26, but it is no more so than any of the presumptions listed above. They all are best guesses—and usually quite good guesses—by courts about congressional intent. 3 The majority tries to buttress its argument with a stray sentence or two from the APA’s legislative history, but the same response holds. As the majority notes, see ante , at 15, the House and Senate Reports each stated that Section 706 “provid[ed] that questions of law are for courts rather than agencies to decide in the last analysis.” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946); S. Rep. No. 752, 79th Cong., 1st Sess., 28 (1945). But that statement also does not address the standard of review that courts should then use. When a court defers under Chevron , it reviews the agency’s construction for reasonableness “in the last analysis.” The views of Representative Walter, which the majority also cites, further demonstrate my point. He stated that the APA would require courts to “determine independently all relevant questions of law,” but he also stated that courts would be required to “exercise . . . independent judgment” in applying the substantial-evidence standard (a deferential standard if ever there were one). 92 Cong. Rec. 5654 (1946). He therefore did not equate “independent” review with de novo review; he thought that a court could conduct independent review of agency action using a deferential standard. 4 In a footnote responding to the last two paragraphs, the majority raises the white flag on Section 706’s text. See ante , at 15, n. 4. Yes, it finally concedes, Section 706 does not say that de novo review is required for an agency’s statutory construction. Rather, the majority says, “some things go without saying,” and de novo review is such a thing. See ibid. But why? What extra-textual considerations force us to read Section 706 the majority’s way? In its footnote, the majority repairs only to history. But as I will explain below, the majority also gets wrong the most relevant history, pertaining to how judicial review of agency interpretations operated in the years before the APA was enacted. See infra , at 19–23. 5 I concede one exception (whose view was “almost completely isolated,” Levin 181), but his comments on Section 706 refute a different aspect of the majority’s argument. Professor John Dickinson, as the majority notes, thought that Section 706 precluded courts from deferring to agency interpretations. See Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review, 33 A. B. A. J. 434, 516 (1947) (Dickinson); ante , at 16. But unlike the majority, he viewed that bar as “a change” to, not a restatement of, pre-APA law. Compare Dickinson 516 with ante , at 15–16. So if the majority really wants to rely on Professor Dickinson, it will have to give up the claim, which I address below, that the law before the APA forbade deference. See infra , at 19–23. 6 Because the APA was meant to “restate[ ] the present law,” the judicial review practices of the 1940s are more important to understanding the statute than is any earlier tradition (such as the majority dwells on). But before I expand on those APA-contemporaneous practices, I pause to note that they were “not built on sand.” Kisor v. Wilkie , 588 U.S. 558, 568–569 (2019) (plurality opinion). Since the early days of the Republic, this Court has given significant weight to official interpretations of “ambiguous law[s].” Edwards’ Lessee v. Darby , 12 Wheat. 206, 210 (1827). With the passage of time—and the growth of the administrative sphere—those “judicial expressions of deference increased.” H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 15 (1983). By the early 20th century, the Court stated that it would afford “great weight” to an agency construction in the face of statutory “uncertainty or ambiguity.” National Lead Co. v. United States , 252 U.S. 140 , 145 (1920); see Schell’s Executors v. Fauché , 138 U.S. 562 , 572 (1891) (“controlling” weight in “all cases of ambiguity”); United States v. Alabama Great Southern R. Co. , 142 U.S. 615 , 621 (1892) (“decisive” weight “in case of ambiguity”); Jacobs v. Prichard , 223 U.S. 200 , 214 (1912) (referring to the “rule which gives strength” to official interpretations if “ambiguity exist[s]”). So even before the New Deal, a strand of this Court’s cases exemplified deference to executive constructions of ambiguous statutes. And then, as I show in the text, the New Deal arrived and deference surged—creating the “present law” that the APA “restated.” 7 The majority says that I have “pluck[ed] out” Gray and Hearst , impliedly from a vast number of not-so-helpful cases. Ante , at 13, n. 3. It would make as much sense to say that a judge “plucked out” Universal Camera Corp. v. NLRB , 340 U.S. 474 (1951), to discuss substantial-evidence review or “plucked out” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 (1983), to discuss arbitrary-and-capricious review. Gray and Hearst , as noted above, were the leading cases about agency interpretations in the years before the APA’s enactment. But just to gild the lily, here are a number of other Supreme Court decisions from the five years prior to the APA’s enactment that were of a piece: United States v. Pierce Auto Freight Lines, Inc. , 327 U.S. 515 , 536 (1946); ICC v. Parker , 326 U.S. 60 , 65 (1945); Federal Security Administrator v. Quaker Oats Co. , 318 U.S. 218 , 227–228 (1943). The real “pluck[ing]” offense is the majority’s—for taking a stray sentence from Hearst ( ante , at 13, n. 3) to suggest that both Hearst and Gray stand for the opposite of what they actually do.

The Supreme Court considered whether to overrule the Chevron doctrine, which requires courts to defer to federal agencies' interpretations of statutes they administer if the statute is ambiguous. The Court reviewed two cases challenging the same agency rule, where lower courts applied Chevron deference and resolved in favor of the government. The Magnuson-Stevens Fishery Conservation and Management Act (MSA) claimed exclusive fishery management authority for the US, but the cases focused on the ambiguity of the term "fish." The Court's discussion centered on the history of judicial deference to agency interpretations, concluding that pre-APA cases exemplified deference to executive constructions of ambiguous statutes.

Free Speech

Debs v. U.S.

https://supreme.justia.com/cases/federal/us/249/211/

U.S. Supreme Court Debs v. United States, 249 U.S. 211 (1919) Debs v. United States No. 714 Argued January 27, 28, 1919 Decided March 10, 1919 249 U.S. 211 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO Syllabus The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is punishable under the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, as amended by the Act of May 16, 1918, c. 75, § 1, 40 Stat. 553. P. 249 U. S. 212 . Such a speech is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief. P. 249 U. S. 215 . In a prosecution for obstructing and attempting to obstruct recruiting, by a speech in which defendant expressed sympathy with others, imprisoned for similar offenses, the ground for whose convictions he purported to understand, held that the records in the other cases were admissible as tending to explain the subject and true import of defendant's remarks and his intent. Id. In such prosecution, held that a document -- a so-called "Anti-War Proclamation and Program" -- expressing and advocating opposition to the war was admissible against the defendant as evidence of his intent in connection with other evidence that, an hour before his speech, he expressed his approval of such platform. Id. Semble that persons designated by the Draft Act of May 18, 1917, registered and enrolled under it and thus subject to be called into active service, are part of the military forces of the United States within the meaning of § 3 of the Espionage Act. P. 249 U. S. 216 . Affirmed. The case is stated in the opinion. Page 249 U. S. 212 MR. JUSTICE HOLMES delivered the opinion of the Court. This is an indictment under the Espionage Act of June 15, 1917, c. 30, Tit. 1, § 3, 40 Stat. 219, as amended by the Act of May 16, 1918, c. 75, § 1, 40 Stat. 553. It has been cut down to two counts, originally the third and fourth. The former of these alleges that, on or about June 16, 1918, at Canton, Ohio, the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech, set forth. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States and to that end and with that intent delivered the same speech, again set forth. There was a demurrer to the indictment on the ground that the statute is unconstitutional as interfering with free speech, contrary to the First Amendment, and to the several counts as insufficiently stating the supposed offence. This was overruled, subject to exception. There were other exceptions to the admission of evidence with which we shall deal. The defendant was found guilty and was sentenced to ten years' imprisonment on each of the two counts, the punishment to run concurrently on both. The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the Page 249 U. S. 213 more general utterances was to encourage those present to obstruct the recruiting service, and if, in passages, such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class -- these being Wagenknecht, Baker, and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft. Ruthenberg v. United States, 245 U. S. 480 . He said that he had to be prudent, and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies, and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States. After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O'Hare, convicted of obstructing the enlistment service, praised her for her loyalty to Socialism and otherwise, and said that she was convicted on false testimony, under a ruling that would seem incredible to him if he had not had some experience with a federal court. We mention this passage simply for its connection with evidence put in at the trial. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles -- that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring Page 249 U. S. 214 peace. "You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary." The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises, and they sent her to the penitentiary for ten years; that she had said no more than the speaker had said that afternoon; that, if she was guilty, so was he, and that he would not be cowardly enough to plead his innocence, but that her message that opened the eyes of the people must be suppressed, and so after a mock trial before a packed jury and a corporation tool on the bench, she was sent to the penitentiary for ten years. There followed personal experiences and illustrations of the growth of socialism, a glorification of minorities, and a prophecy of the success of the international socialist crusade, with the interjection that "you need to know that you are fit for something better than slavery and cannon fodder." The rest of the discourse had only the indirect. though not necessarily ineffective. bearing on the offences alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, &c., with the implication running through it all that the working men are not concerned in the war, and a final exhortation, "Don't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves." The defendant addressed the jury himself, and while contending that his speech did not warrant the charges said, "I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone." The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether incidental Page 249 U. S. 215 or not does not matter, was to oppose not only war in general, but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief. The chief defenses upon which the defendant seemed willing to rely were the denial that we have dealt with and that based upon the First Amendment to the Constitution, disposed of in Schenck v. United States, 249 U. S. 47 . His counsel questioned the sufficiency of the indictment. It is sufficient in form. Frohwerk v. United States, ante, 249 U. S. 204 . The most important question that remains is raised by the admission in evidence of the record of the conviction of Ruthenberg, Wagenknecht, and Baker, Rose Pastor Stokes, and Kate Richards O'Hare. The defendant purported to understand the grounds on which these persons were imprisoned, and it was proper to show what those grounds were in order to show what he was talking about, to explain the true import of his expression of sympathy, and to throw light on the intent of the address so far as the present matter is concerned. There was introduced also an "Anti-War Proclamation and Program" adopted at St. Louis in April, 1917, coupled with testimony that, about an hour before his speech, the defendant had stated that he approved of that platform in spirit and in substance. The defendant referred to it in his address to the jury, seemingly with satisfaction and willingness that it should be considered in evidence. But his counsel objected, and has argued against its admissibility at some length. This document contained the usual suggestion that capitalism was the cause of the war and that our entrance into it "was instigated by the predatory capitalists in the United States." It alleged that the war Page 249 U. S. 216 of the United States against Germany could not "be justified even on the plea that it is a war in defense of American rights or American honor.'" It said: "We brand the declaration of war by our governments as a crime against the people of the United States and against the nations of the world. In all modern history there has been no war more unjustifiable than the war in which we are about to engage." Its first recommendation was, "continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power." Evidence that the defendant accepted this view and this declaration of his duties at the time that he made his speech is evidence that, if in that speech he used words tending to obstruct the recruiting service, he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books. We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind. Without going into further particulars, we are of opinion that the verdict on the fourth count, for obstructing and attempting to obstruct the recruiting service of the United States, must be sustained. Therefore it is less important to consider whether that upon the third count for causing and attempting to cause insubordination, &c., in the military and naval forces is equally impregnable. The jury were instructed that, for the purposes of the statute, the persons designated by the Act of May 18, 1917, c. 15, 40 Stat. 76, registered and enrolled under it, and thus subject to be called into the active service, were a part of the military forces of the United States. The government presents a strong argument from the history of the statutes that the instruction Page 249 U. S. 217 was correct and in accordance with established legislative usage. We see no sufficient reason for differing from the conclusion, but think it unnecessary to discuss the question in detail. Judgment affirmed.

In *Debs v. United States*, the Supreme Court upheld the conviction of Eugene V. Debs under the Espionage Act of 1917 for giving a speech opposing the United States' involvement in World War I. The Court ruled that the speech, which criticized the war and encouraged resistance to the draft, had the intent and effect of obstructing recruiting for the military and was therefore not protected by the First Amendment. The Court also admitted evidence of Debs' approval of an "Anti-War Proclamation and Program" document, which expressed similar anti-war sentiments, as proof of his intent to obstruct recruiting. The decision highlighted the government's strong interest in maintaining national security and the limits on free speech during times of war.

Government Agencies

Ohio v. Environmental Protection Agency

https://supreme.justia.com/cases/federal/us/603/23a349/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ Nos. 23A349, 23A350, 23A351 and 23A384 _________________ OHIO, et al. 23A349 v. ENVIRONMENTAL PROTECTION AGENCY, et al. KINDER MORGAN, INC., et al. 23A350 v. ENVIRONMENTAL PROTECTION AGENCY, et al. AMERICAN FOREST & PAPER ASSOCIATION, et al. 23A351 v. ENVIRONMENTAL PROTECTION AGENCY, et al. UNITED STATES STEEL CORPORATION 23A384 v. ENVIRONMENTAL PROTECTION AGENCY, et al. on applications for stay [June 27, 2024] Justice Gorsuch delivered the opinion of the Court. The Clean Air Act envisions States and the federal government working together to improve air quality. Under that law’s terms, States bear “primary responsibility” for developing plans to achieve air-quality goals. 42 U. S. C. §7401(a)(3). Should a State fail to prepare a legally compliant plan, however, the federal government may sometimes step in and assume that authority for itself. §7410(c)(1). Here, the federal government announced its intention to reject over 20 States’ plans for controlling ozone pollution. In their place, the government sought to impose a single, uniform federal plan. This litigation concerns whether, in adopting that plan, the federal government complied with the terms of the Act. I A “The Clean Air Act regulates air quality through a federal-state collaboration.” EME Homer City Generation, L.P. v. EPA , 795 F.3d 118, 124 (CADC 2015). Periodically, the Environmental Protection Agency (EPA) sets standards for common air pollutants, as necessary to “protect the public health.” §§7409(a)(1), (b)(1). Once EPA sets a new standard, the clock starts ticking: States have three years to design and submit a plan—called a State Implementation Plan, or SIP—providing for the “implementation, maintenance, and enforcement” of that standard in their jurisdictions. §7410(a)(1); see EPA v. EME Homer City Generation, L. P. , 572 U.S. 489 , 498 (2014). Under the Act, States decide how to measure ambient air quality. §7410(a)(2)(B). States pick “emission limitations and other control measures.” §7410(a)(2)(A). And States provide for the enforcement of their prescribed measures. §7410(a)(2)(C). At the same time, States must design these plans with their neighbors in mind. Because air currents can carry pollution across state borders, emissions in upwind States sometimes affect air quality in downwind States. See EME Homer , 572 U. S., at 496. To address that externality problem, under the Act’s “Good Neighbor Provision,” state plans must prohibit emissions “in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State” of the relevant air-quality standard. §7410(a)(2)(D)(i)(I). Because the States bear “primary responsibility” for developing compliance plans, §7401(a)(3), EPA has “no authority to question the wisdom of a State’s choices of emission limitations.” Train v. Natural Resources Defense Council, Inc. , 421 U.S. 60 , 79 (1975). So long as a SIP satisfies the “applicable requirements” of the Act, including the Good Neighbor Provision, EPA “shall approve” it within 18 months of its submission. §7410(k)(3); see §§7410(k)(1)(B), (k)(2). If, however, a SIP falls short, EPA “shall” issue a Federal Implementation Plan, or FIP, for the noncompliant State—that is, “unless” the State corrects the deficiencies in its SIP first. §7410(c)(1); EME Homer , 572 U. S., at 498. EPA must also ensure States meet the new air-quality standard by a statutory deadline. See §7511. B A layer of ozone in the atmosphere shields the world from the sun’s radiation. See National Resources Defense Council v. EPA , 464 F.3d 1 , 3 (CADC 2006). But closer to earth, ozone can hurt more than it helps. Forming when sunlight interacts with a wide range of precursor pollutants, ground-level ozone can trigger and exacerbate health problems and damage vegetation. 80 Fed. Reg. 65299, 65302, 65370 (2015). To mitigate those and other problems, in 2015 EPA revised its air-quality standards for ozone from 75 to 70 parts per billion. Id ., at 65293–65294. That change triggered a requirement for States to submit new SIPs. Id ., at 65437. Along the way, EPA issued a guidance document advising States that they had “flexibility” in choosing how to address their Good Neighbor obligations. See EPA, Memorandum, Information on the Interstate Transport State Implementation Plan Submissions for the 2015 Ozone National Ambient Air Quality Standards 3 (Mar. 27, 2018). With that and other guidance in hand, many (though not all) States submitted SIPs. See 84 Fed. Reg. 66612 (2019). And many of the States that did submit SIPs said that they need not adopt emissions-control measures to comply with the Good Neighbor Provision because, among other things, they were not linked to downwind air-quality problems or they could identify no additional cost-effective methods of controlling the emissions beyond those they were currently employing. See, e . g ., 87 Fed. Reg. 9798, 9810 (2022); 87 Fed. Reg. 9545, 9552 (2022); see generally 88 Fed. Reg. 9336, 9354–9361 (2023). For over two years, EPA did not act on the SIPs it received. See, e . g ., 87 Fed. Reg. 9838, 9845–9851 (2022). Then, in February 2022, the agency announced its intention to disapprove 19 of them on the ground that the States submitting them had failed to address adequately their obligations under the Good Neighbor Provision.[ 1 ] A few months later, the agency proposed disapproving four more SIPs.[ 2 ] Pursuant to the Act, the agency issued its proposed SIP disapprovals for public comment before finalizing them. See §7607(d)(3). C During that public comment period, the agency proposed a single FIP to bind all 23 States.[ 3 ] 87 Fed. Reg. 20036, 20038 (2022). Rather than continue to encourage “ ‘flexibilit[y]’ ” and different state approaches, EPA now apparently took the view that “[e]ffective policy solutions to the problem of interstate ozone transport” demanded that kind of “uniform framework” and “[n]ationwide consistency.” 87 Fed. Reg. 9841; see 87 Fed. Reg. 20073. The FIP the agency proposed set as its target the reduction of the emissions of one ozone precursor in particular: nitrous oxide. See id. , at 20038. And it sought to impose nitrous oxide emissions-control measures that “maximized cost-effectiveness” in achieving “downwind ozone air quality improvements.” Id ., at 20055; see also id ., at 20043. In broad strokes, here is how EPA’s proposed rule worked to eliminate a State’s “significant contribution” to downwind ozone problems. First, the agency identified various emissions-control measures and, using nationwide data, calculated how much each typically costs to reduce a ton of nitrous-oxide emissions. Id ., at 20076; see, e . g ., id ., at 20077–20081. Next, the agency sought to predict how much each upwind State’s nitrous-oxide emissions would fall if emissions-producing facilities in the State adopted each measure. Id ., at 20076; see, e.g. , id. , at 20088–20089; EPA, Ozone Transport Policy Analysis Proposed Rule TSD 22–23 (EPA–HQ–OAR–2021–0668, 2022) (Proposed Ozone Analysis). In making those predictions, EPA often considered data specific to the emissions-producing facilities in the State, and fed “unit-level and state-level” values into its calculations. See id ., at 9–10, 13. Then, the agency estimated how much, on average, ozone levels would fall in downwind States with the adoption of each measure. 87 Fed. Reg . 20076; see, e.g. , id. , at 20092–20093, 20096–20097; Proposed Ozone Analysis 51–52. In making those estimations, too, EPA calibrated its modeling to each State’s features, “determin[ing] the relationship between changes in emissions and changes in ozone contributions on a state-by-state . . . basis.” Id ., at 33; see also id ., at 40, 42. To pick which measures would “maximiz[e] cost- effectiveness” in achieving “downwind ozone air quality improvements,” 87 Fed. Reg. 20055, EPA focused on what it called the “ ‘knee in the curve,’ ” or the point at which more expenditures in the upwind States were likely to produce “very little” in the way of “additional emissions reductions and air quality improvement” downwind, id. , at 20095 (hyphenation omitted). EPA used this point to select a “uniform level” of cost, and so a uniform package of emissions-reduction tools, for upwind States to adopt. Id ., at 20076. And EPA performed this analysis on two “parallel tracks”—one for power plants, one for other industries. Ibid . Pursuant to the Clean Air Act, §§7607(d)(1)(B), (d)(3)–(6), the agency published its proposed FIP for notice and comment in April 2022, 87 Fed. Reg. 20036. Immediately, commenters warned of a potential pitfall in the agency’s approach. EPA had determined which emissions-control measures were cost effective at addressing downwind ozone levels based on an assumption that the FIP would apply to all covered States. But what happens if some or many of those States are not covered? As the commenters portrayed the SIPs, this was not an entirely speculative possibility. Many believed EPA’s disapprovals of the SIPs were legally flawed. See, e.g. , Comments of Missouri Dept. of Natural Resources 3 (June 17, 2022) (referencing “all the technical, legal, and procedural issues” with the proposed SIP disapproval); see also, e . g ., Comments of Louisiana Dept. of Environmental Quality 1–3 (June 21, 2022); Comments of Texas Comm’n on Environmental Quality 2–4 (June 21, 2022); EPA, Response to Public Comments on Proposed Rule 9–11 (EPA–HQ–OAR–2021–0668). They added that EPA’s FIP was “inextricably linked” to the SIP disapprovals. E . g ., Comments of Missouri Dept. of Natural Resources, at 4. Without a SIP disapproval or missing SIP, after all, EPA could not include a State in its FIP. See, e . g ., id. , at 3; supra , at 3. Commenters added that failing to include a State could have consequences for the proposed FIP. If the FIP did not wind up applying to all 23 States as EPA envisioned, commenters argued, the agency would need “to conduct a new assessment and modeling of contribution and subject those findings to public comment.” E . g ., Comments of Air Stewardship Coalition 13–14 (June 21, 2022); Comments of Portland Cement Association 7 (June 21, 2022). Why? As noted above, EPA assessed “significant contribution” by determining what measures in upwind States would maximize cost-effective ozone-level improvements in the States downwind of them. Supra , at 5–6. And a different set of States might mean that the “knee in the curve” would shift. After all, each State differs in its mix of industries, in its pre- existing emissions-control measures, and in the impact those measures may have on emissions and downwind air quality. See 87 Fed. Reg. 20052, 20060, 20071–20073; EPA, Technical Memorandum, Screening Assessment of Potential Emissions Reductions, Air Quality Impacts, and Costs from Non-EGU Emissions Units for 2026, pp. 12–13 (2022).[ 4 ] As it happened, ongoing litigation over the SIP disap- provals soon seemed to vindicate at least some of the commenters’ concerns. Two circuits issued stays of EPA’s SIP denials for four States. See Order in No. 23–60069 (CA5, May 1, 2023) (Texas and Louisiana); Order in No. 23–1320 (CA8, May 25, 2023) (Arkansas); Order in No. 23–1719 (CA8, May 26, 2023) (Missouri). Despite those comments and developments, the agency proceeded to issue its final FIP. 88 Fed. Reg. 36654 (2023).[ 5 ] In response to the problem commenters raised, EPA adopted a severability provision stating that, should any jurisdiction drop out, its rule would “continue to be implemented as to any remaining jurisdictions.” Id ., at 36693. But in doing so, EPA did not address whether or why the same emissions-control measures it mandated would continue to further the FIP’s stated purpose of maximizing cost-effective air-quality improvement if fewer States remained in the plan. D After EPA issued its final FIP, litigation over the agency’s SIP disapprovals continued. One court after another issued one stay after another.[ 6 ] Each new stay meant another State to which EPA could not apply its FIP. See §7410(c)(1). Ultimately, EPA recognized that it could not apply its FIP to 12 of the 23 original States.[ 7 ] Together, these 12 States accounted for over 70 percent of the emissions EPA had planned to address through its FIP. See Application for Ohio et al. in No. 23A349, p. 1 (States’ Application); see also 88 Fed. Reg. 36738–36739.[ 8 ] A number of the remaining States and industry groups challenged the remnants of the FIP in the D. C. Circuit. They pointed to the Act’s provisions authorizing a court to “reverse any . . . action” taken in connection with a FIP that is “arbitrary” or “capricious.” §7607(d)(9)(A). And they argued that EPA’s decision to apply the FIP to them even after so many other States had dropped out met that standard. As part of their challenge, they asked that court to stay any effort to enforce the FIP against them while their appeal unfolded. After that court denied relief, the applicants renewed their request here. The Court has received and reviewed over 400 pages of briefing and a voluminous record, held over an hour of oral argument on the applications, and engaged in months of postargument deliberations as we often do for the cases we hear. II A Stay applications are nothing new. They seek a form of interim relief perhaps “as old as the judicial system of the nation.” Scripps-Howard Radio, Inc. v. FCC , 316 U.S. 4 , 17 (1942). Like any other federal court faced with a stay request, we must provide the applicants with an answer—“grant or deny.” Labrador v. Poe , 601 U. S. ___, ___ (2024) (Kavanaugh, J., concurring in grant of stay) (slip op., at 2). In deciding whether to issue a stay, we apply the same “sound . . . principles” as other federal courts. Nken v. Holder , 556 U.S. 418 , 434 (2009) (internal quotation marks omitted). Specifically, in this litigation, we ask (1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure the other parties interested in the proceedings, and (4) where the public interest lies. Ibid. ; States’ Application 13; Response in Opposition for Respondent EPA in No. 23A349 etc., p. 16 (EPA Response).[ 9 ] When States and other parties seek to stay the enforcement of a federal regulation against them, often “the harms and equities [will be] very weighty on both sides.” Labrador , 601 U. S., at ___ (opinion of Kavanaugh, J.) (slip op., at 3). That is certainly the case here, for both sides have strong arguments with respect to the latter three Nken factors. On one side of the ledger, the federal government points to the air-quality benefits its FIP offers downwind States. EPA Response 48–50. On the other side, the States observe that a FIP issued unlawfully (as they contend this one was) necessarily impairs their sovereign interests in regulating their own industries and citizens—interests the Act expressly recognizes. See Part I–A, supra ; States’ Application 24–26; Maryland v. King , 567 U.S. 1301, 1303 (2012) (Roberts, C. J., in chambers). The States observe, too, that having to comply with the FIP during the pendency of this litigation risks placing them at a “competitive disadvantage” to their exempt peers. States’ Application 21. The States and the private applicants also stress that complying with the FIP during the pendency of this litigation would require them to incur “hundreds of millions[,] if not billions of dollars.” Tr. of Oral Arg. 96. Those costs, the applicants note, are “nonrecoverable.” Thunder Basin Coal Co. v. Reich , 510 U.S. 200 , 220–221 (1994) (Scalia, J., concurring in part and concurring in judgment); see, e . g ., States’ Application 24; Application for American Forest & Paper Association et al. 25; see also Alabama Assn. of Realtors v. Department of Health and Human Servs. , 594 U.S. 758, 765 (2021) ( per curiam ). Because each side has strong arguments about the harms they face and equities involved, our resolution of these stay requests ultimately turns on the merits and the question who is likely to prevail at the end of this litigation. See Nken , 556 U. S., at 434; Labrador , 601 U. S., at ___ (opinion of Kavanaugh, J.) (slip op., at 4). B When it comes to that question, the parties agree on the rules that guide our analysis. The applicants argue that a court is likely to hold EPA’s final FIP “arbitrary” or “capricious” within the meaning of the Act and thus enjoin its enforcement against them. 42 U. S. C. §7607(d)(9)(A); see, e . g ., States’ Application 15–16; Application for American Forest & Paper Association et al. 14; see also 5 U. S. C. §706(2)(A). An agency action qualifies as “arbitrary” or “capricious” if it is not “reasonable and reasonably explained.” FCC v. Prometheus Radio Project , 592 U.S. 414, 423 (2021). In reviewing an agency’s action under that standard, a court may not “ ‘substitute its judgment for that of the agency.’ ” FCC v. Fox Television Stations, Inc. , 556 U.S. 502 , 513 (2009). But it must ensure, among other things, that the agency has offered “a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co ., 463 U.S. 29 , 43 (1983) (internal quotation marks omitted). Accordingly, an agency cannot simply ignore “an important aspect of the problem.” Ibid . We agree with the applicants that EPA’s final FIP likely runs afoul of these long-settled standards. The problem stems from the way EPA chose to determine which emissions “contribute[d] significantly” to downwind States’ difficulty meeting national ozone standards. 42 U. S. C. §7410(a)(2)(D)(i)(I). Recall that EPA’s plan rested on an assumption that all 23 upwind States would adopt emissions-reduction tools up to a “uniform” level of “costs” to the point of diminishing returns. 87 Fed. Reg. 20076, 20095; 88 Fed. Reg. 36661, 36683–36684, 36719; see Part I–C, supra . But as the applicants ask: What happens—as in fact did happen—when many of the upwind States fall out of the planned FIP and it may now cover only a fraction of the States and emissions EPA anticipated? See, e . g ., States’ Application 16–21; Application for American Forest & Paper Association et al. 14–15, 19–20. Does that affect the “knee in the curve,” or the point at which the remaining States might still “maximiz[e] cost-effectiv[e]” downwind ozone-level improvements? 87 Fed. Reg. 20055. As “the mix of states changes, . . . and their particular technologies and industries drop out with them,” might the point at which emissions-control measures maximize cost-effective downwind air-quality improvements also shift? Tr. of Oral Arg. 6. Although commenters posed this concern to EPA during the notice and comment period, see Part I–C, supra , EPA offered no reasoned response. Indeed, at argument the government acknowledged that it could not represent with certainty whether the cost-effectiveness analysis it performed collectively for 23 States would yield the same results and command the same emissions-control measures if conducted for, say, just one State. Tr. of Oral Arg. 58–59. Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. But if there is an explanation, it does not appear in the final rule. As a result, the applicants are likely to prevail on their argument that EPA’s final rule was not “reasonably explained,” Prometheus Radio Project , 592 U. S., at 423, that the agency failed to supply “a satisfactory explanation for its action[,]” State Farm Mut. Automobile Ins. Co ., 463 U. S., at 43, and that it instead ignored “an important aspect of the problem” before it, ibid . The applicants are therefore likely to be entitled to “revers[al]” of the FIP’s mandates on them. §7607(d)(9).[ 10 ] III A Resisting this conclusion, EPA advances three alternative arguments. First , the government insists, the agency did offer a reasoned response to the applicants’ concern, just not the one they hoped. When finalizing its rule in response to public comments, the government represents, “the agency did consider whether the [FIP] could cogently be applied to a subset of the 23 covered States.” EPA Response 27; see also post , at 17–18 (Barrett, J., dissenting). And that consideration, the government stresses, led EPA to add a “severability” provision to its final rule in which the agency announced that the FIP would “ ‘continue to be implemented’ ” without regard to the number of States remaining, even if just one State remained subject to its terms. EPA Response 27 (quoting 88 Fed. Reg. 36693). In support of its severability provision, EPA cited, among other things, its intent to address “ ‘important public health and environmental benefits” and encourage reliance by others “on th[e] final rule in their planning.’ ” Ibid. None of this, however, solves the agency’s problem. True, the severability provision highlights that EPA was aware of the applicants’ concern. But awareness is not itself an explanation. The severability provision highlights, too, the agency’s desire to apply its rule expeditiously and “ ‘to the greatest extent possible,’ ” no matter how many States it could cover. Ibid. But none of that, nor anything else EPA said in support of its severability provision, addresses whether and how measures found to maximize cost effectiveness in achieving downwind ozone air-quality improvements with the participation of 23 States remain so when many fewer States, responsible for a much smaller amount of the originally targeted emissions, might be subject to the agency’s plan. Put simply, EPA’s response did not address the applicants’ concern so much as sidestep it.[ 11 ] Second , the government pivots in nearly the opposite direction. Now, it says, if its final rule lacks a reasoned response to the applicants’ concern, it is because no one raised that concern during the public comment period. And, the agency stresses, a litigant may pursue in court only claims premised on objections first “ ‘raised with reasonable specificity’ ” before the agency during the public comment period. Id ., at 19–20 (quoting §7607(d)(7)(B)); see also post , at 8–11. We cannot agree. The Act’s “reasonable specificity” requirement does not call for “a hair-splitting approach.” Appalachian Power Co. v. EPA , 135 F.3d 791 , 817 (CADC 1998). A party need not “rehears[e]” the identical argument made before the agency; it need only confirm that the government had “notice of [the] challenge” during the public comment period and a chance to consider “in substance, if not in form, the same objection now raised” in court. Id. , at 818; see also, e.g. , Bahr v. Regan , 6 F. 4th 1059, 1070 (CA9 2021). Here, EPA had notice of the objection the applicants seek to press in court. Commenters alerted the agency that, should some States no longer participate in the plan, the agency would need to return to the drawing board and “conduct a new assessment and modeling of contribution” to determine what emissions-control measures maximized cost effectiveness in securing downwind ozone air-quality improvements. Comments of Air Stewardship Coalition, at 13–14; see also Part I–C, supra (noting examples of other comments). And, as we have just seen, EPA’s own statements and actions confirm the agency appreciated that concern. In preparing the final rule in response to public comments, the agency emphatically insists, it “ did consider whether the [r]ule could cogently be applied to a subset of the 23 covered States.” EPA Response 27. And as a result of that consideration, the agency observes, it opted to add a severability provision to its final rule. Ibid. By its own words and actions, then, the agency demonstrated that it was on notice of the applicants’ concern. Yet, as we have seen, it failed to address the concern adequately.[ 12 ] Third , the government pursues one more argument in the alternative. As the agency sees it, the applicants must return to EPA and file a motion asking it to reconsider its final rule before presenting their objection in court. They must, the agency says, because the “grounds for [their] objection arose after the period for public comment.” §7607(d)(7)(B); see EPA Response 20–21. As just discussed, however, EPA had the basis of the applicants’ objection before it during the comment period. It chose to respond with a severability provision that in no way grappled with their concern. Nothing requires the applicants to return to EPA to raise (again) a concern EPA already had a chance to address. Taking the government’s argument (much) further, the dissent posits that every “objection that [a] final rule was not reasonably explained” must be raised in a motion for reconsideration. Post , at 7 (internal quotation marks omitted; emphasis deleted). But there is a reason why the government does not go so far. The Clean Air Act opens the courthouse doors to those with objections the agency already ignored. If an “objection [is] raised with reasonable specificity during the period for public comment” but not reasonably addressed in the final rule, the Act permits an immediate challenge. §7607(d)(7)(B). A person need not go back to the agency and insist on an explanation a second time. Tellingly, the case on which the dissent relies involves an entirely different situation: a “ ‘logical outgrowth’ challeng[e].” Post , at 7. There, the objection was that EPA had supposedly “ ‘significantly amend[ed] the [r]ule between the proposed and final versions,’ ” making it impossible for people to comment on the rule during the comment period. Ibid. (quoting EME Homer , 795 F. 3d, at 137). That is nothing like the challenge here, where EPA failed to address an important problem the public could and did raise during the comment period. B With the government’s theories unavailing, the dissent advances others of its own. It begins by suggesting that the problem the applicants raise was not “ ‘ important ’ ” enough to warrant a reasoned reply from the agency because the methodology EPA employed in its FIP “appear[s] not to depend on the number of covered States.” Post , at 12–17, 18–19. Then, coming at the same point from another direction, the dissent seeks to excuse the agency’s lack of a reasoned reply as “harmless” given, again, “the apparent lack of connection between the number of States covered and the FIP’s methodology.” Post , at 20. The trouble is, if the government had arguments along these lines, it did not make them. It did not despite its ample resources and voluminous briefing. See supra , at 9. This Court “normally decline[s] to entertain” arguments “forfeited” by the parties. Kingdomware Technologies, Inc. v. United States , 579 U.S. 162, 173 (2016). And we see no persuasive reason to depart from that rule here. If anything, we see one reason for caution after another. Start with the fact the dissent itself expresses little confidence in its own theories, contending no more than it “ appear [ s ]” EPA’s methodology did not depend on the number of covered States. Post , at 14 (emphasis added). Add to that the fact that, at oral argument, even the government refused to say with certainty that EPA would have reached the same conclusions regardless of which States were included in the FIP. See Tr. of Oral Arg. 59. Combine all that with the further fact that, in developing the FIP, EPA said it used the “same regulatory framework” this Court described in EME Homer City Generation, L. P. v. EPA , 572 U.S. 489 . E . g ., EPA Response 7–8. And, at least as the Court described that framework, state-level analyses play a significant role in EPA’s work.[ 13 ] Finally, observe that, while the Act seems to anticipate, as the dissent suggests, that the agency’s “procedural determinations” may be subject to harmless-error review, §7607(d)(8), the Act also seems to treat separately challenges to agency “actions” like the FIP before us, authorizing courts to “reverse any . . . action,” found to be “arbitrary” or “capricious,” §7607(d)(9)(A) (emphasis added). With so many reasons for caution, we think sticking to our normal course of declining to consider forfeited arguments the right course here.[ 14 ] * The applications for a stay in Nos. 23A349, 23A350, 23A351, and 23A384 are granted. Enforcement of EPA’s rule against the applicants shall be stayed pending the disposition of the applicants’ petitions for review in the United States Court of Appeals for the D. C. Circuit and any petition for writ of certiorari, if such writ is timely sought. Should the petition for certiorari be denied, this order will terminate automatically. If the petition is granted, this order shall terminate upon the sending down of the judgment of this Court. It is so ordered . Notes 1 See 87 Fed. Reg. 9463 (2022) (Maryland); 87 Fed. Reg. 9484 (2022) (New York, New Jersey); 87 Fed. Reg. 9498 (2022) (Kentucky); 87 Fed. Reg. 9516 (2022) (West Virginia); 87 Fed. Reg. 9533 (2022) (Missouri); 87 Fed. Reg. 9545 (2022) (Alabama, Mississippi, Tennessee); 87 Fed. Reg. 9838 (2022) (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin); 87 Fed. Reg. 9878 (2022) (Arkansas, Louisiana, Oklahoma, Texas). 2 See 87 Fed. Reg. 31443 (California); 87 Fed. Reg. 31470 (2022) (Utah); 87 Fed. Reg. 31485 (2022) (Nevada); 87 Fed. Reg. 31495 (2022) (Wyoming). 3 EPA also added three more States: Pennsylvania and Virginia, which had not submitted SIPs, and Delaware, whose SIP, EPA said, it had approved in “error.” 87 Fed. Reg. 20036, 20038 (2022). 4 Commenters pointed out the variance among emissions-producing facilities too. See, e . g ., Comments of Indiana Municipal Power Agency 9 (June 20, 2022) (the “cost effectiveness” of one tool “will be highly variable” across different power plants); Comments of Lower Colorado River Authority 21 (June 21, 2022) (power plants that “have already invested” in one emissions-control tool “have already undertaken significant costs to achieve [nitrous oxide] reductions and have less to gain from additional control installation”); Comments of Air Stewardship Coalition 27 (June 21, 2022) (noting that the knee in the curve appeared to be at a different cost depending on which mix of industries were considered); Comments of Wisconsin Paper Council 2 (June 21, 2022) (the air-quality benefits from controlling one industry—pulp and paper mills—had a “maximum estimated improvement” in ozone levels in downwind States of just 0.0117 parts per billion). 5 The final FIP covered 23 States. 88 Fed. Reg. 36654, 36656 (2023). That plan included Pennsylvania and Virginia, but EPA declined to cover Tennessee or Wyoming at the time, even though it had announced its intention to disapprove those States’ SIPs. Ibid. ; see also supra , at 4, and nn. 1–2. EPA has since proposed a plan for Tennessee and several other States. 89 Fed. Reg. 12666 (2024). 6 See, e.g. , Order in No. 23–60069 (CA5, June 8, 2023) (Mississippi); Order in No. 23–682 (CA9, July 3, 2023) (Nevada); Order in No. 23–1776 (CA8, July 5, 2023) (Minnesota); Order in No. 23–3216 (CA6, July 25, 2023) (Kentucky); Order in No. 23–9520 etc. (CA10, July 27, 2023) (Utah and Oklahoma); Order in No. 23–11173 (CA11, Aug. 17, 2023) (Alabama); see also Order in No. 23–1418 (CA4, Aug. 10, 2023) (West Virginia, pending oral argument on preliminary motions to stay and to transfer); Order in No. 23–1418 (CA4, Jan. 10, 2024) (West Virginia, after oral argument and pending merits review of petition). 7 See 88 Fed. Reg. 49295 (2023) (Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas); 88 Fed. Reg. 67102 (2023) (Alabama, Minnesota, Nevada, Oklahoma, Utah, and West Virginia). EPA has since proposed settling the litigation over the Nevada SIP disapproval. 89 Fed. Reg. 35091 (2024). 8 Of course, this could change again as litigation over the SIP denials progresses past preliminary stay litigation and toward final decisions on the merits. 9 Approaching the applications before us like any other stay request both accords with the Clean Air Act’s text, see 42 U. S. C. §7607(d), and usual practice in this field, see, e . g ., Texas v. EPA , 829 F.3d 405, 424 (CA5 2016); West Virginia v. EPA , 90 F. 4th 323, 331 (CA4 2024); In re Murray Energy Corp. , 788 F.3d 330, 335 (CADC 2015). 10 Various applicants offer various other reasons why they believe they are likely to succeed in challenging EPA’s FIP. Having found that they are likely to succeed on the basis discussed above, however, we have no occasion to address those other arguments. 11 As the applicants conceded at oral argument, see Tr. of Oral Arg. 25–26, EPA did not need to address every possible permutation when it sought to adopt a multi-State FIP. Our conclusion is narrower: When faced with comments like the ones it received, EPA needed to explain why it believed its rule would continue to offer cost-effective improvements in downwind air quality with only a subset of the States it originally intended to cover. To be sure, after this Court heard argument, EPA issued a document in which it sought to provide further explanations for the course it pursued. See 89 Fed. Reg. 23526 (2024). But the government has not suggested that we should consult this analysis in assessing the validity of the final rule. See Letter from E. Prelogar, Solicitor General, to S. Harris, Clerk of Court 1 (Mar. 28, 2024). Nor could it, since the Clean Air Act prevents us (and courts that may in the future assess the FIP’s merits) from consulting explanations and information offered after the rule’s promulgation. See 42 U. S. C. §§7607(d)(6)(C) (“The promulgated rule may not be based (in part or whole) on any information or data which has not been placed in the docket as of the date of such promulgation”), 7607(d)(7)(A) (restricting the “record for judicial review”). We therefore look to only “the grounds that the agency invoked when it” promulgated the FIP. Michigan v. EPA , 576 U.S. 743 , 758 (2015). Should the applicants show the FIP was arbitrary or capricious on the existing record, as we have concluded is likely, the Clean Air Act entitles them to “revers[al]” of that rule’s mandates on them. §7607(d)(9)(A). 12 The dissent resorts to a “hair-splitting approach” to the public comments. Post , at 8–11. It stresses, for example, that some comments highlighted variances among specific emissions-producing facilities and industries, “not States.” Post , at 8 (emphasis deleted). But the dissent fails to acknowledge that, for purposes of the FIP, States are a sum of their emissions-producing facilities. See, e.g. , Ozone Transport Policy Analysis Final Rule TSD 12 (EPA–HQ–OAR–2021–0668, 2023) (Final Ozone Analysis). Similarly, the dissent characterizes the comment indicating EPA would need to “conduct a new assessment and modeling” if States dropped out of the FIP as a complaint about the “sequencing” of the proposed SIP disapprovals and the FIP. Post , at 10. But why would the sequencing matter? Because the FIP cannot apply to a State if its SIP is not disapproved. See Part I–A, supra . And why would EPA need to perform a “new assessment and modeling of contribution”? Because it may be that “the math . . . wouldn’t necessarily turn out the same” if some States were not covered by the FIP. Tr. of Oral Arg. 59. Fairly on notice of the concern, EPA needed to, and by its own admission sought to, “consider” whether its FIP could apply to a subset of States. EPA Response 27. 13 The agency, we said, “first calculated, for each upwind State, the quantity of emissions the State could eliminate at each of several cost [levels]”; next, it “conducted complex modeling to establish the combined effect of the upwind reductions projected at each cost [level] would have on air quality in downwind States”; and only after all that did the agency “then identif[y] significant cost [levels]” to use in setting its emissions budgets. EME Homer City , 572 U. S., at 501–502. 14 Admittedly, the dissent points to some statements in the FIP suggesting EPA considered nationwide data in parts of its analysis. See, e . g ., post , at 14; see also, e . g ., 88 Fed. Reg. 36721, 36727. But other statements in that rule and supporting documents also seem to suggest EPA considered state-specific information. See Part I–C, supra . If, as the dissent posits, only nationwide data informed EPA’s analysis, why would EPA say that, “for purposes of identifying the appropriate level of control,” it focused on “the 23 upwind states that were linked” to the downwind States, rather than, say, “all states in the contiguous U.S.”? Final Ozone Analysis 3 (footnote omitted). Why would EPA explain that its “findings regarding air quality improvement” downwind were a “central component” of picking the appropriate cost levels and so defining a State’s significant contribution? 88 Fed. Reg. 36741. And why would EPA bother to “determine the relationship between changes in emissions and changes in ozone contributions on a state-by-state . . . basis” and “calibrat[e]” that relationship “based on state-specific source apportionment”? Final Ozone Analysis 43. In asking these questions, we do not profess answers; we simply highlight further reasons for caution. SUPREME COURT OF THE UNITED STATES _________________ Nos. 23A349, 23A350, 23A351 and 23A384 _________________ OHIO, et al. 23A349 v. ENVIRONMENTAL PROTECTION AGENCY, et al. KINDER MORGAN, INC., et al. 23A350 v. ENVIRONMENTAL PROTECTION AGENCY, et al. AMERICAN FOREST & PAPER ASSOCIATION, et al. 23A351 v. ENVIRONMENTAL PROTECTION AGENCY, et al. UNITED STATES STEEL CORPORATION 23A384 v. ENVIRONMENTAL PROTECTION AGENCY, et al. on applications for stay [June 27, 2024] Justice Barrett, with whom Justice Sotomayor, Justice Kagan, and Justice Jackson join, dissenting. The Court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits. In so doing, the Court grants emergency relief in a fact- intensive and highly technical case without fully engaging with both the relevant law and the voluminous record. While the Court suggests that the EPA failed to explain itself sufficiently in response to comments, this theory must surmount sizable procedural obstacles and contrary record evidence. Applicants therefore cannot satisfy the stringent conditions for relief in this posture. I I will start by setting the record straight with respect to some important background. First , the Court downplays EPA’s statutory role in ensuring that States meet air-quality standards. Ante , at 2–3. The Clean Air Act directs EPA to “establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health.” EPA v. EME Homer City Generation, L. P. , 572 U.S. 489 , 498 (2014); see 42 U. S. C. §§7408, 7409. States must create State Implementation Plans (SIPs) to ensure that their air meets these standards. §7410(a)(1). But States also face an externality problem: “Pollutants generated by upwind sources are often transported by air currents . . . to downwind States,” relieving upwind States “of the associated costs” and making it difficult for downwind States to “maintain satisfactory air quality.” EME , 572 U. S., at 496. So the Act’s Good Neighbor Provision requires SIPs to “prohibi[t]” the State’s emissions sources from “emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS].” §7410(a)(2)(D)(i)(I). Given the incentives of upwind States to underregulate the pollution they send downwind, the Act requires EPA to determine whether a State “has failed to submit an adequate SIP.” EME , 572 U. S . , at 498; see §7410(c)(1). If a SIP does not prevent the State’s polluters from significantly contributing to nonattainment in downwind States, EPA “shall” promulgate a Federal Implementation Plan (FIP) that does. §7410(c)(1). And EPA must stop the State’s significant contributions by the statutory deadline for the affected downwind States to achieve compliance. See Wisconsin v. EPA , 938 F.3d 303, 313–314 (CADC 2019) ( per curiam ); §7511. Second , the Court fails to recognize that EPA’s SIP disapprovals may, in fact, be valid. EPA justified its findings that 23 States had failed to submit adequate SIPs. It found that these States all significantly contributed to ozone pollution in downwind States. See 88 Fed. Reg. 36656 (2023). But 21 of these States, including applicants, proposed to do nothing to reduce their ozone-precursor ( i.e ., NOx) emissions—arguing that they did not actually contribute to downwind nonattainment or that there were no other cost-effective emissions-reduction measures they could impose. See 88 Fed. Reg. 9354–9361 (2023). The other two States failed to submit a SIP at all. See 84 Fed. Reg. 66614 (2019). While 12 of EPA’s SIP disapprovals have been temporarily stayed, no court yet has invalidated one. So EPA’s replacement FIP—the Good Neighbor Plan—may yet apply to all 23 original States. Indeed, EPA and the plaintiffs who challenged Nevada’s SIP disapproval have proposed a settlement that would lift that stay. 89 Fed. Reg. 35091 (2024). Third , the Court claims that commenters on the proposed FIP warned that its emissions limits might change if it covered fewer States, but EPA failed to respond. Ante , at 6–8. Not exactly. As I will elaborate below, commenters merely criticized EPA’s decision to propose a FIP before its SIP disapprovals were final. EPA responded that this sequencing was “consistent with [its] past practice in [its] efforts to timely address good neighbor obligations”: Given the August 2024 deadline for certain States to comply with the 2015 ozone NAAQS, EPA was “obligated” to start the years-long process of promulgating a FIP so that one could be effective in time. EPA, Response to Public Comments on Proposed Rule 149–150, (EPA–HQ–OAR–2021–0668–1127, June 2023) (Response to Comments); see Wisconsin , 938 F. 3d, at 313–314. Finally , the Court repeatedly characterizes the FIP as relying on an “assumption that [it] would apply to all covered States.” Ante , at 6; see ante , at 12. But try as it might, the Court identifies no evidence that the FIP’s emissions limits would have been different for a different set of States or that EPA’s consideration of state-specific inputs was anything but confirmatory of the limits it calculated based on nationwide data. See ante , at 5–6, 19, n. 14. The Court leans on the fact that EPA “considered data specific to the emissions-producing facilities in [each] State” to calculate “how much each upwind State’s [NOx] emissions would fall” if the State’s emitters “adopted each [emissions-control] measure.” Ante , at 5 (citing EPA, Ozone Transport Policy Analysis Proposed Rule TSD 9–10, 13, 22–23, (EPA–HQ–OAR–2021–0668–0133, Feb. 2022) (Proposed Ozone Analysis)). But the Proposed Ozone Analysis makes clear that EPA did these state-specific calculations to determine each State’s “emissions budget.” Proposed Ozone Analysis 7–13. A State’s budget consists of the “emissions that would remain” after the State’s power plants meet the emissions limits that EPA independently calculated. 88 Fed. Reg. 36762; see Proposed Ozone Analysis 13 (“adjust[ed]” “unit-level emissions are summed up to the state level”); n. 6, infra . Of course each State’s emissions budget will depend on the emitters in that State. What matters is whether the limits the FIP imposes on each emitter depend on the number of States the FIP covers. Tellingly, the Court does not identify any NOx limit for any industry that relied on state-specific data. On the contrary, as I will explain in Part II–B, the final rule and its supporting documents suggest that EPA’s methodology for setting emissions limits did not depend on the number of States in the plan, but on nationwide data for the relevant industries—and the FIP contains many examples of emissions limits that EPA created using nationwide inputs. Moreover, EPA has now confirmed this interpretation. During this litigation, EPA received petitions seeking reconsideration of the FIP on the ground that it should not be implemented in just a subset of the original States. EPA denied these petitions on April 4, 2024. 89 Fed. Reg. 23526. It thoroughly explained how its “methodology for defining” each State’s emissions obligations is “independent of the number of states included in the Plan” because it “relies on a determination regarding what emissions reductions each type of regulated source can cost-effectively achieve.” EPA, Basis for Partial Denial of Petitions for Reconsideration on Scope 1, (EPA–HQ–OAR–2021–0668–1255, Apr. 2024) (Denial). The “control technologies and cost-effectiveness figures the EPA consider[ed] . . . do not depend in any way on the number of states included.” Id ., at 2. So “[s]ources in the remaining upwind states currently regulated by the Plan . . . would bear the same actual emission reduction obligations” regardless of the number of covered States. Id. , at 3–4. II To obtain emergency relief, applicants must, at a minimum, show that they are likely to succeed on the merits, that they will be irreparably injured absent a stay, and that the balance of the equities favors them. Nken v. Holder , 556 U.S. 418 , 425–426 (2009). Moreover, we should grant relief only if we would be likely to grant certiorari were the applicants’ case to come to us in the usual course. See Does 1–3 v. Mills , 595 U. S. ___, ___ (2021) (Barrett, J., concurring in denial of application for injunctive relief ); Hollingsworth v. Perry , 558 U.S. 183 , 190 (2010) ( per curiam ). In my view, the applicants cannot satisfy the stay factors. Most significantly, they have not shown a likelihood of success on the merits. The Court holds that applicants are likely to succeed on a claim that the Good Neighbor Plan is “arbitrary” or “capricious.” 42 U. S. C. §7607(d)(9). The “arbitrary-and-capricious standard requires that agency action” be both “[1] reasonable and [2] reasonably explained.” FCC v. Prometheus Radio Project , 592 U.S. 414, 423 (2021). The Court’s theory is that EPA did not “ ‘reasonably explai[n] ’ ” “why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvement.” Ante , at 13 (quoting only the second part of Prometheus Radio ’s formulation (emphasis added)). So to be clear, the Court does not conclude that EPA’s actions were substantively unreasonable— e . g ., that the FIP cannot rationally be applied to fewer States because a change in the number of participants would undermine its rationale or render it ineffective. Nor could it, given the significant evidence in the record (not to mention EPA’s denial of reconsideration) that the covered States did not, in fact, affect the plan’s emissions-reduction obligations. See Part II–B, infra . Thus, the only basis for the Court’s decision is the argument that EPA failed to provide “ ‘a satisfactory explanation for its action’ ” and a “reasoned response” to comments. Ante , at 12–13 (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 43 (1983)). There are at least three major barriers to success on such a claim. A The Clean Air Act imposes a procedural bar on the challenges that a plaintiff can bring in court: Only objections that were “raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.” §7607(d)(7)(B). If it was “impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment,” the challenger may petition for reconsideration of the rule and can obtain judicial review only if EPA refuses. Ibid. While EPA has now separately denied petitions for reconsideration of the Good Neighbor Plan, this case came to us directly; we are assessing applicants’ likelihood of success in challenging the plan itself, not the denial of reconsideration. So the procedural bar on objections not raised in the comments presents a significant obstacle—in two ways. First , consider the Court’s basic theory: that EPA offered “no reasoned response” to comments allegedly questioning whether the plan’s emissions limits depend on the States covered. Ante , at 12. That EPA failed to adequately explain its final rule in response to comments is “an objection to the notice and comment process itself,” which applicants “obviously did not and could not have raised . . . during the period for public comment.” EME Homer City Generation, L. P. v. EPA , 795 F.3d 118, 137 (CADC 2015) (Kavanaugh, J.). No one could have raised during the proposal’s comment period the objection that the “ final rule was not ‘reasonably explained.’ ” Ante , at 13 (emphasis added). The D. C. Circuit, on remand in EME Homer , considered a similar objection that EPA had “violated the Clean Air Act’s notice and comment requirements”: EPA had “significantly amend[ed] the Rule between the proposed and final versions without providing additional opportunity for notice and comment.” 795 F. 3d, at 137. But because this procedural objection could not have been raised during the comment period, “the only appropriate path for petitioners” under §7607(d)(7)(B) was to raise it “through an initial petition for reconsideration to EPA.” Ibid. So the D. C. Circuit lacked “authority at th[at] time to reach this question.” Ibid. While such “logical outgrowth” challenges typically are cognizable under the Administrative Procedure Act, see Shell Oil Co. v. EPA , 950 F.2d 741, 747 (CADC 1991), the Clean Air Act channels these challenges through reconsideration proceedings. This Court’s failure-to-explain objection may face the same problem: It is not judicially reviewable in its current posture.[ 1 ] Second , even putting aside this aspect of §7607(d)(7)(B), it is not clear that any commenter raised with “reasonable specificity” the underlying substantive issue: that the exclusion of some States from the FIP would undermine EPA’s cost-effectiveness analyses and resulting emissions controls. §7607(d)(7)(B); see ante , at 13. The Court concludes otherwise only by putting in the commenters’ mouths words they did not say. It first cites a bevy of comments arguing that EPA’s “disapprovals of the SIPs were legally flawed” and noting the obvious point that EPA cannot “include a State in its FIP” unless it validly disapproves the State’s SIP. Ante , at 6. These comments do not address the continued efficacy of a FIP that applies to a subset of the originally covered States. Another collection of the Court’s inapposite comments relates to the inclusion of specific sources, emissions controls, and industries in the proposed plan— not States. See ante , at 7, n. 4. For example, one commenter argued that the “cost effectiveness of the requirement to employ SNCR will be highly variable, and is unlikely to meet EPA expectations in even the most optimistic case.” Comments of Indiana Municipal Power Agency 9 (June 20, 2022). That is a challenge to EPA’s endorsement of a particular emissions-control technology; it says nothing about the FIP’s dependence on a particular number of States. See also, e . g ., Comments of Lower Colorado River Authority 21–22 (June 21, 2022). Similarly, another commenter argued that pulp and paper mills should not be included because the “maximum estimated improvement” in ozone levels from controlling their emissions would be “too small to even measure.” Comments of Wisconsin Paper Council 2 (June 21, 2022).[ 2 ] An argument that the maximum benefits from regulating an industry are too small is not an argument that those benefits would become too small if fewer States were covered.[ 3 ] The closest comment that the Court can find—which it quotes repeatedly—is one sentence that obliquely refers to some “new assessment and modeling of contribution” that EPA might need to perform. Comments of Air Stewardship Coalition 13–14 (June 21, 2022). The Court dresses up this comment by characterizing it as a warning about what might happen “[i]f the FIP did not wind up applying to all 23 States” and responding to the concern that a “different set of States might mean that the ‘knee in the curve’ might shift” and change the cost-effective “emissions-control measures.” Ante , at 7. But those words are the Court’s, not the commenter’s. The commenter’s actual objection was to EPA’s sequencing of its actions—proposing a FIP before it finalized its SIP disapprovals. The commenter titled this section “EPA Step Two Screening is Premised on the Premature Disapproval of 19 Upwind States[’] Good Neighbor SIPs.” Air Stewardship Comments 13 (boldface omitted). And the relevant sentence reads in full: “The proposed FIP essentially prejudges the outcome of those pending SIP actions and, in the event EPA takes a different action on those SIPs than contemplated in this proposal, it would be required to conduct a new assessment and modeling of contribution and subject those findings to public comment.” Id ., at 14. This sentence says nothing about what would be required if after EPA finalizes its SIP disapprovals and issues a final FIP, some States drop out of the plan. Nor does it suggest that the plan’s cost-effectiveness thresholds or emissions controls would change with a different number of States. Nor is it clear what the comment means by its bare reference to a “new assessment and modeling of contribution”: Would EPA be required to perform a new evaluation of which upwind States cause pollution in downwind States? A new analysis of how much pollution each source must eliminate? A new assessment of the plan’s impact on downwind States? It is therefore difficult to see how this comment raised with “reasonable specificity” the objection that the removal of some States from the final plan would invalidate EPA’s cost-effectiveness thresholds and chosen emissions-control measures.[ 4 ] That is not how EPA understood it. EPA characterized this comment as arguing that “by taking action before considering comments on the proposed disapprovals, the EPA is presupposing the outcome of its proposed rulemakings on the SIPs.” Response to Comments 147 (noting this comment’s ID number, 0518). And EPA explained that it “disagree[d]” with the argument that the “sequence” of its actions was “improper, unreasonable, or bad policy”; EPA had a statutory obligation to promulgate a FIP by the August 2024 NAAQS attainment deadline. Id ., at 150. If a commenter had said with reasonable specificity what the Court says today—that “a different set of States might mean that the ‘knee in the curve’ might shift,” ante , at 7—EPA could have responded with more explanation of why its methodology did not depend on the number of covered States—as it has recently explained. But EPA cannot be penalized if it did not have reasonable notice of this objection.[ 5 ] In sum, §7607(d)(7)(B)’s procedural bar likely forecloses both the failure-to-explain objection that the Court credits and any substantive challenge to the reasonableness of applying the FIP to a subset of the originally covered States. B Even if applicants clear §7607(d)(7)(B)’s procedural bar, they face an uphill battle on the merits. To prevail on the Court’s theory, applicants must show that EPA’s actions were “arbitrary” or “capricious.” §§7607(d)(9)(A), (D). “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” State Farm , 463 U. S., at 43. A rule is arbitrary and capricious if the agency “ entirely failed to consider an important aspect of the problem.” Ibid. (emphasis added). But we will “ ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’ ” Ibid. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc. , 419 U.S. 281 , 286 (1974)). Given the explanations and state-agnostic methodology apparent in the final rule and its supporting documentation—and the paucity of comments specifically raising the issue—EPA may well have done enough to justify its plan’s severability. To begin, the rule and its supporting documents arguably make clear that EPA’s methodology for calculating cost-effectiveness thresholds and imposing emissions controls did not depend on the number of covered States. The rule applied EPA’s longstanding “4-step interstate transport framework” to create emissions limits that will prevent NOx sources in upwind States from significantly contributing to ozone pollution in downwind States. 88 Fed. Reg. 36659; see 42 U. S. C. §7410(a)(2)(D). Under that framework, EPA (1) identifies “downwind receptors that are expected to have problems attaining or maintaining the NAAQS”; (2) identifies which upwind States are “ ‘link[ed]’ ” to those downwind receptors because they contribute at least 1% of a receptor’s ozone; (3) determines which NOx sources in the linked upwind States “significantly contribute” to downwind nonattainment or interference; and (4) implements emissions limits to stop those sources’ significant contributions. 88 Fed. Reg. 36659; see EME , 572 U. S., at 500–501 (describing similar approach used in earlier FIP). The first two steps determine which States the FIP must cover. The rubber meets the road at steps 3 and 4: How much do sources in those States “significantly contribute” to downwind pollution, and what must they do about it? Here is how EPA explains that methodology. A source “significantly contributes” to downwind pollution if there are cost-effective measures it could implement to reduce its emissions: It must halt those emissions that can be eliminated at a cost “under the cost threshold set by the Agency” for sources in that industry. EME , 572 U. S., at 518 (upholding this approach). So the “ ‘amount’ of pollution” that sources must eliminate is “that amount . . . in excess of the emissions control strategies the EPA has deemed cost effective.” 88 Fed. Reg. 36676. EPA calculates for each type of source a “uniform level of NOx emissions control stringency” expressed as a “cost per ton of emissions reduction.” Id ., at 36719. This cost-effectiveness threshold is based on the point “at which further emissions mitigation strategies become excessively costly on a per-ton basis while also delivering far fewer additional emissions reductions.” Id ., at 36683 (describing this “ ‘knee in the curve’ ” analysis). The plan requires sources in each covered State to reduce their emissions accordingly.[ 6 ] Crucially, the final rule suggests that EPA calculated cost-effectiveness thresholds based on the likely cost and impact of available emissions-reduction technology given national, industry-wide data . Contrary to the Court’s speculations, ante , at 12, these thresholds and the FIP’s resulting emissions limits appear not to depend on the number of covered States. Consider the plan’s approach to power plants (“electric generating units,” or EGUs). EPA assessed the cost and impact of different NOx mitigation strategies that EGUs could implement. One strategy was to fully operate “selective catalytic reduction” (SCR) technology. 88 Fed. Reg. 36655; see id ., at 36720. EPA estimated that a “representative marginal cost” for this strategy would be $1,600 per ton, and a “reasonable level of performance” would be 0.08 lb/mmBtu—based on “nationwide” power plant “emissions data.” Id ., at 36720–36721. EPA thus determined that SCR optimization was a “viable mitigation strategy for the 2023 ozone season” and built this assumption into the plan’s emissions limits. Id ., at 36720. In other words, EPA relied on nationwide industry data to select cost thresholds that corresponded to how much it would cost to use particular emissions-reduction technologies, and it applied that “uniform control stringency to EGUs within the covered upwind states.” Id ., at 36680.[ 7 ] In fact, some commenters criticized EPA’s reliance on a “nationwide data set” to calculate emissions limits, arguing that EPA should “limit the dataset to . . . just the covered states”—an approach that would have made the cost- effectiveness thresholds depend on which States were covered. Id ., at 36723. But EPA expressly defended its approach based on its “intention to identify a technology-specific representative emissions rate” and its interest in “the performance potential of a technology ”—which were best served by the “largest dataset possible ( i . e ., nationwide ).” Id ., at 36723–36724 (emphasis added). EPA explained that it used the same approach it had successfully applied in previous rulemakings: It “derive[d] technology performance averages” based on nationwide data. Id ., at 36724. Then it applied the relevant industry standard “on a uniform basis” to each emitter across the covered States. Id ., at 36817.[ 8 ] The Court, perhaps recognizing the problem that the FIP’s seemingly state-agnostic methodology poses for its theory, throws at the wall a cherry-picked assortment of EPA statements mentioning state data. See ante , at 5–6, 19, n. 14. None stick. The fundamental problem with the Court’s citations is that they discuss analyses that EPA performed after it chose cost thresholds and emissions limits based on nationwide industry data. EPA did assess the impact on downwind States if particular upwind States met the proposed emissions limits, and that impact depended on the States included in the modeling. Ante , at 5, 19, n. 14. But EPA said that these “ ‘findings regarding air quality improvement,’ ” ante , at 19, n. 14 (quoting 88 Fed. Reg. 36741), served only to “ cement EPA’s identification of the selected . . . mitigation measures as the appropriate control stringency,” 88 Fed. Reg. 36741 (emphasis added); see Denial 18. EPA explained that the statutory requirement to “eliminate significant contribution” depends on the implementation of cost-effective emissions controls at individual “industrial sources,” not some overall impact on “downwind areas’ nonattainment and maintenance problems.” 88 Fed. Reg. 36741. EPA assessed the FIP’s impact assuming the participation of particular States primarily to ensure that its emissions limits did not result in “overcontrol”— i . e ., more reductions than necessary to help downwind States comply with the NAAQS. Ibid. ; see EME Homer City , 572 U. S., at 521. The technical document that the Court cites, ante, at 5, makes this point clear: “The downwind air quality impacts are used to inform EPA’s assessment of potential overcontrol.” Proposed Ozone Analysis 31. EPA’s analysis confirmed that its chosen emissions limits would not result in overcontrol if they were implemented in the States originally covered by the FIP. 88 Fed. Reg. 36741. Importantly, implementing the FIP “in fewer upwind states does not (and cannot possibly) result in overcontrol” given that “there was no overcontrol even when more states, making more emission reductions, were included.” Denial 22. So the fact that EPA used state-specific data in its overcontrol analysis does not mean that the FIP’s emissions limits depended on the number of States it covered. And the inclusion of fewer States in that analysis logically could not have affected the results. Thus, EPA generally characterized the FIP’s emissions limits as dependent on nationwide data, not on any particular set of States.[ 9 ] Confirming this interpretation, the final rule contemplates its application to a different number of States. It recognizes that “states may replace FIPs with SIPs if EPA approves them,” and several sections explain how States may exit this FIP. 88 Fed. Reg. 36753, 36838–36843. And the rule’s severability provision explains that EPA views the plan as “severable along . . . state and/or tribal jurisdictional lines.” Id ., at 36693. Moreover, EPA justified the FIP’s severability: EPA “must address good neighbor obligations as expeditiously as practicable and by no later than the next applicable attainment date”; severability serves “important public health and environmental benefits” and ensures that stakeholders can “rely on this final rule in their planning.” Ibid . These rationales align with EPA’s response to critics of its decision to propose a FIP before finalizing its SIP disapprovals: Quickly proposing a FIP—just like keeping the FIP in place even if some States drop out—“is a reasonable and prudent means of assuring that [EPA’s] statutory obligation to reduce air pollution affecting the health and welfare of people in downwind states is implemented without delay.” Response to Comments 151. Given these justifications and the state-agnostic methodology apparent in the final rule, EPA’s “ ‘path may reasonably be discerned.’ ” State Farm , 463 U. S., at 43. The FIP’s cost thresholds and emissions limits did not depend in any significant way on the number of States included, so the drawbacks of severability were minimal. On the other hand, severability was necessary so that EPA could fulfill, to the greatest extent possible, its statutory obligation to eliminate the significant ozone contributions of upwind States and reduce harmful pollution in downwind States in time to meet the attainment deadlines. See Response to Comments 150 (noting the August 2024 ozone-NAAQS attainment deadline). If the FIP were not severable, EPA would have to go back to the drawing board for all States whenever a single State is removed—thwarting its mission for little reason.[ 10 ] Finally, it is unlikely that EPA’s response to comments evinces a “fail[ure] to consider an important aspect of the problem.” State Farm , 463 U. S., at 43 (emphasis added). An agency must respond to “ ‘ relevant ’ and ‘ significant ’ public comments,” and that requirement is not “particularly demanding”; the “agency need not respond at all to comments that are ‘purely speculative and do not disclose the factual or policy basis on which they rest.’ ” Public Citizen, Inc. v. FAA , 988 F.2d 186, 197 (CADC 1993) (quoting Home Box Office, Inc. v. FCC , 567 F.2d 9, 35, and n. 58 (CADC 1977); emphasis added); see §7607(d)(6)(B) (EPA must respond to “significant” comments). EPA received hundreds of comments, and its response numbered nearly 1,100 pages. Given the likelihood that the FIP’s emissions limits did not depend on the covered States, the risk of it applying to fewer States may not be “important,” and comments purportedly raising that possibility might not be “relevant” and “significant.” Moreover, the one comment that vaguely referred to a need for a “new assessment and modeling,” Air Stewardship Comments 14, was “purely speculative” and “disclose[d]” no “factual or policy basis”; it likely merited no response, Home Box Office , 567 F. 2d, at 35, n. 58. Requiring more from EPA risks the “sort of unwarranted judicial examination of perceived procedural shortcomings” that might “seriously interfere with that process prescribed by Congress.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. , 435 U.S. 519 , 548 (1978).[ 11 ] C Applicants face one more impediment: the Clean Air Act’s stringent harmless-error rule. A court “reviewing alleged procedural errors . . . may invalidate [an EPA] rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” §7607(d)(8) (emphasis added). This provision appears “tailor-made to undo” any “rigid presumption of vacatur” that might apply in other contexts. N. Bagley, Remedial Restraint in Administrative Law, 117 Colum. L. Rev. 253, 291 (2017). The alleged error here plausibly is subject to §7607(d)(8)’s harmless-error rule. As explained above, the Court does not suggest that it is substantively “[un]reasonable” to apply the FIP to fewer States, only that EPA did not “reasonably explai[n]” the FIP’s severability in response to comments. Prometheus , 592 U. S., at 423. That is arguably an “alleged procedural error” within the meaning of §7607(d)(8). In fact, the Act contemplates that at least some “arbitrary or capricious” challenges allege failures to “observ[e] . . . procedure required by law,” and such challenges may only succeed if §7607(d)(8)’s “condition is . . . met.” §7607(d)(9)(D). If the Act’s harmless-error rule applies, applicants are unlikely to prevail. Given the apparent lack of connection between the number of States covered and the FIP’s methodology for determining cost thresholds and emissions limits, it is difficult to imagine a “substantial” likelihood that the rule would have been “significantly” different had EPA just responded more thoroughly. In fact, applicants seem to have conceded as much. See Tr. of Oral Arg. 6 (“[W]ith full candor to the Court, [the cost threshold] could be the same or even be more expensive”); id ., at 9 (“I can’t tell you what that looks like, whether there is a difference in the obligations or not”). And EPA, the Court says, had “notice” of the alleged concern that the cost thresholds might change with different States. Ante , at 15. Yet EPA still chose to make the FIP severable because of its statutory obligation to reduce downwind pollution—an obligation it repeatedly referenced. See, e . g ., 88 Fed. Reg. 36693; Response to Comments 149–151. Would that same EPA have “significantly changed” the FIP had it just explained more thoroughly why the plan did not depend on the States covered?[ 12 ] And on top of all this, EPA has in fact refused to reconsider the FIP now that it applies to fewer States, explaining in detail why its methodology was unaffected by the States it covered.[ 13 ] *  *  * With little to say in response to the FIP’s apparent state-agnostic methodology for setting emissions limits and the Clean Air Act’s stringent harmless-error rule, the Court resorts to raising forfeiture. Ante , at 17–19. But it is the Court that goes out of its way to develop a failure-to-explain theory largely absent from applicants’ briefs. One can search diligently in the hundreds of pages of applicants’ opening briefs for the Court’s theory—that EPA failed to explain in its final rule why the FIP’s cost-effectiveness thresholds for imposing emissions limits do not shift with a different mix of States—and be left wondering where the Court found it. That theory appears not to have crystallized until oral argument, during which counsel for the state applicants struggled to locate it in the States’ brief. Tr. of Oral Arg. 11–12. Consider just one illustrative example. Given the importance to the Court’s theory of how the “knee in the curve” might change with different States, see ante , at 6, 7, and n. 4, 12, one might expect to find some mention of that idea in applicants’ briefs. One would be wrong. Given that applicants’ theory has evolved throughout the course of this litigation, we can hardly fault EPA for failing to raise every potentially meritorious defense in its response brief. That is particularly true given the compressed briefing schedule in this litigation’s emergency posture: The Court gave EPA less than two weeks to respond to multiple applications raising a host of general and industry-specific technical challenges, filed less than a week earlier. Even still, EPA raised §7607(d)(7)(B)’s procedural bar. Brief for Respondents 19. And on the merits, EPA expressly argued that the FIP’s “viability and validity do not depend on the number of jurisdictions it covers”; the “Rule need not apply to any minimum number of States in order to operate coherently.” Id ., at 24. EPA could also have demonstrated how the FIP’s state-agnostic methodology for selecting cost thresholds was apparent in the final rule. But EPA cannot have forfeited that more specific point because applicants did not raise it to begin with. Because EPA did not forfeit these responses to the merits of applicants’ arbitrary-or-capricious challenge, there is no need to consider whether a departure from our typical approach to forfeited arguments is justified. See ante , at 18. It remains applicants’ burden to show that the FIP’s alleged dependence on the covered States likely was an “important” problem that EPA “entirely failed to consider.” State Farm , 463 U. S., at 43. And that is on top of their burden to overcome §7607(d)(7)(B)’s procedural bar and the lack of “significant,” specific comments raising this issue. §7607(d)(6)(B). Finally, I would exercise our discretion to consider §7607(d)(8)’s harmless-error rule. Even putting aside the expedited briefing schedule and the limited discussion of the Court’s theory in applicants’ briefs, applicants bear the burden in seeking emergency relief to show a likelihood of success on the merits. In other words, we must predict whether applicants will overcome every barrier to relief at the end of the day, after full merits briefing and argument in the lower courts and, potentially, again in this Court. Section 7607(d)(8)’s harmless-error rule is one such important obstacle, and EPA has already signaled that it will raise it as litigation progresses. See Denial 35, n. 38 (arguing that any failure to more fully explain “how the Rule is not interdependent” is harmless error under §7607(d)(8)). I see no reason not to consider it now. III Given the emergency posture of this litigation, my views on the merits of the failure-to-explain objection and the application of the Clean Air Act’s procedural bar and harmless-error rule are tentative. But even a tentative adverse conclusion can undermine applicants’ likelihood of success. And applicants, to prevail, must run the table; they face the daunting task of surmounting all of these significant obstacles. They are unlikely to succeed. The Court, seizing on a barely briefed failure-to-explain theory, grants relief anyway. It enjoins the Good Neighbor Plan’s enforcement against any state or industry applicant pending review in the D. C. Circuit and any petition for certiorari. Ante , at 19. Given the number of companies included and the timelines for review, the Court’s injunction leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years—even though the temporarily stayed SIP disapprovals may all be upheld and the FIP may yet cover all the original States. The Court justifies this decision based on an alleged procedural error that likely had no impact on the plan. So its theory would require EPA only to confirm what we already know: EPA would have promulgated the same plan even if fewer States were covered. Rather than require this years-long exercise in futility, the equities counsel restraint. Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. See Does 1–3 , 595 U. S., at ___ (opinion of Barrett, J.). Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions. I respectfully dissent. Notes 1 The Court offers a feeble response to this application of §7607(d)(7)(B)’s procedural bar. Ante , at 17. It simply quotes §7607(d)(7)(B) and asserts without support that it means that a plaintiff “need not go back to the agency and insist on an explanation a second time.” Ibid . The Court fails to engage with the logic of this argument: The objection that the final rule did not contain sufficient explanation was not and could not have been raised during the comment period, so it must be raised in a petition for reconsideration. EME Homer , 795 F. 3d, at 137. The Court claims that its theory is different from the logical-outgrowth challenge the D. C. Circuit considered in EME Homer . Ante , at 17. But the Court ignores the fact that its failure-to-explain challenge and logical-outgrowth challenges are both “objection[s] to the notice and comment process itself ” that depend on the content of the final rule. EME Homer , 795 F. 3d, at 137. Even if the public raised an “important problem . . . during the comment period,” ante , at 17, the Court’s basis for enjoining the FIP’s enforcement is not that the alleged problem is real, but that the final rule did not address it. 2 The Court claims that in distinguishing comments about particular industries from comments that question whether the plan depends on a number of States, I “fai[l] to acknowledge” that the FIP treats States as the “sum of their emissions-producing facilities.” Ante , at 16, n. 12. But in reality, it is the Court that ignores how the FIP works. The FIP determines emissions limits for particular sources based on their industries ; the total NOx emissions limit for each State is simply the sum of the limits the plan imposes on each of the State’s sources. See, e . g ., 88 Fed. Reg. 36678, 36762; Part II–B, infra . So comments critiquing a particular industry-specific emissions limit or technology assumption say nothing about the FIP’s dependence on a certain number of States. 3 Nor did the Air Stewardship Coalition’s comment about the “knee in the curve” raise concerns about which States are included. See ante , at 7, n. 4. Rather, this comment questioned EPA’s proposed average cost-effectiveness threshold of $7,500 per ton for non-power-plant sources; it argued that EPA should use different thresholds for different industries. Comments of Air Stewardship Coalition 27 (June 21, 2022) (Air Stewardship Comments). It did not link its concern about cost thresholds to the States covered by the plan. 4 So too with Portland Cement’s comment. See ante , at 7. That comment simply echoes the quoted sentence from the Air Stewardship Coalition almost word for word, also in the context of objecting to EPA’s decision to propose a FIP before finalizing its SIP disapprovals. Comments of Portland Cement Association 7 (June 21, 2022). 5 The Court concludes to the contrary only by building out the comment’s bare reference to a “new assessment and modeling” with its own inferences about the possible effect of different numbers of States on “the math.” Ante , at 16, n. 12 (internal quotation marks omitted). But as explained above, the comment itself said nothing about States dropping out of the final plan or the possible impact of different numbers of States on the FIP’s cost thresholds or emissions limits. It is hard to believe that a single sentence with no elaboration or explanation of the potential issue—in a sea of thousands of pages of comments—gave EPA reasonable notice that it should have included in its final rule a detailed explanation of why the FIP’s emissions limits did not depend on the number of States. Cf. Public Citizen, Inc. v. FAA , 988 F.2d 186, 197 (CADC 1993) (An “agency need not respond at all to comments that are ‘purely speculative and do not disclose the factual or policy basis on which they rest’ ”). 6 For power plants, EPA implements these requirements by allocating each State an “ ‘emissions budget’ . . . representing the EPA’s quantification of the emissions that would remain” if plants in that State eliminated all the emissions that EPA determines can be eliminated for less than the cost threshold. 88 Fed. Reg. 36762. EPA then allocates tradeable “ ‘allowances’ ” proportionally among the State’s sources, creating a marketplace for emissions. Ibid . With respect to other sources, EPA determined that nine industries in the covered States produced the most significant emissions. Id ., at 36817. The rule requires sources in each of those industries to meet specific emissions limits that were calculated based on the reductions that they can cost-effectively achieve. Ibid. 7 EPA ultimately selected (based on nationwide data) a cost threshold of $1,800 per ton of NOx reduction that would apply in earlier years, and a cost threshold of $11,000 per ton that would apply in later years. 88 Fed. Reg. 36749, 36846. These cost thresholds corresponded to the cost of different emissions-control measures: For example, EGUs can “retrofi[t ] state-of-the-art combustion controls” and “[o]ptimiz[e] idled SCRs” for less than $1,800 per ton, and they can “instal[l  new] SCRs” for less than $11,000 per ton. Ozone Transport Policy Analysis Final Rule TSD 5 (EPA–HQ–OAR–2021–0668–1080, Mar. 2023) (Final Ozone Analysis). EPA then calculated each State’s emissions budget based on the assumption that the State’s EGUs would implement the emissions-reductions strategies that cost less than the chosen thresholds. See n. 6, supra ; 88 Fed. Reg. 36762; Final Ozone Analysis 6, 9. Given the likelihood that EPA selected cost thresholds based on nationwide data, each State’s budget would be the same even if the FIP covered different States. 8 While EPA’s methodology with respect to other industrial sources (non-EGUs) was more complicated, it also seems to have relied on nationwide data. EPA chose a “$7,500 marginal cost-per-ton threshold,” 88 Fed. Reg. 36740, which corresponded to the point of diminishing returns (the “knee in the curve”) when EPA assessed the impact of emissions controls in the highest impact industries and in “all industries” on the total “ozone season NOx reduction potential,” Technical Memorandum, Screening Assessment of Potential Emissions Reductions, Air Quality Impacts, and Costs From Non-EGU Emissions Units for 2026, p. 4, (EPA–HQ–OAR–2021–0668–150, Feb. 2022) (boldface omitted). This figure thus appears to have been determined based on industry-wide cost and emissions data rather than state-specific calculations. So too with the specific emissions limits EPA decided could be implemented for less than that cost. See, e.g. , 88 Fed. Reg. 36825 (“EPA based the proposed emissions limits for cement kilns on the types of limits being met across the nation”). 9 The Court argues that EPA equated the framework it used here with the one that we described in EME Homer City . Ante , at 18, and n. 13. But even if EME described an approach that selected cost thresholds “only after” conducting downwind air-quality assessments, ibid. , it is not clear that the Good Neighbor Plan adopted this aspect of the EME framework. In fact, there are other key similarities between this FIP and EME ’s approach. For example, the final FIP refers to EME in order to note that EPA’s “uniform framework of policy judgments”— i . e ., applying the same cost thresholds with “[n]ationwide consistency”—was upheld in that case. 88 Fed. Reg. 36673. And the final FIP identifies cost thresholds that EPA chose based on nationwide data—like $1,800 based on the cost of EGUs “optimiz[ing] . . . existing SCRs and SNCRs.” Id ., at 36749. 10 The Court claims that the severability clause is evidence that EPA “had notice of the objection the applicants seek to press in court,” yet EPA’s justifications for it did not address (alleged) concerns about how the cost-effectiveness thresholds would change with fewer States. Ante , at 15–16. But as explained above, commenters did not raise that issue with specificity; they simply pointed out that some SIP disapprovals might be invalid. The severability clause is evidence that EPA was aware of that possibility, and the clause was EPA’s response to it. 11 Despite the Court’s suggestion of forfeiture, ante , at 17, EPA could not have forfeited the argument that the comments the Court cites were too insubstantial to merit a response. The Court relies on comments that were not raised until the applicants’ reply briefs or that were uncovered later by the Court itself. See, e . g ., Reply Brief in No. 23A351, p. 11 (raising the Air Stewardship Coalition “modeling” comment for the first time). 12 The Court faults EPA for “refus[ing] to say with certainty” at oral argument that it would have reached the same conclusions if different States were included in the FIP. Ante , at 18. But §7607(d)(8) does not require the Government to show that the rule would be the same; it is most naturally read to require the challenger to demonstrate a “substantial likelihood that the rule would have been significantly changed if such errors had not been made.” (Emphasis added.) And though §7607(d)(9)(A) appears to allow reversal of “ ‘any’ ” arbitrary or capricious “ ‘action,’ ” ante , at 19, §7607(d)(8)’s more specific harmless-error rule and §7607(d)(9)(D)’s more specific requirements for reversal based on arbitrary or capricious procedural errors would seem to control. 13 The Court claims that the Clean Air Act prevents us from considering EPA’s denial of reconsideration. Ante , at 14–15, n. 11. But it is not obvious that the relevant provision of the Act—§7607(d)(7)(A)’s definition of the “record for judicial review”—bars consideration of later developments for purposes of the Act’s stringent harmless-error rule, §7607(d)(8). Even assuming that the denial of reconsideration itself cannot count as evidence of harmlessness, we are judging applicants’ likelihood of success on the merits. On the merits, we can expect EPA to make just the sort of arguments it made in its denial: EPA likely will explain why the covered States did not matter by citing and interpreting material in the record. See, e . g ., Denial 11 (“Record Basis Establishing Why the Plan Functions Independently by State”); id ., at 15, and nn. 16–18 (citing the final rule and technical support documents on the rulemaking docket).

The Supreme Court ruled on a challenge to the Environmental Protection Agency's (EPA) decision to reject over 20 states' plans for controlling ozone pollution and impose a single federal plan. The Court found that the EPA did not comply with the Clean Air Act in adopting the plan, as it failed to give the states adequate notice and opportunity to respond to the proposed plan. The Court also raised concerns about the EPA's cost-effectiveness analysis and whether the plan would have been significantly changed if certain states had been included. The Court's decision highlights the importance of state involvement and collaboration in implementing air quality standards under the Clean Air Act.

Free Speech

Frohwerk v. U.S.

https://supreme.justia.com/cases/federal/us/249/204/

U.S. Supreme Court Frohwerk v. United States, 249 U.S. 204 (1919) Frohwerk v. United States No. 685 Argued January 27, 1919 Decided March 10, 1919 249 U.S. 204 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MISSOURI Syllabus The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language. P. 249 U. S. 206 . A conspiracy to obstruct recruiting by words of persuasion merely, viz., by circulating newspaper publications, with overt acts, is within the Espionage Act of June 15, 1917, and within the power of Congress to punish. Pp. 249 U. S. 206 , 249 U. S. 208 . Schenck v. United States, ante, 249 U. S. 47 . After conviction under an indictment charging such a conspiracy and, as overt acts, the circulation of newspapers containing articles which might well tend to effect its object if circulated in certain places, the court must assume, in the absence of a bill of exceptions, that the evidence as to the quarters reached by the newspapers and the scienter and expectation of the defendant was sufficient to sustain the conviction. P. 249 U. S. 208 . A conspiracy to obstruct recruiting in violation of the Espionage Act is criminal even when no means have been specifically agreed on to carry out the intent, and hence it is not an objection to an indictment that means are not alleged. P. 249 U. S. 209 . Neither, in such an indictment, is it necessary to allege that false reports were made or intended to be made. Id. An allegation that defendants conspired to accomplish an object necessarily alleges their intent to do so. Id. Under § 4 of the Espionage Act of 1917, the overt acts are sufficiently alleged as done to effect the object of the conspiracy. Id. An indictment is not bad for duplicity in setting up in a single count a conspiracy to commit two offenses; the conspiracy is a unit, however diverse its objects. Id. There is no merit in the suggestion that acts which are not treasonable cannot be punished under the Espionage Act of 1917 upon the theory that other acts included in the statute amount to treason, and can only be punished as such. P. 249 U.S. 210 . The amendment of 1918 did not affect indictments found under the Espionage Act of 1917. Id. Page 249 U. S. 205 Abuse of discretion is not established by the facts that, upon overruling a demurrer to an indictment, the district court on the next day ordered a plea of not guilty to be entered, refused a continuance, empaneled a jury out of those previously called to meet on that day for the term, and set the trial to begin on the day following. Id. Affirmed. The case is stated in the opinion. MR. JUSTICE HOLMES delivered the opinion of the Court. This is an indictment in thirteen counts. The first alleges a conspiracy between the plaintiff in error and one Carl Gleeser, they then being engaged in the preparation and publication of a newspaper, the Missouri Staats Zeitung, to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219. It alleges as overt acts the preparation and circulation of twelve articles &c. in the said newspaper at different dates from July 6, 1917, to December 7 of the same year. The other counts allege attempts to cause disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States by the same publications, each count being confined to the publication of a single date. Motion to dismiss and a demurrer on constitutional and other grounds, especially that of the First Amendment as to free speech, were overruled, subject to exception, and the defendant refusing to plead, the court ordered a plea of not guilty to be filed. There was a trial, and Frohwerk was found guilty on all Page 249 U. S. 206 the counts except the seventh, which needs no further mention. He was sentenced to a fine and to ten years imprisonment on each count, the imprisonment on the later counts to run concurrently with that on the first. Owing to unfortunate differences, no bill of exceptions is before us. Frohwerk applied to this Court for leave to file a petition for a writ of mandamus requiring the judge to sign a proper bill of exceptions, but a case was not stated that would warrant the issuing of the writ, and leave was denied. United States ex rel. Frohwerk v. Youmans, 248 U.S. 540. The absence of a bill of exceptions and the suggestions in the application for mandamus have caused us to consider the case with more anxiety than if it presented only the constitutional question which was the theme of the principal argument here. With regard to that argument, we think it necessary to add to what has been said in Schenck v. United States, 249 U. S. 47 , only that the First Amendment, while prohibiting legislation against free speech as such, cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 . We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech. Whatever might be thought of the other counts on the evidence, if it were before us, we have decided in Schenck v. United States that a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion. The government argues that, on the record, the question is narrowed simply to the power of Congress to punish such a conspiracy to obstruct, but we shall take it in favor of the defendant that the publications set forth as overt acts were the only means, and, when coupled with the joint activity in producing them, the only evidence of Page 249 U. S. 207 the conspiracy alleged. Taking it that way, however, so far as the language of the article goes, there is not much to choose between expressions to be found in them and those before us in Schenck v. United States. The first begins by declaring it a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great trusts, and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally, a matter discussed at length in his voluminous brief, on the ground that, before its decision to the contrary, the Solicitor General misled this Court as to the law. Later, on August 3, came discussion of the causes of the war, laying it to the administration and saying "that a few men and corporations might amass unprecedented fortunes, we sold our honor, our very soul," with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes "We say therefore, cease firing." Next, on August 10, after deploring "the draft riots in Oklahoma and elsewhere" in language that might be taken to convey an innuendo of a different sort, it is said that the previous talk about legal remedies is all very well for those who are past the draft age and have no boys to be drafted, and the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching the conviction that this is but a war to protect some rich men's money. Page 249 U. S. 208 Who then, it is asked, will pronounce a verdict of guilty upon him if he stops reasoning and follows the first impulse of nature: self-preservation, and further, whether, while technically he is wrong in his resistance, he is not more sinned against than sinning, and yet again whether the guilt of those who voted the unnatural sacrifice is not greater than the wrong of those who now seek to escape by ill-advised resistance. On August 17, there is quoted and applied to our own situation a remark to the effect that, when rulers scheme to use it for their own aggrandizement, loyalty serves to perpetuate wrong. On August 31, with more of the usual discourse, it is said that the sooner the public wakes up to the fact that we are led and ruled by England, the better; that our sons, our taxes, and our sacrifices are only in the interest of England. On September 28 there is a sneering contrast between Lord Northeliffe and other Englishmen spending many hundreds of thousands of dollars here to drag us into the war and Count Bernstorff spending a few thousand to maintain peace between his own country and us. Later follow some compliments to Germany and a statement that the Central powers are carrying on a defensive war. There is much more to the general effect that we are in the wrong and are giving false and hypocritical reasons for our course, but the foregoing is enough to indicate the kind of matter with which we have to deal. It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war. It does not appear that there was any special effort to reach men who were subject to the draft, and if the evidence should show that the defendant was a poor man, turning out copy for Gleeser, his employer at less than a day laborer's pay, for Gleeser to use or reject as he saw fit, in a newspaper of small circulation, there would be a natural inclination Page 249 U. S. 209 to test every question of law to be found in the record very thoroughly before upholding the very severe penalty imposed. But we must take the case on the record as it is, and, on that record, it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame, and that the fact was known and relied upon by those who sent the paper out. Small compensation would not exonerate the defendant if it were found that he expected the result, even if pay were his chief desire. When we consider that we do not know how strong the government's evidence may have been, we find ourselves unable to say that the articles could not furnish a basis for a conviction upon the first count at least. We pass therefore to the other points that are raised. It is said that the first count is bad because it does not allege the means by which the conspiracy was to be carried out. But a conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose. That purpose could be accomplished or aided by persuasion as well as by false statements, and there was no need to allege that false reports were intended to be made or made. It is argued that there is no sufficient allegation of intent, but intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it. The overt acts are alleged to have been done to effect the object of the conspiracy, and that is sufficient under § 4 of the Act of 1917. Countenance we believe has been given by some courts to the notion that a single count in an indictment for conspiring to commit two offences is bad for duplicity. This Court has given it none. Buckeye Powder Co. v. E. I. Dupont de Nemours Powder Co., 248 U. S. 55 , 248 U. S. 60 -61; Joplin Mercantile Co. v. United Page 249 U. S. 210 States, 236 U. S. 531 , 236 U. S. 548 . The conspiracy is the crime, and that is one, however diverse its objects. Some reference was made in the proceedings and in argument to the provision in the Constitution concerning treason, and it was suggested on the one hand that some of the matters dealt with in the Act of 1917 were treasonable and punishable as treason or not at all, and on the other that the acts complained of, not being treason, could not be punished. These suggestions seem to us to need no more than to be stated. The amendment of the Act of 1917 in 1918 (Act May 16, 1918, c. 75) did not affect the present indictment. Schenck v. United States. Without pursuing the matter further, we are of opinion that the indictment must stand. Before the demurrer was disposed of, the court had ordered jurymen to be summoned to serve for the April term of the court and to report for service on June 25, 1918, as, of course, it might. The demurrer was overruled on June 24, and on the following day the plea of not guilty was ordered to be entered, a continuance was refused, a jury was empannelled, and the trial set to begin the next morning. There is nothing before us that makes it possible to say that the judge's discretion was wrongly exercised. Upon the whole case, we are driven to the conclusion that the record shows no ground upon which the judgment can be reversed. Judgment affirmed.

In *Frohwerk v. United States*, the Supreme Court upheld the conviction of a defendant who conspired to obstruct military recruitment through newspaper publications during World War I. The Court ruled that the First Amendment does not provide immunity for all uses of language and that the defendant's actions fell within the Espionage Act of 1917, which criminalized attempts to obstruct recruitment and enlistment. The Court also rejected various challenges to the indictment, finding that it sufficiently alleged the defendant's intent, overt acts, and conspiracy, even without specifying the means by which the conspiracy was to be carried out. The Court further held that a single count of conspiracy to commit multiple offenses is not invalid due to duplicity, as the conspiracy itself is the crime.

Government Agencies

Biden v. Nebraska

https://supreme.justia.com/cases/federal/us/600/22-506/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–506 _________________ Joseph R. Biden, President of the United States, et al., PETITIONERS v. Nebraska, et al. on writ of certiorari before judgment to the united states court of appeals for the eighth circuit [June 30, 2023] Chief Justice Roberts delivered the opinion of the Court. To ensure that Americans could keep up with increasing international competition, Congress authorized the first federal student loans in 1958—up to a total of $1,000 per student each year. National Defense Education Act of 1958, 72Stat. 1584. Outstanding federal student loans now total $1.6 trillion extended to 43 million borrowers. Letter from Congressional Budget Office to Members of Congress, p. 3 (Sept. 26, 2022) (CBO Letter). Last year, the Secretary of Education established the first comprehensive student loan forgiveness program, invoking the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) for authority to do so. The Secretary’s plan canceled roughly $430 billion of federal student loan balances, completely erasing the debts of 20 million borrowers and lowering the median amount owed by the other 23 million from $29,400 to $13,600. See ibid. ; App. 243. Six States sued, arguing that the HEROES Act does not authorize the loan cancellation plan. We agree. I A The Higher Education Act of 1965 (Education Act) was enacted to increase educational opportunities and “assist in making available the benefits of postsecondary education to eligible students . . . in institutions of higher education.” 20 U. S. C. §1070(a). To that end, Title IV of the Act restructured federal financial aid mechanisms and established three types of federal student loans. Direct Loans are, as the name suggests, made directly to students and funded by the federal fisc; they constitute the bulk of the Federal Government’s student lending efforts. See §1087a et seq. The Government also administers Perkins Loans— government-subsidized, low-interest loans made by schools to students with significant financial need—and Federal Family Education Loans, or FFELs—loans made by private lenders and guaranteed by the Federal Government. See §§1071 et seq. , 1087aa et seq. While FFELs and Perkins Loans are no longer issued, many remain outstanding. §§1071(d), 1087aa(b). The terms of federal loans are set by law, not the market, so they often come with benefits not offered by private lenders. Such benefits include deferment of any repayment until after graduation, loan qualification regardless of credit history, relatively low fixed interest rates, income-sensitive repayment plans, and—for undergraduate students with financial need—government payment of interest while the borrower is in school. Dept. of Ed., Federal Student Aid, Federal Versus Private Loans. The Education Act specifies in detail the terms and conditions attached to federal loans, including applicable interest rates, loan fees, repayment plans, and consequences of default. See §§1077, 1080, 1087e, 1087dd. It also authorizes the Secretary to cancel or reduce loans, but only in certain limited circumstances and to a particular extent. Specifically, the Secretary can cancel a set amount of loans held by some public servants—including teachers, members of the Armed Forces, Peace Corps volunteers, law enforcement and corrections officers, firefighters, nurses, and librarians—who work in their professions for a minimum number of years. §§1078–10, 1087j, 1087ee. The Secretary can also forgive the loans of borrowers who have died or been “permanently and totally disabled,” such that they cannot “engage in any substantial gainful activity.” §1087(a)(1). Bankrupt borrowers may have their loans forgiven. §1087(b). And the Secretary is directed to discharge loans for borrowers falsely certified by their schools, borrowers whose schools close down, and borrowers whose schools fail to pay loan proceeds they owe to lenders. §1087(c). Shortly after the September 11 terrorist attacks, Congress became concerned that borrowers affected by the crisis—particularly those who served in the military—would need additional assistance. As a result, it enacted the Higher Education Relief Opportunities for Students Act of 2001. That law provided the Secretary of Education, for a limited period of time, with “specific waiver authority to respond to conditions in the national emergency” caused by the September 11 attacks. 115Stat. 2386. Rather than allow this grant of authority to expire by its terms at the end of September 2003, Congress passed the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). 117Stat. 904. That Act extended the coverage of the 2001 statute to include any war or national emergency—not just the September 11 attacks. By its terms, the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” 20 U. S. C. §1098bb(a)(1).[ 1 ] The Secretary may issue waivers or modifications only “as may be necessary to ensure” that “recipients of student financial assistance under title IV of the [Education Act] who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.” Immediately following the passage of the Act in 2003, the Secretary issued two dozen waivers and modifications addressing a handful of specific issues. 68 Fed. Reg. 69312–69318. Among other changes, the Secretary waived the requirement that “affected individuals” must “return or repay an overpayment” of certain grant funds erroneously disbursed by the Government, id. , at 69314, and the requirement that public service work must be uninterrupted to qualify an “affected individual” for loan cancellation, id. , at 69317. Additional adjustments were made in 2012, with similar limited effects. 77 Fed. Reg. 59311–59318. But the Secretary took more significant action in response to the COVID–19 pandemic. On March 13, 2020, the President declared the pandemic a national emergency. Presidential Proclamation No. 9994, 85 Fed. Reg. 15337–15338 (2020). One week later, then-Secretary of Education Betsy DeVos announced that she was suspending loan repayments and interest accrual for all federally held student loans. See Dept. of Ed., Breaking News: Testing Waivers and Student Loan Relief (Mar. 20, 2020). The following week, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act, which required the Secretary to extend the suspensions through the end of September 2020. 134Stat. 404–405. Before that extension expired, the President directed the Secretary, “[i]n light of the national emergency,” to “effectuate appropriate waivers of and modifications to” the Education Act to keep the suspensions in effect through the end of the year. 85 Fed. Reg. 49585. And a few months later, the Secretary further extended the suspensions, broadened eligibility for federal financial assistance, and waived certain administrative requirements (to allow, for example, virtual rather than on-site accreditation visits and to extend deadlines for filing reports). Id. , at 79856–79863; 86 Fed. Reg. 5008–5009 (2021). Over a year and a half passed with no further action beyond keeping the repayment and interest suspensions in place. But in August 2022, a few weeks before President Biden stated that “the pandemic is over,” the Department of Education announced that it was once again issuing “waivers and modifications” under the Act—this time to reduce and eliminate student debts directly. See App. 257–259; Washington Post, Sept. 20, 2022, p. A3, col. 1. During the first year of the pandemic, the Department’s Office of General Counsel had issued a memorandum concluding that “the Secretary does not have statutory authority to provide blanket or mass cancellation, compromise, discharge, or forgiveness of student loan principal balances.” Memorandum from R. Rubinstein to B. DeVos, p. 8 (Jan. 12, 2021). After a change in Presidential administrations and shortly before adoption of the challenged policy, however, the Office of General Counsel “formally rescinded” its earlier legal memorandum and issued a replacement reaching the opposite conclusion. 87 Fed. Reg. 52945 (2022). The new memorandum determined that the HEROES Act “grants the Secretary authority that could be used to effectuate a program of targeted loan cancellation directed at addressing the financial harms of the COVID–19 pandemic.” Id. , at 52944. Upon receiving this new opinion, the Secretary issued his proposal to cancel student debt under the HEROES Act. App. 257–259. Two months later, he published the required notice of his “waivers and modifications” in the Federal Register. 87 Fed. Reg. 61512–61514. The terms of the debt cancellation plan are straightforward: For borrowers with an adjusted gross income below $125,000 in either 2020 or 2021 who have eligible federal loans, the Department of Education will discharge the balance of those loans in an amount up to $10,000 per borrower.[ 2 ] Id. , at 61514 (“modif[ying] the provisions of ” 20 U. S. C. §§1087, 1087dd(g); 34 CFR pt. 647, subpt. D (2022); 34 CFR §§682.402, 685.212). Borrowers who previously received Pell Grants qualify for up to $20,000 in loan cancellation. 87 Fed. Reg. 61514 . Eligible loans include “Direct Loans, FFEL loans held by the Department or subject to collection by a guaranty agency, and Perkins Loans held by the Department.” Ibid. The Department of Education estimates that about 43 million borrowers qualify for relief, and the Congressional Budget Office estimates that the plan will cancel about $430 billion in debt principal. See App. 119; CBO Letter 3. B Six States moved for a preliminary injunction, claiming that the plan exceeded the Secretary’s statutory authority. The District Court held that none of the States had standing to challenge the plan and dismissed the suit. ___ F. Supp. 3d ___ (ED Mo. 2022). The States appealed, and the Eighth Circuit issued a nationwide preliminary injunction pending resolution of the appeal. The court concluded that Missouri likely had standing through the Missouri Higher Education Loan Authority (MOHELA or Authority), a public corporation that holds and services student loans. 52 F. 4th 1044 (2022). It further concluded that the State’s challenge raised “substantial” questions on the merits and that the equities favored maintaining the status quo pending further review. Id. , at 1048 (internal quotation marks omitted). With the plan on pause, the Secretary asked this Court to vacate the injunction or to grant certiorari before judgment, “to avoid prolonging this uncertainty for the millions of affected borrowers.” Application 4. We granted the petition and set the case for expedited argument. 598 U. S. ___ (2022). II Before addressing the legality of the Secretary’s program, we must first ensure that the States have standing to challenge it. Under Article III of the Constitution, a plaintiff needs a “personal stake” in the case. TransUnion LLC v. Ramirez , 594 U. S. ___, ___ (2021) (slip op., at 7). That is, the plaintiff must have suffered an injury in fact—a concrete and imminent harm to a legally protected interest, like property or money—that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit. Lujan v. Defenders of Wildlife , 504 U.S. 555 , 560–561 (1992). If at least one plaintiff has standing, the suit may proceed. Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47 , 52, n. 2 (2006). Because we conclude that the Secretary’s plan harms MOHELA and thereby directly injures Missouri—conferring standing on that State—we need not consider the other theories of standing raised by the States. Missouri created MOHELA as a nonprofit government corporation to participate in the student loan market. Mo. Rev. Stat. §173.360 (2016). The Authority owns over $1 billion in FFELs. MOHELA, FY 2022 Financial Statement 9 (Financial Statement). It also services nearly $150 billion worth of federal loans, having been hired by the Department of Education to collect payments and provide customer service to borrowers. Id. , at 4, 8. MOHELA receives an administrative fee for each of the five million federal accounts it services, totaling $88.9 million in revenue last year alone. Ibid. Under the Secretary’s plan, roughly half of all federal borrowers would have their loans completely discharged. App. 119. MOHELA could no longer service those closed accounts, costing it, by Missouri’s estimate, $44 million a year in fees that it otherwise would have earned under its contract with the Department of Education. Brief for Respondents 16. This financial harm is an injury in fact directly traceable to the Secretary’s plan, as both the Government and the dissent concede. See Tr. of Oral Arg. 18; post , at 5 (Kagan, J., dissenting). The plan’s harm to MOHELA is also a harm to Missouri. MOHELA is a “public instrumentality” of the State. Mo. Rev. Stat. §173.360. Missouri established the Authority to perform the “essential public function” of helping Missourians access student loans needed to pay for college. Ibid. ; see Todd v. Curators of University of Missouri , 347 Mo. 460, 464, 147 S.W.2d 1063, 1064 (1941) (“Our constitution recognizes higher education as a governmental function.”). To fulfill this public purpose, the Authority is empowered by the State to invest in or finance student loans, including by issuing bonds. §§173.385(1)(6)–(7). It may also service loans and collect “reasonable fees” for doing so. §§173.385(1)(12), (18). Its profits help fund education in Missouri: MOHELA has provided $230 million for development projects at Missouri colleges and universities and almost $300 million in grants and scholarships for Missouri students. Financial Statement 10, 20. The Authority is subject to the State’s supervision and control. Its board consists of two state officials and five members appointed by the Governor and approved by the Senate. §173.360. The Governor can remove any board member for cause. Ibid. MOHELA must provide annual financial reports to the Missouri Department of Education, detailing its income, expenditures, and assets. §173.445. The Authority is therefore “directly answerable” to the State. Casualty Reciprocal Exchange v. Missouri Employers Mut. Ins. Co. , 956 S.W.2d 249 , 254 (Mo. 1997). The State “set[s] the terms of its existence,” and only the State “can abolish [MOHELA] and set the terms of its dissolution.” Id. , at 254–255. By law and function, MOHELA is an instrumentality of Missouri: It was created by the State to further a public purpose, is governed by state officials and state appointees, reports to the State, and may be dissolved by the State. The Secretary’s plan will cut MOHELA’s revenues, impairing its efforts to aid Missouri college students. This acknowledged harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself. We came to a similar conclusion 70 years ago in Arkansas v. Texas , 346 U.S. 368 (1953). Arkansas sought to invoke our original jurisdiction in a suit against Texas, claiming that Texas had wrongfully interfered with a contract between the University of Arkansas and a Texas charity. Id. , at 369. Texas argued that the suit could not proceed because the University did “not stand in the shoes of the State.” Id. , at 370. The harm to the University, as Texas saw it, was not a harm to Arkansas sufficient for the State to sue in its own name. We disagreed. We recognized that “Arkansas must, of course, represent an interest of her own and not merely that of her citizens or corporations.” Ibid. But we concluded that Arkansas was in fact seeking to protect its own interests because the University was “an official state instrumentality.” Ibid. The State had labeled the University “an instrument of the state in the performance of a governmental work.” Ibid. (internal quotation marks omitted). The University served a public purpose, acting as the State’s “agen[t] in the educational field.” Id. , at 371. The University had been “created by the Arkansas legislature,” was “governed by a Board of Trustees appointed by the Governor with consent of the Senate,” and “report[ed] all of its expenditures to the legislature.” Id. , at 370. In short, the University was an instrumentality of the State, and “any injury under the contract to the University [was] an injury to Arkansas.” Ibid. So too here. Because the Authority is part of Missouri, the State does not seek to “rely on injuries suffered by others.” Post , at 2 (opinion of Kagan, J.). It aims to remedy its own. The Secretary and the dissent assert that MOHELA’s injuries should not count as Missouri’s because MOHELA, as a public corporation, has a legal personality separate from the State. Every government corporation has such a distinct personality; it is a corporation, after all, “with the powers to hold and sell property and to sue and be sued.” First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba , 462 U.S. 611 , 624 (1983). Yet such an instrumentality—created and operated to fulfill a public function—nonetheless remains “(for many purposes at least) part of the Government itself.” Lebron v. National Railroad Passenger Corporation , 513 U.S. 374 , 397 (1995). In Lebron , Amtrak was sued for refusing to display a political advertisement on a billboard at one of its stations. Id. , at 376–377. Amtrak argued that it was not subject to the First Amendment because it was a corporation separate from the Federal Government . See id. , at 392. Congress had even specified in its authorizing statute that Amtrak was not “an agency or establishment of the United States Government.” Id. , at 391 (quoting 84Stat. 1330). Despite this disclaimer, we held that Amtrak remained subject to the First Amendment because it functioned as an instrumentality of the Federal Government, “created by a special statute, explicitly for the furtherance of federal governmental goals” of ensuring that the American public had access to passenger trains. Lebron , 513 U. S., at 397. Its board was appointed by the President, and it had to submit annual reports to the President and Congress. Id. , at 385–386. Having been “established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees,” Amtrak could not disclaim that it was “part of the Government.” Id. , at 398, 400. We reiterated the point in Department of Transportation v. Association of American Railroads , 575 U.S. 43 (2015). There, railroads argued that giving Amtrak regulatory power was an unconstitutional delegation of government authority to a private entity. Id. , at 49–50. We rejected that contention, noting that “Amtrak was created by the Government, is controlled by the Government, and operates for the Government’s benefit.” Id. , at 53. It was therefore acting “as a governmental entity” in exercising that regulatory power. Id. , at 54. That principle holds true here. The Secretary and the dissent contend that because MOHELA can sue on its own behalf, it—not Missouri—must be the one to sue. But in Arkansas , 346 U.S. 368 , the University of Arkansas could have asserted its rights under the contract on its own. The University’s governing statute made it “a body politic and corporate,” with “all the powers of a corporate body,” Ark. Stat. §80–2804 (1887)—including the power to sue and be sued on its own behalf, see HRR Arkansas, Inc. v. River City Contractors, Inc. , 350 Ark. 420, 427, 87 S.W.3d 232, 237 (2002); see, e.g. , Board of Trustees, Univ. of Ark. v. Pulaski County , 229 Ark. 370, 315 S.W.2d 879 (1958). We permitted Arkansas to bring an original suit all the same. Where a State has been harmed in carrying out its responsibilities, the fact that it chose to exercise its authority through a public corporation it created and controls does not bar the State from suing to remedy that harm itself.[ 3 ] The Secretary’s plan harms MOHELA in the performance of its public function and so directly harms the State that created and controls MOHELA. Missouri thus has suffered an injury in fact sufficient to give it standing to challenge the Secretary’s plan. With Article III satisfied, we turn to the merits. III The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not. We hold today that the Act allows the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up. A The HEROES Act authorizes the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” 20 U. S. C. §1098bb(a)(1). That power has limits. To begin with, statutory permission to “modify” does not authorize “basic and fundamental changes in the scheme” designed by Congress. MCI Telecommunications Corp. v. American Telephone & Telegraph Co. , 512 U.S. 218 , 225 (1994). Instead, that term carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. See, e.g. , Webster’s Third New International Dictionary 1952 (2002) (defining “modify” as “to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the form or structure of [or] alter without transforming”). The legal definition is no different. Black’s Law Dictionary 1203 (11th ed. 2019) (giving the first definition of “modify” as “[t]o make somewhat different; to make small changes to,” and the second as “[t]o make more moderate or less sweeping”). The authority to “modify” statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, not transform them. The Secretary’s previous invocations of the HEROES Act illustrate this point. Prior to the COVID–19 pandemic, “modifications” issued under the Act implemented only minor changes, most of which were procedural. Examples include reducing the number of tax forms borrowers are required to file, extending time periods in which borrowers must take certain actions, and allowing oral rather than written authorizations. See 68 Fed. Reg. 69314–69316. Here, the Secretary purported to “modif[y] the provisions of ” two statutory sections and three related regulations governing student loans. 87 Fed. Reg. 61514. The affected statutory provisions granted the Secretary the power to “discharge [a] borrower’s liability,” or pay the remaining principal on a loan, under certain narrowly prescribed circumstances. 20 U. S. C. §§1087, 1087dd(g)(1). Those circumstances were limited to a borrower’s death, disability, or bankruptcy; a school’s false certification of a borrower or failure to refund loan proceeds as required by law; and a borrower’s inability to complete an educational program due to closure of the school. See §§1087(a)–(d), 1087dd(g). The corresponding regulatory provisions detailed rules and procedures for such discharges. They also defined the terms of the Government’s public service loan forgiveness program and provided for discharges when schools commit malfeasance. See 34 CFR §§682.402, 685.212; 34 CFR pt. 674, subpt. D. The Secretary’s new “modifications” of these provisions were not “moderate” or “minor.” Instead, they created a novel and fundamentally different loan forgiveness program. The new program vests authority in the Department of Education to discharge up to $10,000 for every borrower with income below $125,000 and up to $20,000 for every such borrower who has received a Pell Grant. 87 Fed. Reg. 61514. No prior limitation on loan forgiveness is left standing. Instead, every borrower within the specified income cap automatically qualifies for debt cancellation, no matter their circumstances. The Department of Education estimates that the program will cover 98.5% of all borrowers. See Dept. of Ed., White House Fact Sheet: The Biden Administration’s Plan for Student Debt Relief Could Benefit Tens of Millions of Borrowers in All Fifty States (Sept. 20, 2022). From a few narrowly delineated situations specified by Congress, the Secretary has expanded forgiveness to nearly every borrower in the country. The Secretary’s plan has “modified” the cited provisions only in the same sense that “the French Revolution ‘modified’ the status of the French nobility”—it has abolished them and supplanted them with a new regime entirely. MCI , 512 U. S., at 228. Congress opted to make debt forgiveness available only in a few particular exigent circumstances; the power to modify does not permit the Secretary to “convert that approach into its opposite” by creating a new program affecting 43 million Americans and $430 billion in federal debt. Descamps v. United States , 570 U.S. 254 , 274 (2013). Labeling the Secretary’s plan a mere “modification” does not lessen its effect, which is in essence to allow the Secretary unfettered discretion to cancel student loans. It is “highly unlikely that Congress” authorized such a sweeping loan cancellation program “through such a subtle device as permission to ‘modify.’ ” MCI , 512 U. S., at 231. The Secretary responds that the Act authorizes him to “waive” legal provisions as well as modify them—and that this additional term “grant[s] broader authority” than would “modify” alone. But the Secretary’s invocation of the waiver power here does not remotely resemble how it has been used on prior occasions. Previously, waiver under the HEROES Act was straightforward: the Secretary identified a particular legal requirement and waived it, making compliance no longer necessary. For instance, on one occasion the Secretary waived the requirement that a student provide a written request for a leave of absence. See 77 Fed. Reg. 59314. On another, he waived the regulatory provisions requiring schools and guaranty agencies to attempt collection of defaulted loans for the time period in which students were affected individuals. See 68 Fed. Reg. 69316. Here, the Secretary does not identify any provision that he is actually waiving.[ 4 ] No specific provision of the Education Act establishes an obligation on the part of student borrowers to pay back the Government. So as the Government concedes, “waiver”—as used in the HEROES Act—cannot refer to “waiv[ing] loan balances” or “waiving the obligation to repay” on the part of a borrower. Tr. of Oral Arg. 9, 64. Contrast 20 U. S. C. §1091b(b)(2)(D) (allowing the Secretary to “waive the amounts that students are required to return” in specified circumstances of overpayment by the Government). Because the Secretary cannot waive a particular provision or provisions to achieve the desired result, he is forced to take a more circuitous approach, one that avoids any need to show compliance with the statutory limitation on his authority. He simply “waiv[es] the elements of the discharge and cancellation provisions that are inapplicable in this [debt cancellation] program that would limit eligibility to other contexts.” Tr. of Oral Arg. 64–65. Yet even that expansive conception of waiver cannot justify the Secretary’s plan, which does far more than relax existing legal requirements. The plan specifies particular sums to be forgiven and income-based eligibility requirements. The addition of these new and substantially different provisions cannot be said to be a “waiver” of the old in any meaningful sense. Recognizing this, the Secretary acknowledges that waiver alone is not enough; after waiving whatever “inapplicable” law would bar his debt cancellation plan, he says, he then “modif[ied] the provisions to bring [them] in line with this program.” Id. , at 65. So in the end, the Secretary’s plan relies on modifications all the way down. And as we have explained, the word “modify” simply cannot bear that load. The Secretary and the dissent go on to argue that the power to “waive or modify” is greater than the sum of its parts. Because waiver allows the Secretary “to eliminate legal obligations in their entirety,” the argument runs, the combination of “waive or modify” allows him “to reduce them to any extent short of waiver”—even if the power to “modify” ordinarily does not stretch that far. Reply Brief 16–17 (internal quotation marks omitted). But the Secretary’s program cannot be justified by such sleight of hand. The Secretary has not truly waived or modified the provisions in the Education Act authorizing specific and limited forgiveness of student loans. Those provisions remain safely intact in the U. S. Code, where they continue to operate in full force. What the Secretary has actually done is draft a new section of the Education Act from scratch by “waiving” provisions root and branch and then filling the empty space with radically new text. Lastly, the Secretary points to a procedural provision in the HEROES Act. The Act directs the Secretary to publish a notice in the Federal Register “includ[ing] the terms and conditions to be applied in lieu of such statutory and regulatory provisions” as the Secretary has waived or modified. 20 U. S. C. §1098bb(b)(2) (emphasis added). In the Secretary’s view, that language authorizes “both deleting and then adding back in, waiving and then putting his own requirements in”—a sort of “red penciling” of the existing law. Tr. of Oral Arg. 65; see also Reply Brief 17. Section 1098bb(b)(2) is, however, “a wafer-thin reed on which to rest such sweeping power.” Alabama Assn. of Realtors v. Department of Health and Human Servs. , 594 U. S. ___, ___ (2021) ( per curiam ) (slip op., at 7). The provision is no more than it appears to be: a humdrum reporting requirement. Rather than implicitly granting the Secretary authority to draft new substantive statutory provisions at will, it simply imposes the obligation to report any waivers and modifications he has made. Section 1098bb(b)(2) suggests that “waivers and modifications” includes additions. The dissent accordingly reads the statute as authorizing any degree of change or any new addition, “from modest to substantial”—and nothing in the dissent’s analysis suggests stopping at “substantial.” Post , at 20. Because the Secretary “does not have to leave gaping holes” when he waives provisions, the argument runs, it follows that any replacement terms the Secretary uses to fill those holes must be lawful. Ibid. But the Secretary’s ability to add new terms “in lieu of ” the old is limited to his authority to “modify” existing law. As with any other modification issued under the Act, no new term or condition reported pursuant to §1098bb(b)(2) may distort the fundamental nature of the provision it alters.[ 5 ] The Secretary’s comprehensive debt cancellation plan cannot fairly be called a waiver—it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes “effectively the introduction of a whole new regime.” MCI , 512 U. S., at 234. And it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify,” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.[ 6 ] B In a final bid to elide the statutory text, the Secretary appeals to congressional purpose. “The whole point of ” the HEROES Act, the Government contends, “is to ensure that in the face of a national emergency that is causing financial harm to borrowers, the Secretary can do something.” Tr. of Oral Arg. 55. And that “something” was left deliberately vague because Congress intended “to grant substantial discretion to the Secretary to respond to unforeseen emergencies.” Reply Brief 22, n. 3. So the unprecedented nature of the Secretary’s debt cancellation plan only “reflects the pandemic’s unparalleled scope.” Brief for Petitioners 52 (Brief for United States). The dissent agrees. “Emergencies, after all, are emergencies,” it reasons, and “more serious measures” must be expected “in response to more serious problems.” Post , at 25, 28. The dissent’s interpretation of the HEROES Act would grant unlimited power to the Secretary, not only to modify or waive certain provisions but to “fill the holes that action creates with new terms”—no matter how drastic those terms might be—and to “alter [provisions] to the extent [he] think[s] appropriate,” up to and including “the most substantial kind of change” imaginable. Post, at 16, 19–20. That is inconsistent with the statutory language and past practice under the statute. The question here is not whether something should be done; it is who has the authority to do it. Our recent decision in West Virginia v. EPA involved similar concerns over the exercise of administrative power. 597 U. S. ___ (2022). That case involved the EPA’s claim that the Clean Air Act authorized it to impose a nationwide cap on carbon dioxide emissions. Given “the ‘history and the breadth of the authority that [the agency] ha[d] asserted,’ and the ‘economic and political significance’ of that assertion,” we found that there was “ ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” Id. , at ___ (slip op., at 17) (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 , 159–160 (2000); first alteration in original). So too here, where the Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act. As we have already noted, past waivers and modifications issued under the Act have been extremely modest and narrow in scope. The Act has been used only once before to waive or modify a provision related to debt cancellation: In 2003, the Secretary waived the requirement that borrowers seeking loan forgiveness under the Education Act’s public service discharge provisions “perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as 5 consecutive years.” 68 Fed. Reg. 69317. That waiver simply eased the requirement that service be uninterrupted to qualify for the public service loan forgiveness program. In sum, “[n]o regulation premised on” the HEROES Act “has even begun to approach the size or scope” of the Secretary’s program. Alabama Assn. , 594 U. S., at ___ (slip op., at 7).[ 7 ] Under the Government’s reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act. This would “effec[t] a ‘fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation’ into an entirely different kind,” West Virginia , 597 U. S., at ___ (slip op., at 24) (quoting MCI , 512 U. S., at 231)—one in which the Secretary may unilaterally define every aspect of federal student financial aid, provided he determines that recipients have “suffered direct economic hardship as a direct result of a . . . national emergency.” 20 U. S. C. §1098ee(2)(D). The “ ‘economic and political significance’ ” of the Secretary’s action is staggering by any measure. West Virginia , 597 U. S., at ___ (slip op., at 17) (quoting Brown & Williamson , 529 U. S., at 160). Practically every student borrower benefits, regardless of circumstances. A budget model issued by the Wharton School of the University of Pennsylvania estimates that the program will cost taxpayers “between $469 billion and $519 billion,” depending on the total number of borrowers ultimately covered. App. 108. That is ten times the “economic impact” that we found significant in concluding that an eviction moratorium implemented by the Centers for Disease Control and Prevention triggered analysis under the major questions doctrine. Alabama Assn. , 594 U. S., at ___ (slip op., at 6). It amounts to nearly one-third of the Government’s $1.7 trillion in annual discretionary spending. Congressional Budget Office, The Federal Budget in Fiscal Year 2022. There is no serious dispute that the Secretary claims the authority to exercise control over “a significant portion of the American economy.” Utility Air Regulatory Group v. EPA , 573 U.S. 302 , 324 (2014) (quoting Brown & Williamson , 529 U. S., at 159). The dissent is correct that this is a case about one branch of government arrogating to itself power belonging to another. But it is the Executive seizing the power of the Legislature. The Secretary’s assertion of administrative authority has “conveniently enabled [him] to enact a program” that Congress has chosen not to enact itself. West Virginia , 597 U. S., at ___ (slip op., at 27). Congress is not unaware of the challenges facing student borrowers. “More than 80 student loan forgiveness bills and other student loan legislation” were considered by Congress during its 116th session alone. M. Kantrowitz, Year in Review: Student Loan Forgiveness Legislation, Forbes, Dec. 24, 2020.[ 8 ] And the discussion is not confined to the halls of Congress. Student loan cancellation “raises questions that are personal and emotionally charged, hitting fundamental issues about the structure of the economy.” J. Stein, Biden Student Debt Plan Fuels Broader Debate Over Forgiving Borrowers, Washington Post, Aug. 31, 2022. The sharp debates generated by the Secretary’s extraordinary program stand in stark contrast to the unanimity with which Congress passed the HEROES Act. The dissent asks us to “[i]magine asking the enacting Congress: Can the Secretary use his powers to give borrowers more relief when an emergency has inflicted greater harm?” Post , at 27–28. The dissent “can’t believe” the answer would be no. Post , at 28. But imagine instead asking the enacting Congress a more pertinent question: “Can the Secretary use his powers to abolish $430 billion in student loans, completely canceling loan balances for 20 million borrowers, as a pandemic winds down to its end?” We can’t believe the answer would be yes. Congress did not unanimously pass the HEROES Act with such power in mind. “A decision of such magnitude and consequence” on a matter of “ ‘earnest and profound debate across the country’ ” must “res[t] with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” West Virginia , 597 U. S., at ___, ___ (slip op., at 28, 31) (quoting Gonzales v. Oregon , 546 U.S. 243 , 267–268 (2006)). As then-Speaker of the House Nancy Pelosi explained: “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” Press Conference, Office of the Speaker of the House (July 28, 2021). Aside from reiterating its interpretation of the statute, the dissent offers little to rebut our conclusion that “indicators from our previous major questions cases are present” here. Post , at 15 (Barrett, J., concurring). The dissent insists that “[s]tudent loans are in the Secretary’s wheelhouse.” Post , at 26 (opinion of Kagan, J.). But in light of the sweeping and unprecedented impact of the Secretary’s loan forgiveness program, it would seem more accurate to describe the program as being in the “wheelhouse” of the House and Senate Committees on Appropriations. Rather than dispute the extent of that impact, the dissent chooses to mount a frontal assault on what it styles “the Court’s made-up major questions doctrine.” Post , at 29–30. But its attempt to relitigate West Virginia is misplaced. As we explained in that case, while the major questions “label” may be relatively recent, it refers to “an identifiable body of law that has developed over a series of significant cases” spanning decades. West Virginia , 597 U. S., at ___ (slip op., at 20). At any rate, “the issue now is not whether [ West Virginia ] is correct. The question is whether that case is distinguishable from this one. And it is not.” Collins v. Yellen , 594 U. S. ___, ___ (2021) (Kagan, J., concurring in part and concurring in judgment) (slip op., at 2). The Secretary, for his part, acknowledges that West Virginia is the law. Brief for United States 47–48. But he objects that its principles apply only in cases concerning “agency action[s] involv[ing] the power to regulate, not the provision of government benefits.” Reply Brief 21. In the Government’s view, “there are fewer reasons to be concerned” in cases involving benefits, which do not impose “profound burdens” on individual rights or cause “regulatory effects that might prompt a note of caution in other contexts involving exercises of emergency powers.” Tr. of Oral Arg. 61. This Court has never drawn the line the Secretary suggests—and for good reason. Among Congress’s most important authorities is its control of the purse. U. S. Const., Art. I, §9, cl. 7; see also Office of Personnel Management v. Richmond , 496 U.S. 414 , 427 (1990) (the Appropriations Clause is “a most useful and salutary check upon profusion and extravagance” (internal quotation marks omitted)). It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations. As we observed in West Virginia , experience shows that major questions cases “have arisen from all corners of the administrative state,” and administrative action resulting in the conferral of benefits is no exception to that rule. 597 U. S., at ___ (slip op., at 17). In King v. Burwell , 576 U.S. 473 (2015), we declined to defer to the Internal Revenue Service’s interpretation of a healthcare statute, explaining that the provision at issue affected “billions of dollars of spending each year and . . . the price of health insurance for millions of people.” Id. , at 485. Because the interpretation of the provision was “a question of deep ‘economic and political significance’ that is central to [the] statutory scheme,” we said, we would not assume that Congress entrusted that task to an agency without a clear statement to that effect. Ibid. (quoting Utility Air , 573 U. S., at 324). That the statute at issue involved government benefits made no difference in King , and it makes no difference here. All this leads us to conclude that “[t]he basic and consequential tradeoffs” inherent in a mass debt cancellation program “are ones that Congress would likely have intended for itself.” West Virginia , 597 U. S., at ___ (slip op., at 26). In such circumstances, we have required the Secretary to “point to ‘clear congressional authorization’ ” to justify the challenged program. Id. , at ___, ___ (slip op., at 19, 28) (quoting Utility Air , 573 U. S., at 324). And as we have already shown, the HEROES Act provides no authorization for the Secretary’s plan even when examined using the ordinary tools of statutory interpretation—let alone “clear congressional authorization” for such a program.[ 9 ] *  *  * It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Today, we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent—old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis—in fact, at least three do. See post , p. ___ (Kagan, J., dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. The judgment of the District Court for the Eastern District of Missouri is reversed, and the case is remanded for further proceedings consistent with this opinion. The Government’s application to vacate the Eighth Circuit’s injunction is denied as moot. It is so ordered. Notes 1 Like its 2001 predecessor, the HEROES Act enjoyed virtually unanimous bipartisan support at the time of its enactment, passing by a 421-to-1 vote in the House of Representatives and a unanimous voice vote in the Senate. See 149 Cong. Rec. 7952–7953 (2003); id. , at 20809; 147 Cong. Rec. 20396 (2001); id. , at 26292–26293. The single dissenting Representative later voiced his support for the Act, explaining that he “meant to vote ‘yea.’ ” 149 Cong. Rec. 8559 (statement of Rep. Miller). 2 A borrower filing “jointly or as a Head of Household, or as a qualifying widow(er),” qualifies for loan cancellation with an adjusted gross income lower than $250,000. 87 Fed. Reg. 61514. 3 The dissent, for all its attempts to cabin these precedents, cites no precedents of its own addressing a State’s standing to sue for a harm to its instrumentality. The dissent offers only a state court case involving a different public corporation, in which the Missouri Supreme Court said that the corporation was separate from the State for the purposes of a state ban on “the lending of the credit of the state.” Menorah Medical Center v. Health and Ed. Facilities Auth. , 584 S.W.2d 73 , 78 (1979) (plurality opinion). But as the dissent recognizes, a public corporation can count as part of the State for some but not “other purposes.” Post , at 11, and n. 1. The Missouri Supreme Court said nothing about, and had no reason to address, whether an injury to that public corporation was a harm to the State. 4 While the Secretary’s notice published in the Federal Register refers to “waivers and modifications” generally, see 87 Fed. Reg. 61512–61514, and while two sentences use the somewhat ambiguous phrase “[t]his waiver,” id. , at 61514, the notice identifies no specific legal provision as having been “waived” by the Secretary. 5 The dissent asserts that our decision today will control any challenge to the Secretary’s temporary suspensions of loan repayments and interest accrual. Post , at 21–22. We decide only the case before us. A challenge to the suspensions may involve different considerations with respect to both standing and the merits. 6 The States further contend that the Secretary’s program violates the requirement in the HEROES Act that any waivers or modifications be “necessary to ensure that . . . affected individuals are not placed in a worse position financially in relation to” federal financial assistance. 20 U. S. C. §1098bb(a)(2)(A); see Brief for Respondents 39–44. While our decision does not rest upon that reasoning, we note that the Secretary faces a daunting task in showing that cancellation of debt principal is “necessary to ensure” that borrowers are not placed in “worse position[s] financially in relation to” their loans, especially given the Government’s prior determination that pausing interest accrual and loan repayments would achieve that end. 7 The Secretary also cites a prior invocation of the HEROES Act waiving the requirement that borrowers must repay prior overpayments of certain grant funds. See Brief for United States 41; 68 Fed. Reg. 69314. But Congress had already limited borrower liability in such cases to exclude overpayments in amounts up to “50 percent of the total grant assistance received by the student” for the period at issue, so the Secretary’s waiver had only a modest effect. 20 U. S. C. §1091b(b)(2)(C)(i)(II). And that waiver simply held the Government responsible for its own errors when it had mistakenly disbursed undeserved grant funds. 8 Resolutions were also introduced in 2020 and 2021 “[c]alling on the President . . . to take executive action to broadly cancel Federal student loan debt.” See S. Res. 711, 116th Cong., 2d Sess. (2020); S. Res. 46, 117th Cong., 1st Sess. (2021). Those resolutions failed to reach a vote. 9 The dissent complains that our application of the major questions doctrine is a “tell” revealing that “ ‘normal’ statutory interpretation cannot sustain [our] decision.” Post , at 23, 30. Not so. As we have explained, the statutory text alone precludes the Secretary’s program. Today’s opinion simply reflects this Court’s familiar practice of providing multiple grounds to support its conclusions. See, e.g. , Kucana v. Holder , 558 U.S. 233 , 243–252 (2010) (interpreting the text of a federal immigration statute in the first instance, then citing the “presumption favoring judicial review of administrative action” as an additional sufficient basis for the Court’s decision). The fact that multiple grounds support a result is usually regarded as a strength, not a weakness. SUPREME COURT OF THE UNITED STATES _________________ No. 22–506 _________________ Joseph R. Biden, President of the United States, et al., PETITIONERS v. Nebraska, et al. on writ of certiorari before judgment to the united states court of appeals for the eighth circuit [June 30, 2023] Justice Barrett, concurring. I join the Court’s opinion in full. I write separately to address the States’ argument that, under the “major questions doctrine,” we can uphold the Secretary of Education’s loan cancellation program only if he points to “ ‘clear congressional authorization’ ” for it. West Virginia v. EPA , 597 U. S. ___, ___ (2022) (slip op., at 19). In this case, the Court applies the ordinary tools of statutory interpretation to conclude that the HEROES Act does not authorize the Secretary’s plan. Ante , at 12–18. The major questions doctrine reinforces that conclusion but is not necessary to it. Ante , at 25. Still, the parties have devoted significant attention to the major questions doctrine, and there is an ongoing debate about its source and status. I take seriously the charge that the doctrine is inconsistent with textualism. West Virginia , 597 U. S., at ___ (Kagan, J., dissenting) (slip op., at 28) (“When [textualism] would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards”). And I grant that some articulations of the major questions doctrine on offer—most notably, that the doctrine is a substantive canon—should give a textualist pause. Yet for the reasons that follow, I do not see the major questions doctrine that way. Rather, I understand it to emphasize the importance of context when a court interprets a delegation to an administrative agency. Seen in this light, the major questions doctrine is a tool for discerning—not departing from—the text’s most natural interpretation. I A Substantive canons are rules of construction that advance values external to a statute.[ 1 ] A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. United States v. Santos , 553 U.S. 507 , 514 (2008) (plurality opinion). Others are more aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a strong-form canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id. , at 138–145, 172–173. Such rules effectively impose a “clarity tax” on Congress by demanding that it speak unequivocally if it wants to accomplish certain ends. J. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 403 (2010). This “clear statement” requirement means that the better interpretation of a statute will not necessarily prevail. E.g. , Boechler v. Commissioner , 596 U. S. ___, ___ (2022) (slip op., at 6) (“[I]n this context, better is not enough”). Instead, if the better reading leads to a disfavored result (like provoking a serious constitutional question), the court will adopt an inferior-but-tenable reading to avoid it. So to achieve an end protected by a strong-form canon, Congress must close all plausible off ramps. While many strong-form canons have a long historical pedigree, they are “in significant tension with textualism” insofar as they instruct a court to adopt something other than the statute’s most natural meaning. Barrett 123–124. The usual textualist enterprise involves “hear[ing] the words as they would sound in the mind of a skilled, objectively reasonable user of words.” F. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J. L. & Pub. Pol’y 59, 65 (1988). But a strong-form canon “load[s] the dice for or against a particular result” in order to serve a value that the judiciary has chosen to specially protect. A. Scalia, A Matter of Interpretation 27 (1997) (Scalia); see also Barrett 124, 168–169. Even if the judiciary’s adoption of such canons can be reconciled with the Constitution,[ 2 ] it is undeniable that they pose “a lot of trouble” for “the honest textualist.” Scalia 28. B Some have characterized the major questions doctrine as a strong-form substantive canon designed to enforce Article I’s Vesting Clause. See, e.g. , C. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 483–484 (2021) (asserting that recent cases apply the major questions doctrine as “a nondelegation canon”); L. Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1946–1948 (2017) (describing the major questions doctrine as a “normative” canon that “is both a presumption against certain kinds of agency interpretations and an instruction to Congress”). On this view, the Court overprotects the nondelegation principle by increasing the cost of delegating authority to agencies—namely, by requiring Congress to speak unequivocally in order to grant them significant rule- making power. See Barrett 172–176; see also post , at 27 (Kagan, J., dissenting) (describing the major questions doctrine as a “heightened-specificity requirement”); Georgia v. President of the United States , 46 F. 4th 1283, 1314 (CA11 2022) (Anderson, J., concurring in part and dissenting in part) (“[T]he major questions doctrine is essentially a clear-statement rule”). This “clarity tax” might prevent Congress from getting too close to the nondelegation line, especially since the “intelligible principle” test largely leaves Congress to self-police. (So the doctrine would function like constitutional avoidance.) In addition or instead, the doctrine might reflect the judgment that it is so important for Congress to exercise “[a]ll legislative Powers,” Art. I, §1, that it should be forced to think twice before delegating substantial discretion to agencies—even if the delegation is well within Congress’s power to make. (So the doctrine would function like the rule that Congress must speak clearly to abrogate state sovereign immunity.) No matter which rationale justifies it, this “clear statement” version of the major questions doctrine “loads the dice” so that a plausible antidelegation interpretation wins even if the agency’s interpretation is better. While one could walk away from our major questions cases with this impression, I do not read them this way. No doubt, many of our cases express an expectation of “clear congressional authorization” to support sweeping agency action. See, e.g. , West Virginia , 597 U. S., at ___ (slip op., at 19); Utility Air Regulatory Group v. EPA , 573 U.S. 302 , 324 (2014); see also Alabama Assn. of Realtors v. Department of Health and Human Servs. , 594 U. S. ___, ___ (2021) ( per curiam ) (slip op., at 6). But none requires “an ‘unequivocal declaration’ ” from Congress authorizing the precise agency action under review, as our clear-statement cases do in their respective domains. See Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc. , 598 U. S. ___, ___ (2023) (slip op., at 6). And none purports to depart from the best interpretation of the text—the hallmark of a true clear-statement rule. So what work is the major questions doctrine doing in these cases? I will give you the long answer, but here is the short one: The doctrine serves as an interpretive tool reflecting “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 , 133 (2000). II The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand. C. Nelson, What Is Textualism? 91 Va. L. Rev. 347, 348 (2005) (“[N]o ‘textualist’ favors isolating statutory language from its surrounding context”); Scalia 37 (“In textual interpretation, context is everything”). After all, the meaning of a word depends on the circumstances in which it is used. J. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003) (Manning). To strip a word from its context is to strip that word of its meaning. Context is not found exclusively “ ‘within the four corners’ of a statute.” Id. , at 2456. Background legal conventions, for instance, are part of the statute’s context. F. Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 Harv. L. Rev. 1876, 1913 (1999) (“Language takes meaning from its linguistic context,” as well as “historical and governmental contexts”). Thus, courts apply a presumption of mens rea to criminal statutes, Xiulu Ruan v. United States , 597 U. S. ___, ___ (2022) (slip op., at 5), and a presumption of equitable tolling to statutes of limitations, Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 95–96 (1990). It is also well established that “[w]here Congress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” George v. McDonough , 596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation marks omitted). I could go on. See, e.g. , Lexmark Int’l, Inc. v. Static Control Components, Inc. , 572 U.S. 118 , 132 (2014) (federal causes of action are construed “to incorporate a requirement of proximate causation”); Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co. , 505 U.S. 214 , 231 (1992) (“ de minimis non curat lex ”). As it happens, “[t]he notion that some things ‘go without saying’ applies to legislation just as it does to everyday life.” Bond v. United States , 572 U.S. 844 , 857 (2014). Context also includes common sense, which is another thing that “goes without saying.” Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short. Consider the classic example of a statute imposing criminal penalties on “ ‘whoever drew blood in the streets.’ ” United States v. Kirby , 7 Wall. 482, 487 (1869). Read literally, the statute would cover a surgeon accessing a vein of a person in the street. But “common sense” counsels otherwise, ibid. , because in the context of the criminal code, a reasonable observer would “expect the term ‘drew blood’ to describe a violent act,” Manning 2461. Common sense similarly bears on judgments like whether a floating home is a “vessel,” Lozman v. Riviera Beach , 568 U.S. 115 , 120–121 (2013), whether tomatoes are “vegetables,” Nix v. Hedden , 149 U.S. 304 , 306–307 (1893), and whether a skin irritant is a “chemical weapon,” Bond , 572 U. S., at 860–862. Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the scope of a delegation. Think about agency law, which is all about delegations. When an agent acts on behalf of a principal, she “has actual authority to take action designated or implied in the principal’s manifestations to the agent . . . as the agent reasonably understands [those] manifestations.” Restatement (Third) of Agency §2.02(1) (2005). Whether an agent’s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including their “[p]rior dealings,” industry “customs and usages,” and “the nature of the principal’s business or the principal’s personal situation.” Id. , §2.02, Comment e (emphasis added). With that in mind, imagine that a grocer instructs a clerk to “go to the orchard and buy apples for the store.” Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase. A clerk who disregards context and stretches the words to their fullest will not have a job for long. This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.” But what if there is more to the story? Perhaps there is obvious contextual evidence that the babysitter’s jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parent’s instruction. Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight. Or maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant points of context may not have been communicated by the parent at all. For instance, we might view the parent’s statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent. In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ” Utility Air , 573 U. S., at 324. That clarity may come from specific words in the statute, but context can also do the trick. Surrounding circumstances, whether contained within the statutory scheme or external to it, can narrow or broaden the scope of a delegation to an agency. This expectation of clarity is rooted in the basic premise that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC , 855 F.3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of reh’g en banc). Or, as Justice Breyer once observed, “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute’s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986); see also A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 1003–1006 (2013). That makes eminent sense in light of our constitutional structure, which is itself part of the legal context framing any delegation. Because the Constitution vests Congress with “[a]ll legislative Powers,” Art. I, §1, a reasonable interpreter would expect it to make the big-time policy calls itself, rather than pawning them off to another branch. See West Virginia , 597 U. S., at ___ (slip op., at 19) (explaining that the major questions doctrine rests on “both separation of powers principles and a practical understanding of legislative intent”). Crucially, treating the Constitution’s structure as part of the context in which a delegation occurs is not the same as using a clear-statement rule to overenforce Article I’s nondelegation principle (which, again, is the rationale behind the substantive-canon view of the major questions doctrine). My point is simply that in a system of separated powers, a reasonably informed interpreter would expect Congress to legislate on “important subjects” while delegating away only “the details.” Wayman v. Southard , 10 Wheat. 1, 43 (1825). That is different from a normative rule that discourages Congress from empowering agencies. To see what I mean, return to the ambitious babysitter. Our expectation of clearer authorization for the amusement-park trip is not about discouraging the parent from giving significant leeway to the babysitter or forcing the parent to think hard before doing so. Instead, it reflects the intuition that the parent is in charge and sets the terms for the babysitter—so if a judgment is significant, we expect the parent to make it. If, by contrast, one parent left the children with the other parent for the weekend, we would view the same trip differently because the parents share authority over the children. In short, the balance of power between those in a relationship inevitably frames our understanding of their communications. And when it comes to the Nation’s policy, the Constitution gives Congress the reins—a point of context that no reasonable interpreter could ignore. Given these baseline assumptions, an interpreter should “typically greet” an agency’s claim to “extravagant statutory power” with at least some “measure of skepticism.” Utility Air , 573 U. S., at 324. That skepticism is neither “made-up” nor “new.” Post , at 24, 29 (Kagan, J., dissenting). On the contrary, it appears in a line of decisions spanning at least 40 years. E.g. , King v. Burwell , 576 U.S. 473, 485–486 (2015); Gonzales v. Oregon , 546 U.S. 243 , 267–268 (2006); Brown & Williamson , 529 U. S., at 159–160; Industrial Union Dept., AFL–CIO v. American Petroleum Institute , 448 U.S. 607 , 645 (1980) (plurality opinion).[ 3 ] Still, this skepticism does not mean that courts have an obligation (or even permission) to choose an inferior-but-tenable alternative that curbs the agency’s authority—and that marks a key difference between my view and the “clear statement” view of the major questions doctrine. In some cases, the court’s initial skepticism might be overcome by text directly authorizing the agency action or context demonstrating that the agency’s interpretation is convincing. (And because context can suffice, I disagree with Justice Kagan’s critique that “[t]he doctrine forces Congress to delegate in highly specific terms.” Post , at 24.) If so, the court must adopt the agency’s reading despite the “majorness” of the question.[ 4 ] In other cases, however, the court might conclude that the agency’s expansive reading, even if “plausible,” is not the best. West Virginia , 597 U. S., at ___ (slip op., at 19). In that event, the major questions doctrine plays a role, because it helps explain the court’s conclusion that the agency overreached. Consider Brown & Williamson , in which we rejected the Food and Drug Administration’s (FDA’s) determination that tobacco products were within its regulatory purview. 529 U. S., at 131. The agency’s assertion of authority—which depended on the argument that nicotine is a “ ‘drug’ ” and that cigarettes and smokeless tobacco are “ ‘drug delivery devices’ ”—would have been plausible if the relevant statutory text were read in a vacuum. Ibid. But a vacuum is no home for a textualist. Instead, we stressed that the “meaning” of a word or phrase “may only become evident when placed in context .” Id. , at 132 (emphasis added). And the critical context in Brown & Williamson was tobacco’s “unique political history”: the FDA’s longstanding disavowal of authority to regulate it, Congress’s creation of “a distinct regulatory scheme for tobacco products,” and the tobacco industry’s “significant” role in “the American economy.” Id. , at 159–160. In light of those considerations, we concluded that “Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Id. , at 160. We have also been “[s]keptical of mismatches” between broad “invocations of power by agencies” and relatively narrow “statutes that purport to delegate that power.” In re MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vaccination and Testing , 20 F. 4th 264, 272 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc). Just as an instruction to “pick up dessert” is not permission to buy a four-tier wedding cake, Congress’s use of a “subtle device” is not authorization for agency action of “enormous importance.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co. , 512 U.S. 218 , 231 (1994); cf. Whitman v. American Trucking Assns., Inc. , 531 U.S. 457 , 468 (2001) (Congress does not “hide elephants in mouseholes”). This principle explains why the Centers for Disease Control and Prevention’s (CDC’s) general authority to “ ‘prevent the . . . spread of communicable diseases’ ” did not authorize a nationwide eviction moratorium. Alabama Assn. of Realtors , 594 U. S., at ___–___, ___ (slip op., at 2–3, 6). The statute, we observed, was a “wafer-thin reed” that could not support the assertion of “such sweeping power.” Id. , at ___ (slip op., at 7). Likewise, in West Virginia , we held that a “little-used backwater” provision in the Clean Air Act could not justify an Environmental Protection Agency (EPA) rule that would “restructur[e] the Nation’s overall mix of electricity generation.” 597 U. S., at ___, ___ (slip op., at 16, 26). Another telltale sign that an agency may have transgressed its statutory authority is when it regulates outside its wheelhouse. For instance, in Gonzales v. Oregon , we rebuffed an interpretive rule from the Attorney General that restricted the use of controlled substances in physician-assisted suicide. 546 U. S., at 254, 275. This judgment, we explained, was a medical one that lay beyond the Attorney General’s expertise, and so a sturdier source of statutory authority than “an implicit delegation” was required. Id. , at 267–268. Likewise, in King v. Burwell , we blocked the Internal Revenue Service’s (IRS’s) attempt to decide whether the Affordable Care Act’s tax credits could be available on federally established exchanges. 576 U. S., at 485–486. Among other things, the IRS’s lack of “expertise in crafting health insurance policy” made us think that “had Congress wished to assign that question to an agency, it surely would have done so expressly.” Id. , at 486. Echoing the theme, our reasoning in Alabama Association of Realtors rested partly on the fact that the CDC’s eviction moratorium “intrude[d] into . . . the landlord-tenant relationship”—hardly the day-in, day-out work of a public-health agency. 594 U. S., at ___ (slip op., at 6). National Federation of Independent Business v. OSHA is of a piece. 595 U. S. ___ (2022) ( per curiam ). There, we held that the Occupational Safety and Health Administration’s (OSHA’s) authority to ensure “ ‘safe and healthful working conditions’ ” did not encompass the power to mandate the vaccination of employees; as we explained, the statute empowered the agency “to set workplace safety standards, not broad public health measures.” Id. , at ___, ___ (slip op., at 2, 6). The shared intuition behind these cases is that a reasonable speaker would not understand Congress to confer an unusual form of authority without saying more. We have also pumped the brakes when “an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’ ” Utility Air , 573 U. S., at 324. Of course, an agency’s post-enactment conduct does not control the meaning of a statute, but “this Court has long said that courts may consider the consistency of an agency’s views when we weigh the persuasiveness of any interpretation it proffers in court.” Bittner v. United States , 598 U.S. 85, 97 (2023) (citing Skidmore v. Swift & Co. , 323 U.S. 134 , 140 (1944)). The agency’s track record can be particularly probative in this context: A longstanding “want of assertion of power by those who presumably would be alert to exercise it” may provide some clue that the power was never conferred. FTC v. Bunte Brothers, Inc. , 312 U.S. 349 , 352 (1941). Once again, Brown & Williamson is a good example. There, we balked at the FDA’s novel attempt to regulate tobacco in part because this move was “[c]ontrary to its representations to Congress since 1914.” 529 U. S., at 159. And in Utility Air , we were dubious when the EPA discovered “newfound authority” in the Clean Air Act that would have allowed it to require greenhouse-gas permits for “millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches.” 573 U. S., at 328. If the major questions doctrine were a substantive canon, then the common thread in these cases would be that we “exchange[d] the most natural reading of a statute for a bearable one more protective of a judicially specified value.” Barrett 111. But by my lights, the Court arrived at the most plausible reading of the statute in these cases. To be sure, “[a]ll of these regulatory assertions had a colorable textual basis.” West Virginia , 597 U. S., at ___ (slip op., at 18). In each case, we could have “[p]ut on blinders” and confined ourselves to the four corners of the statute, and we might have reached a different outcome. Sykes v. United States , 564 U.S. 1 , 43 (2011) (Kagan, J., dissenting). Instead, we took “off those blinders,” “view[ed] the statute as a whole,” ibid. , and considered context that would be important to a reasonable observer. With the full picture in view, it became evident in each case that the agency’s assertion of “highly consequential power” went “beyond what Congress could reasonably be understood to have granted.” West Virginia , 597 U. S., at ___ (slip op., at 20). III As for today’s case: The Court surely could have “hi[t] the send button,” post , at 23 (Kagan, J., dissenting), after the routine statutory analysis set out in Part III–A. But it is nothing new for a court to punctuate its conclusion with an additional point, and the major questions doctrine is a good one here. Ante , at 25, n. 9. It is obviously true that the Secretary’s loan cancellation program has “vast ‘economic and political significance.’ ” Utility Air , 573 U. S., at 324. That matters not because agencies are incapable of making highly consequential decisions, but rather because an initiative of this scope, cost, and political salience is not the type that Congress lightly delegates to an agency. And for the reasons given by the Court, the HEROES Act provides no indication that Congress empowered the Secretary to do anything of the sort. Ante , at 12–18, 25. Granted, some context clues from past major questions cases are absent here—for example, this is not a case where the agency is operating entirely outside its usual domain. But the doctrine is not an on-off switch that flips when a critical mass of factors is present—again, it simply reflects “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude.” Brown & Williamson , 529 U. S., at 133. Common sense tells us that as more indicators from our previous major questions cases are present, the less likely it is that Congress would have delegated the power to the agency without saying so more clearly. Here, enough of those indicators are present to demonstrate that the Secretary has gone far “beyond what Congress could reasonably be understood to have granted” in the HEROES Act. West Virginia , 597 U. S., at ___ (slip op., at 20). Our decision today does not “trump” the statutory text, nor does it make this Court the “arbiter” of “national policy.” Post , at 24–25 (Kagan, J., dissenting). Instead, it gives Congress’s words their best reading. *  *  * The major questions doctrine has an important role to play when courts review agency action of “vast ‘economic and political significance.’ ” Utility Air , 573 U. S., at 324. But the doctrine should not be taken for more than it is—the familiar principle that we do not interpret a statute for all it is worth when a reasonable person would not read it that way. Notes 1 They stand in contrast to linguistic or descriptive canons, which are designed to reflect grammatical rules (such as the punctuation canon) or speech patterns (like the inclusion of some things implies the exclusion of others). A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010). 2 Whether the creation or application of strong-form canons exceeds the “judicial Power” conferred by Article III is a difficult question. On the one hand, “federal courts have been developing and applying [such] canons for as long as they have been interpreting statutes,” and that is some reason to regard the practice as consistent with the original understanding of the “judicial Power.” Barrett 155, 176. Moreover, many strong-form canons advance constitutional values, which heightens their claim to legitimacy. Id. , at 168–170. On the other hand, these canons advance constitutional values by imposing prophylactic constraints on Congress—and that is in tension with the Constitution’s structure. Id. , at 174, 176. Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon. 3 Indeed, the doctrine may have even deeper roots. See ICC v. Cincinnati, N. O. & T. P. R. Co. , 167 U.S. 479 , 494–495 (1897) (explaining that for agency assertions of “vast and comprehensive” power, “no just rule of construction would tolerate a grant of such power by mere implication”). 4 I am dealing only with statutory interpretation, not the separate argument that a statutory delegation exceeds constitutional limits. See Whitman v. American Trucking Assns., Inc. , 531 U.S. 457 , 474 (2001) (describing a delegation held unconstitutional because it “conferred authority to regulate the entire economy on the basis of ” an imprecise standard). SUPREME COURT OF THE UNITED STATES _________________ No. 22–506 _________________ Joseph R. Biden, President of the United States, et al., PETITIONERS v. Nebraska, et al. on writ of certiorari before judgment to the united states court of appeals for the eighth circuit [June 30, 2023] Justice Kagan, with whom Justice Sotomayor and Justice Jackson join, dissenting. In every respect, the Court today exceeds its proper, limited role in our Nation’s governance. Some 20 years ago, Congress enacted legislation, called the HEROES Act, authorizing the Secretary of Education to provide relief to student-loan borrowers when a national emergency struck. The Secretary’s authority was bounded: He could do only what was “necessary” to alleviate the emergency’s impact on affected borrowers’ ability to repay their student loans. 20 U. S. C. §1098bb(a)(2). But within that bounded area, Congress gave discretion to the Secretary. He could “waive or modify any statutory or regulatory provision” applying to federal student-loan programs, including provisions relating to loan repayment and forgiveness. And in so doing, he could replace the old provisions with new “terms and conditions.” §§1098bb(a)(1), (b)(2). The Secretary, that is, could give the relief that was needed, in the form he deemed most appropriate, to counteract the effects of a national emergency on borrowers’ capacity to repay. That may have been a good idea, or it may have been a bad idea. Either way, it was what Congress said. When COVID hit, two Secretaries serving two different Presidents decided to use their HEROES Act authority. The first suspended loan repayments and interest accrual for all federally held student loans. The second continued that policy for a time, and then replaced it with the loan forgiveness plan at issue here, granting most low- and middle-income borrowers up to $10,000 in debt relief. Both relied on the HEROES Act language cited above. In establishing the loan forgiveness plan, the current Secretary scratched the pre-existing conditions for loan discharge, and specified different conditions, opening loan forgiveness to more borrowers. So he “waive[d]” and “modif[ied]” statutory and regulatory provisions and applied other “terms and conditions” in their stead. That may have been a good idea, or it may have been a bad idea. Either way, the Secretary did only what Congress had told him he could. The Court’s first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. Neither do we allow plaintiffs to rely on injuries suffered by others. Those rules may sound technical, but they enforce “fundamental limits on federal judicial power.” Allen v. Wright , 468 U.S. 737 , 750 (1984). They keep courts acting like courts. Or stated the other way around, they prevent courts from acting like this Court does today. The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum—in adjudicating their complaint—the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies. And the Court’s role confusion persists when it takes up the merits. For years, this Court has insisted that the way to keep judges’ policy views and preferences out of judicial decisionmaking is to hew to a statute’s text. The HEROES Act’s text settles the legality of the Secretary’s loan forgiveness plan. The statute provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules. What the Secretary did fits comfortably within that delegation. But the Court forbids him to proceed. As in other recent cases, the rules of the game change when Congress enacts broad delegations allowing agencies to take substantial regulatory measures. See, e.g. , West Virginia v. EPA , 597 U. S. ___ (2022). Then, as in this case, the Court reads statutes unnaturally, seeking to cabin their evident scope. And the Court applies heightened-specificity requirements, thwarting Congress’s efforts to ensure adequate responses to unforeseen events. The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan forgiveness. Congress authorized the forgiveness plan (among many other actions); the Secretary put it in place; and the President would have been accountable for its success or failure. But this Court today decides that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too “significan[t].” Ante , at 20–21. With all respect, I dissent. I “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 37 (1976). In our system, “[f]ederal courts do not possess a roving commission to publicly opine on every legal question.” TransUnion LLC v. Ramirez , 594 U. S. ___, ___ (2021) (slip op., at 8). Nor do they “exercise general legal oversight of the Legislative and Executive Branches.” Ibid. A court may address the legality of a government action only if the person challenging it has standing—which requires that the person have suffered a “concrete and particularized injury.” Ibid. It is not enough for the plaintiff to assert a “generalized grievance[ ]” about government policy. Gill v. Whitford , 585 U. S. ___, ___ (2018) (slip op., at 13). And critically here, the plaintiff cannot rest its claim on a third party’s rights and interests. See Warth v. Seldin , 422 U.S. 490 , 499 (1975). The plaintiff needs its own stake—a “personal stake”—in the outcome of the litigation. TransUnion , 594 U. S., at ___ (slip op., at 7). If the plaintiff has no such stake, a court must stop in its tracks. To decide the case is to exceed the permissible boundaries of the judicial role. That is what the Court does today. The plaintiffs here are six States: Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. They oppose the Secretary’s loan cancellation plan on varied policy and legal grounds. But as everyone agrees, those objections are just general grievances; they do not show the particularized injury needed to bring suit. And the States have no straightforward way of making that showing—of explaining how they are harmed by a plan that reduces individual borrowers’ federal student-loan debt. So the States have thrown no fewer than four different theories of injury against the wall, hoping that a court anxious to get to the merits will say that one of them sticks. The most that can be said of the theory the majority selects, proffered solely by Missouri, is that it is less risible than the others. It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution. A Missouri’s theory of standing, as accepted by the majority, goes as follows. MOHELA is a state-created corporation participating in the student-loan market. As part of that activity, it has contracted with the Department of Education to service federally held loans—essentially, to handle billing and collect payments for the Federal Government. Under that contract, MOHELA receives an administrative fee for each loan serviced. When a loan is canceled, MOHELA will not get a fee; so the Secretary’s plan will cost MOHELA money. And if MOHELA is harmed, Missouri must be harmed, because the corporation is a “public instrumentality” and, as such, “part of Missouri’s government.” Brief for Respondents 16–17; see ante , at 8–9. Up to the last step, the theory is unexceptionable—except that it points to MOHELA as the proper plaintiff. Financial harm is a classic injury in fact. MOHELA plausibly alleges that it will suffer that harm as a result of the Secretary’s plan. So MOHELA can sue the Secretary, as the Government readily concedes. See Tr. of Oral Arg. 18. But not even Missouri, and not even the majority, claims that MOHELA’s revenue loss gets passed through to the State. As further discussed below, MOHELA is financially independent from Missouri—as corporations typically are, the better to insulate their creators from financial loss. See infra , at 6. So MOHELA’s revenue decline—the injury in fact claimed to justify this suit—is not in fact Missouri’s. The State’s treasury will not be out one penny because of the Secretary’s plan. The revenue loss allegedly grounding this case is MOHELA’s alone. Which leads to an obvious question: Where’s MOHELA? The answer is: As far from this suit as it can manage. MOHELA could have brought this suit. It possesses the power under Missouri law to “sue and be sued” in its own name. Mo. Rev. Stat. §173.385.1(3) (2016). But MOHELA is not a party here. Nor is it an amicus . Nor is it even a rooting bystander. MOHELA was “not involved with the decision of the Missouri Attorney General’s Office” to file this suit. Letter from Appellees in No. 22–3179 (CA8), p. 3 (Nov. 1, 2022). And MOHELA did not cooperate with the Attorney General’s efforts. When the AG wanted documents relating to MOHELA’s loan-servicing contract, to aid him in putting forward the State’s standing theory, he had to file formal “sunshine law” demands on the entity. See id. , at 3–4. MOHELA had no interest in assisting voluntarily. If all that makes you suspect that MOHELA is distinct from the State, you would be right. And that is so as a matter of law and financing alike. Yes, MOHELA is a creature of state statute, a public instrumentality established to serve a public function. §173.360. But the law sets up MOHELA as a corporation—a so-called “body corporate”—with a “[s]eparate legal personality.” Ibid. ; First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba , 462 U.S. 611 , 625 (1983) ( Bancec ). Or said a bit differently, MOHELA is—like the lion’s share of corporations, whether public or private—a “separate legal [entity] with distinct legal rights and obligations” from those belonging to its creator. Agency for Int’l Development v. Alliance for Open Society Int’l Inc. , 591 U. S. ___, ___ (2020) (slip op., at 5). MOHELA, for example, has the power to contract with other entities, which is how it entered into a loan-servicing contract with the Department of Education. See §173.385.1(15). MOHELA’s assets, including the fees gained from that contract, are not “part of the revenue of the [S]tate” and cannot be “used for the payment of debt incurred by the [S]tate.” §§173.386, 173.425. On the other side of the ledger, MOHELA’s debts are MOHELA’s alone; Missouri cannot be liable for them. §173.410. And as noted earlier, MOHELA has the power to “sue and be sued” independent of Missouri, so it can both “prosecute and defend” all its varied interests. §173.385.1(3); see supra , at 5. Indeed, before this case, Missouri had never tried to appear in court on MOHELA’s behalf. That is no surprise. In the statutory scheme, independence is everywhere: State law created MOHELA, but in so doing set it apart. The Missouri Supreme Court itself recognized as much in addressing a near-carbon-copy state instrumentality. MOHEFA (note the one-letter difference) issues bonds to support various health and educational institutions in the State. Like MOHELA, MOHEFA is understood as a “public instrumentality” serving a “public function.” Menorah Medical Center v. Health and Ed. Facilities Auth. , 584 S.W.2d 73 , 76 (Mo. 1979). And like MOHELA, MOHEFA has a board appointed by the Governor and sends annual reports to a state department. See Mo. Rev. Stat. §§360.020, 360.140 (1978); ante , at 9 (suggesting those features matter). But the State Supreme Court, when confronted with a claim that MOHEFA’s undertakings should be ascribed to the State, could hardly have been more dismissive. The court thought it beyond dispute that MOHEFA “is not the [S]tate,” and that its activities are not state activities. Menorah , 584 S. W. 2d, at 78. Citing MOHEFA’s financial and legal independence, the court explained that “[s]imilar bodies have been adjudged as ‘separate entities’ from” Missouri. Ibid. MOHELA is no different. Under our usual standing rules, that separation would matter—indeed, would decide this case. A plaintiff, this Court has held time and again, cannot rest its claim to judicial relief on the “legal rights and interests” of third parties. Warth , 422 U. S., at 499. And MOHELA qualifies as such a party, for all the reasons just given. That MOHELA is publicly created makes not a whit of difference: When a “government instrumentalit[y]” is “established as [a] juridical entit[y] distinct and independent from [its] sovereign,” the law—including the law of standing—is supposed to treat it that way. Bancec , 462 U. S., at 626–627; see Sloan Shipyards Corp. v. United States Shipping Bd. Emergency Fleet Corporation , 258 U.S. 549 , 567 (1922). So this case should have been open-and-shut. Missouri and MOHELA are legally, and also financially, “separate entities.” Menorah , 584 S. W. 2d, at 78. MOHELA is fully capable of representing its own interests, and always has done so before. The injury to MOHELA thus does not entitle Missouri—under our normal standing rules—to go to court. And those normal rules are more than just rules: They are, as this case shows, guarantors of our constitutional order. The requirement that the proper party—the party actually affected—challenge an action ensures that courts do not overstep their proper bounds. See Clapper v. Amnesty Int’l USA , 568 U.S. 398 , 408–409 (2013) (“Relaxation of standing [rules] is directly related to the expansion of judicial power”). Without that requirement, courts become “forums for the ventilation of public grievances”—for settlement of ideological and political disputes. Valley Forge Christian College v. Americans United for Separation of Church and State , Inc. , 454 U.S. 464 , 473 (1982). The kind of forum this Court has become today. Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide. That question is “more appropriately addressed in the representative branches,” and by the broader public. Allen , 468 U. S., at 751. Our third-party standing rules, like the rest of our standing doctrine, exist to separate powers in that way—to send political issues to political institutions, and retain only legal controversies, brought by plaintiffs who have suffered real legal injury. If MOHELA had brought this suit, we would have had to resolve it, however hot or divisive. But Missouri? In adjudicating Missouri’s claim, the majority reaches out to decide a matter it has no business deciding. It blows through a constitutional guardrail intended to keep courts acting like courts. B The majority does not over-expend itself in defending that action. It recites the State’s assertion that a “harm to MOHELA is also a harm to Missouri” because the former is the latter’s instrumentality. Ante , at 8. But in doing so, the majority barely addresses MOHELA’s separate corporate identity, its financial independence, and its distinct legal rights. In other words, the majority glides swiftly over all the attributes of MOHELA ensuring that its economic losses (1) are not passed on to the State and (2) can be rectified (if there is legal wrong) without the State’s help. The majority is left to argue from a couple of prior decisions and a single idea, the latter relating to the State’s desire to “aid Missouri college students.” Ante , at 9. But the decisions do not stand for what the majority claims. And the idea collides with another core precept of standing law. All in all, the majority’s justifications turn standing law from a pillar of a restrained judiciary into nothing more than “a lawyer’s game.” Massachusetts v. EPA , 549 U.S. 497 , 548 (2007) (Roberts, C. J., dissenting). The majority mainly relies on Arkansas v. Texas , 346 U.S. 368 (1953), but that case shows only that not all public instrumentalities are the same. The Court there held that Arkansas could bring suit on behalf of a state university. But it did so because the school lacked the financial and legal separateness MOHELA has. Arkansas, we observed, “owns all the property used by the University.” Id. , at 370. And the suit, if successful, would have enhanced that property: The litigation sought to stop Texas from interfering with a contract to build a medical facility on campus. For the same reason, the Court found that “any injury under the contract to the University is an injury to Arkansas”: The State was the principal beneficiary of the contract to improve its own property. Ibid. So Arkansas had the sort of direct financial interest not present here. And there is more: The University, the Court thought, could not sue on its own. See ibid. The majority suggests otherwise, citing a state-court decision holding that corporations usually have the power to bring and defend legal actions. See ante , at 11–12. But the Arkansas Court referenced a different state-court decision—one holding that another state school was “not authorized” to “sue and be sued.” Allen Eng. Co. v. Kays , 106 Ark. 174, 177, 152 S.W. 992, 993 (1913); see Arkansas , 346 U. S., at 370, and n. 9. That decision led this Court to conclude that Arkansas law treated “a suit against the University” as “a suit against the State.” Id. , at 370. But if state law had not done so—as it does not in Missouri for MOHELA? See supra , at 6–7. The Court made clear that a State cannot stand in for an independent entity. The State, the Court said, “must, of course, represent an interest of her own and not merely that of her citizens or corporations.” Ibid. The majority’s second case— Lebron v. National Railroad Passenger Corporation , 513 U.S. 374 (1995)—is yet further afield. The issue there was whether Amtrak, a public corporation similar to MOHELA, had to comply with the First Amendment. The Court held that it did, labeling Amtrak a state actor for that purpose. On the opposite view, we reasoned, a government could “evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form.” Id. , at 397; see ibid. (noting that Plessy could then be “resurrected by the simple device” of creating a public corporation to run trains). But that did not mean Amtrak was equivalent to the Government for all purposes. Over and over, we cabined our holding that Amtrak was a state actor by adding a phrase like “for purposes of the First Amendment” or other constitutional rights. Id. , at 400; see id. , at 383 (Amtrak “must be regarded as a Government entity for First Amendment purposes”); id. , at 392 (Amtrak is “a Government entity for purposes of determining the constitutional rights of citizens”); id. , at 394 (Amtrak is an “instrumentality of the United States for the purpose of individual rights guaranteed against the Government”); id. , at 397, 399, 400 (similar, similar, and similar). But for other purposes, a different rule might, or would, obtain. Our holding, we said, did not mean Amtrak had sovereign immunity. See id. , at 392. And most relevant here, we reaffirmed that “[t]he State does not, by becoming a corporator, identify itself with the corporation” for purposes of litigation. Id. , at 398. Or said again, the Government is “not a party to suits brought by or against” its corporation. Id. , at 399. So what Lebron tells us about MOHELA is that it must comply with the Constitution. Lebron offers no support (more like the opposite) for the different view that MOHELA and Missouri are interchangeable parties in litigation.[ 1 ] Remaining is the majority’s unsupported—and insupportable—idea that the Secretary’s plan “necessarily” hurts Missouri because it “impair[s]” MOHELA’s “efforts to aid [the State’s] college students.” Ante , at 9. To begin with, it seems unlikely that the reduction in MOHELA’s revenues resulting from the discharge would make it harder for students to “access student loans,” as the majority contends. Ante , at 8. MOHELA is not a lender; it services loans others have made. Which is probably why even Missouri has never tried to show that the Secretary’s plan will so detrimentally affect the State’s borrowers. In any event—and more important—such a harm to citizens cannot provide an escape hatch out of MOHELA’s legal and financial independence. That is because of another canonical limit on a State’s ability to ride on third parties: A State may never sue the Federal Government based on its citizens’ rights and interests. See Alfred L. Snapp & Son , Inc. v. Puerto Rico ex rel. Barez , 458 U.S. 592 , 610, n. 16 (1982); Haaland v. Brackeen , 599 U. S. ___, ___, and n. 11 (2023) (slip op., at 32, and n. 11). Or said more technically, a “State does not have standing as parens patriae to bring an action against the Federal Government.” Ibid. ; see Massachusetts v. Mellon , 262 U.S. 447 , 485–486 (1923). So Missouri cannot get standing by asserting that a harm to MOHELA will harm the State’s citizens. Missouri needs to show that the harm to MOHELA produces harm to the State itself. And because, as explained above, MOHELA was set up (as corporations typically are) to insulate its creator from such derivative harm, Missouri is incapable of making that showing. See supra , at 6. The separateness, both financial and legal, between MOHELA and Missouri makes MOHELA alone the proper party. The author of today’s opinion once wrote that a 1970s-era standing decision “became emblematic” of “how utterly manipulable” this Court’s standing law is “if not taken seriously as a matter of judicial self-restraint.” Massachusetts , 549 U. S., at 548 (Roberts, C. J., dissenting). After today, no one will have to go back 50 years for the classic case of the Court manipulating standing doctrine, rather than obeying the edict to stay in its lane. The majority and I differ, as I’ll soon address, on whether the Executive Branch exceeded its authority in issuing the loan cancellation plan. But assuming the Executive Branch did so, that does not license this Court to exceed its own role. Courts must still “function as courts,” this one no less than others. Ibid. And in our system, that means refusing to decide cases that are not really cases because the plaintiffs have not suffered concrete injuries. The Court ignores that principle in allowing Missouri to piggy-back on the “legal rights and interests” of an independent entity. Warth , 422 U. S., at 499. If MOHELA wanted to, it could have brought this suit. It declined to do so. Under the non-manipulable, serious version of standing law, that would have been the end of the matter—regardless how much Missouri, or this Court, objects to the Secretary’s plan. II The majority finds no firmer ground when it reaches the merits. The statute Congress enacted gives the Secretary broad authority to respond to national emergencies. That authority kicks in only under exceptional conditions. But when it kicks in, the Secretary can take exceptional measures. He can “waive or modify any statutory or regulatory provision” applying to the student-loan program. §1098bb(a)(1). And as part of that power, he can “appl[y]” new “terms and conditions” “in lieu of ” the former ones. §1098bb(b)(2). That means when an emergency strikes, the Secretary can alter, so as to cover more people, pre-existing provisions enabling loan discharges. Which is exactly what the Secretary did in establishing his loan forgiveness plan. The majority’s contrary conclusion rests first on stilted textual analysis. The majority picks the statute apart piece by piece in an attempt to escape the meaning of the whole. But the whole—the expansive delegation—is so apparent that the majority has no choice but to justify its holding on extra-statutory grounds. So the majority resorts, as is becoming the norm, to its so-called major-questions doctrine. And the majority again reveals that doctrine for what it is—a way for this Court to negate broad delegations Congress has approved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress and the Executive Branch—and the hundreds of millions of people they represent—in making this Nation’s most important, as well as most contested, policy decisions. A A bit of background first, to give a sense of where the HEROES Act came from. In 1991 and again in 2002, Congress authorized the Secretary to grant student-loan relief to borrowers affected by a specified war or emergency. The first statute came out of the Persian Gulf Conflict. It gave the Secretary power to “waive or modify any statutory or regulatory provision” relating to student-loan programs in order to assist “the men and women serving on active duty in connection with Operation Desert Storm.” §§372(a)(1), (b), 105Stat. 93. The next iteration responded to the impacts of the September 11 terrorist attacks. It too gave the Secretary power to “waive or modify” any student-loan provision, but this time to help borrowers affected by the “national emergency” created by September 11. §2(a)(1), 115Stat. 2386. With those one-off statutes in its short-term memory, Congress decided there was a need for a broader and more durable emergency authorization. So in 2003, it passed the HEROES Act. Instead of specifying a particular crisis, that statute enables the Secretary to act “as [he] deems necessary” in connection with any military operation or “national emergency.” §1098bb(a)(1). But the statute’s greater coverage came with no sacrifice of potency. When the law’s emergency conditions are satisfied, the Secretary again has the power to “waive or modify any statutory or regulatory provision” relating to federal student-loan programs. Ibid. Before turning to the scope of that power, note the stringency of the triggering conditions. Putting aside military applications, the Secretary can act only when the President has declared a national emergency. See §1098ee(4). Further, the Secretary may provide benefits only to “affected individuals”—defined as anyone who “resides or is employed in an area that is declared a disaster area . . . in connection with a national emergency” or who has “suffered direct economic hardship as a direct result of a . . . national emergency.” §§1098ee(2)(C)–(D). And the Secretary can do only what he determines to be “necessary” to ensure that those individuals “are not placed in a worse position financially in relation to” their loans “because of ” the emergency. §1098bb(a)(2). That last condition, said more simply, requires the Secretary to show that the relief he awards does not go beyond alleviating the economic effects of an emergency on affected borrowers’ ability to repay their loans. But if those conditions are met, the Secretary’s delegated authority is capacious. As in the prior statutes, the Secretary has the linked power to “waive or modify any statutory or regulatory provision” applying to the student-loan programs. §1098bb(a)(1). To start with the phrase after the verbs, “the word ‘any’ has an expansive meaning.” United States v. Gonzales , 520 U.S. 1 , 5 (1997). “Any” of the referenced provisions means, well, any of those provisions. And those provisions include several relating to student-loan cancellation—more precisely, specifying conditions in which the Secretary can discharge loan principal. See §§1087, 1087dd(g); 34 CFR §§682.402, 685.212 (2022). Now go back to the twin verbs: “waive or modify.” To “waive” means to “abandon, renounce, or surrender”—so here, to eliminate a regulatory requirement or condition. Black’s Law Dictionary 1894 (11th ed. 2019). To “modify” means “[t]o make somewhat different” or “to reduce in degree or extent”—so here, to lessen rather than eliminate such a requirement. Id. , at 1203. Then put the words together, as they appear in the statute: To “waive or modify” a requirement means to lessen its effect, from the slightest adjustment up to eliminating it altogether. Of course, making such changes may leave gaps to fill. So the statute says what is anyway obvious: that the Secretary’s waiver/modification power includes the ability to specify “the terms and conditions to be applied in lieu of such [modified or waived] statutory and regulatory provisions.” §1098bb(b)(2). Finally, attach the “waive or modify” power to all the provisions relating to loan cancellation: The Secretary may amend, all the way up to discarding, those provisions and fill the holes that action creates with new terms designed to counteract an emergency’s effects on borrowers. Before reviewing how that statutory scheme operated here, consider how it might work for a hypothetical emergency that the enacting Congress had in the front of its mind. As noted above, a precursor to the HEROES Act was a statute authorizing the Secretary to assist student-loan borrowers affected by September 11. See supra , at 14. The HEROES Act, as Congress designed it, would give him the identical power to address similar terrorist attacks in the future. So imagine the horrific. A terrorist organization sets off a dirty bomb in Chicago. Beyond causing deaths, the incident leads millions of residents (including many with student loans) to flee the city to escape the radiation. They must find new housing, probably new jobs. And still their student-loan bills are coming due every month. To prevent widespread loan delinquencies and defaults, the Secretary wants to discharge $10,000 for the class of affected borrowers. Is that legal? Of course it is; it is exactly what Congress provided for. The statutory preconditions are met: The President has declared a national emergency; the Secretary’s proposed relief extends only to “affected individuals”; and the Secretary has deemed the action “necessary to ensure” that the attack does not place those borrowers “in a worse position” to repay their loans. §1098bb(a). And the statutory powers of waiver and modification give the Secretary the means to offer the needed assistance. He can, for purposes of this special loan forgiveness program, scratch the pre-existing conditions for discharge and specify different conditions met by the affected borrowers. That is what the congressionally delegated powers are for . If the Secretary did not use them, Congress would be appalled. The HEROES Act applies to the COVID loan forgiveness program in just the same way. Of course, Congress did not know COVID was coming; and maybe it wasn’t even thinking about pandemics generally. But that is immaterial, because Congress delegated broadly, for all national emergencies. It is true, too, that the Secretary’s use of the HEROES Act delegation has proved politically controversial, in a way that assistance to terrorism victims presumably would not. But again, that fact is irrelevant to the lawfulness of the program. If the hypothetical plan just discussed is legal, so too is this real one. Once more, the statutory preconditions have been met. The President declared the COVID pandemic a “national emergency.” §1098ee(4); see 87 Fed. Reg. 10289 (2022). The eligible borrowers all fall within the law’s definition of “affected individual[s].” §1098ee(2); see supra , at 15. And the Secretary “deem[ed]” relief “necessary to ensure” that the pandemic did not put low- and middle-income borrowers “in a worse position” to repay their loans. §§1098bb(a)(1)–(2).[ 2 ] With those boxes checked, the Secretary’s waiver/modification powers kick in. And the Secretary used them just as described in the hypothetical above. For purposes of the COVID program, he scratched the conditions for loan discharge contained in several provisions. See App. 261–262 (citing §§1087, 1087dd(g); 34 CFR §§682.402, 685.212). He then altered those provisions by specifying different conditions, which opened up loan forgiveness to more borrowers. So he “waive[d]” and “modif[ied]” pre-existing law and, in so doing, applied new “terms and conditions” “in lieu of ” the old. §§1098bb(a)(1), (b)(2); see 87 Fed. Reg. 61514. As in the prior hypothetical, then, he used his statutory emergency powers in the manner Congress designed. How does the majority avoid this conclusion? By picking the statute apart, and addressing each segment of Congress’s authorization as if it had nothing to do with the others. For the first several pages—really, the heart—of its analysis, the majority proceeds as though the statute contains only the word “modify.” See ante , at 13–15. It eventually gets around to the word “waive,” but similarly spends most of its time treating that word alone. See ante , at 15–16. Only when that discussion is over does the majority inform the reader that the statute also contemplates the Secretary’s addition of new terms and conditions. See ante , at 17–18. But once again the majority treats that authority in isolation, and thus as insignificant. Each aspect of the Secretary’s authority—waiver, modification, replacement—is kept sealed in a vacuum-packed container. The way they connect and reinforce each other is generally ignored. “Divide to conquer” is the watchword. So there cannot possibly emerge “a fair construction of the whole instrument.” McCulloch v. Maryland , 4 Wheat. 316, 406 (1819). The majority fails to read the statutory authorization right because it fails to read it whole. See A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 167–169 (2012) (discussing the importance of the whole-text—here, really, the whole-sentence—canon). The majority’s cardinal error is reading “modify” as if it were the only word in the statutory delegation. Taken alone, this Court once stated, the word connotes “increment” and means “to change moderately or in minor fashion.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co. , 512 U.S. 218 , 225 (1994). But no sooner did the Court say that much than it noted the importance of “contextual indications.” Id. , at 226; see Scalia & Garner 167 (“Context is a primary determinant of meaning”). And in the HEROES Act, the dominant piece of context is that “modify” does not stand alone. It is one part of a couplet: “waive or modify.” The first verb, as discussed above, means eliminate—usually the most substantial kind of change. See supra , at 15; accord, ante , at 16. So the question becomes: Would Congress have given the Secretary power to wholly eliminate a requirement, as well as to relax it just a little bit, but nothing in between? The majority says yes. But the answer is no, because Congress would not have written so insane a law. The phrase “waive or modify” instead says to the Secretary: “Feel free to get rid of a requirement or, short of that, to alter it to the extent you think appropriate.” Otherwise said, the phrase extends from minor changes all the way up to major ones. The majority fares no better in claiming that the phrase “waive or modify” somehow limits the Secretary’s ability “to add to existing law.” Ante , at 18 (emphasis in original). The majority’s explanation of that idea oscillates a fair bit. At times the majority tries to convey that “additions” as a class are somehow suspect. See ante , at 17–18 (looking askance at “add[ing] new terms,” “adding back in,” “filling the empty space,” “augment[ing],” and “draft[ing] new” language). But that is mistaken. Change often (usually?) involves or necessitates replacements. So when the Secretary uses his statutory power to remove some conditions on loan cancellation, he can under that same power replace them with others. The majority itself must ultimately concede that point. See ante , at 13, 17–18. So it falls back on arguing that the “additions” allowed cannot be “substantial[ ]” because the statute uses the word “modify.” Ante , at 16; see ante , at 17–18. But that just doubles down on the majority’s most basic error: extracting “modify” from the “waive or modify” phrase in order to confine the Secretary to making minor changes. As just shown, the phrase as a whole says the opposite—tells the Secretary that he can make changes along a spectrum, from modest to substantial. See supra , at 19. And so he can make additions along that spectrum as well. In particular, if he entirely removes existing conditions on loan discharge, he can substitute new ones; he does not have to leave gaping holes. Indeed, other language in the statute makes that substitution authority perfectly clear. As noted earlier, the statute refers expressly to “the terms and conditions to be applied in lieu of such [modified or waived] statutory and regulatory provisions.” §1098bb(b)(2); see supra , at 16. In other words, the statute expects the Secretary’s waivers and modifications to involve replacing the usual provisions with different ones. The majority rejoins that the “in lieu of ” language is a “wafer-thin reed” for the Secretary to rely on because it appears in a “humdrum reporting requirement.” Ante , at 17. But the adjectives are by far the best part of that response. It is perfectly true that the language instructs the Secretary to “include” his new “terms and conditions” when he provides notice of his “waivers or modifications.” §1098bb(b)(2). But that is because the statute contemplates that there will be new terms and conditions to report. In other words, the statute proceeds on the premise that the usual waiver or modification will, contra the majority, involve adding “new substantive” provisions. Ante , at 17. The humdrum reporting requirement thus confirms the expansive extent of the Secretary’s waiver/modification authority. The majority’s opposing construction makes the Act inconsequential. The Secretary emerges with no ability to respond to large-scale emergencies in commensurate ways. The creation of any “novel and fundamentally different loan forgiveness program” is off the table. Ante , at 14. So, for example, the Secretary could not cancel student loans held by victims of the hypothetical terrorist attack described above. See supra , at 16–17. That too would involve “the introduction of a whole new regime” by way of “draft[ing] new substantive” conditions for discharging loans. Ante , at 17–18. And under the majority’s analysis, new loan forbearance policies are similarly out of bounds. When COVID struck, Secretary DeVos immediately suspended loan repayments and interest accrual for all federally held student loans. See ante , at 5. The majority claims it is not deciding whether that action was lawful. Ante , at 18, n. 5. Which is all well and good, except that under the majority’s reasoning, how could it not be? The suspension too offered a significant new benefit, and to an even greater number of borrowers. (Indeed, for many borrowers, it was worth much more than the current plan’s $10,000 discharge.) So the suspension could no more meet the majority’s pivotal definition of “modify”—as make a “minor change[ ]”—than could the forgiveness plan. Ante , at 13. On the majority’s telling, Congress thought that in the event of a national emergency financially harming borrowers—under a statute gearing potential relief to the measure of that harm, so that affected borrowers end up no less able to repay their loans—the Secretary can do no more than fiddle. He can, the majority says, “reduc[e] the number of tax forms borrowers are required to file.” Ibid. Or he can “waive[ ] the requirement that a student provide a written request for a leave of absence.” Ante , at 15. But he can do nothing that would ameliorate an emergency’s economic impact on student-loan borrowers. That is not the statute Congress wrote. The HEROES Act was designed to deal with national emergencies—typically major in scope, often unpredictable in nature. It gave the Secretary discretionary authority to relieve borrowers of the adverse impacts of many possible crises—as “necessary” to ensure that those individuals are not “in a worse position financially” to make repayment. §1098bb(a)(2). If all the Act’s triggers are met, the Secretary can waive or modify the usual provisions relating to student loans, and substitute new terms and conditions. That power extends to the varied provisions governing loan repayment and discharge. Those provisions are, indeed, the most obvious candidates for alteration under a statute drafted to leave borrowers no worse off, in relation to their loans, than before an emergency struck. But the majority will not accept the statute’s meaning. At every pass, it “impos[es] limits on an agency’s discretion that are not supported by the text.” Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania , 591 U. S. ___, ___ (2020) (slip op., at 16). It refuses to apply the Act in accordance with its terms. Explains the majority: “However broad the meaning of ‘waive or modify’ ”—meaning however much power Congress gave the Secretary—this program is just too large. Ante , at 18. B The tell comes in the last part of the majority’s opinion. When a court is confident in its interpretation of a statute’s text, it spells out its reading and hits the send button. Not this Court, not today. This Court needs a whole other chapter to explain why it is striking down the Secretary’s plan. And that chapter is not about the statute Congress passed and the President signed, in their representation of many millions of citizens. It instead expresses the Court’s own “concerns over the exercise of administrative power.” Ante , at 19. Congress may have wanted the Secretary to have wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute in a way that subjects the President he serves to political accountability—the judgment of voters. But none of that is enough. This Court objects to Congress’s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court’s satisfaction. So the Court puts its own heavyweight thumb on the scales. It insists that “[h]owever broad” Congress’s delegation to the Secretary, it (the Court) will not allow him to use that general authorization to resolve important issues. The question, the majority helpfully tells us, is “who has the authority” to make such significant calls. Ibid. The answer, as is now becoming commonplace, is this Court. See, e.g. , West Virginia , 597 U. S. ___; Alabama Assn. of Realtors v. Department of Health and Human Servs. , 594 U. S. ___ (2021); see also Sackett v. EPA , 598 U. S. ___ (2023) (using a similar judicially manufactured tool to negate statutory text enabling regulation). The majority’s stance, as I explained last Term, prevents Congress from doing its policy-making job in the way it thinks best. See West Virginia , 597 U. S., at ___–___, ___–___ (dissenting opinion) (slip op., at 13–19, 28–33). The new major-questions doctrine works not to better understand—but instead to trump—the scope of a legislative delegation. See id. , at ___ (slip op., at 32). Here is a fact of the matter: Congress delegates to agencies often and broadly. And it usually does so for sound reasons. Because agencies have expertise Congress lacks. Because times and circumstances change, and agencies are better able to keep up and respond. Because Congress knows that if it had to do everything, many desirable and even necessary things wouldn’t get done. In wielding the major-questions sword, last Term and this one, this Court overrules those legislative judgments. The doctrine forces Congress to delegate in highly specific terms—respecting, say, loan forgiveness of certain amounts for borrowers of certain incomes during pandemics of certain magnitudes. Of course Congress sometimes delegates in that way. But also often not. Because if Congress authorizes loan forgiveness, then what of loan forbearance? And what of the other 10 or 20 or 50 knowable and unknowable things the Secretary could do? And should the measure taken—whether forgiveness or forbearance or anything else—always be of the same size? Or go to the same classes of people? Doesn’t it depend on the nature and scope of the pandemic, and on a host of other foreseeable and unforeseeable factors? You can see the problem. It is hard to identify and enumerate every possible application of a statute to every possible condition years in the future. So, again, Congress delegates broadly. Except that this Court now won’t let it reap the benefits of that choice. And that is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business—to decide only cases and controversies (but see supra , at 3–13), and to stay away from making this Nation’s policy about subjects like student-loan relief. The policy judgments, under our separation of powers, are supposed to come from Congress and the President. But they don’t when the Court refuses to respect the full scope of the delegations that Congress makes to the Executive Branch. When that happens, the Court becomes the arbiter—indeed, the maker—of national policy. See West Virginia , 597 U. S., at ___ (Kagan, J., dissenting) (slip op., at 32) (“The Court, rather than Congress, will decide how much regulation is too much”). That is no proper role for a court. And it is a danger to a democratic order. The HEROES Act is a delegation both purposive and clear. Recall that Congress enacted the statute after passing two similar laws responding to specific crises. See supra , at 14. Congress knew that national emergencies would continue to arise. And Congress decided that when they did, the Secretary should have the power to offer relief without waiting for another, incident-specific round of legislation. Emergencies, after all, are emergencies, where speed is of the essence. For similar reasons, Congress replicated its prior (two-time) choice to leave the scope and nature of the loan relief to the Secretary, so that he could respond to varied conditions. As the House Report noted, Congress provided “the authority to implement waivers” that were “not yet contemplated” but might become necessary to deal with “any unforeseen issues that may arise.” H. R. Rep. No. 108–122, pp. 8–9 (2003). That delegation is at the statute’s very center, in its “waive or modify” language. And the authority it grants goes only to the Secretary—the official Congress knew to hold the responsibility for administering the Government’s student-loan portfolio and programs. See §1082. Student loans are in the Secretary’s wheelhouse. And so too, Congress decided, relief from those loan obligations in case of emergency. That delegation was the entire point of the HEROES Act. Indeed, the statute accomplishes nothing else. The majority is therefore wrong to say that the “indicators from our previous major questions cases are present here.” Ante , at 23 (internal quotation marks omitted). Compare the HEROES Act to other statutes containing broad delegations that the same majority has found to raise major-questions problems. Last Term, for example, the majority thought the trouble with the Clean Power Plan lay in the EPA’s use of a “long-extant” and “ancillary” provision addressed to other matters. West Virginia , 597 U. S., at ___ (slip op., at 20). Before that, the majority invalidated the CDC’s eviction moratorium because the agency had asserted authority far outside its “particular domain.” Alabama Assn. of Realtors , 594 U. S., at ___ (slip op., at 6). I thought both those decisions wrong. But assume the opposite; there is, even on that view, nothing like those circumstances here. (Or, to quote the majority quoting me, those “case[s are] distinguishable from this one.” Ante , at 23.) In this case, the Secretary responsible for carrying out the student-loan programs forgave student loans in a national emergency under the core provision of a recently enacted statute empowering him to provide student-loan relief in national emergencies.[ 3 ] Today’s decision thus moves the goalposts for triggering the major-questions doctrine. Who knows—by next year, the Secretary of Health and Human Services may be found unable to implement the Medicare program under a broad delegation because of his actions’ (enormous) “economic impact.” Ante , at 21. To justify this use of its heightened-specificity requirement, the majority relies largely on history: “[P]ast waivers and modifications,” the majority argues, “have been extremely modest.” Ante , at 20. But first, it depends what you think is “past.” One prior action, nowhere counted by the majority, is the suspension of loan payments and interest accrual begun in COVID’s first days. That action cost the Federal Government over $100 billion, and benefited many more borrowers than the forgiveness plan at issue. See supra , at 21. And second, it’s all relative. Past actions were more modest because the precipitating emergencies were more modest. (The COVID emergency generated, all told, over $5 trillion in Government relief spending.) In providing more significant relief for a more significant emergency—or call it unprecedented relief for an unprecedented emergency—the Secretary did what the HEROES Act contemplates. Imagine asking the enacting Congress: Can the Secretary use his powers to give borrowers more relief when an emergency has inflicted greater harm? I can’t believe the majority really thinks Congress would have answered “no.” In any event, the statute Congress passed does not say “no.” Delegations like the HEROES Act are designed to enable agencies to “adapt their rules and policies to the demands of changing circumstances.” FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 , 157 (2000). Congress allows, and indeed expects, agencies to take more serious measures in response to more serious problems. Similarly unavailing is the majority’s reliance on the controversy surrounding the program. Student-loan cancellation, the majority says, “raises questions that are personal and emotionally charged,” precipitating “profound debate across the country.” Ante , at 22. I have no quarrel with that description. Student-loan forgiveness, and responses to COVID generally, have joined the list of issues on which this Nation is divided. But that provides yet more reason for the Court to adhere to its properly limited role. There are two paths here. One is to respect the political branches’ judgments. On that path, the Court recognizes the breadth of Congress’s delegation to the Secretary, and declines to interfere with his use of that granted authority. Maybe Congress was wrong to give the Secretary so much discretion; or maybe he, and the President he serves, did not make good use of it. But if so, there are political remedies—accountability for all the actors, up to the President, who the public thinks have made mistakes. So a political controversy is resolved by political means, as our Constitution requires. That is one path. Now here is the other, the one the Court takes. Wielding its judicially manufactured heightened-specificity requirement, the Court refuses to acknowledge the plain words of the HEROES Act. It declines to respect Congress’s decision to give broad emergency powers to the Secretary. It strikes down his lawful use of that authority to provide student-loan assistance. It does not let the political system, with its mechanisms of accountability, operate as normal. It makes itself the decisionmaker on, of all things, federal student-loan policy. And then, perchance, it wonders why it has only compounded the “sharp debates” in the country? Ibid. III From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[ ]” those who disagree. Ante , at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante , at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra , at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante , at 25. The same is true in our own day. The majority’s opinion begins by distorting standing doctrine to create a case fit for judicial resolution. But there is no such case here, by any ordinary measure. The Secretary’s plan has not injured the plaintiff-States, however much they oppose it. And in that respect, Missouri is no different from any of the others. Missouri does not suffer any harm from a revenue loss to MOHELA, because the two entities are legally and financially independent. And MOHELA has chosen not to sue—which of course it could have. So no proper party is before the Court. A court acting like a court would have said as much and stopped. The opinion ends by applying the Court’s made-up major-questions doctrine to jettison the Secretary’s loan forgiveness plan. Small wonder the majority invokes the doctrine. The majority’s “normal” statutory interpretation cannot sustain its decision. The statute, read as written, gives the Secretary broad authority to relieve a national emergency’s effect on borrowers’ ability to repay their student loans. The Secretary did no more than use that lawfully delegated authority. So the majority applies a rule specially crafted to kill significant regulatory action, by requiring Congress to delegate not just clearly but also micro- specifically. The question, the majority maintains, is “who has the authority” to decide whether such a significant action should go forward. Ante , at 19; see supra , at 23. The right answer is the political branches: Congress in broadly authorizing loan relief, the Secretary and the President in using that authority to implement the forgiveness plan. The majority instead says that it is theirs to decide. So in a case not a case, the majority overrides the combined judgment of the Legislative and Executive Branches, with the consequence of eliminating loan forgiveness for 43 million Americans. I respectfully dissent from that decision. Notes 1 The same goes for the majority’s other case about Amtrak, which just “reiterate[s]” Lebron ’s reasoning. Ante , at 11; see Department of Transportation v. Association of American Railroads , 575 U.S. 43 (2015). There too we held that Amtrak was a “governmental entity” for purposes of the “requirements of the Constitution”—specifically, the nondelegation doctrine. Id. , at 54. And there too we kept our holding as limited as possible, repeatedly stating that we were treating Amtrak as the Government for that purpose alone. See, e.g. , id. , at 51 (“for purposes of separation-of-powers analysis under the Constitution”); id. , at 54 (“for purposes of the Constitution’s separation of powers provisions”); id. , at 55 (“for purposes of determining the constitutional issues presented in this case”). As for any other purpose? Not a word to suggest the same result. And as even the majority concedes, “a public corporation can count as part of the State for some but not other purposes.” Ante , at 12, n. 3 (internal quotation marks omitted). The Amtrak decisions, to continue borrowing the majority’s language, “said nothing about, and had no reason to address, whether an injury to [a] public corporation is a harm to the [Government].” Ibid. 2 More specifically, the Secretary determined that without a loan discharge, borrowers making less than $125,000 are likely to experience higher delinquency and default rates because of the pandemic’s economic effects. See App. 234–242, 257–259. In a puzzling footnote, the majority expresses doubt about that finding, though says that its skepticism plays no role in its decision. See ante , at 18–19, n. 6. Far better if the majority had ruled on that alternative ground. Then, the Court’s invalidation of the Secretary’s plan would not have neutered the statute for all future uses. But in any event, the skepticism is unwarranted. All the majority says to support it is that the current “paus[e]” on “interest accrual and loan repayments” could achieve the same end. Ibid. But the majority gives no reason for concluding that the pause would work just as well to ensure that borrowers are not “placed in a worse position financially in relation to” their loans because of the COVID emergency. §1098bb(a)(2)(A). How could it possibly know? And in any event, the majority’s view of the statute would also make the pause unlawful, as later discussed. See infra , at 21. So the availability of the pause can hardly provide a basis for the majority’s questioning of the Secretary’s finding that cancellation is necessary. 3 The nature of the delegation here poses a particular challenge for Justice Barrett, given her distinctive understanding of the major-questions doctrine. In her thoughtful concurrence, she notes the “importance of context when a court interprets a delegation to an administrative agency.” Ante , at 2 (emphasis in original). I agree, and have said so; there are, indeed, some significant overlaps between my and Justice Barrett’s views on properly contextual interpretation of delegation provisions. See West Virginia , 597 U. S., at ___–___ (dissenting opinion) (slip op., at 14–19). But then consider two of the contextual factors Justice Barrett views as “telltale sign[s]” of whether an agency has exceeded the scope of a delegation. Ante , at 12. First, she asks, is there a “mismatch[ ]” between a “backwater provision” or “subtle device” and an agency’s exercise of power? Ibid. And second, is the agency official operating within or “outside [his] wheelhouse”? Ante , at 12–13. Here, for the reasons stated above, there is no mismatch: The broadly worded “waive or modify” delegation IS the HEROES Act, not some tucked away ancillary provision. And as Justice Barrett agrees, “this is not a case where the agency is operating entirely outside its usual domain.” Ante , at 15. So I could practically rest my case on Justice Barrett’s reasoning.

The case concerns the legality of the Secretary of Education's plan to cancel federal student loan debt for millions of borrowers under the HEROES Act. The Supreme Court ruled that the HEROES Act does not authorize the Secretary's plan, agreeing with the six states that sued, citing the terms of federal loans set by law rather than market forces. The Court's decision invalidates the loan cancellation plan, with Justice Barrett's concurrence noting the importance of context in interpreting delegations of power to administrative agencies.

Government Agencies

Corner Post, Inc. v. Board of Governors

https://supreme.justia.com/cases/federal/us/603/22-1008/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–1008 _________________ CORNER POST, INC., PETITIONER v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM on writ of certiorari to the united states court of appeals for the eighth circuit [July 1, 2024] Justice Barrett delivered the opinion of the Court. The default statute of limitations for suits against the United States requires “the complaint [to be] filed within six years after the right of action first accrues.” 28 U. S. C. §2401(a). We must decide when a claim brought under the Administrative Procedure Act “accrues” for purposes of this provision. The answer is straightforward. A claim accrues when the plaintiff has the right to assert it in court—and in the case of the APA, that is when the plaintiff is injured by final agency action. I Corner Post is a truckstop and convenience store located in Watford City, North Dakota. It was incorporated in 2017, and in 2018, it opened for business. Like most merchants, Corner Post accepts debit cards as a form of payment. While convenient for customers, debit cards are costly for merchants: Every transaction requires them to pay an “interchange fee” to the bank that issued the card. The amount of the fee is set by the payment networks, like Visa and Mastercard, that process the transaction between the banks of merchants and cardholders. The cost quickly adds up. Since it opened, Corner Post has paid hundreds of thousands of dollars in interchange fees—which has meant higher prices for its customers. Interchange fees have long been a sore point for merchants. For many years, payment networks had free rein over the fee amount—and because they used the promise of per-transaction profit to compete for the banks’ business, they had significant incentive to raise the fees. Merchants—who would lose customers if they declined debit cards—had little choice but to pay whatever the networks charged. Left unregulated, interchange fees ballooned. Congress eventually stepped in. The Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 tasks the Federal Reserve Board with setting “standards for assessing whether the amount of any interchange transaction fee . . . is reasonable and proportional to the cost incurred by the issuer with respect to the transaction.” 124 Stat. 2068, 15 U. S. C. §1693 o –2(a)(3)(A). Discharging this duty, the Board promulgated Regulation II, which sets a maximum interchange fee of $0.21 per transaction plus .05% of the transaction’s value. See Debit Card Interchange Fees and Routing, 76 Fed. Reg. 43394, 43420 (2011). The Board published the rule on July 20, 2011. Four months later, a group of retail-industry trade associations and individual retailers sued the Board, arguing that Regulation II allows costs that the statute does not. See NACS v. Board of Governors of FRS , 958 F. Supp. 2d 85, 95–96 (DC 2013). The District Court agreed, id ., at 99–109, but the D. C. Circuit reversed, concluding “that the Board’s rules generally rest on reasonable constructions of the statute,” NACS v. Board of Governors of FRS , 746 F.3d 474, 477 (2014). Corner Post, of course, did not exist when the Board adopted Regulation II or even during the D. C. Circuit litigation. But after opening its doors, it too became frustrated by interchange fees, and in 2021, joined a suit brought against the Board under the Administrative Procedure Act (APA). The complaint alleges that Regulation II is unlawful because it allows payment networks to charge higher fees than the statute permits. See 5 U. S. C. §§706(2)(A), (C). The District Court dismissed the suit as barred by 28 U. S. C. §2401(a), the applicable statute of limitations, 2022 WL 909317, *7–*9 (ND, Mar. 11, 2022), and the Eighth Circuit affirmed, North Dakota Retail Assn. v. Board of Governors of FRS , 55 F. 4th 634 (2022). Following other Circuits, it distinguished between “facial” challenges to a rule (like Corner Post’s challenge to Regulation II) and challenges to a rule “as-applied” to a particular party. Id ., at 640–641. The Eighth Circuit held that “when plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation.” Id ., at 641. On this view, §2401(a)’s 6-year limitations period began in 2011, when the Board published Regulation II, and expired in 2017, before Corner Post swiped its first debit card. See id. , at 643. Corner Post’s suit was therefore too late. The Eighth Circuit’s decision deepened a circuit split over when §2401(a)’s statute of limitations begins to run for APA suits challenging agency action. At least six Circuits now hold that the limitations period for “facial” APA challenges begins on the date of final agency action— e . g ., when the rule was promulgated—regardless of when the plaintiff was injured. See, e . g ., id ., at 641; Wind River Min. Corp. v. United States , 946 F.2d 710, 715 (CA9 1991); Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv. , 112 F.3d 1283 , 1287 (CA5 1997); Harris v. FAA , 353 F.3d 1006 , 1009–1010 (CADC 2004); Hire Order Ltd. v. Marianos , 698 F.3d 168, 170 (CA4 2012); Odyssey Logistics & Tech. Corp. v. Iancu , 959 F.3d 1104, 1111–1112 (CA Fed. 2020). By contrast, the Sixth Circuit has stated a generally applicable rule that §2401(a)’s limitations period begins when the plaintiff is injured by agency action, even if that injury did not occur until many years after the action became final. Herr v. United States Forest Serv. , 803 F.3d 809, 820–822 (2015) (“When a party first becomes aggrieved by a regulation that exceeds an agency’s statutory authority more than six years after the regulation was promulgated, that party may challenge the regulation without waiting for enforcement proceedings” (emphasis deleted)). We granted certiorari to resolve the split. 600 U. S. ___ (2023). II Three statutory provisions control our analysis: 5 U. S. C. §702 and §704, the relevant APA provisions, and 28 U. S. C. §2401(a), the relevant statute of limitations. The APA provisions grant Corner Post a cause of action subject to certain conditions, and §2401(a) sets the window within which Corner Post can assert its claim. Section 702 authorizes persons injured by agency action to obtain judicial review by suing the United States or one of its agencies, officers, or employees. See Abbott Laboratories v. Gardner , 387 U.S. 136 , 140–141 (1967). It provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U. S. C. §702. We have explained that §702 “requir[es] a litigant to show, at the outset of the case, that he is injured in fact by agency action.” Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co. , 514 U.S. 122 , 127 (1995). Thus, a litigant cannot bring an APA claim unless and until she suffers an injury.[ 1 ] While §702 equips injured parties with a cause of action, §704 limits the agency actions that are subject to judicial review. Unless another statute makes the agency’s action reviewable (and none does for Regulation II), judicial review is available only for “final agency action.” §704. In most cases, then, a plaintiff can only challenge an action that “mark[s] the consummation of the agency’s decisionmaking process” and is “one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear , 520 U.S. 154 , 177–178 (1997) (internal quotation marks omitted). Note that §702’s injury requirement and §704’s finality requirement work hand in hand: Each is a “necessary, but not by itself . . . sufficient, ground for stating a claim under the APA.” Herr , 803 F. 3d, at 819. The applicable statute of limitations, 28 U. S. C. §2401(a), contains the language we must interpret: “[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues .” (Emphasis added.) This provision applies generally to suits against the United States unless the timing provision of a more specific statute displaces it. See, e . g ., 33 U. S. C. §1369(b) (deadline to challenge certain agency actions under the Clean Water Act). The Board contends that an APA claim “accrues” when agency action is “final” for purposes of §704—injury, it says, is necessary for the suit but irrelevant to the statute of limitations.[ 2 ] We disagree. A right of action “accrues” when the plaintiff has a “complete and present cause of action”— i . e ., when she has the right to “file suit and obtain relief.” Green v. Brennan , 578 U.S. 547, 554 (2016) (internal quotation marks omitted). An APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action, so the statute of limitations does not begin to run until she is injured. III Congress enacted §2401(a) in 1948, two years after it enacted the APA. See 62 Stat. 971. Section 2401(a)’s predecessor was the statute-of-limitations provision for the Little Tucker Act, which gave district courts jurisdiction over non-tort monetary claims not exceeding $10,000 against the United States. See §24, 36 Stat. 1093 (“That no suit against the Government of the United States shall be allowed under this paragraph unless the same shall have been brought within six years after the right accrued for which the claim is made”); Brief for Professor Aditya Bamzai et al. as Amici Curiae 5–6. When Congress revised and recodified the Judicial Code in 1948, it converted the Little Tucker Act’s statute of limitations into a general statute of limitations for all suits against the Government—replacing “under this paragraph” with “every civil action against the United States.” But Congress continued to start the 6-year limitations period when the right “accrues.” Compare 36 Stat. 1093 (“after the right accrued for which the claim is made”) with §2401(a) (“after the right of action first accrues”). In 1948, as now, “accrue” had a well-settled meaning: A “right accrues when it comes into existence,” United States v. Lindsay , 346 U.S. 568 , 569 (1954)— i . e ., “ ‘when the plaintiff has a complete and present cause of action,’ ” Gabelli v. SEC , 568 U.S. 442 , 448 (2013) (quoting Wallace v. Kato , 549 U.S. 384 , 388 (2007)). This definition has appeared “in dictionaries from the 19th century up until today.” Gabelli , 568 U. S., at 448. Legal dictionaries in the 1940s and 1950s uniformly explained that a cause of action “ ‘accrues’ when a suit may be maintained thereon.” Black’s Law Dictionary 37 (4th ed. 1951) (Black’s); see also, e.g. , Ballentine’s Law Dictionary 15–16 (2d ed. 1948) (Ballentine’s) (“[A]ccrual of cause of action” defined as the “coming or springing into existence of a right to sue” (boldface deleted)). Thus, we have explained that a cause of action “does not become ‘complete and present’ for limitations purposes”—it does not accrue —“until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal. , 522 U.S. 192 , 201 (1997). Importantly, contemporaneous dictionaries also explained that a cause of action accrues “on [the] date that damage is sustained and not [the] date when causes are set in motion which ultimately produce injury.” Black’s 37. “[I]f an act is not legally injurious until certain consequences occur, it is not the mere doing of the act that gives rise to a cause of action, but the subsequent occurrence of damage or loss as the consequence of the act, and in such case no cause of action accrues until the loss or damage occurs .” Ballentine’s 16 (emphasis added). Thus, when Congress used the phrase “right of action first accrues” in §2401(a), it was well understood that a claim does not “accrue” as soon as the defendant acts, but only after the plaintiff suffers the injury required to press her claim in court. Our precedent treats this definition of accrual as the “standard rule for limitations periods.” Green , 578 U. S., at 554. “We have repeatedly recognized that Congress legislates against the ‘standard rule that the limitations period commences when the plaintiff has a complete and present cause of action.’ ” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson , 545 U.S. 409 , 418 (2005) (quoting Bay Area Laundry , 522 U. S., at 201). It is “unquestionably the traditional rule” that “[a]bsent other indication, a statute of limitations begins to run at the time the plaintiff ‘has the right to apply to the court for relief.’ ” TRW Inc. v. Andrews , 534 U.S. 19 , 37 (2001) (Scalia, J., concurring in judgment) (quoting 1 H. Wood, Limitation of Actions §122a, p. 684 (rev. 4th ed. 1916) (Wood)). Conversely, we have “reject[ed]” the possibility that a “limitations period commences at a time when the [plaintiff] could not yet file suit” as “inconsistent with basic limitations principles.” Bay Area Laundry , 522 U. S., at 200. This traditional rule constitutes a strong background presumption. While the “standard rule can be displaced such that the limitations period begins to run before a plaintiff can file a suit,” we “ ‘will not infer such an odd result in the absence of any such indication’ in the text of the limitations period.” Green , 578 U. S., at 554 (quoting Reiter v. Cooper , 507 U.S. 258 , 267 (1993)). “Unless Congress has told us otherwise in the legislation at issue, a cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry , 522 U. S., at 201. There is good reason to conclude that Congress codified the traditional accrual rule in §2401(a). Nothing “in the text of [§2401(a)’s] limitations period” gives any indication that it begins to run before the plaintiff has a complete and present cause of action. Green , 578 U. S., at 554. Rather, §2401(a) uses standard language that had a well-settled meaning in 1948: “right of action first accrues.” Moreover, Congress knew how to depart from the traditional rule to create a limitations period that begins with the defendant’s action instead of the plaintiff ’s injury: Just six years before it enacted §2401(a), Congress passed the Emergency Price Control Act of 1942, which required challenges to Office of Price Administration actions to be filed “[w]ithin a period of sixty days after the issuance of any regulation or order .” §203(a), 56 Stat. 31 (emphasis added); see also Administrative Orders Review Act (Hobbs Act), §4, 64 Stat. 1130 (1950) (allowing petitions for review “within sixty days after entry of ” a “final order reviewable under this Act”). Section 2401(a), by contrast, stuck with the standard accrual language. Section 2401(a) thus operates as a statute of limitations rather than a statute of repose. “[A] statute of limitations creates ‘a time limit for suing in a civil case, based on the date when the claim accrued.’ ” CTS Corp. v. Waldburger , 573 U.S. 1 , 7–8 (2014) (quoting Black’s 1546 (9th ed. 2009)). That describes §2401(a), with its reference to when the right of action “accrues,” to a tee. “A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action” that is “measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” 573 U. S., at 8. Such statutes bar “ ‘any suit that is brought after a specified time since the defendant acted . . . even if this period ends before the plaintiff has suffered a resulting injury.’ ” Ibid. (quoting Black’s 1546). That describes statutes like the Hobbs Act, which sets a filing deadline of 60 days from the “entry” of the agency order. 64 Stat. 1130. Statutes of limitations “require plaintiffs to pursue diligent prosecution of known claims”; statutes of repose reflect a “legislative judgment that a defendant should be free from liability after the legislatively determined period of time.” CTS Corp. , 573 U. S., at 8–9 (internal quotation marks omitted).[ 3 ] The Board asks us to interpret §2401(a) as a defendant- protective statute of repose that begins to run when agency action becomes final. But §2401(a)’s plaintiff-focused language makes it an accrual-based statute of limitations. *  *  * Section 2401(a) embodies the plaintiff-centric traditional rule that a statute of limitations begins to run only when the plaintiff has a complete and present cause of action. Because injury, not just finality, is required to sue under the APA, Corner Post’s cause of action was not complete and present until it was injured by Regulation II. Therefore, its suit is not barred by the statute of limitations. IV The Board concedes that some claims accrue for purposes of §2401(a) when the plaintiff has a complete and present cause of action—in other words, it admits that “accrue” carries its usual meaning for some claims. But it argues that facial challenges to agency rules are different, accruing when agency action is final rather than when the plaintiff can assert her claim. See also post , at 5–6 (Jackson, J., dissenting). The Board raises several arguments to support its position, but none work. A The Board puts the most weight on the many specific statutory review provisions that start the clock at finality. See also post , at 12–15 (Jackson, J., dissenting). The Hobbs Act, for example, requires persons aggrieved by certain final orders and regulations of the Federal Communications Commission, Secretary of Agriculture, and Secretary of Transportation, among others, to petition for review “within 60 days after [the] entry” of the final agency action. 28 U. S. C. §§2342, 2344; see also, e . g ., 29 U. S. C. §655(f ) (suits challenging Occupational Safety and Health Administration standards must be filed “prior to the sixtieth day after such standard is promulgated”). The Board contends that such statutes reflect a standard administrative-law practice of starting the limitations period when “any proper plaintiff ” can challenge the final agency action. Brief for Respondent 9. There is “no sound basis,” it insists, “for instead applying a challenger-by-challenger approach to calculate the limitations period on APA claims.” Ibid. ; see also post , at 9–10 (Jackson, J., dissenting). 1 This argument hits the immutable obstacle of §2401(a)’s text. Unlike the specific review provisions that the Board cites, §2401(a) does not refer to the date of the agency action’s “entry” or “promulgat[ion]”; it says “right of action first accrues.” That textual difference matters. To begin, the latter language reflects a statute of limitations and the former a statute of repose. Moreover, the specific review provisions actually undercut the Board’s argument, because they illustrate that Congress has sometimes employed the Board’s preferred final-agency-action rule—but did not do so in §2401(a). As we observed in Rotkiske v. Klemm , it is “particularly inappropriate” to read language into a statute of limitations “when, as here, Congress has shown that it knows how to adopt the omitted language or provision.” 589 U.S. 8, 14 (2019). In arguing to the contrary, post , at 12–16, the dissent ignores the textual differences between §2401(a) and finality-focused specific review provisions—flouting Rotkiske ’s admonition to heed such distinctions. According to the dissent, we cannot expect “Congress to have explicitly stated that accrual in §2401(a) starts at the point of final agency action when §2401(a) is a residual provision” that applies generally. Post , at 15. But §2401(a)’s text reflects a choice: Congress took the Little Tucker Act’s plaintiff-focused limitations period—which began when “the right accrued for which the claim is made,” 36 Stat. 1093—and made it generally applicable to “every” suit against the United States, §2401(a); see Part III, supra . Congress could have created a separate residual provision for suits challenging agency action and pegged its limitations period to the moment of finality, using statutes like the Emergency Price Control Act as a model. It chose a different path. Undeterred, the dissent insists that by the time §2401(a) was enacted, Congress had “uniformly expressed [a] judgment” that the limitations period for agency suits should be defendant-centric and start with finality. Post , at 14. Again, this argument disregards §2401(a)’s text in favor of alleged congressional intent divined from other statutes with very different language. “As this Court has repeatedly stated, the text of a law controls over purported legislative intentions unmoored from any statutory text”; the Court “may not ‘replace the actual text with speculation as to Congress’ intent.’ ” Oklahoma v. Castro-Huerta , 597 U.S. 629, 642 (2022) (quoting Magwood v. Patterson , 561 U.S. 320 , 334 (2010)). In any event, the dissent misunderstands the history. See post , at 14, and n. 6. (Notably, the Board itself does not make this argument.) While the Emergency Price Control Act of 1942 preceded the APA (1946) and §2401(a) (1948), most finality-focused limitations provisions, like the Hobbs Act (1950), came later. See post , at 12–13, and n. 5; e.g. , 5 U. S. C. §7703(b)(1) (added by 92 Stat. 1143 (1978)). To conjure its supposed backdrop, the dissent cites a hodgepodge of other pre-1948 statutes that started the clock at finality. Post , at 14, n. 6. But these statutes generally governed challenges to orders adjudicating a party’s own rights—what we today might call “as-applied” challenges. For example, 7 U. S. C. §194(a) provided a 30-day limitations period for a meatpacker to appeal an order finding that the packer “has violated or is violating any provision” of the statute regulating business practices in the meatpacking industry. 42 Stat. 161–162; see also, e . g ., 15 U. S. C. §45(c) (persons required by a Federal Trade Commission order to cease a business practice may obtain review of that order within 60 days). Statutes like these do not contradict the plaintiff-centric standard accrual rule, because a party subject to such an order suffers legally cognizable injury at the same time that the order becomes final.[ 4 ] Thus, even if the “intention” Congress “expressed” in textually distinct statutes could overcome §2401(a)’s language, post , at 14, the dissent’s history would not support its supposed background presumption—that the limitations period for facial challenges to regulations begins when the rule becomes final even if the plaintiff does not yet have a complete and present cause of action. Instead, the best course, as always, is to stick with the ordinary meaning of the text that actually applies, §2401(a). Given the settled, plaintiff-centric meaning of “right of action first accrues” in 1948—not to mention in the Little Tucker Act—the dissent cannot “displace” this “standard rule” with scattered citations to different, inapposite statutes. Green , 578 U. S., at 554. 2 The standard accrual rule that §2401(a)’s limitations period exemplifies is plaintiff specific —even if repose provisions like the Hobbs Act eschew a “challenger-by- challenger” approach. Brief for Respondent 9. The Board’s rule would start the limitations period applicable to the plaintiff not when she had a complete and present cause of action but when the agency action was final and, theoretically, some other plaintiff was injured and could have sued. But §2401(a)’s text focuses on a specific plaintiff: “ the complaint is filed within six years after the right of action first accrues.” (Emphasis added.) The dissent disputes §2401(a)’s plaintiff specificity by pointing out that it does not say “ the plaintiff ’s right of action first accrues.” Post , at 9. True, but it does use the definite article “the” to link “ the complaint” with “ the right of action.” So the most natural interpretation is that its limitations period begins when the cause of action associated with the complaint —the plaintiff ’s cause of action—is complete. And while the dissent cites dictionary definitions of “accrue” that mention “ ‘ a right to sue,’ ” ibid ., the statute’s use of the definite article “the” takes precedence. The Board and the dissent read §2401(a) as if it says “the complaint is filed within six years after a right of action [ i . e ., anyone’s right of action] first accrues”—which, of course, it does not. In fact, we have explained that the traditional accrual rule looks to when “ the plaintiff ”—this particular plaintiff—“has a complete and present cause of action.” Green , 578 U. S., at 554 (internal quotation marks omitted; emphasis added). No precedent suggests that the traditional rule contemplates the Board’s hypothetical “when could someone else have sued” sort of inquiry.[ 5 ] Rather, the “statute of limitations begins to run at the time the plaintiff has the right to apply to the court for relief.” TRW Inc. , 534 U. S., at 37 (opinion of Scalia, J.) (internal quotation marks omitted; emphasis added).[ 6 ] Importing the Board’s special administrative-law rule into §2401(a) would create a defendant-focused rule for agency suits while retaining the traditional challenger- specific accrual rule for other suits against the United States. That would give the same statutory text—“right of action first accrues”—different meanings in different contexts, even though those words had a single, well-settled meaning when Congress enacted §2401(a). See Part III, supra . The Board’s interpretation would thereby decouple the statute of limitations from any injury “such that the limitations period begins to run before a plaintiff can file a suit”—for some , but not all , suits governed by §2401(a). Green , 578 U. S., at 554. We “will not infer such an odd result in the absence of any such indication in the text of the limitations period.” Ibid. (internal quotation marks omitted). B Turning to §2401(a)’s text, the Board draws significance from this sentence: “The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.” This language, the Board stresses, “necessarily reflects Congress’s understanding that a claim can ‘accrue[ ]’ for purposes of Section 2401(a)” even when a person is unable to sue. Brief for Respondent 24. True enough. It is a mystery, however, why the Board finds this helpful. The tolling exception applies when the plaintiff had a complete and present cause of action after he was injured but his legal disability or absence from the country “prevent[ed] him from bringing a timely suit.” Goewey v. United States , 222 Ct. Cl. 104, 113, 612 F.2d 539, 544 (1979) ( per curiam ). What matters for accrual is when the plaintiff had “the right to apply to the court for relief,” not whether some external impediment prevented her from doing so. Wood §122a, at 684 (emphasis added). The exception, therefore, sheds no light on when the clock started ticking for Corner Post—but it does show Congress’s concern for plaintiffs who might lose a cause of action through no fault of their own. C The Board also leans on our precedent—namely, Reading Co. v. Koons , 271 U.S. 58 (1926), and Crown Coat Front Co. v. United States , 386 U.S. 503 (1967)—to support its unusual interpretation of “accrual.” See also post , at 6–9 (Jackson, J., dissenting). Again, the Board comes up empty. In Koons , we interpreted the statute of limitations under the Federal Employers’ Liability Act, which barred actions brought more than two years after “ ‘the cause of action accrued.’ ” 271 U. S., at 60 (quoting ch. 149, §6, 35 Stat. 66). We held that the plaintiff ’s wrongful-death claim accrued when the employee died, even though the estate’s administrator was not appointed until later and the administrator was “the only person authorized by the statute to maintain the action.” 271 U. S., at 60. The Board interprets Koons to hold that a claim accrued at a time when no plaintiff could sue. Thus, the Board reasons, it is consistent with the meaning of “accrue” to say that Corner Post’s claim “accrued” before it could sue. The Board’s characterization of Koons is incomplete. Koons explained that the administrator “acts only for the benefit of persons specifically designated in the statute,” and at the “time of death there are identified persons for whose benefit the liability exists and who can start the machinery of the law in motion to enforce it, by applying for the appointment of an administrator.” Id. , at 62. If a beneficiary sued in her individual capacity immediately after the employee’s death, she could amend her suit to describe herself as “executor or administrator of the decedent.” Ibid. So “at the death of decedent, there are real parties in interest who may procure the action to be brought.” Id. , at 62–63. While it is true that the claim accrued before any particular administrator was appointed, the beneficiaries on whose behalf any administrator would seek relief—the “real parties in interest”—had the right to “procure the action” after the employee died. Given this unique context, Koons does not contradict the proposition that a claim generally accrues when the plaintiff has a complete and present cause of action. Nor does Crown Coat . That case concerned a contract dispute in which a Government contractor sought an equitable adjustment to the payment it received. 386 U. S., at 507. The contract required the contractor to present its claim to the contracting officer and Armed Services Board of Contract Appeals; its claim was “not subject to adjudication in the courts” until it was denied by the Board. Id ., at 511. The question presented was whether §2401(a)’s statute of limitations began to run when the Board issued its final determination or at an earlier date. Id ., at 507. We held that the right of action first accrued when the Board denied the contractor’s claim, because the contractor had “the right to resort to the courts only upon the making of that administrative determination.” Id ., at 512. We explained that §2401(a)’s phrase “right of action” refers to “the right to file a civil action in the courts against the United States.” Id ., at 511. Given the contract’s administrative-exhaustion requirement, “the contractor’s claim was subject only to administrative, not judicial, determination in the first instance”; the plaintiff was “not legally entitled to ask the courts to adjudicate [its] claim as an original matter.” Id ., at 511–512, 515. So its “claim or right to bring a civil action against the United States” did not “matur[e]” until the Board made its final decision. Id ., at 514. Crown Coat thus supports Corner Post: The Court interpreted §2401(a) to embody the traditional rule that a claim accrues when the plaintiff has the right to bring suit in court. Notwithstanding Crown Coat ’s holding, the Board and the dissent try to marshal support from its dicta. The Court noted that it is hazardous “to define for all purposes when a ‘cause of action’ first ‘accrues’ ”; it cautioned that those words should be “ ‘interpreted in the light of the general purposes of the statute and of its other provisions’ ” and the “ ‘practical ends’ ” served by time limitations. Id ., at 517 (quoting Koons , 271 U. S., at 62). Seizing on this language, the Board insists that the word “accrues” is a chameleon, taking on different meanings in different contexts—and in the administrative-law context, a right of action “accrues” when a regulation is final, full stop. See also post , at 6 (Jackson, J., dissenting) (citing Crown Coat for the proposition that “the word ‘accrues’ lacks any fixed meaning”). The Board and the dissent vastly overread—in fact, they misread— Crown Coat . The Court did not suggest that the same words “right of action first accrues” in a single statute should mean different things in different contexts—which is how the Board and the dissent would have us interpret §2401(a). Rather, the Court made its observation in the course of distinguishing §2401(a) from a statutory scheme that departed from the traditional accrual rule.[ 7 ] 386 U. S., at 516–517. Moreover, as we have already explained, the Court interpreted §2401(a)—the very statute at issue in this case—to start the clock when the plaintiff is “legally entitled” to file suit. Id. , at 515. It also specifically rejected the Government’s position that the time can run even before a plaintiff ’s “civil action against the United States matures.” Id ., at 514; see also ibid. (noting that the Government’s position “would have unfortunate impact”). We therefore do not read Crown Coat ’s “general purposes” language to contradict either its holding or the “ ‘standard rule’ for limitations periods.” Green , 578 U. S., at 554. Even if Crown Coat ’s dicta supported sapping “accrues” of any “fixed meaning,” post , at 6 (Jackson, J., dissenting), this approach has been contravened by the weight of subsequent precedent. Our limitations cases from the last several decades have instead emphasized the strength of the traditional, plaintiff-centric accrual rule and demanded that departures be justified by the statutory “text of the limitations period.” Green , 578 U. S., at 554; see also, e . g ., Graham County , 545 U. S., at 418–419 (explaining that in Reiter v. Cooper , 507 U. S., at 267, the Court “declin[ed] to countenance the ‘odd result’ that a federal cause of action and statute of limitations arise at different times ‘absen[t] . . . any such indication in the statute’ ”); Bay Area Laundry , 522 U. S., at 201. D Finally, the Board raises policy concerns. It emphasizes that agencies and regulated parties need the finality of a 6-year cutoff. After that point, facial challenges impose significant burdens on agencies and courts. Moreover, if they are successful, such challenges upset the reliance interests of the agencies and regulated parties that have long operated under existing rules. See also post , at 18–24 (Jackson, J., dissenting). “[P]leas of administrative inconvenience . . . never ‘justify departing from the statute’s clear text.’ ” Niz-Chavez v. Garland , 593 U.S. 155, 169 (2021) (quoting Pereira v. Sessions , 585 U. S 198, 217 (2018)). Congress could have chosen different language in §2401(a) or created a general statute of repose for agencies. It did not. That is enough to dispatch the Board’s policy arguments, but we add that its concerns are overstated. Put aside facial challenges like Corner Post’s. Regulated parties “may always assail a regulation as exceeding the agency’s statutory authority in enforcement proceedings against them” or “petition an agency to reconsider a longstanding rule and then appeal the denial of that petition.” Herr , 803 F. 3d, at 821–822. So even on the Board’s preferred interpretation, “[a] federal regulation that makes it six years without being contested does not enter a promised land free from legal challenge.” Id ., at 821. Likewise, the dissent imagines an alternative reality of total finality that simply does not exist. See post , at 21–23. Moreover, the opportunity to challenge agency action does not mean that new plaintiffs will always win or that courts and agencies will need to expend significant resources to address each new suit. Given that major regulations are typically challenged immediately, courts entertaining later challenges often will be able to rely on binding Supreme Court or circuit precedent. If neither this Court nor the relevant court of appeals has weighed in, a court may be able to look to other circuits for persuasive authority. And if no other authority upholding the agency action is persuasive, the court may have more work to do, but there is all the more reason for it to consider the merits of the newcomer’s challenge.[ 8 ] Turning to the other side of the policy ledger, the Board slights the arguments supporting the plaintiff-centric accrual rule. In addition to being compelled by §2401(a)’s text, this rule vindicates the APA’s “basic presumption” that anyone injured by agency action should have access to judicial review. Abbott Labs. , 387 U. S., at 140. It also respects our “deep-rooted historic tradition that everyone should have his own day in court.” Richards v. Jefferson County , 517 U.S. 793 , 798 (1996) (internal quotation marks omitted). Under the Board’s finality rule, only those fortunate enough to suffer an injury within six years of a rule’s promulgation may bring an APA suit. Everyone else—no matter how serious the injury or how illegal the rule—has no recourse.[ 9 ] The dissent also raises a host of policy arguments masquerading as “matter[s] of congressional intent.” Post , at 18–24. And it warns that today’s opinion will “devastate the functioning of the Federal Government.” Post , at 23. This claim is baffling—indeed, bizarre—in a case about a statute of limitations. The Solicitor General, whose mandate is to protect the interests of the Federal Government, comes nowhere close to suggesting that a plaintiff-centric interpretation of §2401(a) spells the end of the United States as we know it. Perhaps the dissent believes that the Code of Federal Regulations is full of substantively illegal regulations vulnerable to meritorious challenges; or perhaps it believes that meritless challenges will flood federal courts that are too incompetent to reject them. We have more confidence in both the Executive Branch and the Judiciary. But we do agree with the dissent on one point: “ ‘[T]he ball is in Congress’ court.’ ” Post , at 24 (quoting Ledbetter v. Goodyear Tire & Rubber Co. , 550 U.S. 618 , 661 (2007) (Ginsburg, J., dissenting)). Section 2401(a) is 75 years old. If it is a poor fit for modern APA litigation, the solution is for Congress to enact a distinct statute of limitations for the APA. *  *  * An APA claim does not accrue for purposes of §2401(a)’s 6-year statute of limitations until the plaintiff is injured by final agency action. Because Corner Post filed suit within six years of its injury, §2401(a) did not bar its challenge to Regulation II. We reverse the Eighth Circuit’s judgment to the contrary and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 The dissent asserts that §702 “restricts who may challenge agency action,” yet its injury requirement “says nothing about” the cause of action or elements of the claim. Post , at 16. But surely the dissent does not mean to suggest that an uninjured person may bring an APA claim. Whether one calls injury a restriction on who may sue or an element of the cause of action, the relevant, undisputed point is that a plaintiff cannot sue under the APA unless she is “injured in fact by agency action.” Newport News , 514 U. S., at 127. 2 The Board leaves open the possibility that someone could bring an as-applied challenge to a rule when the agency relies on that rule in enforcement proceedings against that person, even if more than six years have passed since the rule’s promulgation. But Corner Post, as a merchant rather than a payment network, is not regulated by Regulation II—so it will never be the target of an enforcement action in which it could challenge that rule. Justice Kavanaugh asserts that “Corner Post can obtain relief in this case only because the APA authorizes vacatur of agency rules.” Post , at 1 (concurring opinion). Whether the APA authorizes vacatur has been subject to thoughtful debate by Members of this Court. See, e . g ., United States v. Texas , 599 U.S. 670, 693–702 (2023) (Gorsuch, J., concurring in judgment). We took this case only to decide how §2401(a)’s statute of limitations applies to APA claims. We therefore assume without deciding that vacatur is available under the APA. 3 Perplexingly, the dissent rejects this distinction, post , at 10–11, even though our precedent clearly recognizes it: CTS Corp. acknowledged the “substantial overlap between the policies of the two types of statute” but concluded nonetheless that “each has a distinct purpose and each is targeted at a different actor.” 573 U. S., at 8. 4 There is another reason to doubt the dissent’s supposed background limitations principle for facial challenges to agency rules: In the 1940s, “most administrative activity was adjudicative in nature”; agencies “rarely, if ever, adopted sweeping regulations.” K. Hickman & R. Pierce, 1 Administrative Law §1.3, p. 26 (7th ed. 2024). The dissent errs by extrapolating a general congressional intent that all agency suits be subject to a finality-based limitations rule based on pre-1948 statutes that governed a subset of agency actions—adjudicative orders—and were enacted before facial challenges to regulations became common. It is hard to see how provisions governing when a party may challenge an order adjudicating her own rights could set any kind of background rule for facial APA challenges to generally applicable regulations. 5 While the dissent attempts to cabin our precedent describing the plaintiff-specific standard accrual rule, nothing in those cases suggests that the rule is only plaintiff-specific for “plaintiff-specific causes of action.” Post , at 10; see, e . g ., Gabelli v. SEC , 568 U.S. 442 , 448 (2013) (The “ ‘standard rule’ ” that a “claim accrues ‘when the plaintiff has a complete and present cause of action’ ” has “governed since the 1830s” and “appears in dictionaries from the 19th century up until today”). And regardless, the dissent’s assertion that “administrative-law claims” are not “plaintiff specific,” post , at 6, is mystifying given that an APA plaintiff cannot sue until she suffers an injury, see 5 U. S. C. §702; n. 1, supra . By emphasizing the plaintiff-agnostic aspects of facial challenges to agency action, post , at 10, 16–18, the dissent conflates the defendant-focused substance of an APA claim with its plaintiff-specific cause of action . 6 Moreover, there may be cases where no one is injured and able to sue at the time of final agency action— e . g ., if the agency delays a rule’s enforcement—but the Board would still start the clock then. Cf. Toilet Goods Assn., Inc. v. Gardner , 387 U.S. 158 , 162–166 (1967) (agency rule was final but challenge was not yet ripe). So the Board’s position cannot be reconciled even with a challenger-agnostic form of the traditional accrual rule, which at least would require that someone have a complete and present cause of action before the limitations period begins. 7 The Court distinguished the limitations scheme at issue in McMahon v. United States , 342 U.S. 25 (1951). That scheme involved two statutes: one requiring “actions to be brought within two years after ‘the cause of action arises’ ” and another “permit[ting] court action only if the claim ha[d] been administratively disallowed, but set[ting] no time within which a claim must be presented to the administrative body.” Crown Coat , 386 U. S., at 516–517. The McMahon Court held that the claim accrued not after the administrative disallowance that would enable the plaintiff to sue in court, but at the time of the plaintiff ’s earlier injury. 342 U. S., at 27. Crown Coat attributed this holding to the unique two-statute context: “[P]ostpon[ing] the usual time of accrual of the cause of action [ i . e ., the time of injury] until the date of disallowance” would have “permit[ted] the claimant to postpone indefinitely the commencement of the running of the statutory period.” 386 U. S., at 517; see McMahon , 342 U. S., at 27. 8 It also may be that some injuries can only be suffered by entities that existed at the time of the challenged action. Corner Post suggests that only parties that existed during the rulemaking process can claim to have been injured by a “procedural” shortcoming, like a deficient notice of proposed rulemaking. Reply Brief 18–19. We need not resolve that issue here because there is no dispute that Corner Post proffered an injury that does not depend on its having existed when the Board promulgated Regulation II: the rule’s alleged conflict with the Durbin Amendment. The dissent’s observation that “the claims in this case are procedural,” post , at 18, is confused. Even if some of Corner Post’s claims might be procedural, its central claim—that the regulation violates the statute—is a prototypical substantive challenge. 9 Corner Post has no other way to obtain meaningful review of Regulation II. Because Regulation II does not directly regulate it, it will never be subject to enforcement actions in which it may challenge the rule’s legality. See n. 2, supra . Nor is the ability to petition the Board for rulemaking to change Regulation II a sufficient substitute for de novo judicial review of its lawfulness: The agency’s “discretionary decision to decline to take new action” would be subject only to “deferential judicial review.” PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. , 588 U.S. 1, 25 (2019) (Kavanaugh, J., concurring in judgment). SUPREME COURT OF THE UNITED STATES _________________ No. 22–1008 _________________ CORNER POST, INC., PETITIONER v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM on writ of certiorari to the united states court of appeals for the eighth circuit [July 1, 2024] Justice Kavanaugh, concurring. I agree with the Court that a claim under the Administrative Procedure Act accrues when the plaintiff is injured by the challenged agency rule. I also agree with the Court that today’s decision vindicates the APA’s “ ‘basic presumption’ that anyone injured by agency action should have access to judicial review.” Ante , at 21 (quoting Abbott Laboratories v. Gardner , 387 U.S. 136 , 140 (1967)). I write separately to explain a crucial additional point: Corner Post can obtain relief in this case only because the APA authorizes vacatur of agency rules. Corner Post challenged an agency rule that regulates the fees that banks may charge. But Corner Post is not a bank regulated by the rule. Rather, it is a business that must pay the fees charged by the banks who are regulated by the rule. Corner Post complains that the agency rule allows banks to charge fees that are unreasonably high. Corner Post’s suit is a typical APA suit. An unregulated plaintiff such as Corner Post often will sue under the APA to challenge an allegedly unlawful agency rule that regulates others but also has adverse downstream effects on the plaintiff. In those cases, an injunction barring the agency from enforcing the rule against the plaintiff would not help the plaintiff, because the plaintiff is not regulated by the rule in the first place. Instead, the unregulated plaintiff can obtain meaningful relief only if the APA authorizes vacatur of the agency rule, thereby remedying the adverse downstream effects of the rule on the unregulated plaintiff. The APA empowers federal courts to “hold unlawful and set aside agency action” that, as relevant here, is arbitrary and capricious or is contrary to law. 5 U. S. C. §706(2). The Federal Government and the federal courts have long understood §706(2) to authorize vacatur of unlawful agency rules, including in suits by unregulated plaintiffs who are adversely affected by an agency’s regulation of others. Recently, the Government has advanced a far-reaching argument that the APA does not allow vacatur. See Brief for Respondent 42; Brief for United States in United States v. Texas , O. T. 2022, No. 22–58, pp. 40–44. Invoking a few law review articles, the Government contends that the APA’s authorization to “set aside” agency action does not allow vacatur, but instead permits a court only to enjoin an agency from enforcing a rule against the plaintiff. If the Government were correct on that point, Corner Post could not obtain any relief in this suit because, to reiterate, Corner Post is not regulated by the rule to begin with. And the APA would supply no remedy for most other unregulated but adversely affected parties who traditionally have brought, and regularly still bring, APA suits challenging agency rules. The Government’s position would revolutionize long-settled administrative law—shutting the door on entire classes of everyday administrative law cases. The Government’s newly minted position is both novel and wrong. It “disregards a lot of history and a lot of law.” M. Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J. 2305, 2311 (2024). The APA authorizes vacatur of agency rules; therefore, Corner Post can obtain relief in this case. I Corner Post owns a truck stop and convenience store in rural North Dakota. When a customer uses a debit card at its business, Corner Post must pay a fee (known as an interchange fee) to the bank that processes the customer’s transaction. As the Court explains, the Dodd-Frank Act requires the Federal Reserve Board to “prescribe regulations” for assessing whether interchange fees are “reasonable and proportional to the cost incurred” in processing a debit-card transaction. 15 U. S. C. §1693 o –2(a)(3)(A); see ante , at 2. Pursuant to the Act, the Board has issued a rule that sets a maximum fee of about 21 cents per transaction. 76 Fed. Reg. 43394, 43420 (2011). For convenience, I will refer to that rule as the fee rule. Corner Post is not subject to the fee rule. Corner Post does not charge interchange fees to its customers, and Corner Post lacks any authority to set those fees. But because Corner Post must pay the fees to banks, it is affected by the agency’s rule setting the maximum fees that banks may charge. In particular, Corner Post would be harmed by a fee rule that allows unreasonably high fees and would benefit from a fee rule that more strictly limits the fees that banks may charge. The APA authorizes any person who has been “adversely affected or aggrieved” by a “final agency action” to obtain judicial review in federal district court. 5 U. S. C. §§702, 704. In an APA suit, the district court “shall” “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” §706(2)(A). Corner Post filed this APA suit because it believes that the fee rule allows banks to charge unreasonably high fees. In particular, Corner Post argues that the Board’s 21-cent fee cap is unreasonably high and therefore arbitrary and capricious under the APA. Corner Post asked the Federal District Court to vacate the fee rule on the ground that the Board must more strictly regulate bank fees (in other words, that the Board must set a lower cap on the fees that banks may charge). Corner Post would not be able to obtain relief in its lawsuit through any remedy other than vacatur. Corner Post could not obtain relief through an injunction forbidding the Board from enforcing the rule against it. That is because the rule does not regulate Corner Post and therefore is not and cannot be enforced against Corner Post in the first place. Nor could Corner Post secure relief through an injunction against banks; the APA does not authorize suits against private parties. Corner Post instead needs a remedy that acts directly on the fee rule—specifically, by vacating it. Indeed, without vacatur, it is hard to imagine what kind of lawsuit Corner Post could file. At oral argument, the Government ultimately seemed to acknowledge that reality and the necessity of the vacatur remedy if Corner Post is to obtain any relief in this case. See Tr. of Oral Arg. 76 (“it’s possible that the only way to provide this party relief would be vacatur”).[ 1 ] II For Corner Post to obtain relief, an important question therefore is whether the APA authorizes vacatur of unlawful agency actions, including agency rules. The answer is yes—in light of the text and history of the APA, the longstanding and settled precedent adhering to that text and history, and the radical consequences for administrative law and individual liberty that would ensue if vacatur were suddenly no longer available. The text and history of the APA authorize vacatur. The text directs courts to “set aside” unlawful agency actions. 5 U. S. C. §706(2)(A). When Congress enacted the APA in 1946, the phrase “set aside” meant “cancel, annul, or revoke.” Black’s Law Dictionary 1612 (3d ed. 1933); see also Black’s Law Dictionary 1537 (4th ed. 1951) (same); Bouvier’s Law Dictionary 1103 (W. Baldwin ed. 1926) (“To annul; to make void; as, to set aside an award”). At that time, it was common for an appellate court that reversed the decision of a lower court to direct that the lower court’s “judgment” be “set aside,” meaning vacated. E . g ., Shawkee Mfg. Co. v. Hartford-Empire Co. , 322 U.S. 271 , 274 (1944). Likewise, Congress used the phrase “set aside” in many pre-APA statutes that plainly contemplated the vacatur of agency actions.[ 2 ] The APA incorporated that common and contemporaneous meaning of “set aside.” When a federal court sets aside an agency action, the federal court vacates that order—in much the same way that an appellate court vacates the judgment of a trial court. The APA prescribes the same “set aside” remedy for all categories of “agency action,” including agency adjudicative orders and agency rules. §§551(13), 706(2). When a federal court concludes that an agency adjudicative order is unlawful, the court must vacate that order. Around the time when Congress enacted the APA, the phrase “set aside” the agency order meant vacate that order. See, e . g ., United States v. L. A. Tucker Truck Lines, Inc. , 344 U.S. 33 , 38 (1952). And because federal courts must “set aside” agency rules in the same way that they set aside agency orders, successful challenges to agency rules must award the same remedy. See M. Sohoni, The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1131–1134 (2020). In short, to “set aside” a rule is to vacate it. Longstanding precedent reinforces the text. Over the decades, this Court has affirmed countless decisions that vacated agency actions, including agency rules. See, e . g ., Department of Homeland Security v. Regents of Univ. of Cal. , 591 U.S. 1, 36, and n. 7 (2020); Whitman v. American Trucking Assns., Inc. , 531 U.S. 457 , 486 (2001); Board of Governors, FRS v. Dimension Financial Corp. , 474 U.S. 361 , 364–365 (1986). Those decisions vacated the challenged agency rules rather than merely providing injunctive relief that enjoined enforcement of the rules against the specific plaintiffs. See, e . g ., Regents of Univ. of Cal. , 591 U. S., at 9 (holding that the rescission of a major federal program “must be vacated”). And the D. C. Circuit—which handles the lion’s share of the country’s administrative law cases—has likewise long recognized vacatur as the usual relief when a court holds that agency rules are unlawful. See, e . g ., National Mining Assn. v. United States Army Corps of Engineers , 145 F.3d 1399 , 1409 (CADC 1998). In the words of the D. C. Circuit: “When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Harmon v. Thornburgh , 878 F.2d 484, 495, n. 21 (CADC 1989). Importantly, as Corner Post’s lawsuit shows, the availability of vacatur determines not only the extent of the relief that courts may award in APA suits by regulated parties, but also whether unregulated parties can obtain relief under the APA at all. In most APA litigation brought by unregulated but adversely affected parties, a plaintiff can obtain relief only through vacatur of the adverse agency action. Prohibiting courts from vacating agency actions would essentially close the courthouse doors on those unregulated plaintiffs—a radical change to administrative law that would insulate a broad swath of agency actions from any judicial review.[ 3 ] Vacatur is therefore essential to fulfill the “basic presumption of judicial review” for parties who have been “adversely affected or aggrieved” by federal agency action. Abbott Laboratories v. Gardner , 387 U.S. 136 , 140 (1967) (quotation marks omitted). The Court has long applied that “strong presumption” unless there is a “persuasive reason to believe” that Congress intended to bar review of certain actions. Bowen v. Michigan Academy of Family Physicians , 476 U.S. 667 , 670 (1986) (quotation marks omitted); see also, e . g ., Weyerhaeuser Co. v. United States Fish and Wildlife Serv. , 586 U.S. 9, 22–23 (2018); Sackett v. EPA , 566 U.S. 120 , 128–131 (2012). Eliminating the vacatur remedy would contravene the strong Abbott Laboratories presumption by insulating many agency rules from meaningful judicial review (which perhaps is the Government’s motivation for its recent campaign). The absence of vacatur would also create an asymmetry. For example, without the vacatur remedy, a bank could still challenge the Board’s regulation of interchange fees in a suit for injunctive relief. The bank might argue that the fee cap is too low and that the Board should be enjoined from enforcing the cap against the bank—a result that would allow the bank to charge higher fees. But because Corner Post is not subject to the Board’s regulation, it could not contend that the fee cap is too high and that the Board should be enjoined from keeping the cap so high. So Corner Post would be precluded from suing even though the allegedly unlawful regulation is causing it monetary injury.[ 4 ] III Eliminating vacatur as a remedy would terminate entire classes of administrative litigation that have traditionally been brought by unregulated parties.[ 5 ] One example is the wide range of administrative law suits in which businesses target the allegedly unlawful under-regulation of other businesses, such as their competitors. For example, in National Credit Union Administration v. First National Bank & Trust Co. , several banks challenged the decision of a federal agency to approve a series of amendments to the charter of a federal credit union, a competitor of the banks. 522 U.S. 479 , 484–485 (1998). The amendments were controversial because they expanded the markets in which the credit union could operate, thereby increasing competition against the banks. The Court held that the banks could sue under the APA to challenge the agency’s approval of those charter amendments, and also that the agency’s approval of the amendments was unlawful. Of course, the District Court could remedy the banks’ harm only by vacating the approval of the amendments. In short, for the plaintiff in First National Bank to have a remedy, the APA must have authorized vacatur. Those competitor suits are ubiquitous in administrative law. Some plaintiffs have challenged the favorable classification of a competitor’s drugs or medical products, see, e.g. , American Bioscience, Inc. v. Thompson , 269 F.3d 1077 (CADC 2001); a research guideline that increased competition for federal grants, see, e.g. , Sherley v. Sebelius , 610 F.3d 69 (CADC 2010); and a competitor’s exemption from a generally applicable rule, see, e.g. , Regular Common Carrier Conference v. United States , 793 F.2d 376 (CADC 1986) (arose under the review provision in 28 U. S. C. §2342). The Court has consistently held that the plaintiffs incurring those injuries are “adversely affected or aggrieved by agency action” within the meaning of the APA. 5 U. S. C. §702; see First Nat. Bank , 522 U. S., at 488, 499; Investment Company Institute v. Camp , 401 U.S. 617 , 618–621 (1971); Association of Data Processing Service Organizations, Inc. v. Camp , 397 U.S. 150 , 157 (1970). But such competitor suits would be largely if not entirely eradicated if the APA and similar statutory review provisions did not authorize vacatur. Suits where one business challenges the under-regulation of another go well beyond competitor suits. One example is the Court’s landmark decision in Motor Vehicle Manufacturers Association of United States, Inc. v. State Farm Mutual Automobile Insurance Co. , 463 U.S. 29 (1983). That case arose when several insurance companies challenged a federal agency’s rescission of safety standards for new motor vehicles. The Court held that the agency’s decision to rescind those safety standards was subject to the same degree of judicial review as the decision to issue the standards in the first place. See id ., at 40–44. The Court also concluded that the rescission of the safety standards was arbitrary and capricious. See id ., at 44–57. At no point in that landmark opinion on the judicial review of agency actions did the Court state (or need to state) the obvious: Because the agency did not regulate the insurers themselves, the insurers could obtain relief from the downstream effects of the agency’s rescission of the safety standards only if the insurers could obtain vacatur of that rescission. The Court did not dwell on that remedial point because the availability of vacatur was presumably obvious to all involved. Only now—some 40 years later—does the Government imply that the premise of State Farm was mistaken. The Government’s new position would also largely eliminate the common form of environmental litigation where private citizens sue a federal agency based on the externalities that an agency action is likely to produce. Litigation often arises when a federal agency approves a development project with potential effects on the environment or on other property owners. Examples include the construction of a new pipeline, see Delaware Riverkeeper Network v. FERC , 753 F.3d 1304 (CADC 2014), or the mining of federal land, see WildEarth Guardians v. Jewell , 738 F.3d 298 (CADC 2013). In those cases, the plaintiff generally cannot bring an APA suit against the developer, who is usually a private party. See §704 (authorizing review of “agency action”). Instead, the plaintiff typically sues the federal agency that approved the development and asks a federal court to vacate that approval. Some of those suits proceed under the APA; others proceed under federal statutory review provisions that similarly authorize courts to “set aside” agency action. See, e . g ., 15 U. S. C. §717r(b) (Natural Gas Act); 16 U. S. C. §825 l (b) (Federal Power Act). Regardless, all of those suits depend on the availability of vacatur. Many APA suits similarly challenge federal emissions limits or efficiency standards for cars, trucks, and other sources of pollution. See, e . g ., American Public Gas Assn. v. Department of Energy , 72 F. 4th 1324 (CADC 2023). When a plaintiff alleges that an emissions limit does too little to stop third parties from polluting the environment, the plaintiff cannot bring an APA suit against the third party. Rather, the plaintiff must sue the agency that enacted the emissions limit. If the vacatur remedy were unavailable, the agency that enacted the emissions limit would never face litigation from unregulated parties seeking stricter limits; the agency could face litigation only from regulated parties seeking looser limits. Workers and their unions also regularly challenge agency rules that rescind or loosen federal workplace safety standards. See, e . g ., Transportation Div. of Int’l Assn. of Sheet Metal, Air, Rail, and Transp. Workers v. Federal Railroad Admin. , 988 F.3d 1170 (CA9 2021) (railroad industry); United Steel v. Mine Safety and Health Admin. , 925 F.3d 1279 (CADC 2019) (mining industry). Those suits often arise under statutory review provisions that, like the APA, authorize courts to “set aside” agency actions. See, e . g ., 28 U. S. C. §2342(7) (railroad industry); 30 U. S. C. §816(a)(1) (mining industry). And the suits all depend on the availability of vacatur as a remedy. In particular, the workers may prevail in those suits only through vacatur of the agency rules. So if “set aside” did not mean vacate, workplace safety rules could be challenged from only one direction—by employers who want less regulation, not by workers who want more regulation. The examples of standard agency litigation that depend on the availability of vacatur are seemingly endless. Vacatur was essential when American workers challenged a Department of Labor rule that unlawfully allowed employers to access inexpensive foreign labor, with the effect of lowering American workers’ wages. See Mendoza v. Perez , 754 F.3d 1002 (CADC 2014). Vacatur was essential when a county challenged the Department of the Interior’s allowance for Indian gaming on nearby land. See Butte Cty. v. Hogen , 613 F.3d 190 (CADC 2010). Vacatur is often essential when a State challenges an agency action that does not regulate the State directly but has adverse downstream effects on the State. See, e . g ., Department of Commerce v. New York , 588 U.S. 752 (2019).[ 6 ] I will stop there. But to be clear, I could go on all day (and then some) listing cases where vacatur was necessary for an unregulated but adversely affected plaintiff in an APA suit to obtain relief. IV Against all of that text, history, precedent, and common sense, the Government has recently rejected the straightforward and long-accepted conclusion that the phrase “set aside” in the APA authorizes vacatur. Instead, the Government contends that plaintiffs harmed by agency rules must seek injunctions against enforcement of those rules. See Brief for United States in United States v. Texas , O. T. 2022, No. 22–58, pp. 40–44. One effect of the Government’s new position would be to insulate many agency rules from meaningful judicial review in suits by unregulated but adversely affected parties. To support its new position, the Government has offered an array of arguments. First , the Government says that vacatur of a federal rule is akin to a nationwide injunction—in other words, an injunction that prohibits the Government from enforcing a law against anyone , not just the parties in a specific case. The Government has contended that equitable relief is ordinarily limited to the parties in a specific case. Therefore, nationwide injunctions would be permissible only if Congress authorized them. But in the APA, Congress did in fact depart from that baseline and authorize vacatur. As noted above, the text of the APA expressly authorizes federal courts to “set aside” agency action. 5 U. S. C. §706(2). “Unlike judicial review of statutes, in which courts enter judgments and decrees only against litigants, the APA” and related statutory review provisions “go further by empowering the judiciary to act directly against the challenged agency action.” J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1012 (2018). The text of §706(2) directs federal courts to vacate agency actions in the same way that appellate courts vacate the judgments of trial courts. See M. Sohoni, The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1131–1134 (2020). The text of the APA therefore authorizes vacatur of agency rules. By contrast, Congress has rarely authorized courts to act directly on federal statutes or to prohibit their enforcement against nonparties. As a result, background equitable principles may control in those non-APA cases. Second , the Government argues that the remedies available in APA suits are not governed by §706(2), which directs courts to “set aside” agency action, but instead are governed by §703. That argument is weak. Section 703 determines the “form of proceeding” for suits under the APA and identifies the federal actors against whom an “action for judicial review may be brought.”[ 7 ] But “no court has ever held that Section 703 implicitly delimits the kinds of remedies available in an APA suit.” M. Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J. 2305, 2337 (2024). For good reason: As explained above, the ordinary meaning of “set aside” in §706(2) has long been understood to refer to the remedy of vacatur. The conclusion that §706 governs remedies is also supported by §706(1), which authorizes courts to “compel agency action unlawfully withheld or unreasonably delayed”—unmistakably a remedy. By contrast, the text of §703 “speaks to venue and forms of proceedings, not to remedies, and regardless, its listing of the available forms of proceedings is nonexhaustive.” Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J., at 2337. To support its novel reliance on §703, the Government suggests that the phrase “set aside” in §706(2) may refer to a “rule of decision directing the reviewing court to disregard unlawful” agency actions in “resolving the case before it,” rather than the remedy of vacatur. Brief for United States in United States v. Texas , O. T. 2022, No. 22–58, at 40. But the leading cases and legal dictionaries at the time of the APA’s enactment did not use “set aside” in that manner. They instead referred to setting aside (that is, vacating) judgments—a meaning entirely consistent with the APA’s authorization to vacate agency actions. See supra , at 5. The Government’s position instead relies on some colloquial uses of the phrase “set aside” in federal constitutional challenges to state statutes. See, e . g ., Brief for United States in United States v. Texas , O. T. 2022, No. 22–58, at 41 (citing Mallinckrodt Chemical Works v. Missouri ex rel. Jones , 238 U.S. 41 , 54 (1915)); see also Mallinckrodt , 238 U. S., at 54 (referring to “one who seeks to set aside a state statute as repugnant to the Federal Constitution”). That is a thin basis for suddenly prohibiting entire categories of long-common administrative litigation. Third , the Government seizes on legislative history to argue that Congress did not expect the APA to create new remedies against unlawful agency actions. But vacatur was not a new remedy. On the contrary, several pre-APA statutes authorized courts to “set aside” specific kinds of agency actions, such as orders by the Interstate Commerce Commission. See n. 2, supra . This Court correctly understood those statutes to authorize vacatur. For example, in litigation regarding the regulation of railroads, this Court held that an unlawful ICC order was “void.” United States v. Baltimore & Ohio R. Co. , 293 U.S. 454 , 464 (1935). Similar examples abound. See, e . g ., Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J., at 2329–2335 (collecting cases). By similarly authorizing courts to “set aside” agency actions, the APA likewise authorized vacatur. §706(2). Moreover, although vacatur was not as common in the years surrounding the APA’s enactment, there is a simple explanation for that: Courts had few occasions to set aside agency rules before this Court’s 1967 decision in Abbott Laboratories v. Gardner , which significantly expanded the opportunities for facial, pre-enforcement review of agency rules. 387 U.S. 136 , 139–141. Indeed, it was not until Abbott Laboratories that “preenforcement review of agency rules” became “the norm, not the exception.” S. Breyer & R. Stewart, Administrative Law and Regulatory Policy 1137 (2d ed. 1985). The Government’s current position on vacatur would de facto overrule Abbott Laboratories as to suits by unregulated parties. Not surprisingly, the Government’s current position on vacatur sounds very similar to Justice Fortas’ dissent in a companion case to Abbott Laboratories , where he lamented that in the wake of those decisions, a court would be able to “suspend the operation of regulations in their entirety.” Gardner v. Toilet Goods Assn., Inc. , 387 U.S. 167 , 175 (1967). In any event, to the extent that the Government worries that vacatur of rules (as opposed to orders) is more common today than it was in the 1950s, the Government’s true grievance is with Abbott Laboratories . Fourth , the Government objects to the real-world consequences that occur when a federal district court wrongly vacates a lawful rule. I appreciate that concern. But federal law already gives the Government tools to mitigate those consequences—if not avoid them altogether. When the Government believes that a district court has erroneously vacated a rule (or erroneously issued a preliminary injunction against a rule), the Government may promptly seek a stay in the relevant federal court of appeals. To determine whether to grant a stay, the court of appeals may then promptly review the Government’s likelihood of success on the merits, among other factors. If the court of appeals denies a stay, the Government may seek further review in this Court. See Labrador v. Poe , 601 U. S. ___, ___ (2024) (Kavanaugh, J., concurring in grant of stay) (slip op., at 2). The Government’s frustration with the occasional incorrect district court vacatur of an agency rule is understandable. But especially given the readily accessible and regularly utilized procedures for staying a district court’s vacatur,[ 8 ] we should not overreact by entirely gutting vacatur as a remedy and thereby barring unregulated but adversely affected parties from bringing APA suits. Not surprisingly, when asked at oral argument in this case about the extraordinary consequences of its new no-vacatur position, the Government seemed to backpedal and hedge a bit. The Government suggested that vacatur may actually still be appropriate if it is “the only way to give the party before the court relief.” Tr. of Oral Arg. 76. The Government also said that “it’s possible that the only way to provide” Corner Post “relief would be vacatur.” Ibid. I appreciate the Government’s apparent attempt to back away from its extreme stance. But in doing so, the Government also revealed the weakness of its position. The meaning of “set aside” in the APA cannot reasonably depend on the specific party before the court. Either the APA authorizes vacatur, or it does not. More to the point, the Government’s answer at oral argument is a solution in search of a problem. The federal courts have long interpreted the APA to authorize vacatur of agency actions. Both the text and the history of the APA support that interpretation, and courts have had no real difficulty applying the remedy in practice. Some 78 years after the APA and 57 years after Abbott Laboratories , I would not suddenly throw out that sound and settled interpretation of the APA and eliminate entire classes of historically common and vitally important litigation against federal agencies. *  *  * The Government’s crusade against vacatur would create “strange and even absurd consequences.” Sohoni, The Past and Future of Universal Vacatur, 133 Yale L. J., at 2340. In this opinion, I have described one such consequence: It would leave unregulated plaintiffs like Corner Post without a remedy in APA challenges to agency rules. The Government’s position therefore would fundamentally reshape administrative law, leaving administrative agencies with extraordinary new power to issue rules free from potential suits by unregulated but adversely affected parties—businesses, environmental plaintiffs, workers, the list goes on. I agree with the longstanding consensus—a consensus based on text, history, precedent, and common sense—that vacatur is an appropriate remedy when a federal court holds that an agency rule is unlawful. Because vacatur remains an available remedy under the APA, Corner Post can obtain meaningful relief if it prevails in this lawsuit. Notes 1 A plaintiff could not challenge the fee rule by suing to “compel agency action” that is “unlawfully withheld or unreasonably delayed.” 5 U. S. C. §706(1). The remedy of compelling agency action applies if an agency fails to issue a required rule. But here, the Board issued a rule, and the question is whether the rule set a reasonable fee cap. It would therefore make little sense to say that the fee rule has been “withheld” or “delayed.” Indeed, it seems that §706(1) has almost never been used to challenge extant agency rules, as opposed to challenging the absence of required rules. 2 See, e.g. , Hepburn Act of 1906, ch. 3591, §5, 34 Stat. 584, 592 (courts could “enjoin, set aside, annul, or suspend any order or requirement of ” the Interstate Commerce Commission); Securities Exchange Act of 1934, ch. 404, §25(a), 48 Stat. 881, 902 (authorizing courts “to affirm, modify, and enforce or set aside [an] order” of the SEC); Federal Food, Drug, and Cosmetic Act of 1938, ch. 675, §701(f )(3), 52 Stat. 1040, 1055–1056 (authorizing a court to “affirm the order” of the FDA, “or to set it aside in whole or in part, temporarily or permanently”). 3 Most of the recent academic and judicial discussion of this issue has addressed suits by regulated parties. That discussion has largely missed a major piece of the issue—suits by unregulated but adversely affected parties. 4 Absent vacatur, the remedy for a regulated plaintiff would not automatically extend to other regulated parties. For example, if a district court issued an injunction that prevents the Board from enforcing the fee rule against one bank, the Board would still be able to enforce the fee rule against other banks. For those other banks to obtain the same relief, they would need to either (i) file similar APA suits and request similar injunctions or (ii) wait and see if the fee rule is temporarily enjoined or held unlawful by either the relevant court of appeals or this Court. In that respect, eliminating the vacatur remedy would delay relief for many regulated parties. That said, in light of vertical stare decisis , the consequences for regulated parties of eliminating vacatur would not be as severe as the consequences for unregulated parties. See Labrador v. Poe , 601 U. S. ___, ___ (2024) (Kavanaugh, J., concurring in grant of stay) (slip op., at 8–9); cf. W. Baude & S. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153, 183 (2023) (when the Supreme Court “holds a statute to be unconstitutional or a rule to be unlawful, it may be as good as vacated”). 5 This opinion focuses primarily on administrative litigation that arises under the APA. But Congress has also enacted special statutory review provisions that similarly authorize federal courts to “set aside” specific agency actions. See, e . g ., 15 U. S. C. §78y(a) (orders of the SEC); 16 U. S. C. §825 l (b) (FERC); 28 U. S. C. §2342 (the FCC, the Atomic Energy Commission, and other agencies). By arguing that the APA’s use of “set aside” does not authorize vacatur, the Government implies that vacatur is also unavailable under those similar review provisions. 6 In some circumstances, usually when a court rules that an agency must provide additional explanation for the challenged agency action or must regulate some entity or activity more extensively, some courts have remanded to the agency without vacatur. Remand without vacatur is essentially a shorthand way of vacating a rule and staying the vacatur pending the agency’s completion of an additional required action, such as providing additional explanation or issuing a new, more stringent rule. I do not address that practice here, which has been the subject of some debate. See Checkosky v. SEC , 23 F.3d 452 , 462–465 (CADC 1994) (Silberman, J.) (explaining the practice); see also id ., at 493, n. 37 (Randolph, J.) (noting that courts and parties alternatively may avoid any “difficulties” associated with vacatur by “a stay of the mandate”). Importantly for present purposes, the view that vacatur is “ authorized by the APA is a basic proposition shared by both sides of the debate over remand without vacatur.” M. Sohoni, The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1178 (2020). 7 Section 703 states: “The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.” 8 If the problem became sufficiently severe, the Executive Branch could always ask Congress to limit the remedies available under the APA. SUPREME COURT OF THE UNITED STATES _________________ No. 22–1008 _________________ CORNER POST, INC., PETITIONER v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM on writ of certiorari to the united states court of appeals for the eighth circuit [July 1, 2024] Justice Jackson, with whom Justice Sotomayor and Justice Kagan join, dissenting. More than half a century ago, this Court highlighted the long-recognized “hazards inherent in attempting to define for all purposes when a ‘cause of action’ first ‘accrues.’ ” Crown Coat Front Co. v. United States , 386 U.S. 503 , 517 (1967). Today, the majority throws that caution to the wind and engages in the same kind of misguided reasoning about statutory limitations periods that we have previously admonished. The flawed reasoning and far-reaching results of the Court’s ruling in this case are staggering. First, the reasoning. The text and context of the relevant statutory provisions plainly reveal that, for facial challenges to agency regulations, the 6-year limitations period in 28 U. S. C. §2401(a) starts running when the rule is published. The Court says otherwise today, holding that the broad statutory term “accrues” requires us to conclude that the limitations period for Administrative Procedure Act (APA) claims runs from the time of a plaintiff ’s injury. Never mind that this Court’s precedents tell us that the meaning of “accrues” is context specific. Never mind that, in the administrative-law context, limitations statutes uniformly run from the moment of agency action. Never mind that a plaintiff ’s injury is utterly irrelevant to a facial APA claim. According to the Court, we must ignore all of this because, for other kinds of claims, accrual begins at the time of a plaintiff ’s injury. Next, the results. The Court’s baseless conclusion means that there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face. Allowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both Government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline. The majority refuses to accept the straightforward, commonsense, and singularly plausible reading of the limitations statute that Congress wrote. In doing so, the Court wreaks havoc on Government agencies, businesses, and society at large. I respectfully dissent. I When a claim accrues depends on the nature of the claim. See Crown Coat , 386 U. S., at 517. So, understanding the context in which these claims arose is essential to determining when Congress meant for them to accrue. The facts of this very case illustrate the absurdity of the majority’s one-size-fits-all approach. The procedural history is also a prime example of the gamesmanship that statutory limitations periods are enacted to prevent. A Start with the relevant agency regulation. In 2010, Congress required the Federal Reserve Board to issue rules for debit-card transaction fees. See 15 U. S. C. §1693 o –2(a)(1). The Board did as Congress instructed. As relevant here, in 2011, the Board issued Regulation II, capping debit-card interchange fees at 21 cents per transaction plus 0.05 percent of the transaction. 76 Fed. Reg. 43420 (2011) (codified at 12 CFR §253.3(b) (2022)). As often happens, affected parties challenged Regulation II almost immediately after the Board issued it Several large trade groups sued under the APA, alleging that Regulation II was, in several respects, arbitrary, capricious, and not in accordance with law. NACS v. Board of Governors of FRS , 958 F. Supp. 2d 85, 95–96 (DC 2013). Ultimately, the D. C. Circuit rejected that challenge in relevant part. NACS v. Board of Governors of FRS , 746 F.3d 474, 477 (2014). And, a few months after that, we denied certiorari. See 574 U.S. 1121 (2015). B Now consider the facts of this challenge. In the majority’s telling, this is about a single “truckstop and convenience store located in Watford City, North Dakota.” Ante, at 1. Not quite. Rather, two large trade groups initially filed this action in 2021—a full decade after the Federal Reserve Board finalized the debit-card-fee regulations at issue. Those groups were the North Dakota Petroleum Marketers Association, a “trade association that has existed since the mid-1950s,” and the North Dakota Retail Association, another trade group. App. to Pet. for Cert. 53. Corner Post , which had only opened its doors in 2018, was not a party to the trade groups’ initial complaint. The Government moved to dismiss the pleading, invoking §2401(a)’s 6-year statute of limitations. In response, the trade groups sought leave to amend. It was only then that Corner Post was added as a plaintiff. And, importantly, other than the addition of Corner Post, the trade groups’ complaint remained practically identical to the untimely one they had filed before. Other than a few changes of phrasing and some newly available 2019 data, the amended complaint alleged the same facts and sought the same relief as the original pleading. It also included the exact same legal claims—verbatim. The only material change to the amended complaint was the addition of Corner Post. Thus, even before I analyze the statute of limitations arguments, one can see that this case is the poster child for the type of manipulation that the majority now invites—new groups being brought in (or created) just to do an end run around the statute of limitations.[ 1 ] To repeat: The claims in Corner Post’s lawsuit were not new or in any way distinct (even in wording) from the pre-existing and untimely claims of the trade organizations that had been around for decades. This time, however, when the Government renewed its motion to dismiss, the plaintiffs made the case all about Corner Post. The plaintiffs argued that, because Corner Post had not yet formed as a company when the Board issued Regulation II, it simply could not be subjected to a 6-year limitations period that ran from when the challenged regulation issued back in 2011. (One wonders how a company that formed against the backdrop of a long-settled rule could possibly be entitled to complain, or claim injury, related to the regulatory environment in which it willingly entered—but I digress.) Rather than accepting that the untimely challenge remained so, Corner Post demanded a personalized, plaintiff-specific limitations rule, giving an entity six years from when it was first affected by a Government action to file a facial challenge. The District Court rejected Corner Post’s argument, following the lead of every court of appeals that had ever addressed accrual of an APA facial challenge.[ 2 ] It held that the addition of Corner Post as a plaintiff did not make a difference to the timeliness of the business groups’ claims. The Eighth Circuit affirmed, holding that “when plaintiffs bring a facial challenge to a final agency action, the right of action accrues, and the limitations period begins to run, upon publication of the regulation.” North Dakota Retail Assn. v. Board of Governors of FRS , 55 F. 4th 634, 641 (2022). II But here we are. Three-quarters of a century after Congress enacted the APA, a majority of this Court rejects the consensus view that, for facial challenges to agency rules, the statutory 6-year limitations period runs from the publication of the rule. Instead, it holds that an APA claim accrues “when the plaintiff is injured by final agency action.” Ante, at 1. The majority maintains that the text of §2401(a) demands this result. But if that answer is so obvious, one wonders why no court proclaimed it until more than 75 years after all the statutory pieces were in place. To explain how the majority got this ruling wrong, I find it necessary to provide the right answer. Here, the relevant statutory text is the catchall limitations provision for suits brought against the United States: §2401(a) of Title 28 of the United States Code. All agree that there are two key terms in that provision—“accrues” and “the right of action.” Ibid. The majority misreads both. Contrary to the Court’s rigid reading, the word “accrues” lacks any fixed meaning. See Crown Coat , 386 U. S., at 517. Instead, the meaning of accrue for the purpose of a statute of limitations is determined by the particular “right of action” at issue. For many kinds of legal claims, accrual is plaintiff specific because the claims themselves are plaintiff specific. But facial administrative-law claims are not. This means that, in the administrative-law context, the limitations period begins not when a plaintiff is injured, but when a rule is finalized. A When sovereign immunity has been waived, the Federal Government is often sued, and Congress has enacted statutes of limitations to ensure that those lawsuits are brought in a timely fashion. Because such suits arise in different contexts, Congress has enacted different statutes of limitations for different types of suits. Most statutes of limitations are context specific. For example, a tort claim against the United States typically must be brought “within two years after such claim accrues.” 28 U. S. C. §2401(b). By contrast, a party challenging certain administrative orders must seek review “within 60 days after [the order’s] entry.” §2344. Many more examples of context-specific limitations periods in the U. S. Code abound. See, e . g ., §2501 (claims over which the United States Court of Federal Claims has jurisdiction must be brought within six years); 33 U. S. C. §1369(b)(1) (challenges to certain standards adopted by the Environmental Protection Agency under the Clean Water Act must commence “within 120 days from the date of . . . promulgation”). The statute at issue here—28 U. S. C. §2401(a)—supplements those specific provisions. In doing so, §2401(a) serves a special purpose: to act as a catchall that imposes an outer time limit on claims brought against the United States when no other statute of limitations applies. Under §2401(a), “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” This catchall limitations statute has been applied in a range of contexts, including APA claims (like this one), contract claims, see Crown Coat , 386 U. S., at 510–511, and more, see, e . g ., Natural Resources Defense Council v. Haaland , 102 F. 4th 1045, 1074 (CA9 2024) (claims under the Endangered Species Act). Consistent with the broad scope of its potential application, §2401(a) uses broad language. It starts the 6-year clock when “the right of action first accrues.” §2401(a). No more elaboration or specificity is given. So, what does the sparse text of §2401(a) tell us? To start, the statute tells us to look at when “the right of action first accrues.” (Emphasis added.) The word “first” directs us to start the clock at the earliest possible opportunity once the claim accrues. From the text alone, then, we know that this moment in time should happen sooner rather than later. But when that moment occurs depends on the meaning of both “the right of action” and “accrues.” Next, the provision uses the unadorned phrase “the right of action.” Because this statute is applicable to a broad range of causes of action against the Government, the underlying statute (here the APA) provides “the right of action,” not §2401(a) itself. Put another way, the §2401(a) catchall applies to different causes of action, and those causes of action establish different legal claims. Though the right of action is not the same for an APA claim as it is for an Endangered Species Act claim, §2401(a)’s broad “right of action” language applies to both of these claims, and more. B A proper understanding of the word “accrues” makes clear that this term is far more flexible and context dependent than the majority appreciates. Crucially, the Court has said this very thing before—more than once, in fact. We have long understood that it is simply not “possible to assign the word ‘accrued’ any definite technical meaning which by itself would enable us to say whether the statutory period begins to run at one time or the other.” Reading Co. v. Koons , 271 U.S. 58 , 61–62 (1926); see also Crown Coat , 386 U. S., at 517 (recognizing “the hazards inherent in attempting to define for all purposes when a ‘cause of action’ first ‘accrues’ ”). But, for some reason, that does not stop the majority from trying here. Its opinion repeatedly asserts that the ordinary meaning of accrual is that claims accrue only when a plaintiff can sue. See ante, at 6–10.[ 3 ] But even the majority acknowledges that its preferred definition of accrual is not universal; it is, at most, “the ‘ standard rule’ ” that “can be displaced.” Ante, at 8 (quoting Green v. Brennan , 578 U.S. 547, 554 (2016); emphasis added). Far from imposing a one-size-fits-all definition of the word “accrue,” this Court has traditionally taken a claim-specific view: “[A] right accrues when it comes into existence. ” United States v. Lindsay , 346 U.S. 568 , 569 (1954). For example, in McMahon v. United States , 342 U.S. 25 (1951), we held that, under the Suits in Admiralty Act, a claim accrued when a seaman was injured, even though he could not yet sue at that time. See id ., at 27–28. In Crown Coat , we held the opposite—a claim brought under 28 U. S. C. §1346 did not accrue at the time of injury, but rather at the moment of final administrative action, because a plaintiff could not sue until the agency action was final. See 386 U. S., at 513–514, 517–518. The point is not that these cases all point in one direction or the other with respect to the meaning of accrue. Instead, our cases illustrate what this Court has expressly stated: The term “accrued” lacks “any definite technical meaning,” Reading , 271 U. S., at 61. The majority nevertheless decrees today that accrual must always be plaintiff specific— i.e., that a claim cannot accrue until “this particular plaintiff ” can bring suit. Ante, at 14. But that is not what §2401(a) says. It does not say that the clock starts when the plaintiff ’s right of action first accrues; rather, §2401(a) starts the clock when “ the right of action first accrues.” (Emphasis added.) In other words, the limitations provision here focuses on the claim being brought without regard for who brings it. The dictionary definitions on which the majority relies further highlight this important observation. A claim accrues, according to those definitions, “ ‘when a suit may be maintained thereon’ ” or upon the “ ‘coming or springing into existence of a right to sue.’ ” Ante, at 7 (emphasis added) (first quoting Black’s Law Dictionary 37 (4th ed. 1951), then quoting Ballentine’s Law Dictionary 15–16 (2d ed. 1948)). Again, and notably, these dictionaries speak of a right to sue, not the plaintiff ’s right to sue. Like §2401(a) itself, these definitions do not support the majority’s assertion that accrual is necessarily plaintiff specific. Of course, many of our cases do say that a claim accrues when “ ‘the plaintiff has a complete and present cause of action.’ ” E . g ., Gabelli v. SEC , 568 U.S. 442 , 448 (2013); Wallace v. Kato , 549 U.S. 384 , 388 (2007); Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson , 545 U.S. 409 , 418 (2005); Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal. , 522 U.S. 192 , 201 (1997). But those statements were made in the context of particular cases, each of which dealt with plaintiff-specific causes of action. See, e . g ., Gabelli , 568 U. S., at 446 (civil enforcement claim by the Securities and Exchange Commission); Wallace , 549 U. S., at 388 (false imprisonment and arrest claims); Graham County , 545 U. S., at 412 (retaliation claim against an employer); Bay Area Laundry , 522 U. S., at 195 (claim alleging failure to make required payments to employee pension funds). Here is what I mean by this. When a complaint brought against a defendant asserts, “You falsely imprisoned me,” or “You retaliated against me,” it is making a legal claim that is specific to the particular plaintiff. But, as discussed below, it is not similarly plaintiff specific to bring a claim saying, for example, that a particular regulation is invalid because it “exceeds the Board’s statutory authority,” or because the Government “failed to consider important aspects of the problem,” as the complaint here alleges. App. to Pet. for Cert. 80, 82. So, while accrual may sometimes—even usually—be plaintiff specific, that is just because underlying legal claims are often plaintiff specific. The precedents the majority cites never say otherwise; i . e ., they do not tell us that accrual must always be plaintiff specific. The majority’s other hard-and-fast distinction—between statutes of limitations and statutes of repose—fares no better. See ante, at 9–10. The majority sets up a dichotomy: Statutes of limitations are plaintiff-centric rules that “ ‘require plaintiffs to pursue diligent prosecution of known claims,’ ” while statutes of repose emphasize finality and are tied to “ ‘the last culpable act or omission of the defendant.’ ” Ante, at 9 (quoting CTS Corp. v. Waldburger , 573 U.S. 1 , 8 (2014)). The problem is that statutes of limitations and statutes of repose, while different, are not nearly as different as the majority imagines. It is true that statutes of repose are considered to be “defendant-protective.” Ante, at 10. But the same is true of statutes of limitations. “The very purpose of a period of limitation is that there may be, at some definitely ascertainable period, an end to litigation.” Reading , 271 U. S., at 65; see also Gabelli , 568 U. S., at 448 (repose is a “ ‘basic polic[y] of all limitations provisions’ ”). In fact, according to one of the dictionaries the majority cites, “[s]tatutes of limitation are statutes of repose.” Black’s Law Dictionary, at 1077 (emphasis added). The difference is that unlike statutes of repose, statutes of limitations have more than one purpose: they bring finality for defendants and prevent plaintiffs from sleeping on their rights. Understanding these dual functions sheds no light whatsoever on what to do when those competing purposes point in different directions.[ 4 ] III Because different claims accrue at different times, we must look to the specific types of claims that the plaintiffs have brought and consider the context in which the limitations period operates. “Cases under [one statute] do not necessarily rule . . . claims” brought under another. Crown Coat , 386 U. S., at 517. And our understanding of accrual for limitations purposes has always been context specific. See, e . g ., Wallace , 549 U. S., at 389 (relying on torts treatises to explain the “distinctive rule” for commencement of limitations period for false imprisonment suits); Franconia Associates v. United States , 536 U.S. 129 , 142–144 (2002) (citing contracts treatises to explain that contract claims accrue at the moment of breach); Merck & Co. v. Reynolds , 559 U.S. 633 , 644–646 (2010) (applying fraud-specific discovery rule to determine accrual). In other words, to understand when “the right of action” accrues under §2401(a), we must understand what the right of action is. A The right of action that is invoked in many administrative-law cases, including this one, is a statutory claim that an agency has violated certain legal requirements when it took a certain action, such that the agency’s action itself is invalid. See, e.g., 5 U. S. C. §706(2). And Congress has repeatedly made clear, through various statutory enactments, that in the administrative-law context, the statute of limitations for filing a claim that seeks to invalidate the agency action runs from the moment of final agency action. Take the Administrative Orders Review Act (also known as the Hobbs Act), for example. See 28 U. S. C. §2342. That statute is the exclusive mechanism for reviewing certain orders issued by over a half-dozen federal agencies. The Act requires suits to be brought “within 60 days after [the] entry” of any final agency order. §2344. There are many other similar statutes. In its brief, the Government provided us with more than two dozen statutory provisions where the limitations period starts running at the moment of final agency action—whether that action is the publication of a rule, or the issuance of an order, or something else. See Brief for Respondent 15–17, and n. 4. And, as the Government itself acknowledges, even that list is not comprehensive. See Tr. of Oral Arg. 51 (“Candidly, we got to a page-long footnote and stopped”).[ 5 ] Despite the dozens of statutes that start the limitations period at the moment of final agency action, neither Corner Post nor the majority identifies a single statute in the administrative-law context—either now or before 1948—that takes any other approach. This tells us exactly the message that Congress might have expected courts to infer when interpreting §2401(a): For administrative-law actions, a claim accrues at the moment of final agency action. The Court says we must ignore these other statutes because they post-date Congress’s 1948 enactment of §2401(a). See ante, at 12–14. The majority’s reasoning is doubly wrong. First, it is wrong on the facts. Even before 1948, Congress consistently started limitations periods in the administrative-law context at the moment of the last agency action.[ 6 ] Then, as now, Congress decided that the deadline for reviewing agency actions should be pegged to the action under review. Second, the majority misses the broader point: Whenever Congress imposes a deadline to challenge an agency decision, the limitations period always starts at the moment of the last agency action. We should pay attention to the uniformly expressed judgment of Congress, and read §2401(a) accordingly. Somehow, the majority draws the opposite conclusion. In its view, either Congress’s consistently expressed intention is irrelevant to what §2401(a) means, or Congress’s failure to explicitly express that intention in the text of §2401(a) indicates that Congress decided otherwise in this particular statute (after all, Congress could have expressly pegged accrual to final agency action in §2401(a) but did not do so). See ante, at 8–10. [ 7 ] But mechanically drawing these sorts of negative inferences when interpreting statutes can be risky. “Context counts, and it is sometimes difficult to read much into the absence of a word that is present elsewhere in a statute.” Bartenwerfer v. Buckley , 598 U.S. 69, 78 (2023). The majority’s approach overlooks relevant context in all sorts of ways, including the fact that §2401(a) is a catchall provision that applies to a variety of actions—that is, the language we are interpreting here does not apply only in the administrative-law context. It applies to every suit against the United States not covered by another statute of limitations. One cannot expect for Congress to have explicitly stated that accrual in §2401(a) starts at the point of final agency action when §2401(a) is a residual provision that also applies to claims that do not involve agency action at all.[ 8 ] Frankly, it was also entirely unnecessary for Congress to be explicit regarding its intentions. Again, in the administrative-law context, the consistent rule is not the plaintiff-specific accrual rule that exists in other contexts ( e.g., torts), but the rule that applies every time Congress has ever mentioned a limitations period with respect to a suit against an agency: The claim accrues at the moment of final agency action. So it is no wonder that Congress did not expressly mention this in the text of §2401(a)—it did not have to, for those who have a basic understanding of its statutes. What is more, the standard accrual rule for the administrative-law context makes perfect sense. The APA itself focuses on the agency’s action, not on the plaintiff. Section 704 subjects certain “agency action[s]” to judicial review. Section 706 lays out the scope of judicial review. As relevant here, courts shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). Other subsections of §706 likewise focus exclusively on what the agency did. Did the agency act “in excess of statutory jurisdiction”? §706(2)(C). Did the agency act “without observance of procedure required by law”? §706(2)(D). Section 702 is not to the contrary. The majority suggests otherwise, characterizing §702 as “equip[ping] injured parties with a cause of action.” Ante, at 5. This is a misleading characterization. Section 702 restricts who may challenge agency action: only those “person[s] suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” It is simply a limitation on who can sue. As such, it says nothing about the cause of action that such a person might bring, nor does it establish that an injury is an element of the claim, as the majority mistakenly suggests.[ 9 ] And that is for good reason, since, in administrative actions, the claim itself remains focused on the agency. See Crown Coat , 386 U. S., at 513 (“The focus of the court action is the validity of the administrative decision”). The way that courts review agency actions also reinforces this basic observation. Courts do not look at what happened to the plaintiff or what happened after the rulemaking—they look only at the rule and the rulemaking process itself. See SEC v. Chenery Corp. , 318 U.S. 80 , 95 (1943). “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts , 411 U.S. 138 , 142 (1973) ( per curiam ). Anything that happened after the rule’s publication (including, perhaps, some injury to a regulated party) does not matter to an APA claim. So, the available claims, causes of action, and evidence are the same regardless of who brings the challenge or when they bring it. Again, the complaint in this case proves the point. Before Corner Post was added as a plaintiff, the complaint alleged that (1) Regulation II is contrary to law and exceeds the Board’s statutory authority, and (2) Regulation II is arbitrary and capricious. See Complaint in North Dakota Retail Assn. v. Board of Governors of FRS , No. 1:21–cv–00095 (D ND), ECF Doc. 1, pp. 32–36. After Corner Post was added as a plaintiff, the complaint made exactly those same two legal claims. See App. to Pet. for Cert. 79–84. Before Corner Post was added, the contrary-to-law claim said that the Board considered impermissible costs and capped interchange fees in a way that was not proportional to the specific costs of each transaction. See ECF Doc. 1, at 32–34. After Corner Post was added, the contrary-to-law claim said the exact same thing. See App. to Pet. for Cert. 79–81. Before the addition of Corner Post, the arbitrary-and-capricious claim said that the Board failed to consider certain congressional instructions, relied on factors that Congress did not intend for it to consider, and ran counter to evidence before the Board. See ECF Doc. 1, at 34–36. Those claims, too, were unchanged after the addition of Corner Post. See App. to Pet. for Cert. 82–84. From the pleadings filed in this case, three observations stand out. First, these APA claims, like all APA claims, are about what the agency itself did, so the logical point to start the clock is the moment the agency acted. Second, the claims that Corner Post brings are not specific to it—they are identical to the untimely claims the coplaintiff trade groups brought before. And, finally, although the majority puts procedural challenges to the side—asserting that its holding does not extend to those, see ante, at 21, n. 8—the claims in this case are procedural, so the majority’s line-drawing exercise is meaningless. B On the matter of congressional intent, the consistent accrual rule in the administrative-law context (the limitations period starts running at the time of the final agency action) is patently superior to the majority’s reading of §2401(a). Congress enacts statutes of limitations to achieve basic policy goals: “repose, elimination of stale claims, and certainty about a plaintiff ’s opportunity for recovery and a defendant’s potential liabilities.” Rotella v. Wood , 528 U.S. 549 , 555 (2000); see also Gabelli , 568 U. S., at 448. For APA claims, where rulemakings apply to the public writ large, repose and certainty would never exist if any and every newly formed entity can challenge every agency regulation in existence. Stated simply, the majority has adopted an implausible reading of §2401(a), because, as I explain below, a plaintiff-specific accrual rule operating in this context undermines each of the central goals of all limitations provisions. First, repose. This principle means that, at some point, litigation must end. Under the majority’s reading of the statute, it never will. Instead of putting a stop to things after six years, §2401(a) now does nothing to prevent agency rules from being forever subjected to legal challenge by newly formed entities (or, as this case illustrates, by old entities that can find or create new entities to graft onto their complaint).[ 10 ] Second, elimination of stale claims. The majority forces courts and agencies to parse cold administrative records. Long after the action in question, courts may be ill equipped to review decades-old administrative explanations. Last, certainty. As I explain in Part IV, infra , the majority’s approach creates uncertainty for the Government and every entity that relies on the Government to function. Agency rulemaking serves important “notice and predictability purposes.” Talk America, Inc. v. Michigan Bell Telephone Co ., 564 U.S. 50 , 69 (2011) (Scalia, J., concurring). When an administrative agency changes its own rules, it follows specific, established processes, so parties have some predictability about how the rules of the road might change. But when every rule on the books can perpetually be challenged by any new plaintiff, and is thus subject to limitless ad hoc amendment, no policy determination can ever be put to rest, and certainty about the rules that govern will forever remain elusive. IV Today’s ruling is not only baseless. It is also extraordinarily consequential. In one fell swoop, the Court has effectively eliminated any limitations period for APA lawsuits, despite Congress’s unmistakable policy determination to cut off such suits within six years of the final agency action. The Court has decided that the clock starts for limitations purposes whenever a new regulated entity is created. This means that, from this day forward, administrative agencies can be sued in perpetuity over every final decision they make. The majority’s ruling makes legal challenges to decades-old agency decisions fair game, even though courts of appeals had previously applied §2401(a) to find untimely a range of belated APA challenges. For example, a lower court rejected an APA challenge to the Food and Drug Administration’s approval of the abortion medication mifepristone that was brought more than two decades after the relevant agency action. See Alliance for Hippocratic Medicine v. FDA , 78 F. 4th 210, 242 (CA5 2023). A 2008 APA challenge to a 1969 ruling by the Bureau of Alcohol, Tobacco, Firearms and Explosives implementing the Gun Control Act was also bounced on statute of limitations grounds. See Hire Order Ltd. v. Marianos , 698 F.3d 168, 170 (CA4 2012). Other unquestionably tardy APA suits have been dismissed on similar grounds too.[ 11 ] No more. After today, even the most well-settled agency regulations can be placed on the chopping block. And please take note: The fallout will not stop with new challenges to old rules involving the most contentious issues of today. Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation. A brand new entity could pop up and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself. No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season. Still, in issuing its ruling in this case, the Court seems oddly oblivious to the most foreseeable consequence of the accrual rule it is adopting: Giving every new entity in a regulated industry its own personal statute of limitations to challenge longstanding regulations affects our Nation’s economy. Why? Because administrative agencies establish the baseline rules around which businesses and individuals order their lives. When an agency publishes a final rule, and the period for challenging that rule passes, people in that industry understand that the agency’s policy choice is the law and act accordingly. They make investments because of it. They change their practices because of it. They enter contracts in light of it. They may not like the rule, but they live and work with it, because that is what the Rule of Law requires. It is profoundly destabilizing—and also acutely unfair—to permit newcomers to bring legal challenges that can overturn settled regulations long after the rest of the competitive marketplace has adapted itself to the regulatory environment. Moreover, as I have explained, the Court’s ruling in this case allows for every new entity to challenge any and every rule that an agency has ever adopted. It is extraordinarily presumptuous that an entity formed in full view of an agency’s rules, by founders who can choose to enter the industry or not, can demand that well-established rules of engagement be revisited. But even setting aside those commonsense fairness concerns, the constant churn of potential attacks on an agency’s rules by new entrants can harm all entities in a regulated industry. At any time, anyone can come along and potentially cause every entity to have to adjust its whole operations manual, since any rule (no matter how well settled) might be subject to alteration. Indeed, the obvious need for stability in the rules that govern an industry is precisely why a defined period for challenging the rules was needed at all. Knowledgeable amici have explained that the majority’s approach to accrual of the statute of limitations for APA claims undermines the “[s]tability, predictability, and consistency [that] enable[s] small businesses to survive and thrive.” Brief for Small Business Associations as Amici Curiae 5. And there is no question that long-term uncertainty “hinders the ability of businesses to plan effectively.” Id., at 9. The majority’s accrual rule unnecessarily creates “frequent, inconsistent, judicially-driven policy changes that do not involve the sort of careful balancing envisioned in the normal process of regulatory change.” Id., at 12. And, again, one might think that preventing such chaos is precisely why Congress enacted a statute of limitations in the first place. Seeking to minimize the fully foreseeable and potentially devastating impact of its ruling, the majority maintains that there is nothing to see here, because not every lawsuit brought by a new industry upstart will win, and, at any rate, many agency regulations are already subject to challenge. See ante, at 21. But this myopic rationalization overlooks other significant changes that this Court has wrought this Term with respect to the longstanding rules governing review of agency actions. The discerning reader will know that the Court has handed down other decisions this Term that likewise invite and enable a wave of regulatory challenges—decisions that carry with them the possibility that well-established agency rules will be upended in ways that were previously unimaginable. Doctrines that were once settled are now unsettled, and claims that lacked merit a year ago are suddenly up for grabs. In Loper Bright Enterprises v. Raimondo , 603 U. S. ___ (2024), for example, the Court has reneged on a blackletter rule of administrative law that had been foundational for the last four decades. Id ., at ___ (slip op., at 30). Under that prior interpretive doctrine, courts deferred to agency interpretations of ambiguous statutes that Congress authorized the agency to administer. Now, every legal claim conceived of in those last four decades—and before—can possibly be brought before courts newly unleashed from the constraints of any such deference. See Tr. of Oral Arg. 74 (Assistant to the Solicitor General explaining that this result “would magnify the effect of” overruling Chevron ). Put differently, a fixed statute of limitations, running from the agency’s action, was one barrier to the chaotic upending of settled agency rules; the requirement that deference be given to an agency’s reasonable interpretations concerning its statutory authority to issue rules was another. The Court has now eliminated both. Any new objection to any old rule must be entertained and determined de novo by judges who can now apply their own unfettered judgment as to whether the rule should be voided. *  *  * At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government. Even more to the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in the our economy and our society. It is utterly inconceivable that §2401(a)’s statute of limitations was meant to permit fresh attacks on settled regulations from all new comers forever. Yet, that is what the majority holds today. But Congress still has a chance to address this absurdity and forestall the coming chaos. It can opt to correct this Court’s mistake by clarifying that the statutes it enacts are designed to facilitate the functioning of agencies, not to hobble them. In particular, Congress can amend §2401(a), or enact a specific review provision for APA claims, to state explicitly what any such rule must mean if it is to operate as a limitations period in this context: Regulated entities have six years from the date of the agency action to bring a lawsuit seeking to have it changed or invalidated; after that, facial challenges must end. By doing this, Congress can make clear that lawsuits bringing facial claims against agencies are not personal attack vehicles for new entities created just for that purpose. So, while the Court has made a mess of this pivotal statute, and the consequences are profound, “the ball is in Congress’ court.” Ledbetter v. Goodyear Tire & Rubber Co. , 550 U.S. 618 , 661 (2007) (Ginsburg, J., dissenting). Notes 1 If this case illustrates one type of gamesmanship, one does not need to think hard to imagine other examples. A cash-only business that announces its intent to accept debit cards and thereby claiming injury from the debit-card rule. New owners that buy out a shop, insisting that they too are entitled to challenge the debit-card rule based on their status as new entrants into the marketplace. It is telling that, even as the majority says that the moment of the plaintiff ’s injury marks the start of the limitations period for facial APA challenges, the majority fails to describe precisely when that injury occurs in this context. 2 The majority’s opinion says we took this case to resolve a circuit split, suggesting that the Sixth Circuit had reached the contrary conclusion. See ante, at 3–4. It had not. In Herr v. United States Forest Serv. , 803 F.3d 809 (2015), the Sixth Circuit addressed accrual in the context of an as-applied challenge after the Government had threatened enforcement. There, the Circuit pegged accrual to the moment of the injury allegedly caused by application of the rule to the plaintiff, see id ., at 820, and did not discuss whether that same accrual rule would apply to facial challenges. Since Herr , neither the Sixth Circuit nor any district court within it has extended Herr ’s rule to facial challenges to final agency actions, and at least one District Court has expressly rejected such an extension. See Linney’s Pizza, LLC v. Board of Governors of FRS , 2023 WL 6050569, *2–*4 (ED Ky., Sept. 15, 2023). 3 The majority insists on a single definition of “accrued,” but it cannot keep its story straight as to what that definition is. Its opinion offers multiple formulations, stating that a claim accrues “when it comes into existence,” “when the plaintiff has a complete and present cause of action,” “when a suit may be maintained thereon,” and, also, “after the plaintiff suffers the injury.” Ante, at 7–8 (internal quotation marks omitted). These distinctions can make a difference. 4 Here, these purposes are at odds because repose favors starting the clock at the moment of final agency action, whereas a plaintiff-specific limitations rule would be targeted at a plaintiff’s injury to ensure plaintiffs don’t sleep on their rights. In the administrative-law context, one has to choose between those objectives; no one rule can equally achieve both of these ends. 5 No kidding. On top of the dozens of examples that the Government provided, there are many, many others. See, e . g ., 5 U. S. C. §7703(b)(1)(A) (“[A] petition to review a final order or final decision of the [Merit Systems Protection] Board shall be filed . . . within 60 days after the Board issues notice of the final order or decision of the Board”); 15 U. S. C. §80b–13(a) (“Any person or party aggrieved by an order issued by the [Securities and Exchange] Commission under this subchapter may obtain a review of such order . . . by filing . . . within sixty days after the entry of such order, a written petition”); 30 U. S. C. §1276(a)(2) (“Any [covered] order or decision . . . shall be subject to judicial review on or before 30 days from the date of such order or decision”); 38 U. S. C. §7266(a) (“[T]o obtain review . . . of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is issued”); 42 U. S. C. §405(g) (“Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision”); §1395 oo (f )(1) (“Providers shall have the right to obtain judicial review of any final decision of the [Provider Reimbursement Review] Board . . . by a civil action commenced within 60 days of the date on which notice of any final decision by the Board . . . is received”); §7607(b)(1) (“Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise”); 49 U. S. C. §1153(b)(1) (petitions seeking review of National Transportation Safety Board orders that relate to aviation matters “must be filed not later than 60 days after the order is issued”). 6 See, e . g ., 42 Stat. 162 (1921) (codified at 7 U. S. C. §194(a)) (meatpackers must appeal agency orders within 30 days after service of order); 48 Stat. 1093 (1934) (codified as amended at 47 U. S. C. §402(c)) (Federal Communications Commission orders must be challenged in court “within twenty days after the decision complained of is effective”); 49 Stat. 860 (1935) (codified at 16 U. S. C. §825 l (b)) (orders issued by the Federal Power Commission pursuant to the Public Utility Act of 1935 must be challenged in court “within sixty days after the order of the Commission”); 49 Stat. 980 (1935) (codified at 27 U. S. C. §204(h)) (orders related to alcohol permits must be challenged “within sixty days after the entry of such order”); 52 Stat. 112 (1938) (codified at 15 U. S. C. §45) (Federal Trade Commission cease-and-desist orders must be challenged “within sixty days from the date of the service of such order”); 52 Stat. 831 (1938) (codified at 15 U. S. C. §717r(b)) (orders issued by the Federal Power Commission pursuant to the Natural Gas Act must be challenged in court “within sixty days after the order of the Commission”); 52 Stat. 1053 (1938) (codified at 21 U. S. C. §355(h)) (orders related to new drug applications must be challenged in court “within sixty days after the entry of such order”); 54 Stat. 501 (1940) (orders apportioning costs for certain bridge projects must be challenged in court “within three months after the date such order is issued”). 7 The majority criticizes my review of congressional action in this area, but fails to adequately explore the record itself. Ante, at 12–14. The majority’s conclusion that the accrual rule is plaintiff specific for APA claims is no more than ipse dixit . 8 Contra the majority, see ante, at 12, the fact that Congress could have opted to enact a specific statutory review provision for APA claims says nothing about how we should apply the catchall review provision here. 9 The majority puts too much stock in the fact that §702 references an injury: That reference actually does no more than highlight the distinction between what constitutes a claim and who can bring that claim. See ante, at 4–5, and n. 1. This type of distinction is commonplace in many areas of our jurisprudence. Take, for example, the constitutional standing doctrine, which limits eligible plaintiffs to those who have suffered an injury in fact that is both traceable to the defendant’s conduct and redressable in court. See FDA v. Alliance for Hippocratic Medicine , 602 U.S. 367, 380–385 (2024). Whether a particular plaintiff has standing to sue says nothing about the elements of the claim itself. See Haaland v. Brackeen , 599 U.S. 255, 291 (2023) (“We do not reach the merits of these claims because no party before the Court has standing to raise them”). The distinction between what a claim is and who can bring it applies with full force here. Section 702 codifies an injury requirement for bringing APA claims. Whether a particular plaintiff was “adversely affected or aggrieved by agency action within the meaning of a relevant statute” under §702 is a threshold inquiry about whether she is an appropriate plaintiff; it has no bearing on whether the agency did, in fact, act in a manner that was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” §706(2). 10 The fact that “courts entertaining later challenges often will be able to rely on binding Supreme Court or circuit precedent,” ante, at 21, is irrelevant. What we are deciding now is how the statute of limitations should be interpreted, and more specifically, whether it makes sense to interpret it in a way that is inconsistent with the purpose of such statutes. 11 See, e . g ., Alabama v. PCI Gaming Auth. , 801 F.3d 1278, 1292 (CA11 2015) (2013 challenge to Secretary of Interior’s 1984, 1992, and 1995 decisions to take certain land into trust for tribes); Wong v. Doar , 571 F.3d 247, 263 (CA2 2009) (2007 challenge to 1980 Medicaid regulation); Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv. , 112 F.3d 1283 , 1286–1287 (CA5 1997) (1994 challenge to 1979 National Park Service regulations); Shiny Rock Mining Corp. v. United States , 906 F.2d 1362, 1365–1366 (CA9 1990) (1984 challenges to 1964 and 1965 land management orders).

Here is a summary of the Supreme Court case Corner Post, Inc. v. Board of Governors of the Federal Reserve System: Issue: The case considers when a claim brought under the Administrative Procedure Act (APA) accrues for the purpose of the statute of limitations. Holding: The Court held that a claim accrues when the plaintiff has the right to assert it in court, which, in the case of the APA, is when the plaintiff is injured by final agency action. Facts: Corner Post, a truck stop and convenience store, challenged the Federal Reserve Board's regulation setting a maximum interchange fee for debit card transactions, which had been in effect since 2011. Corner Post argued that the Board's interpretation of the Dodd-Frank Act, which guided the regulation, was incorrect. Procedural Posture: The Eighth Circuit Court of Appeals ruled that Corner Post's challenge was barred by the six-year statute of limitations, as the claim accrued when the regulation was promulgated and became final. Corner Post petitioned the Supreme Court for review. Legal Analysis: The Court interpreted the statute of limitations for suits against the government, 28 U.S.C. §2401(a), and concluded that a claim accrues when it can first be brought in court. For APA claims, this occurs when a plaintiff is injured by final agency action. The Court rejected the argument that the claim accrued earlier, when the Board issued its interpretation of the Dodd-Frank Act, as this was not a final agency action causing injury to Corner Post. The Court also addressed the purpose of statutes of limitations, emphasizing their role in providing finality and preventing stale claims. It noted that its holding was consistent with this purpose, as plaintiffs are incentivized to bring APA claims promptly after final agency action.

Free Speech

Abrams v. U.S.

https://supreme.justia.com/cases/federal/us/250/616/

U.S. Supreme Court Abrams v. United States, 250 U.S. 616 (1919) Abrams v. United States No. 316 Argued October 21, 22, 1919 Decided November 10, 1919 250 U.S. 616 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus Evidence sufficient to sustain anyone of several counts of an indictment will sustain a verdict and judgment of guilty under all if the sentence does not exceed that which might lawfully have been imposed under any single count. P. 250 U. S. 619 . Evidence held sufficient to sustain a conviction of conspiracy to violate the Espionage Act by uttering, etc., circulars intended to provoke and encourage resistance to the United States in the war with Germany, and by inciting and advocating, through such circulars, resort to a general strike of workers in ammunition factories for the purpose of curtailing production of ordnance and munitions essential to the prosecution of the war. Pp. 250 U. S. 619 et seq. When prosecuted under the Espionage Act, persons who sought to effectuate a plan of action which necessarily, before it could be realized, involved the defeat of the plans of the United States for the conduct of the war with Germany must be held to have intended that result notwithstanding their ultimate purpose may have been to prevent interference with the Russian Revolution. P. 250 U. S. 621 . Affirmed. The case is stated in the opinion. MR. JUSTICE CLARKE delivered the opinion of the court. On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants, were convicted of conspiring to violate provisions of the Page 250 U. S. 617 Espionage Act of Congress (§ 3, Title I, of Act approved June 15, 1917, as amended May 16, 1918, 40 Stat. 553). Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: in the first count, "disloyal, scurrilous and abusive language about the form of Government of the United States;" in the second count, language "intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute;" and in the third count, language "intended to incite, provoke and encourage resistance to the United States in said war." The charge in the fourth count was that the defendants conspired, "when the United States was at war with the Imperial German Government, unlawfully and willfully, by utterance, writing, printing and publication, to urge, incite and advocate curtailment of production of things and products, to-wit, ordnance and ammunition, necessary and essential to the prosecution of the war." The offenses were charged in the language of the act of Congress. It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would attempt to accomplish their unlawful purpose by printing, writing and distributing in the City of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language, copies of which, properly identified, were attached to the indictment. All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and, at the time they were arrested, they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and, of these, three frankly avowed that they were "rebels," "revolutionists," Page 250 U. S. 618 "anarchists," that they did not believe in government in any form, and they declared that they had no interest whatever in the Government of the United States. The fourth defendant testified that he was a "socialist," and believed in "a proper kind of government, not capitalistic," but, in his classification, the Government of the United States was "capitalistic." It was admitted on the trial that the defendants had united to print and distribute the described circulars, and that five thousand of them had been printed and distributed about the 22nd day of August, 1918. The group had a meeting place in New York City, in rooms rented by defendant Abrams under an assumed name, and there the subject of printing the circulars was discussed about two weeks before the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed, and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City. The defendants pleaded "not guilty," and the case of the Government consisted in showing the facts we have stated, and in introducing in evidence copies of the two printed circulars attached to the indictment, a sheet entitled "Revolutionists Unite for Action," written by the defendant Lipman, and found on him when he was arrested, and another paper, found at the headquarters of the group, and for which Abrams assumed responsibility. Thus, the conspiracy and the doing of the overt acts charged were largely admitted, and were fully established. On the record thus described, it is argued, somewhat faintly, that the acts charged against the defendants were not unlawful because within the protection of that freedom Page 250 U. S. 619 of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that Amendment. This contention is sufficiently discussed and is definitely negatived in Schenck v. United States and Baer v. United States, 249 U. S. 47 , and in Frohwerk v. United States, 249 U. S. 204 . The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there is no substantial evidence in this record to support the judgment upon the verdict of guilty, and that the motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of law is thus presented, which calls for an examination of the record not for the purpose of weighing conflicting testimony, but only to determine whether there was some evidence, competent and substantial, before the jury, fairly tending to sustain the verdict. Troxell v. Delaware, Lackawanna & Western R.R. Co., 227 U. S. 434 , 227 U. S. 442 ; Lancaster v. Collins, 115 U. S. 222 , 115 U. S. 225 ; Chicago & Northwestern Ry. Co. v. Ohle, 117 U. S. 123 , 117 U. S. 129 . We shall not need to consider the sufficiency, under the rule just stated, of the evidence introduced as to all of the counts of the indictment, for, since the sentence imposed did not exceed that which might lawfully have been imposed under any single count, the judgment upon the verdict of the jury must be affirmed if the evidence is sufficient to sustain anyone of the counts. Evans v. United States, 153 U. S. 608 ; Claassen v. United States, 142 U. S. 140 ; Debs v. United States, 249 U. S. 211 , 249 U. S. 216 . The first of the two articles attached to the indictment is conspicuously headed, "The Hypocrisy of the United States and her Allies." After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our Government in general, saying: Page 250 U. S. 620 "His [the President's] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity." It continues: "He [the President] is too much of a coward to come out openly and say: 'We capitalistic nations cannot afford to have a proletarian republic in Russia.'" Among the capitalistic nations, Abrams testified, the United States was included. Growing more inflammatory as it proceeds, the circular culminates in: "The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!" "Yes! friends, there is only one enemy of the workers of the world and that is CAPITALISM." This is clearly an appeal to the "workers" of this country to arise and put down by force the Government of the United States which they characterize as their "hypocritical," "cowardly" and "capitalistic" enemy. It concludes: "Awake! Awake! you Workers of the World!" "REVOLUTIONISTS" The second of the articles was printed in the Yiddish language and, in the translation, is headed, "Workers -- Wake up." After referring to "his Majesty, Mr. Wilson, and the rest of the gang; dogs of all colors," it continues: "Workers, Russian emigrants, you who had the least belief in the honesty of our Government," which defendants admitted referred to the United States Government, "must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war." The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic Page 250 U. S. 621 appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war. It goes on: "With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom. " It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans, and not to work in ammunition factories where their work would produce "bullets, bayonets, cannon" and other munitions of war the use of which would cause the "murder" of Germans and Russians. Again, the spirit becomes more bitter as it proceed to declare that -- "America and her Allies have betrayed (the Workers). Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia." " Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the Government know that not only the Russian Worker fights for Page 250 U. S. 622 freedom, but also here in America lives the spirit of Revolution." This is not an attempt to bring about a change of administration by candid discussion, for, no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war. This purpose is emphasized in the next paragraph, which reads: "Do not let the Government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight. " After more of the same kind, the circular concludes: "Woe unto those who will be in the way of progress. Let solidarity live!" It is signed, "The Rebels." That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: "Revolutionists! Unite for Action!" After denouncing the President as "Our Kaiser" and the hypocrisy of the United States and her Allies, this article concludes: Page 250 U. S. 623 "Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men and other revolutionary organizations, Unite for action, and let us save the Workers' Republic of Russia," " Know you lovers of freedom that, in order to save the Russian revolution, we must keep the armies of the allied countries busy at home. " Thus was again avowed the purpose to throw the country into a state of revolution if possible, and to thereby frustrate the military program of the Government. The remaining article, after denouncing the resident for what is characterized as hostility to the Russian revolution, continues: "We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia. " It concludes with this definite threat of armed rebellion: "If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution." These excerpts sufficiently show that, while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our Government's sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form Page 250 U. S. 624 of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the fourth count. Thus, it is clear not only that some evidence, but that much persuasive evidence, was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment, and, under the long established rule of law hereinbefore stated, the judgment of the District Court must be Affirmed. MR. JUSTICE HOLMES dissenting. This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment. The first count charges a conspiracy pending the war with Germany to publish abusive language about the form of government of the United States, laying the preparation and publishing of the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish language intended to bring the form of government into contempt, laying the preparation and publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage resistance to the United States in the same war, and to attempt to effectuate the purpose by publishing the same leaflets. The fourth count lays a conspiracy Page 250 U. S. 625 to incite curtailment of production of things necessary to the prosecution of the war and to attempt to accomplish it by publishing the second leaflet, to which I have referred. The first of these leaflets says that the President's cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that "German militarism combined with allied capitalism to crush the Russian evolution " -- goes on that the tyrants of the world fight each other until they see a common enemy -- working class enlightenment, when they combine to crush it, and that now militarism and capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world, and that is capitalism; that it is a crime for workers of America, &c., to fight the workers' republic of Russia, and ends "Awake! Awake, you Workers of the World, Revolutionists!" A note adds "It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House." The other leaflet, headed "Workers -- Wake Up," with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth, and says that, with the money they have lent or are going to lend, "they will make bullets not only for the Germans, but also for the Workers Soviets of Russia," and further, "Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, Page 250 U. S. 626 but also your dearest, best, who are in Russia and are fighting for freedom." It then appeals to the same Russian emigrants at some length not to consent to the "inquisitionary expedition to Russia," and says that the destruction of the Russian revolution is "the politics of the march to Russia." The leaflet winds up by saying "Workers, our reply to this barbaric intervention has to be a general strike!" and, after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk ends, "Woe unto those who will be in the way of progress. Let solidarity live! The Rebels." No argument seems to me necessary to show that these pronunciamentos in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that, it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending § 3 of the earlier Act of 1917. But to make the conduct criminal, that statute requires that it should be "with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." It seems to me that no such intent is proved. I am aware, of course, that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if, at the time of his act, Page 250 U. S. 627 he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet, even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said, but it is enough to show what I think, and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution, that Congress shall make no law abridging the freedom of speech. I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk and Debs, 249 U. S. 249 U.S. 47, 249 U. S. 204 , 249 U. S. 211 , were rightly decided. I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is Page 250 U. S. 628 greater in time of war than in time of peace, because war opens dangers that do not exist at other times. But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger, and, at any rate, would have the quality of an attempt. So I assume that the second leaflet, if published for the purposes alleged in the fourth count, might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime, for reasons given in Swift & Co. v. United States, 196 U. S. 375 , 196 U. S. 396 . It is necessary where the success of the attempt depends upon others because, if that intent is not present, the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged. I do not see how anyone can find the intent required by the statute in any of the defendants' words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident Page 250 U. S. 629 from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government -- not to impede the United States in the war that it was carrying on. To say that two phrases, taken literally, might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect. I return for a moment to the third count. That charges an intent to provoke resistance to the United States in its war with Germany. Taking the clause in the statute that deals with that, in connection with the other elaborate provisions of the act, I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described, and, for the reasons that I have given, I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase. In this case, sentences of twenty years' imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper, I will add, even if what I think the necessary intent were shown, the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges, but for the creed that they avow -- a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the Page 250 U. S. 630 trial, no one has a right even to consider in dealing with the charges before the Court. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants Page 250 U. S. 631 making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States. MR. JUSTICE BRANDEIS concurs with the foregoing opinion.

In *Abrams v. United States*, the Supreme Court upheld the conviction of individuals who conspired to violate the Espionage Act by distributing circulars critical of the government and encouraging workers to strike during World War I. The Court found that the defendants' actions, which aimed to curtail ordnance production, necessarily intended to hinder the United States' war efforts, despite their stated purpose of supporting the Russian Revolution. Justice Clarke, writing for the majority, emphasized the seriousness of the charges and the sufficiency of the evidence. Justice Holmes, joined by Justice Brandeis, dissented, arguing for greater protection of free speech, even in times of war, unless it poses an immediate threat.

Free Speech

Whitney v. California

https://supreme.justia.com/cases/federal/us/274/357/

U.S. Supreme Court Whitney v. California, 274 U.S. 357 (1927) Whitney v. California No. 3 Argued October 6, 1925 Reargued March 18, 1926 Decided May 16, 1927 274 U.S. 357 ERROR TO THE DISTRICT COURT OF APPEAL, FIRST APPELLATE DISTRICT, DIVISION ONE, OF THE STATE OF CALIFORNIA Syllabus 1. This Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in and expressly or necessarily decided by such state court. P. 274 U. S. 360 . 2. Where the fact that a federal question was considered and passed upon by the state court does not appear by the record, it may be shown by a certified copy of an order of that court made after the return of the writ of error and brought here as an addition to the record. P. 274 U. S. 361 . 3. In reviewing the judgment of a state court, this Court will consider only such federal questions as are shown to have been presented to the state court and expressly or necessarily decided by it. P. 274 U.S. 362 . 4. The question whether the petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose, was a mere question of the weight of the evidence, foreclosed by the verdict of guilty approved by the state court, and not a question of the constitutionality of the Act, reviewable by this Court. P. 274 U. S. 366 . 5. The California Criminal Syndicalism Act, which defines "criminal syndicalism" as "any doctrine or precept advocating, teaching Page 274 U. S. 358 or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change," and declares guilty of a felony any person who "organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism," is sufficiently clear and explicit to satisfy the requirement of due process of law. P. 274 U. S. 368 . 6. The statute does not violate the Equal Protection Clause of the Fourteenth Amendment in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who may advocate a resort to such methods for maintaining such conditions, since the distinction is not arbitrary, but within the discretionary power of the State to direct its legislation against what it deems an evil without covering the whole field of possible abuses. P. 274 U. S. 369 . 7. Such a statute is not open to objection unless the classification on which it is based is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion. P. 274 U. S. 369 . 8. This Act is not class legislation; it affects all alike, no matter what their business associations or callings, who come within its terms and do the things prohibited. P. 274 U. S. 370 . 9. Nor is it repugnant to the Due Process Clause as a restraint of the rights of free speech, assembly, and association. P. 274 U. S. 371 . 10. The determination of the legislature that the acts defined involve such danger to the public peace and security of the State that they should be penalized in the exercise of the police power must be given great weight, and every presumption be indulged in favor of the validity of the statute, which could be declared unconstitutional only if an attempt to exercise arbitrarily and unreasonably the authority vested in the State in the public interest. P. 274 U. S. 371 . 57 Cal. App. 449; ib., 453, affirmed. ERROR to a judgment of the District Court of Appeal of California, which affirmed a conviction of the petitioner under the state act against criminal syndicalism. The Supreme Court of California denied a petition for appeal. On the first hearing in this Court, the writ of error was Page 274 U. S. 359 dismissed for want of jurisdiction, but later a petition for rehearing was granted. 269 U.S. 530, 538. MR. JUSTICE SANFORD delivered the opinion of the Court. By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. Statutes, 1919, c. 188, p. 281. She was tried, convicted on the first count, and sentenced to imprisonment. The judgment was affirmed by the District Court of Appeal. 57 Cal. App. 449. Her petition to have the case heard by the Supreme Court * was denied. Ib., 453. And the case was brought here on a writ of error which was allowed by the Presiding Justice of the Court of Appeal, the highest court of the State in which a decision could be had. Jud.Code, § 237. On the first hearing in this Court, the writ of error was dismissed for want of jurisdiction. 269 U.S. 530. Thereafter, a petition for rehearing was granted, ib., 538, and the case was again heard and reargued both as to the jurisdiction and the merits. The pertinent provisions of the Criminal Syndicalism Act are: "Section 1. The term 'criminal syndicalism' as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission Page 274 U. S. 360 of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change." "Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism" "Is guilty of a felony and punishable by imprisonment." The first count of the information, on which the conviction was had charged that, on or about November 28, 1919, in Alameda County, the defendant, in violation of the Criminal Syndicalism Act, "did then and there unlawfully, willfully, wrongfully, deliberately and feloniously organize and assist in organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism." It has long been settled that this Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in, and expressly or necessarily decided by, such state court. Crowell v. Randell , 10 Pet. 368, 35 U. S. 392 ; Railroad Co. v. Rock , 4 Wall, 177, 71 U. S. 180 ; California Powder Works v. Davis, 151 U. S. 389 , 151 U. S. 393 ; Cincinnati, etc. Railway v. Slade, 216 U. S. 78 , 216 U. S. 83 ; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U. S. 341 , 252 U. S. 343 ; New York v. Kleinert, 268 U. S. 646 , 268 U. S. 650 . Here, the record does not show that the defendant raised, or that the State courts considered or decided, any Page 274 U. S. 361 Federal question whatever, excepting as appears in an order made and entered by the Court of Appeal after it had decided the case and the writ of error had issued and been returned to this Court. A certified copy of that order, brought here as an addition to the record, shows that it was made and entered pursuant to a stipulation of the parties, approved by the court, and that it contains the following statement: "The question whether the California Criminal Syndicalism Act . . . and its application in this case are repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States providing that no state shall deprive any person of life, liberty, or property without due process of law, and that all persons shall be accorded the equal protection of the laws, was considered and passed upon by this Court." In Cincinnati Packet Co. v. Bay, 200 U. S. 179 , 200 U. S. 182 , where it appeared that a federal question had been presented in a petition in error to the State Supreme Court in a case in which the judgment was affirmed without opinion, it was held that the certificate of that court to the effect that it had considered and necessarily decided this question was sufficient to show its existence. And see Marvin v. Trout, 199 U. S. 212 , 199 U. S. 217 , et seq.; Consolidated Turnpike v. Norfolk, etc. Railway, 228 U. S. 596 , 228 U. S. 599 . So -- while the unusual course here taken to show that federal questions were raised and decided below is not to be commended -- we shall give effect to the order of the Court of Appeal as would be done if the statement had been made in the opinion of that court when delivered. See Gross v. United States Mortgage Co., 108 U. S. 477 , 108 U. S. 484 -486; Philadelphia Fire Association v. New York, 119 U. S. 110 , 119 U. S. 116 ; Home for Incurables v. City of New York, 187 U. S. 155 , 187 U. S. 157 ; Land & Water Co. v. San Jose Ranch Co., 189 U. S. 177 , 189 U. S. 179 -180; Rector v. City Deposit Bank , Page 274 U. S. 362 200 U. S. 405 , 200 U. S. 412 ; Haire v. Rice, 204 U. S. 291 , 204 U. S. 299 ; Chambers v. Baltimore, etc. Railroad, 207 U. S. 142 , 207 U. S. 148 ; Atchison, etc. Railway v. Sowers, 213 U. S. 55 , 213 U. S. 62 ; Consolidated Turnpike Co. v. Norfolk, etc. Railway, 228 U. S. 596 , 228 U. S. 599 ; Miedrech v. Lauenstein, 232 U. S. 236 , 232 U. S. 242 ; North Carolina Railroad v. Zachary, 232 U. S. 248 , 232 U. S. 257 ; Chicago, etc. Railway v. Perry, 259 U. S. 548 , 259 U. S. 551 . And here, since it appears from the statement in the order of the Court of Appeal that the question whether the Syndicalism Act and its application in this case was repugnant to the due process and equal protection clauses of the Fourteenth Amendment was considered and passed upon by that court -- this being a federal question constituting an appropriate ground for a review of the judgment -- we conclude that this Court has acquired jurisdiction under the writ of error. The order dismissing the writ for want of jurisdiction will accordingly be set aside. We proceed to the determination, upon the merits, of the constitutional question considered and passed upon by the Court of Appeal. Of course, our review is to be confined to that question, since it does not appear, either from the order of the Court of Appeal or from the record otherwise, that any other federal question was presented in and either expressly or necessarily decided by that court. National Bank v. Commonwealth , 9 Wall. 353, 76 U. S. 363 ; Edwards v. Elliott , 21 Wall. 532, 88 U. S. 557 ; Dewey v. Des Moines, 173 U. S. 193 , 173 U. S. 200 ; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U. S. 626 , 175 U. S. 633 ; Capital City Dairy Co. v. Ohio, 183 U. S. 238 , 183 U. S. 248 ; Haire v. Rice, 204 U. S. 291 , 204 U. S. 301 ; Selover, Bates & Co. v. Walsh, 226 U. S. 112 , 226 U. S. 126 . Missouri Pacific Railway v. Coal Co., 256 U. S. 134 , 256 U. S. 135 . It is not enough that there may be somewhere hidden in the record a question which, if it had been raised, would have been of a federal nature. Dewey v. Des Moines, supra, 173 U. S. 199 ; Keokuk & Hamilton Bridge Co. v. Illinois, supra, 175 U. S. 634 . And this necessarily excludes from our consideration Page 274 U. S. 363 a question sought to be raised for the first time by the assignments of error here -- not presented in or passed upon by the Court of Appeal -- whether apart from the constitutionality of the Syndicalism Act, the judgment of the Superior Court, by reason of the rulings of that court on questions of pleading, evidence and the like, operated as a denial to the defendant of due process of law. See Oxley Stave Co. v. Butler County, 166 U. S. 648 , 166 U. S. 660 ; Capital City Dairy Co. v. Ohio, supra, 183 U. S. 248 ; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123 , 234 U. S. 134 ; Bass, etc. Ltd. v. Tax Commission, 266 U. S. 271 , 266 U. S. 283 . The following facts, among many others, were established on the trial by undisputed evidence: the defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the Socialist Party held in Chicago in 1919, which resulted in a split between the "radical" group and the old-wing Socialists. The "radicals" -- to whom the Oakland delegates adhered -- being ejected, went to another hall, and formed the Communist Labor Party of America. Its Constitution provided for the membership of persons subscribing to the principles of the Party and pledging themselves to be guided by its Platform, and for the formation of state organizations conforming to its Platform as the supreme declaration of the Party. In its "Platform and Program," the Party declared that it was in full harmony with "the revolutionary working class parties of all countries," and adhered to the principles of Communism laid down in the Manifesto of the Third International at Moscow, and that its purpose was "to create a unified revolutionary working class movement in America," organizing the workers as a class in a revolutionary class struggle to conquer the capitalist state for the overthrow of capitalist rule, the conquest of political power and the establishment Page 274 U. S. 364 of a working class government, the Dictatorship of the Proletariat, in place of the state machinery of the capitalists, which should make and enforce the laws, reorganize society on the basis of Communism, and bring about the Communist Commonwealth -- advocated, as the most important means of capturing state power, the action of the masses, proceeding from the shops and factories, the use of the political machinery of the capitalist state being only secondary; the organization of the workers into "revolutionary industrial unions"; propaganda pointing out their revolutionary nature and possibilities, and great industrial battles showing the value of the strike as a political weapon -- commended the propaganda and example of the Industrial Workers of the World and their struggles and sacrifices in the class war -- pledged support and cooperation to "the revolutionary industrial proletariat of America" in their struggles against the capitalist class -- cited the Seattle and Winnipeg strikes and the numerous strikes all over the country "proceeding without the authority of the old reactionary Trade Union officials," as manifestations of the new tendency -- and recommended that strikes of national importance be supported and given a political character, and that propagandists and organizers be mobilized "who cannot only teach, but actually help to put in practice the principles of revolutionary industrial unionism and Communism." Shortly thereafter, the Local Oakland withdrew from the Socialist Party and sent accredited delegates, including the defendant, to a convention held in Oakland in November, 1919, for the purpose of organizing a California branch of the Communist Labor Party. The defendant, after taking out a temporary membership in the Communist Labor Party, attended this convention as a delegate and took an active part in its proceedings. She was elected a member of the Credentials Committee, and, as its chairman, made a report to the convention upon Page 274 U. S. 365 which the delegates were seated. She was also appointed a member of the Resolutions Committee, and, as such, signed the following resolution in reference to political action, among others proposed by the Committee: "The C.L.P. of California fully recognizes the value of political action as a means of spreading communist propaganda; it insists that, in proportion to the development of the economic strength of the working class, it, the working class, must also develop its political power. The C.L.P. of California proclaims and insists that the capture of political power, locally or nationally by the revolutionary working class, can be of tremendous assistance to the workers in their struggle of emancipation. Therefore, we again urge the workers who are possessed of the right of franchise to cast their votes for the party which represents their immediate and final interest -- the C.L.P. -- at all elections, being fully convinced of the utter futility of obtaining any real measure of justice or freedom under officials elected by parties owned and controlled by the capitalist class." The minutes show that this resolution, with the others proposed by the committee, was read by its chairman to the convention before the Committee on the Constitution had submitted its report. According to the recollection of the defendant, however, she herself read this resolution. Thereafter, before the report of the Committee on the Constitution had been acted upon, the defendant was elected an alternate member of the State Executive Committee. The Constitution, as finally read, was then adopted. This provided that the organization should be named the Communist Labor Party of California; that it should be "affiliated with" the Communist Labor Party of America, and subscribe to its Program, Platform and Constitution, and, "through this affiliation," be "joined with the Communist International of Moscow;" and that the qualifications for membership should be those prescribed in the Page 274 U. S. 366 National Constitution. The proposed resolutions were later taken, up and all adopted except that on political action, which caused a lengthy debate, resulting in its defeat and the acceptance of the National Program in its place. After this action, the defendant, without, so far as appears, making any protest, remained in the convention until it adjourned. She later attended as an alternate member one or two meetings of the State Executive Committee in San Jose and San Francisco, and stated, on the trial, that she was then a member of the Communist Labor Party. She also testified that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence, and that it was not her purpose or that of the Convention to violate any known law. In the light of this preliminary statement, we now take up, insofar as they require specific consideration, the various grounds upon which it is here contended that the Syndicalism Act and its application in this case is repugnant to the due process and equal protection clauses of the Fourteenth Amendment. 1. While it is not denied that the evidence warranted the jury in finding that the defendant became a member of and assisted in organizing the Communist Labor Party of California, and that this was organized to advocate, teach, aid or abet criminal syndicalism as defined by the Act, it is urged that the Act, as here construed and applied, deprived the defendant of her liberty without due process of law in that it has made her action in attending the Oakland convention unlawful by reason of "a subsequent event brought about against her will by the agency of others," with no showing of a specific intent on her part to join in the forbidden purpose of the association, and merely because, by reason of a lack of "prophetic" understanding, she failed to foresee the quality that others would give to the convention. The argument is, Page 274 U. S. 367 in effect, that the character of the state organization could not be forecast when she attended the convention; that she had no purpose of helping to create an instrument of terrorism and violence; that she "took part in formulating and presenting to the convention a resolution which, if adopted, would have committed the new organization to a legitimate policy of political reform by the use of the ballot;" that it was not until after the majority of the convention turned out to be "contrary-minded, and other less temperate policies prevailed," that the convention could have taken on the character of criminal syndicalism, and that, as this was done over her protest, her mere presence in the convention, however violent the opinions expressed therein, could not thereby become a crime. This contention, while advanced in the form of a constitutional objection to the Act, is in effect nothing more than an effort to review the weight of the evidence for the purpose of showing that the defendant did not join and assist in organizing the Communist Labor Party of California with a knowledge of its unlawful character and purpose. This question, which is foreclosed by the verdict of the jury -- sustained by the Court of Appeal over the specific objection that it was not supported by the evidence -- is one of fact merely, which is not open to review in this Court, involving, as it does, no constitutional question whatever. And we may add that the argument entirely disregards the facts: that the defendant had previously taken out a membership card in the National Party, that the resolution which she supported did not advocate the use of the ballot to the exclusion of violent and unlawful means of bringing about the desired changes in industrial and political conditions, and that, after the constitution of the California Party had been adopted, and this resolution had been voted down and the National Program accepted, she not only remained in the convention, without Page 274 U. S. 368 protest, until its close, but subsequently manifested her acquiescence by attending as an alternate member of the State Executive Committee and continuing as member of the Communist Labor Party. 2. It is clear that the Syndicalism Act is not repugnant to the due process clause by reason of vagueness and uncertainty of definition. It has no substantial resemblance to the statutes held void for uncertainty under the Fourteenth and Fifth Amendments in International Harvester Co. v. Kentucky, 234 U. S. 216 , 234 U. S. 221 , and United States v. Cohen Grocery, 255 U. S. 81 , 255 U. S. 89 , because not fixing an ascertainable standard of guilt. The language of § 2, subd. 4, of the Act, under which the plaintiff in error was convicted, is clear, the definition of "criminal syndicalism "specific. The Act, plainly, meets the essential requirement of due process that a penal statute be "sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalties," and be couched in terms that are not "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U. S. 385 , 269 U. S. 391 . And see United States v. Brewer, 139 U. S. 278 , 139 U. S. 288 ; Chicago, etc., Railway v. Dey, (C.C.) 35 Fed. 866, 876; Tozer v. United States, (C.C.) 52 Fed. 917, 919. In Omaechevarria v. Idaho, 246 U. S. 343 , 246 U. S. 348 , in which it was held that a criminal statute prohibiting the grazing of sheep on any "range" previously occupied by cattle "in the usual and customary use" thereof, was not void for indefiniteness because it failed to provide for the ascertainment of the boundaries of a "range" or to determine the length of time necessary to constitute a prior occupation a "usual" one, this Court said: "Men familiar with range conditions and desirous of observing the law will have little difficulty Page 274 U. S. 369 in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other States. This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U. S. 373 , 229 U. S. 377 ; Miller v. Strahl, 239 U. S. 426 , 239 U. S. 434 ." So, as applied here, the Syndicalism Act required of the defendant no "prophetic" understanding of its meaning. And similar Criminal Syndicalism statutes of other States, some less specific in their definitions, have been held by the State courts not to be void for indefiniteness. State v. Hennessy, 114 Wash. 351, 364; State v. Laundy, 103 Ore. 443, 460; People v. Ruthenberg, 229 Mich. 31, 325. And see Fox v. Washington, 236 U. S. 273 , 236 U. S. 277 ; People v. Steelik, 187 Cal. 361, 372; People v. Lloyd, 304 Ill. 23, 34. 3. Neither is the Syndicalism Act repugnant to the equal protection clause on the ground that, as its penalties are confined to those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions, it arbitrarily discriminates between such persons and those who may advocate a resort to these methods as a means of maintaining such conditions. It is, settled by repeated decisions of this Court that the equal protection clause does not take from a State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary, and that one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basic, but is essentially arbitrary. Lindsley v. National Cabonic Gas Co., 220 U. S. 61 , 220 U. S. 78 , and case cited. Page 274 U. S. 370 A statute does not violate the equal protection clause merely because it is not all-embracing; Zucht v. King, 260 U. S. 174 , 260 U. S. 177 ; James-Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119 . A State may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 ; Farmers Bank v. Federal Reserve Bank, 262 U. S. 649 , 262 U. S. 661 ; James-Dickinson Mortgage Co. v. Harry, supra. The statute must be presumed to be aimed at an evil where experience shows it to be most felt, and to be deemed by the legislature coextensive with the practical need, and is not to be overthrown merely because other instances may be suggested to which also it might have been applied, that being a matter for the legislature to determine unless the case is very clear. Keokee Coke Co. v Taylor, 234 U. S. 224 , 234 U. S. 227 . And it is not open to objection unless the classification is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion. Stebbins v. Riley, 268 U. S. 137 , 268 U. S. 143 ; Graves v. Minnesota, 272 U. S. 425 ; Swiss Oil Corporation v. Shanks, 273 U. S. 407 . The Syndicalism Act is not class legislation; it affects all alike, no matter what their business associations or callings, who come within its terms and do the things prohibited. See State v. Hennessy, supra, 361; State v. Laundy, supra, 460. And there is no substantial basis for the contention that the legislature has arbitrarily or unreasonably limited its application to those advocating the use of violent and unlawful methods to effect changes in industrial and political conditions, there being nothing indicating any ground to apprehend that those desiring to maintain existing industrial and political conditions did or would advocate such methods. That there is a widespread conviction of the necessity for legislation of Page 274 U. S. 371 this character is indicated by the adoption of similar statutes in several other States. 4. Nor is the Syndicalism Act, as applied in this case, repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association. That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom, and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question. Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 -668, and cases cited. By enacting the provisions of the Syndicalism Act, the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute, Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 , and it may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the State in the public interest. Great Northern Railway v. Clara City, 246 U. S. 434 , 246 U. S. 439 . The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment Page 274 U. S. 372 of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. See People v. Steelik, supra, 376. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear. We cannot hold that, as here applied, the Act is an unreasonable or arbitrary exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly or association, or that those persons are protected from punishment by the due process clause who abuse such rights by joining and furthering an organization thus menacing the peace and welfare of the State. We find no repugnancy in the Syndicalism Act as applied in this case to either the due process or equal protection clauses of the Fourteenth Amendment on any of the grounds upon which its validity has been here challenged. The order dismissing the writ of error will be vacated and set aside, and the judgment of the Court of Appeal Affirmed. * 1 Statutes, 1919, c. 58, p. 88. MR. JUSTICE BRANDEIS, concurring. Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist Labor Party of California, of being a member of it, and of assembling with it. These acts are held to constitute a crime because the party was formed to teach criminal syndicalism. The statute which made these acts a crime restricted the right of free speech and of assembly theretofore existing. The claim is that the statute, as applied, denied to Miss Whitney the liberty guaranteed by the Fourteenth Amendment. The felony which the statute created is a crime very unlike the old felony of conspiracy or the old misdemeanor Page 274 U. S. 373 of unlawful assembly. The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or of assembling with others for that purpose, is given the dynamic quality of crime. There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus, the accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it. Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus, all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights. See Meyer v. Nebraska, 262 U. S. 390 ; Pierce v. Society of Sisters, 268 U. S. 510 ; Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 ; Farrington v. Tokushige, 273 U. S. 284 . These may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not, in their nature, absolute. Their exercise is subject to restriction if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic, or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. See Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . Page 274 U. S. 374 It is said to be the function of the legislature to determine whether, at a particular time and under the particular circumstances, the formation of, or assembly with, a society organized to advocate criminal syndicalism constitutes a clear and present danger of substantive evil, and that, by enacting the law here in question, the legislature of California determined that question in the affirmative. Compare Gitlow v. New York, 268 U. S. 652 , 268 U. S. 668 -671. The legislature must obviously decide, in the first instance, whether a danger exists which calls for a particular protective measure. But where a statute is valid only in case certain conditions exist, the enactment of the statute cannot alone establish the facts which are essential to its validity. Prohibitory legislation has repeatedly been held invalid, because unnecessary, where the denial of liberty involved was that of engaging in a particular business. [ Footnote 1 ] The power of the courts to strike down an offending law is no less when the interests involved are not property rights, but the fundamental personal rights of free speech and assembly. This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present, and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. Page 274 U. S. 375 Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. [ Footnote 2 ] They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence Page 274 U. S. 376 coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. [ Footnote 3 ] Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. Page 274 U. S. 377 Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. [ Footnote 4 ] Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it. Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. Thus, a State might, in the exercise of its police power, make any trespass upon the Page 274 U. S. 378 land of another a crime, regardless of the results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this Court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed, unposted, wastelands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. The California Syndicalism Act recites in § 4: "Inasmuch as this act concerns and is necessary to the immediate preservation of the public peace and safety, for the reason that, at the present time, large numbers of persons are going from place to place in this state advocating, teaching and practicing criminal syndicalism, this act shall take effect upon approval by the Governor." This legislative declaration satisfies the requirement of the constitution of the State concerning emergency legislation. In re McDermott, 180 Cal. 783. But it does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. As a statute, even if not void on its face, may be challenged because invalid as applied, Dahnke-Walker Milling Co. v. Bondrant, 257 U. S. 282 , the result of such an enquiry may depend upon the specific facts of the particular case. Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, Page 274 U. S. 379 it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature. The legislative declaration, like the fact that the statute was passed and was sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied. Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil might have been made the important issue in the case. She might have required that the issue be determined either by the court or the jury. She claimed below that the statute, as applied to her, violated the Federal Constitution; but she did not claim that it was void because there was no clear and present danger of serious evil, nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court or a jury. On the other hand, there was evidence on which the court or jury might have found that such danger existed. I am unable to assent to the suggestion in the opinion of the Court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment. In the present case, however, there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed. Page 274 U. S. 380 Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied, Murdock v. City of Memphis , 20 Wall. 590; Haire v. Rice, 204 U. S. 291 , 204 U. S. 301 ; but to the particular claims duly made below, and denied. Seaboard Air Line Ry. v. Duvall, 225 U. S. 477 , 225 U. S. 485 -488. We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United States, 163 U. S. 632 , 163 U. S. 658 -660; Clyatt v. United States, 197 U. S. 207 , 197 U. S. 221 -222. This is a writ of error to a state court. Because we may not enquire into the errors now alleged, I concur in affirming the judgment of the state court. MR. JUSTICE HOLMES joins in this opinion. [ Footnote 1 ] Compare Frost v. R.R. Comm. of California, 271 U. S. 583 ; Weaver v. Palmer Bros. Co., 270 U. S. 402 ; Jay Burns Baking Co. v. Bryan, 264 U. S. 504 ; Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 ; Adams v. Tanner, 244 U. S. 590 . [ Footnote 2 ] Compare Thomas Jefferson: "We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge." Quoted by Charles A. Beard, The Nation, July 7, 1926, vol. 123, p. 8. Also in first Inaugural Address: "If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." [ Footnote 3 ] Compare Judge Learned Hand in Masses Publishing Co. v. Patten, 244 Fed. 535, 540; Judge Amidon in United States v. Fontana, Bull. Dept. of Justice No. 148, pp. 4-5; Chafee, "Freedom of Speech," pp. 456, 174. [ Footnote 4 ] Compare Z. Chafee, Jr., "Freedom of Speech", pp. 24-39, 207-221, 228, 262-265; H. J. Laski, "Grammar of Politics", pp. 120, 121; Lord Justice Scrutton in Rex v. Secretary of Home Affairs, Ex parte O'Brien, [1923] 2 K.B. 361, 382: "You really believe in freedom of speech if you are willing to allow it to men whose opinions seem to you wrong and even dangerous; . . ." Compare Warren, "The New Liberty Under the Fourteenth Amendment," 39 Harvard Law Review, 431, 461.

In Whitney v. California, the U.S. Supreme Court upheld the constitutionality of the California Criminal Syndicalism Act, which criminalized advocating for or teaching the use of force, violence, or unlawful methods to bring about political or industrial change. The Court rejected the petitioner's argument that the Act violated the Equal Protection Clause of the Fourteenth Amendment by distinguishing between those who advocated for violent methods to change conditions and those who advocated for maintaining conditions. The Court found that the distinction was not arbitrary and fell within the state's discretionary power. The Court also rejected the petitioner's argument that she lacked knowledge of the unlawful character and purpose of the Communist Labor Party she joined, deeming it a matter of the weight of the evidence and not a question of the Act's constitutionality.

Free Speech

Gitlow v. New York

https://supreme.justia.com/cases/federal/us/268/652/

U.S. Supreme Court Gitlow v. People, 268 U.S. 652 (1925) Gitlow v. People No.19 Argued April 12, 1923 Reargued November 23, 1923 Decided June 8, 1925 268 U.S. 652 ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK Syllabus 1. Assumed, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States. P. 268 U. S. 666 . 2. Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible use of language. P. 268 U. S. 666 . 3. That a State, in the exercise of its police power, may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question. P. 268 U.S. 667 . 4. For yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. P. 268 U.S. 667 . 5. A statute punishing utterances advocating the overthrow of organized government by force, violence and unlawful means, imports a legislative determination that such utterances are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized under the police power, and this determination must be given great weight, and every presumption be indulged in favor of the validity of the statute. P. 268 U. S. 668 . 6. Such utterances present sufficient danger to the public peace and security of the State to bring their punishment clearly within the range of legislative discretion, even if the effect of a given utterance cannot accurately be foreseen. P. 268 U. S. 669 . 7. A State cannot reasonably be required to defer taking measures against these revolutionary utterances until they lead to actual disturbances of the peace or imminent danger of the State's destruction. P. 268 U. S. 669 . 8. The New York statute punishing those who advocate, advise or teach the duty; necessity or propriety of overthrowing or overturning organized government by force, violence, or any unlawful means, or who print, publish, or knowingly circulate any book, Page 268 U. S. 653 paper, etc., advocating, advising or teaching the doctrine that organized government should be so overthrown, does not penalize the utterance or publication of abstract doctrine or academic discussion having no quality of incitement to any concrete action, but denounces the advocacy of action for accomplishing the overthrow of organized government by unlawful means, and is constitutional as applied to a printed "Manifesto" advocating and urging mass action which shall progressively foment industrial disturbances and, through political mass strikes and revolutionary mass action, overthrow and destroy organized parliamentary government; even though the advocacy was in general terms, and not addressed to particular immediate acts or to particular person. Pp. 268 U. S. 654 , 268 U. S. 672 . 9. The statute being constitutional, it may constitutionally be applied to every utterance not too trivial to be beneath the notice of the law -- which is of such a character and used with such intent and purpose as to bring it within the prohibition of the statute, and the question whether the specific utterance in question was likely to bring about the substantive evil aimed at by the statute is not open to consideration. Schenck v. United States, 249 U. S. 47 , explained. P. 268 U. S. 670 . 195 App.Div. 77; 234 N.Y. 132, 539, affirmed. ERROR to a judgment of the Supreme Court of New York, affirmed by the Appellate Division thereof and by the Court of Appeals, sentencing the plaintiff in error for the crime of criminal anarchy, (New York Laws, 1909, c. 88), of which he had been convicted by a jury. Page 268 U. S. 654 MR. JUSTICE SANFORD delivered the opinion of the Court. Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. New York Penal Laws, §§ 160, 161. [ Footnote 1 ] He was separately tried, convicted, and sentenced to imprisonment. The judgment was affirmed by the Appellate Division and by the Court of Appeals. 195 App.Div. 773; 234 N.Y. 132 and 539. The case is here on writ of error to the Supreme Court, to which the record was remitted. 260 U.S. 703. The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment. Its material provisions are: "§ 160. Criminal anarchy defined. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony." "§ 161. Advocacy of criminal anarchy. Any person who:" "1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or," "2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any Page 268 U. S. 655 form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means" "Is guilty of a felony and punishable" by imprisonment or fine, or both. The indictment was in two counts. The first charged that the defendant had advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled "The Left Wing Manifesto"; the second, that he had printed, published and knowingly circulated and distributed a certain paper called "The Revolutionary Age," containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence and unlawful means. The following facts were established on the trial by undisputed evidence and admissions: the defendant is a member of the Left Wing Section of the Socialist Party, a dissenting branch or faction of that party formed in opposition to its dominant policy of "moderate Socialism." Membership in both is open to aliens as well as citizens. The Left Wing Section was organized nationally at a conference in New York City in June, 1919, attended by ninety delegates from twenty different States. The conference elected a National Council, of which the defendant was a member, and left to it the adoption of a "Manifesto." This was published in The Revolutionary Age, the official organ of the Left Wing. The defendant was on the board of managers of the paper, and was its business manager. He arranged for the printing of the paper, and took to the printer the manuscript of the first issue which contained the Left Wing Manifesto, and also a Communist Program and a Program of the Left Wing that had been adopted by the conference. Sixteen thousand Page 268 U. S. 656 copies were printed, which were delivered at the premises in New York City used as the office of the Revolutionary Age and the headquarters of the Left Wing, and occupied by the defendant and other officials. These copies were paid for by the defendant, as business manager of the paper. Employees at this office wrapped and mailed out copies of the paper under the defendant's direction, and copies were sold from this office. It was admitted that the defendant signed a card subscribing to the Manifesto and Program of the Left Wing, which all applicants were required to sign before being admitted to membership; that he went to different parts of the State to speak to branches of the Socialist Party about the principles of the Left Wing and advocated their adoption, and that he was responsible for the Manifesto as it appeared, that "he knew of the publication, in a general way, and he knew of its publication afterwards, and is responsible for its circulation." There was no evidence of any effect resulting from the publication and circulation of the Manifesto. No witnesses were offered in behalf of the defendant. Extracts from the Manifesto are set forth in the margin. [ Footnote 2 ] Coupled with a review of the rise of Socialism, it Page 268 U. S. 657 condemned the dominant "moderate Socialism" for its recognition of the necessity of the democratic parliamentary state; repudiated its policy of introducing Socialism by legislative measures, and advocated, in plain and unequivocal language, the necessity of accomplishing the "Communist Revolution" by a militant and "revolutionary Socialism", based on "the class struggle" and mobilizing Page 268 U. S. 658 the "power of the proletariat in action," through mass industrial revolts developing into mass political strikes and "revolutionary mass action", for the purpose of conquering and destroying the parliamentary state and establishing in its place, through a "revolutionary dictatorship of the proletariat", the system of Communist Socialism. The then recent strikes in Seattle and Winnipeg [ Footnote 3 ] were cited as instances of a development already verging on revolutionary action and suggestive of proletarian Page 268 U. S. 659 dictatorship, in which the strike-workers were "trying to usurp the functions of municipal government", and revolutionary Socialism, it was urged, must use these mass industrial revolts to broaden the strike, make it general and militant, and develop it into mass political strikes and revolutionary mass action for the annihilation of the parliamentary state. At the outset of the trial, the defendant's counsel objected to the introduction of any evidence under the Page 268 U. S. 660 indictment on the grounds that, as a matter of law, the Manifesto "is not in contravention of the statute," and that "the statute is in contravention of" the due process clause of the Fourteenth Amendment. This objection was denied. They also moved, at the close of the evidence, to dismiss the indictment and direct an acquittal "on the grounds stated in the first objection to evidence", Page 268 U. S. 661 and again on the grounds that "the indictment does not charge an offense" and the evidence "does not show an offense." These motions were also denied. The court, among other things, charged the jury, in substance, that they must determine what was the intent, purpose and fair meaning of the Manifesto; that its words must be taken in their ordinary meaning, as they would be understood by people whom it might reach; that a mere statement or analysis of social and economic facts and historical incidents, in the nature of an essay, accompanied by prophecy as to the future course of events, but with no teaching, advice or advocacy of action, would not constitute the advocacy, advice or teaching of a doctrine for the overthrow of government within the meaning of the statute; that a mere statement that unlawful acts might accomplish such a purpose would be insufficient, unless there was a teaching, advising and advocacy of employing such unlawful acts for the purpose of overthrowing government, and that, if the jury had a reasonable doubt that the Manifesto did teach, advocate or advise the duty, necessity or propriety of using unlawful means for the overthrowing of organized government, the defendant was entitled to an acquittal. The defendant's counsel submitted two requests to charge which embodied in substance the statement that to constitute criminal anarchy within the meaning of the statute it was necessary that the language used or published should advocate, teach or advise the duty, necessity or propriety of doing "some definite or immediate act or acts" of force, violence or unlawfulness directed toward the overthrowing of organized government. These were denied further than had been charged. Two other requests to charge embodied in substance the statement that, to constitute guilt, the language used or published must be "reasonably and ordinarily calculated to incite certain persons" to acts of force, violence or unlawfulness, Page 268 U. S. 662 with the object of overthrowing organized government. These were also denied. The Appellate Division, after setting forth extracts from the Manifesto and referring to the Left Wing and Communist Programs published in the same issue of the Revolutionary Age, said: [ Footnote 4 ] "It is perfectly plain that the plan and purpose advocated . . . contemplate the overthrow and destruction of the governments of the United States and of all the States, not by the free action of the majority of the people through the ballot box in electing representatives to authorize a change of government by amending or changing the Constitution, but by immediately organizing the industrial proletariat into militant Socialist unions and at the earliest opportunity through mass strike and force and violence, if necessary, compelling the government to cease to function, and then through a proletarian dictatorship, taking charge of and appropriating all property and administering it and governing through such dictatorship until such time as the proletariat is permitted to administer and govern it. . . . The articles in question are not a discussion of ideas and theories. They advocate a doctrine deliberately determined upon and planned for militantly disseminating a propaganda advocating that it is the duty and necessity of the proletariat engaged in industrial pursuits to organize to such an extent that, by massed strike, the wheels of government may ultimately be stopped and the government overthrown. . . ." The Court of Appeals held that the Manifesto "advocated the overthrow of this government by violence, or by unlawful means." [ Footnote 5 ] In one of the opinions representing Page 268 U. S. 663 the views of a majority of the court, [ Footnote 6 ] it was said: "It will be seen . . . that this defendant through the manifesto . . . advocated the destruction of the state and the establishment of the dictatorship of the proletariat. . . . To advocate . . . the commission of this conspiracy or action by mass strike whereby government is crippled, the administration of justice paralyzed, and the health, morals and welfare of a community endangered, and this for the purpose of bringing about a revolution in the state, is to advocate the overthrow of organized government by unlawful means." In the other, [ Footnote 7 ] it was said: "As we read this manifesto, we feel entirely clear that the jury were justified in rejecting the view that it was a mere academic and harmless discussion of the advantages of communism and advanced socialism" and "in regarding it as a justification and advocacy of action by one class which would destroy the rights of all other classes and overthrow the state itself by use of revolutionary mass strikes. It is true that there is no advocacy in specific terms of the use of . . . force or violence. There was no need to be. Some things are so commonly incident to others that they do not need to be mentioned when the underlying purpose is described." And both the Appellate Division and the Court of Appeals held the statute constitutional. The specification of the errors relied on relates solely to the specific rulings of the trial court in the matters hereinbefore set out. [ Footnote 8 ] The correctness of the verdict is not Page 268 U. S. 664 questioned, as the case was submitted to the jury. The sole contention here is, essentially, that as there was no evidence of any concrete result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such result, the statute as construed and applied by the trial court penalizes the mere utterance, as such, of "doctrine" having no quality of incitement, without regard either to the circumstances of its utterance or to the likelihood of unlawful sequences, and that, as the exercise of the right of free expression with relation to government is only punishable "in circumstances involving likelihood of substantive evil," the statute contravenes the due process clause of the Fourteenth Amendment. The argument in support of this contention rests primarily upon the following propositions: 1st, that the "liberty" protected by the Fourteenth Amendment includes the liberty of speech and of the press, and 2nd, that while liberty of expression "is not absolute," it may be restrained "only in circumstances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely," and as the statute "takes no account of circumstances," it unduly restrains this liberty and is therefore unconstitutional. The precise question presented, and the only question which we can consider under this writ of error, then is whether the statute, as construed and applied in this case by the state courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment. The statute does not penalize the utterance or publication of abstract "doctrine" or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising or teaching Page 268 U. S. 665 the overthrow of organized government by unlawful means. These words imply urging to action. Advocacy is defined in the Century Dictionary as: "1. The act of pleading for, supporting, or recommending; active espousal." It is not the abstract "doctrine" of overthrowing organized government by unlawful means which is denounced by the statute, but the advocacy of action for the accomplishment of that purpose. It was so construed and applied by the trial judge, who specifically charged the jury that: "A mere grouping of historical events and a prophetic deduction from them would neither constitute advocacy, advice or teaching of a doctrine for the overthrow of government by force, violence or unlawful means. [And] if it were a mere essay on the subject, as suggested by counsel, based upon deductions from alleged historical events, with no teaching, advice or advocacy of action, it would not constitute a violation of the statute. . . ." The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and, through political mass strikes and revolutionary mass action, overthrow and destroy organized parliamentary government. It concludes with a call to action in these words: "The proletariat revolution and the Communist reconstruction of society -- the struggle for these -- is now indispensable. . . . The Communist International calls the proletariat of the world to the final struggle!" This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement. The means advocated for bringing about the destruction of organized parliamentary government, namely, mass industrial Page 268 U. S. 666 revolts usurping the functions of municipal government, political mass strikes directed against the parliamentary state, and revolutionary mass action for its final destruction, necessarily imply the use of force and violence, and, in their essential nature, are inherently unlawful in a constitutional government of law and order. That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear. For present purposes, we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U. S. 530 , 259 U. S. 543 , that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question. [ Footnote 9 ] It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution, 5th ed., § 1580, p. 634; Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 ; Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 ; Fox v. Washington , 236 Page 268 U. S. 667 U.S. 273, 236 U. S. 276 ; Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 ; Frohwerk v. United States, 249 U. S. 204 , 249 U. S. 206 ; Debs v. United States, 249 U. S. 211 , 249 U. S. 213 ; Schaefer v. United States, 251 U. S. 466 , 251 U. S. 474 ; Gilbert v. Minnesota, 254 U. S. 325 , 254 U. S. 332 ; Warren v. United States, (C.C.A.) 183 Fed. 718, 721. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic. That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. Robertson v. Baldwin, supra, p. 165 U. S. 281 ; Patterson v. Colorado, supra, p. 205 U. S. 462 ; Fox v. Washington, supra, p. 236 U. S. 277 ; Gilbert v. Minnesota, supra, p. 254 U. S. 339 ; People v. Most, 171 N.Y. 423, 431; State v. Holm, 139 Minn. 267, 275; State v. Hennessy, 114 Wash. 351, 359; State v. Boyd, 86 N.J.L. 75, 79; State v. McKee, 73 Conn. 18, 27. Thus, it was held by this Court in the Fox Case that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a State may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies. And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press, said Story ( supra ) does not protect disturbances to the public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. State v. Page 268 U. S. 668 Holm, supra, p. 275. It does not protect publications prompting the overthrow of government by force; the punishment of those who publish articles which tend to destroy organized society being essential to the security of freedom and the stability of the State. People v. Most, supra, pp. 431, 432. And a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. People v. Lloyd, 304 Ill. 23, 34. See also State v. Tachin, 92 N.J.L. 269, 274, and People v. Steelik, 187 Cal. 361, 375. In short, this freedom does not deprive a State of the primary and essential right of self-preservation, which, so long as human governments endure, they cannot be denied. Turner v. Williams, 194 U. S. 279 , 194 U. S. 294 . In Toledo Newspaper Co. v. United States, 247 U. S. 402 , 247 U. S. 419 , it was said: "The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions." By enacting the present statute, the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute. Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 . And the case is to be considered "in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare;" and that its police "statutes may only be declared unconstitutional where they are arbitrary or unreasonable Page 268 U. S. 669 attempts to exercise authority vested in the State in the public interest." Great Northern Ry. v. Clara City, 246 U. S. 434 , 246 U. S. 439 . That utterances inciting to the overthrow of organized government by unlawful means present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace, and ultimate revolution. And the immediate danger is none the less real and substantial because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. In People v. Lloyd, supra, p. 35, it was aptly said: "Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there Page 268 U. S. 670 would be neither prosecuting officers nor courts for the enforcement of the law." We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press, and we must and do sustain its constitutionality. This being so, it may be applied to every utterance -- not too trivial to be beneath the notice of the law -- which is of such a character and used with such intent and purpose as to bring it within the prohibition of the statute. This principle is illustrated in Fox v. Washington, supra, p. 236 U. S. 277 ; Abrams v. United States, 250 U. S. 616 , 250 U. S. 624 ; Schaefer v. United States, supra., pp. 251 U. S. 479 , 251 U. S. 480 ; Pierce v. United States, 252 U. S. 239 , 252 U. S. 250 , 252 U. S. 251 ; [ Footnote 10 ] and Gilbert v. Minnesota, supra, p. 254 U. S. 333 . In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil is not open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition. It is clear that the question in such cases is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language Page 268 U. S. 671 used by the defendant for the purpose of bringing about the prohibited results. There, if it be contended that the statute cannot be applied to the language used by the defendant because of its protection by the freedom of speech or press, it must necessarily be found, as an original question, without any previous determination by the legislative body, whether the specific language used involved such likelihood of bringing about the substantive evil as to deprive it of the constitutional protection. In such cases, it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent. Schenck v. United States, supra, p. 249 U. S. 51 ; Debs v. United States, supra., pp. 249 U. S. 215 , 249 U. S. 216 . And the general statement in the Schenck Case (p. 249 U. S. 52 ) that the "question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils" -- upon which great reliance is placed in the defendant's argument -- was manifestly intended, as shown by the context, to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character. The defendant's brief does not separately discuss any of the rulings of the trial court. It is only necessary to say that, applying the general rules already stated, we find that none of them involved any invasion of the constitutional rights of the defendant. It was not necessary, within the meaning of.the statute, that the defendant should have advocated "some definite or immediate act or acts" of force, violence or unlawfulness. It was sufficient if such acts were advocated in general terms, and it was not essential that their immediate execution should Page 268 U. S. 672 have been advocated. Nor was it necessary that the language should have been "reasonably and ordinarily calculated to incite certain persons" to acts of force, violence or unlawfulness. The advocacy need not be addressed to specific persons. Thus, the publication and circulation of a newspaper article may be an encouragement or endeavor to persuade to murder, although not addressed to any person in particular. Queen v. Most, L.R., 7 Q.B.D. 244. We need not enter upon a consideration of the English common law rule of seditious libel or the Federal Sedition Act of 1798, to which reference is made in the defendant's brief. These are so unlike the present statute that we think the decisions under them cast no helpful light upon the questions here. And finding, for the reasons stated, that the statute is not, in itself, unconstitutional, and that it has not been applied in the present case in derogation of any constitutional right, the judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] Laws of 1909, ch. 88; Consol.Laws, 1909, ch. 40. This statute was originally enacted in 1902. Laws of 1902, ch. 371. [ Footnote 2 ] Italics are given as in the original, but the paragraphing is omitted. " The Left Wing Manifesto" " Issued on Authority of the Conference by the " " National Council of the Left Wing " "The world is in crisis. Capitalism, the prevailing system of society, is in process of disintegration and collapse. . . . Humanity can be saved from its last excesses only by the Communist Revolution. There can now be only the Socialism which is one in temper and purpose with the proletarian revolutionary struggle. . . . The class struggle is the heart of Socialism. Without strict conformity to the class struggle, in its revolutionary implications, Socialism becomes either sheer Utopianism, or a method of reaction. . . . The dominant Socialism united with the capitalist governments to prevent a revolution. The Russian Revolution was the first act of the proletariat against the war and Imperialism. . . . [The] proletariat, urging on the poorer peasantry, conquered power. It accomplished a proletarian revolution by means of the Bolshevik policy of 'all power to the Soviets,' -- organizing the new transitional state of proletarian dictatorship. . . . Moderate Socialism affirms that the bourgeois, democratic parliamentary state is the necessary basis for the introduction of Socialism. . . . Revolutionary Socialism, on the contrary, insists that the democratic parliamentary state can never be the basis for the introduction of Socialism; that it is necessary to destroy the parliamentary state, and construct a new state of the organized producers, which will deprive the bourgeoisie of political power, and function as a revolutionary dictatorship of the proletariat. . . . Revolutionary Socialism alone is capable of mobilizing the proletariat for Socialism, for the conquest of the power of the state, by means of revolutionary mass action and proletarian dictatorship. . . . Imperialism is dominant in the United States, which is now a world power. . . . The war has aggrandized American Capitalism, instead of weakening it as in Europe. . . . These conditions modify our immediate task, but do not alter its general character; this is not the moment of revolution, but it is the moment of revolutionary struggle. . . . Strikes are developing which verge on revolutionary action, and in which the suggestion of proletarian dictatorship is apparent, the striker-workers trying to usurp functions of municipal government, as in Seattle and Winnipeg. The mass struggle of the proletariat is coming into being. . . . These strikes will constitute the determining feature of proletarian action in the days to come. Revolutionary Socialism must use these mass industrial revolts to broaden the strike, to make it general and militant; use the strike for political objectives, and, finally, develop the mass political strike against Capitalism and the state. Revolutionary Socialism must base itself on the mass struggles of the proletariat, engage directly in these struggles while emphasizing the revolutionary purposes of Socialism and the proletarian movement. The mass strikes of the American proletariat provide the material basis out of which to develop the concepts and action of revolutionary Socialism. . . . Our " brk: task . . . is to articulate and organize the mass of the unorganized industrial proletariat, which constitutes the basis for a militant Socialism. The struggle for the revolutionary industrial unionism of the proletariat becomes an indispensable phase of revolutionary Socialism, on the basis of which to broaden and deepen the action of the militant proletariat, developing reserves for the ultimate conquest of power. . . . Revolutionary Socialism adheres to the class struggle because through the class struggle alone -- the mass struggle -- can the industrial proletariat secure immediate concessions and finally conquer power by organizing the industrial government of the working class. The class struggle is a political struggle . . . in the sense that its objective is political -- the overthrow of the political organization upon which capitalistic exploitation depends, and the introduction of a new social system. The direct objective is the conquest by the proletariat of the power of the state. Revolutionary Socialism does not propose to "capture" the bourgeois parliamentary state, but to conquer and destroy it. Revolutionary Socialism, accordingly, repudiates the policy of introducing Socialism by means of legislative measures on the basis of the bourgeois state. . . . It proposes to conquer by means of political action . . . in the revolutionary Marxian sense, which does not simply mean parliamentarism, but the class action of the proletariat in any form having as its objective the conquest of the power of the state. . . . Parliamentary action which emphasizes the implacable character of the class struggle is an indispensable means of agitation. . . . But parliamentarism cannot conquer the power of the state for the proletariat. . . . It is accomplished not by the legislative representatives of the proletariat, but by the mass power of the proletariat in action. The supreme power of the proletariat inheres in the political mass strike, in using the industrial mass power of the proletariat for political objectives. Revolutionary Socialism, accordingly, recognizes that the supreme form of proletarian political action is the political mass strike. . . . The power of the proletariat lies fundamentally in its control of the industrial process. The mobilization of this control in action against the bourgeois state and Capitalism means the end of Capitalism, the initial form of the revolutionary mass action that will conquer the power of the state. . . . The revolution starts with strikes of protest, developing into mass political strikes and then into revolutionary mass action for the conquest of the power of the state. Mass action becomes political in purpose while extra-parliamentary in form; it is equally a process of revolution and the revolution itself in operation. The final objective of mass action is the conquest of the power of the state, the annihilation of the bourgeois parliamentary state and the introduction of the transition proletarian state, functioning as a revolutionary dictatorship of the proletariat. . . . The bourgeois parliamentary state is the organ of the bourgeoisie for the coercion of the proletariat. The revolutionary proletariat must, accordingly, destroy this state. . . . It is therefore necessary that the proletariat organize its own state for the coercion and suppression of the bourgeoisie. . . . Proletarian dictatorship is a recognition of the necessity for a revolutionary state to coerce and suppress the bourgeoisie; it is equally a recognition of the fact that, in the Communist reconstruction of society, the proletariat as a class alone counts. . . . The old machinery of the state cannot be used by the revolutionary proletariat. It must be destroyed. The proletariat creates a new state, based directly upon the industrially organized producers, upon the industrial unions or Soviets, or a combination of both. It is this state alone, functioning as a dictatorship of the proletariat, that can realize Socialism. . . . While the dictatorship of the proletariat performs its negative task of crushing the old order, it brk: performs the positive task of constructing the new. Together with the government of the proletarian dictatorship, there is developed a new "government," which is no longer government in the old sense, since it concerns itself with the management of production, and not with the government of persons. Out of workers' control of industry, introduced by the proletarian dictatorship, there develops the complete structure of Communist Socialism -- industrial self-government of the communistically organized producers. When this structure is completed, which implies the complete expropriation of the bourgeoisie economically and politically, the dictatorship of the proletariat ends, in its place coming the full and free social and individual autonomy of the Communist order. . . . It is not a problem of immediate revolution. It is a problem of the immediate revolutionary struggle. The revolutionary epoch of the final struggle against Capitalism may last for years and tens of years; but the Communist International offers a policy and program immediate and ultimate in scope, that provides for the immediate class struggle against Capitalism, in its revolutionary implications, and for the final act of the conquest of power. The old order is in decay. Civilization is in collapse. The proletarian revolution and the Communist reconstruction of society -- the struggle for these -- is now indispensable. This is the message of the Communist International to the workers of the world. The Communist International calls the proletariat of the world to the final struggle! [ Footnote 3 ] There was testimony at the trial that "there was an extended strike at Winnipeg commencing May 15, 1919, during which the production and supply of necessities, transportation, postal and telegraphic communication and fire and sanitary protection were suspended or seriously curtailed." [ Footnote 4 ] 195 App.Div. 773, 782, 790. [ Footnote 5 ] Five judges, constituting the majority of the court, agreed in this view. 234 N.Y. 132, 138. And the two judges, constituting the minority -- who dissented solely on a question as to the construction of the statute which is not here involved -- said in reference to the Manifesto: "Revolution for the purpose of overthrowing the present form and the established political system of the United States government by direct means.rather than by constitutional means is therein clearly advocated and defended. . . ." P. 154. [ Footnote 6 ] Pages 141, 142. [ Footnote 7 ] Pages 149, 150. [ Footnote 8 ] Exceptions to all of these rulings had been duly taken. [ Footnote 9 ] Compare Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 ; Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 108 ; Coppage v. Kansas, 236 U. S. 1 , 236 U. S. 17 ; Fox v. Washington, 236 U. S. 273 , 236 U. S. 276 ; Schaefer v. United States, 251 U. S. 466 , 251 U. S. 474 ; Gilbert v. Minnesota, 254 U. S. 325 , 254 U. S. 338 ; Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 ; 2 Story On the Constitution, 5th Ed., § 1950, p. 698. [ Footnote 10 ] This reference is to so much of the decision as relates to the conviction under the third count. In considering the effect of the decisions under the Espionage Act of 1917 and the amendment of 1918, the distinction must be kept in mind between indictments under those provisions which specifically punish certain utterances, and those which merely punish specified acts in general terms, without specific reference to the use of language. MR. JUSTICE HOLMES, dissenting. MR. JUSTICE BRANDEIS and I are of opinion that this judgment should be reversed. The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word "liberty" as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States. If I am right, then I think that the criterion sanctioned by the full Court in Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 , applies. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive Page 268 U. S. 673 evils that [the State] has a right to prevent." It is true that, in my opinion, this criterion was departed from in Abrams v. United States, 250 U. S. 616 , but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it and Schaefer v. United States, 251 U. S. 466 , have settled the law. If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. If the publication of this document had been laid as an attempt to induce an uprising against government at once, and not at some indefinite time in the future, it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words, whether it was not futile and too remote from possible consequences. But the indictment alleges the publication, and nothing more.

In Gitlow v. People, the U.S. Supreme Court upheld a New York statute that punished individuals who advocated for the overthrow of organized government by force or other unlawful means. The Court assumed that freedom of speech and press are protected by the Due Process Clause of the Fourteenth Amendment from state impairment. However, it also recognized that these freedoms are not absolute and may be regulated by states in certain circumstances. The Court determined that states have the power to punish speech that poses a danger to public welfare, corrupts morals, incites crime, or disturbs the peace. Additionally, states may punish speech that endangers the foundations of organized government and threatens its overthrow by unlawful means. The Court gave deference to the legislative determination that such speech poses a significant threat to public welfare and can be penalized under the state's police power. Justice Holmes, in his dissenting opinion, argued for a broader interpretation of free speech under the Fourteenth Amendment. He proposed the "clear and present danger" test, suggesting that speech should only be restricted if it creates an imminent threat of substantive harm. In this case, he believed there was no imminent danger of an uprising or overthrow of the government and, therefore, the defendant's speech should have been protected.

Free Speech

Near v. Minnesota

https://supreme.justia.com/cases/federal/us/283/697/

U.S. Supreme Court Near v. Minnesota, 283 U.S. 697 (1931) Near v. Minnesota No. 91 Argued January 30, 1931 Decided June 1, 1931 283 U.S. 697 APPEAL FROM THE SUPREME COURT OF MINNESOTA Syllabus 1. A Minnesota statute declares that one who engages "in the business of regularly and customarily producing, publishing," etc., "a malicious, scandalous and defamatory newspaper, magazine or other periodical," is guilty of a nuisance, and authorizes suits, in the name of the State, in which such periodicals may be abated and their publishers enjoined from future violations. In such a suit, malice may be inferred from the fact of publication. The defendant is permitted to prove, as a defense, that his publications were true and published "with good motives and for justifiable ends." Disobedience of an injunction is punishable as a contempt. Held unconstitutional, as applied to publications charging neglect of duty and corruption upon the part of law-enforcing officers of the State. Pp. 283 U. S. 704 , 283 U.S. 709 , 283 U. S. 712 , 283 U. S. 722 . 2. Liberty of the press is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. P. 283 U. S. 707 . 3. Liberty of the press is not an absolute right, and the State may punish its abuse. P. 283 U. S. 708 . 4. In passing upon the constitutionality of the statute, the court has regard for substance, and not for form; the statute must be tested by its operation and effect. P. 283 U. S. 708 . Page 283 U. S. 698 5. Cutting through mere details of procedure, the operation and effect of the statute is that public authorities may bring a publisher before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter -- in particular, that the matter consists of charges against public officials of official dereliction -- and, unless the publisher is able and disposed to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is the essence of censorship. P. 283 U. S. 713 . 6. A statute authorizing such proceedings in restraint of publication is inconsistent with the conception of the liberty of the press as historically conceived and guaranteed. P. 283 U. S. 713 . 7. The chief purpose of the guaranty is to prevent previous restraints upon publication. The libeler, however, remains criminally and civilly responsible for his libels. P. 283 U. S. 713 . 8. There are undoubtedly limitations upon the immunity from previous restraint of the press, but they are not applicable in this case. P. 283 U. S. 715 . 9. The liberty of the press has been especially cherished in this country as respects publications censuring public officials and charging official misconduct. P. 283 U. S. 716 . 10. Public officers find their remedies for false accusations in actions for redress and punishment under the libel laws, and not in proceedings to restrain the publication of newspapers and periodicals. P. 283 U. S. 718 . 11. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity from previous restraint in dealing with official misconduct. P. 283 U. S. 720 . 12. Characterizing the publication of charges of official misconduct as a "business," and the business as a nuisance, does not avoid the constitutional guaranty; nor does it matter that the periodical is largely or chiefly devoted to such charges. P. 283 U. S. 720 . 13. The guaranty against previous restraint extends to publications charging official derelictions that amount to crimes. P. 283 U. S. 720 . 14. Permitting the publisher to show in defense that the matter published is true and is published with good motives and for justifiable ends does not justify the statute. P. 283 U. S. 721 . 15. Nor can it be sustained as a measure for preserving the public peace and preventing assaults and crime. Pp. 283 U. S. 721 , 283 U. S. 722 . 179 Minn. 40; 228 N.W. 326, reversed. Page 283 U. S. 699 APPEAL from a decree which sustained an injunction abating the publication of a periodical as malicious, scandalous and defamatory, and restraining future publication. The suit was based on a Minnesota statute. See also s.c., 174 Minn. 457, 219 N.W. 770. Page 283 U. S. 701 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. Chapter 285 of the Session Laws of Minnesota for the year 1925 [ Footnote 1 ] provides for the abatement, as a public nuisance, of a "malicious, scandalous and defamatory newspaper, Page 283 U. S. 702 magazine or other periodical." Section one of the Act is as follows: "Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away" "(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or" "(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical," is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided. "Participation in such business shall constitute a commission of such nuisance and render the participant liable and subject to the proceedings, orders and judgments provided for in this Act. Ownership, in whole or in part, directly or indirectly, of any such periodical, or of any stock or interest in any corporation or organization which owns the same in whole or in part, or which publishes the same, shall constitute such participation." "In actions brought under (b) above, there shall be available the defense that the truth was published with good motives and for justifiable ends and in such actions the plaintiff shall not have the right to report ( sic ) to issues or editions of periodicals taking place more than three months before the commencement of the action." Section two provides that, whenever any such nuisance is committed or exists, the County Attorney of any county where any such periodical is published or circulated, or, in case of his failure or refusal to proceed upon written request in good faith of a reputable citizen, the Attorney General, or, upon like failure or refusal of the latter, any citizen of the county may maintain an action in the district court of the county in the name of the State to enjoin Page 283 U. S. 703 perpetually the persons committing or maintaining any such nuisance from further committing or maintaining it. Upon such evidence as the court shall deem sufficient, a temporary injunction may be granted. The defendants have the right to plead by demurrer or answer, and the plaintiff may demur or reply as in other cases. The action, by section three, is to be " governed by the practice and procedure applicable to civil actions for injunctions," and, after trial, the court may enter judgment permanently enjoining the defendants found guilty of violating the Act from continuing the violation, and, "in and by such judgment, such nuisance may be wholly abated." The court is empowered, as in other cases of contempt, to punish disobedience to a temporary or permanent injunction by fine of not more than $1,000 or by imprisonment in the county jail for not more than twelve months. Under this statute, clause (b), the County Attorney of Hennepin County brought this action to enjoin the publication of what was described as a " malicious, scandalous and defamatory newspaper, magazine and periodical" known as " The Saturday Press," published by the defendants in the city of Minneapolis. The complaint alleged that the defendants, on September 24, 1927, and on eight subsequent dates in October and November, 1927, published and circulated editions of that periodical which were "largely devoted to malicious, scandalous and defamatory articles" concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the members of the Grand Jury of Hennepin County impaneled in November, 1927, and then holding office, and other persons, as more fully appeared in exhibits annexed to the complaint, consisting of copies of the articles described and constituting 327 pages of the record. While the complaint did not so allege, it Page 283 U. S. 704 appears from the briefs of both parties that Charles G. Davis was a special law enforcement officer employed by a civic organization, that George E. Leach was Mayor of Minneapolis, that Frank W. Brunskill was its Chief of Police, and that Floyd B. Olson (the relator in this action) was County Attorney. Without attempting to summarize the contents of the voluminous exhibits attached to the complaint, we deem it sufficient to say that the articles charged in substance that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies were not energetically performing their duties. Most of the charges were directed against the Chief of Police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The County Attorney was charged with knowing the existing conditions and with failure to take adequate measures to remedy them. The Mayor was accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles, was shot by gangsters after the first issue of the periodical had been published. There is no question but that the articles made serious accusations against the public officers named and others in connection with the prevalence of crimes and the failure to expose and punish them. At the beginning of the action, on November 22, 1927, and upon the verified complaint, an order was made directing the defendants to show cause why a temporary injunction should not issue and meanwhile forbidding the defendants to publish, circulate or have in their possession any editions of the periodical from September Page 283 U. S. 705 24, 1927, to November 19, 1927, inclusive, and from publishing, circulating, or having in their possession, "any future editions of said The Saturday Press" and "any publication, known by any other name whatsoever containing malicious, scandalous and defamatory matter of the kind alleged in plaintiff's complaint herein or otherwise." The defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and on this demurrer challenged the constitutionality of the statute. The District Court overruled the demurrer and certified the question of constitutionality to the Supreme Court of the State. The Supreme Court sustained the statute (174 Minn. 457, 219 N.W. 770), and it is conceded by the appellee that the Act was thus held to be valid over the objection that it violated not only the state constitution, but also the Fourteenth Amendment of the Constitution of the United States. Thereupon, the defendant Near, the present appellant, answered the complaint. He averred that he was the sole owner and proprietor of the publication in question. He admitted the publication of the articles in the issues described in the complaint, but denied that they were malicious, scandalous or defamatory as alleged. He expressly invoked the protection of the due process clause of the Fourteenth Amendment. The case then came on for trial. The plaintiff offered in evidence the verified complaint, together with the issues of the publication in question, which were attached to the complaint as exhibits. The defendant objected to the introduction of the evidence, invoking the constitutional provisions to which his answer referred. The objection was overruled, no further evidence was presented, and the plaintiff rested. The defendant then rested without offering evidence. The plaintiff moved that the court direct the issue of a permanent injunction, and this was done. Page 283 U. S. 706 The District Court made findings of fact which followed the allegations of the complaint and found in general terms that the editions in question were "chiefly devoted to malicious, scandalous and defamatory articles" concerning the individuals named. The court further found that the defendants, through these publications, "did engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper," and that "the said publication" "under said name of The Saturday Press, or any other name, constitutes a public nuisance under the laws of the State." Judgment was thereupon entered adjudging that "the newspaper, magazine and periodical known as The Saturday Press," as a public nuisance, "be and is hereby abated." The Judgment perpetually enjoined the defendants "from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law," and also "from further conducting said nuisance under the name and title of said The Saturday Press or any other name or title." The defendant Near appealed from this judgment to the Supreme Court of the State, again asserting his right under the Federal Constitution, and the judgment was affirmed upon the authority of the former decision. 179 Minn. 40, 228 N.W. 326. With respect to the contention that the judgment went too far, and prevented the defendants from publishing any kind of a newspaper, the court observed that the assignments of error did not go to the form of the judgment, and that the lower court had not been asked to modify it. The court added that it saw no reason "for defendants to construe the judgment as restraining them from operating a newspaper in harmony with the public welfare, to which all must yield," that the allegations of the complaint had been Page 283 U. S. 707 found to be true, and, though this was an equitable action, defendants had not indicated a desire "to conduct their business in the usual and legitimate manner." From the judgment as thus affirmed, the defendant Near appeals to this Court. This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property. Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 362 , 274 U. S. 373 ; Fiske v. Kansas, 274 U. S. 380 , 274 U. S. 382 ; Stromberg v. California, ante, p. 283 U. S. 359 . In maintaining this guaranty, the authority of the State to enact laws to promote the health, safety, morals and general welfare of its people is necessarily admitted. The limits of this sovereign power must always be determined with appropriate regard to the particular subject of its exercise. Thus, while recognizing the broad discretion of the legislature in fixing rates to be charged by those undertaking a public service, this Court has decided that the owner cannot constitutionally be deprived of his right to a fair return, because that is deemed to be of the essence of ownership. Railroad Commission Cases, 116 U. S. 307 , 116 U. S. 331 ; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585 , 236 U. S. 596 . So, while liberty of contract is not an absolute right, and the wide field of activity in the making of contracts is subject to legislative supervision ( Frisbie v. United States, 157 U. S. 161 , 157 U. S. 165 ), this Court has held that the power of the State stops short of interference with what are deemed Page 283 U. S. 708 to be certain indispensable requirements of the liberty assured, notably with respect to the fixing of prices and wages. Tyson Bros. v. Banton, 273 U. S. 418 ; Ribnik v. McBride, 277 U. S. 350 ; Adkins v. Children's Hospital, 261 U. S. 525 , 261 U. S. 560 , 261 U. S. 561 . Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse. Whitney v. California, supra; Stromberg v. California, supra. Liberty, in each of its phases, has its history and connotation, and, in the present instance, the inquiry is as to the historic conception of the liberty of the press and whether the statute under review violates the essential attributes of that liberty. The appellee insists that the questions of the application of the statute to appellant's periodical, and of the construction of the judgment of the trial court, are not presented for review; that appellant's sole attack was upon the constitutionality of the statute, however it might be applied. The appellee contends that no question either of motive in the publication, or whether the decree goes beyond the direction of the statute, is before us. The appellant replies that, in his view, the plain terms of the statute were not departed from in this case, and that, even if they were, the statute is nevertheless unconstitutional under any reasonable construction of its terms. The appellant states that he has not argued that the temporary and permanent injunctions were broader than were warranted by the statute; he insists that what was done was properly done if the statute is valid, and that the action taken under the statute is a fair indication of its scope. With respect to these contentions, it is enough to say that, in passing upon constitutional questions, the court has regard to substance, and not to mere matters of form, and that, in accordance with familiar principles, the statute must be tested by its operation and effect. Henderson v. Mayor, 92 U. S. 259 , 92 U. S. 268 ; Bailey v. Alabama , 219 Page 283 U. S. 709 U.S. 219, 219 U. S. 244 ; United States v. Reynolds, 235 U. S. 133 , 235 U. S. 148 , 235 U. S. 149 ; St. Louis Southwestern R. Co. v. Arkansas, 235 U. S. 350 , 235 U. S. 362 ; Mountain Timber Co. v. Washington, 243 U. S. 219 , 243 U. S. 237 . That operation and effect we think is clearly shown by the record in this case. We are not concerned with mere errors of the trial court, if there be such, in going beyond the direction of the statute as construed by the Supreme Court of the State. It is thus important to note precisely the purpose and effect of the statute as the state court has construed it. First. The statute is not aimed at the redress of individual or private wrongs. Remedies for libel remain available and unaffected. The statute, said the state court, "is not directed at threatened libel, but at an existing business which, generally speaking, involves more than libel." It is aimed at the distribution of scandalous matter as "detrimental to public morals and to the general welfare," tending "to disturb the peace of the community" and "to provoke assaults and the commission of crime." In order to obtain an injunction to suppress the future publication of the newspaper or periodical, it is not necessary to prove the falsity of the charges that have been made in the publication condemned. In the present action, there was no allegation that the matter published was not true. It is alleged, and the statute requires the allegation, that the publication was "malicious." But, as in prosecutions for libel, there is no requirement of proof by the State of malice in fact, as distinguished from malice inferred from the mere publication of the defamatory matter. [ Footnote 2 ] The judgment in this case proceeded upon the mere proof of publication. The statute permits the defense not of the truth alone, but only that the truth was published with good motives and Page 283 U. S. 710 for justifiable ends. It is apparent that, under the statute, the publication is to be regarded as defamatory if it injures reputation, and that it is scandalous if it circulates charges of reprehensible conduct, whether criminal or otherwise, and the publication is thus deemed to invite public reprobation and to constitute a public scandal. The court sharply defined the purpose of the statute, bringing out the precise point, in these words: "There is no constitutional right to publish a fact merely because it is true. It is a matter of common knowledge that prosecutions under the criminal libel statutes do not result in efficient repression or suppression of the evils of scandal. Men who are the victims of such assaults seldom resort to the courts. This is especially true if their sins are exposed and the only question relates to whether it was done with good motives and for justifiable ends. This law is not for the protection of the person attacked, nor to punish the wrongdoer. It is for the protection of the public welfare." Second. The statute is directed not simply at the circulation of scandalous and defamatory statements with regard to private citizens, but at the continued publication by newspapers and periodicals of charges against public officers of corruption, malfeasance in office, or serious neglect of duty. Such charges, by their very nature, create a public scandal. They are scandalous and defamatory within the meaning of the statute, which has its normal operation in relation to publications dealing prominently and chiefly with the alleged derelictions of public officers. [ Footnote 3 ] Page 283 U. S. 711 Third. The object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical. The reason for the enactment, as the state court has said, is that prosecutions to enforce penal statutes for libel do not result in "efficient repression or suppression of the evils of scandal." Describing the business of publication as a public nuisance does not obscure the substance of the proceeding which the statute authorizes. It is the continued publication of scandalous and defamatory matter that constitutes the business and the declared nuisance. In the case of public officers, it is the reiteration of charges of official misconduct, and the fact that the newspaper or periodical is principally devoted to that purpose, that exposes it to suppression. In the present instance, the proof was that nine editions of the newspaper or periodical in question were published on successive dates, and that they were chiefly devoted to charges against public officers and in relation to the prevalence and protection of crime. In such a case, these officers are not left to their ordinary remedy in a suit for libel, or the authorities to a prosecution for criminal libel. Under this statute, a publisher of a newspaper or periodical, undertaking to conduct a campaign to expose and to censure official derelictions, and devoting his publication principally to that purpose, must face not simply the possibility of a verdict against him in a suit or prosecution for libel, but a determination that his newspaper or periodical is a public nuisance to be abated, and that this abatement and suppression will follow unless he is prepared with legal evidence to prove the truth of the charges and also to satisfy the court that, in Page 283 U. S. 712 addition to being true, the matter was published with good motives and for justifiable ends. This suppression is accomplished by enjoining publication, and that restraint is the object and effect of the statute. Fourth. The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher under an effective censorship. When a newspaper or periodical is found to be "malicious, scandalous, and defamatory," and is suppressed as such, resumption of publication is punishable as a contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed because of the circulation of charges against public officers of official misconduct, it would seem to be clear that the renewal of the publication of such charges would constitute a contempt, and that the judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication. Whether he would be permitted again to publish matter deemed to be derogatory to the same or other public officers would depend upon the court's ruling. In the present instance, the judgment restrained the defendants from "publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law." The law gives no definition except that covered by the words "scandalous and defamatory," and publications charging official misconduct are of that class. While the court, answering the objection that the judgment was too broad, saw no reason for construing it as restraining the defendants "from operating a newspaper in harmony with the public welfare to which all must yield," and said that the defendants had not indicated "any desire to conduct their business in the usual and legitimate manner," the manifest inference is that, at least with respect to a Page 283 U. S. 713 new publication directed against official misconduct, the defendant would be held, under penalty of punishment for contempt as provided in the statute, to a manner of publication which the court considered to be "usual and legitimate" and consistent with the public welfare. If we cut through mere details of procedure, the operation and effect of the statute, in substance, is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter -- in particular, that the matter consists of charges against public officers of official dereliction -- and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship. The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. [ Footnote 4 ] The liberty deemed to be established was thus described by Blackstone: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an Page 283 U. S. 714 undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity." 4 Bl.Com. 151, 152; see Story on the Constitution, §§ 1884, 1889. The distinction was early pointed out between the extent of the freedom with respect to censorship under our constitutional system and that enjoyed in England. Here, as Madison said, "the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt not only from previous restraint by the Executive, a in Great Britain, but from legislative restraint also." Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said, in Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 : "In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth v. Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald , 1 Dallas 319, 1 U.S. 325 . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all. Commonwealth v. Blanding, ubi sup.; 4 Bl.Com. 150." The criticism upon Blackstone's statement has not been because immunity from previous restraint upon publication has not been regarded as deserving of special emphasis, but chiefly because that immunity cannot be deemed to exhaust the conception of the liberty guaranteed by Page 283 U. S. 715 state and federal constitutions. The point of criticism has been "that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions", and that "the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications." 2 Cooley, Const.Lim., 8th ed., p. 885. But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions. Id., pp. 883, 884. The law of criminal libel rests upon that secure foundation. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions. Patterson v. Colorado, supra; Toledo Newspaper Co. v. United States, 247 U. S. 402 , 247 U. S. 419 . [ Footnote 5 ] In the present case, we have no occasion to inquire as to the permissible scope of subsequent punishment. For whatever wrong the appellant has committed or may commit by his publications the State appropriately affords both public and private redress by its libel laws. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction, that is, for restraint upon publication. The objection has also been made that the principle as to immunity from previous restraint is stated too Page 283 U. S. 716 broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. [ Footnote 6 ] On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not "protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck Stove & Range Co., 221 U. S. 418 , 221 U. S. 439 ." Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned with questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity. [ Footnote 7 ] The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally, although not exclusively, immunity from previous restraints or censorship. The conception of the liberty of the press in this country had broadened with the exigencies of the colonial Page 283 U. S. 717 period and with the efforts to secure freedom from oppressive administration. [ Footnote 8 ] That liberty was especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct. As was said by Chief Justice Parker, in Commonwealth v. Blanding, 3 Pick. 304, 313, with respect to the constitution of Massachusetts: "Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practiced by other governments, and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse." In the letter sent by the Continental Congress (October 26, 1774) to the Inhabitants of Quebec, referring to the "five great rights," it was said: [ Footnote 9 ] "The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs." Madison, who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, thus described the practice and sentiment which led to the guaranties of liberty of the press in state constitutions: [ Footnote 10 ] Page 283 U. S. 718 "In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this footing it yet stands. . . . Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the States that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source the United States owe much of the lights which conducted them to the ranks of a free and independent nation, and which have improved their political system into a shape so auspicious to their happiness? Had 'Sedition Acts,' forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a foreign yoke?" The fact that, for approximately one hundred and fifty years, there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. Public officers, whose character and Page 283 U. S. 719 conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions. [ Footnote 11 ] The importance of this immunity has not lessened. While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and Page 283 U. S. 720 property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege. In attempted justification of the statute, it is said that it deals not with publication per se, but with the "business" of publishing defamation. If, however, the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as serious in one publication as in several. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it does not matter that the newspaper or periodical is found to be "largely" or "chiefly" devoted to the publication of such derelictions. If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of municipal charters and ordinances carrying penal sanctions, the conduct of Page 283 U. S. 721 public officers is very largely within the purview of criminal statutes. The freedom of the press from previous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is constitutionally valid, it would be equally permissible for the legislature to provide that at any time the publisher of any newspaper could be brought before a court, or even an administrative officer (as the constitutional protection may not be regarded as resting on mere procedural details) and required to produce proof of the truth of his publication, or of what he intended to publish, and of his motives, or stand enjoined. If this can be done, the legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends, and restrain publication accordingly. And it would be but a step to a complete system of censorship. The recognition of authority to impose previous restraint upon publication in order to protect the community against the circulation of charges of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the authority of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth. Patterson v. Colorado, supra. Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends Page 283 U. S. 722 to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. "To prohibit the intent to excite those unfavorable sentiments against those who administer the Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect, which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct. [ Footnote 12 ]" There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well understood tendency did not alter the determination to protect the press against censorship and restraint upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72: "If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited." The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, and if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words. For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) Page 283 U. S. 723 of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication. Judgment reversed. [ Footnote 1 ] Mason's Minnesota Statutes, 1927, 10123-1 to 10123-3. [ Footnote 2 ] Mason's Minn.Stats. 10112, 10113; State v. Shipman, 83 Minn. 441, 445, 86 N.W. 431; State v. Minor, 163 Minn. 109, 110, 203 N.W. 596. [ Footnote 3 ] It may also be observed that, in a prosecution for libel, the applicable Minnesota statute (Mason's Minn.Stats., 1927, §§ 10112, 10113) provides that the publication is justified "whenever the matter charged as libelous is true and was published with good motives and for justifiable ends," and also "is excused when honestly made, in belief of its truth, and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of a person in respect to public affairs." The clause last mentioned is not found in the statute in question. [ Footnote 4 ] May, Constitutional History of England, vol. 2, chap. IX, p. 4; DeLolme, Commentaries on the Constitution of England, chap. IX, pp. 318, 319. [ Footnote 5 ] See Hugonson's Case, 2 Atk. 469; Respublica v. Oswald , 1 Dallas 319; Cooper v. People, 13 Colo. 337, 373, 22 Pac. 790; Nebraska v. Rosewater, 60 Nebr. 438, 83 N.W. 353; State v. Tugwell, 19 Wash. 238, 52 Pac. 1056; People v. Wilson, 64 Ill. 195; Storey v. People, 79 Ill. 45; State v. Circuit Court, 97 Wis. 1, 72 N.W. 193. [ Footnote 6 ] Chafee, Freedom of Speech, p. 10. [ Footnote 7 ] See 29 Harvard Law Review, 640. [ Footnote 8 ] See Duniway "The Development of Freedom of the Press in Massachusetts," p. 123; Bancroft's History of the United States, vol. 2, 261. [ Footnote 9 ] Journal of the Continental Congress, 1904 ed., vol. I, pp. 104, 108. [ Footnote 10 ] Report on the Virginia Resolutions, Madison's Works, vol. iv, 544. [ Footnote 11 ] Dailey v. Superior Court, 112 Cal. 94, 98, 44 Pac. 458; Jones, Varnum & Co. v. Townsend's Admx., 21 Fla. 431, 450; State ex rel. Liversey v. Judge, 34 La. 741, 743; Commonwealth v. Blanding, 3 Pick, 304, 313; Lindsay v. Montana Federation of Labor, 37 Mont. 264, 275, 277, 96 Pac. 127; Howell v. Bee Publishing Co., 100 Neb. 39, 42, 158 N.W. 358; New Yorker Staats-Zeitung v. Nolan, 89 N.J.Eq. 387, 105 Atl. 72; Brandreth v. Lane, 8 Paige 24; New York Juvenile Guardian Society v. Roosevelt, 7 Daly 188; Ulster Square Dealer v. Fowler, 111 N.Y.Supp. 16; Star Co. v. Brush, 170 id. 987, 172 id. 320, 172 id. 851; Dopp v. Doll, 9 Ohio Dec.Rep. 428; Respublica v. Oswald , 1 Dall. 319, 1 U.S. 325 ; Respublica v. Dennie, 4 Yeates 267, 269; Ex parte Neill, 32 Tex.Cr. 275, 22 S.W. 923; Mitchell v. Grand Lodge, 56 Tex.Civ.App. 306, 309, 121 S.W. 178; Sweeney v. Baker, 13 W.Va. 158, 182; Citizens Light, Heat & Power Co. v. Montgomery Light & Water Co., 171 Fed. 553, 556; Willis v. O'Connell, 231 Fed. 1004, 1010; Dearborn Publishing Co. v. Fitzgerald, 271 Fed. 479, 485. [ Footnote 12 ] Madison, op. cit. p. 549. MR. JUSTICE BUTLER, dissenting. The decision of the Court in this case declares Minnesota and every other State powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous and defamatory periodicals that in due course of judicial procedure has been adjudged to be a public nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized, and construes "liberty" in the due process clause of the Fourteenth Amendment to put upon the States a federal restriction that is without precedent. Confessedly, the Federal Constitution, prior to 1868, when the Fourteenth Amendment was adopted, did not protect the right of free speech or press against state action. Barron v. Baltimore , 7 Pet. 243, 32 U. S. 250 . Fox v. Ohio , 5 How. 410, 46 U. S. 434 . Smith v. Maryland , 18 How. 71, 59 U. S. 76 . Withers v. Buckley , 20 How. 84, 61 U. S. 89 -91. Up to that time, the right was safeguarded solely by the constitutions and laws of the States, and, it may be added, they operated adequately to protect it. This Court was not called on until 1925 to decide whether the "liberty" protected by the Fourteenth Amendment includes the right of free speech and press. That question has been finally answered Page 283 U. S. 724 in the affirmative. Cf. Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 . Prudential Ins. Co. v. Cheek, 259 U. S. 530 , 259 U. S. 538 , 259 U. S. 543 . See Gitlow v. New York, 268 U. S. 652 . Fiske v. Kansas, 274 U. S. 380 . Stromberg v. California, ante, p. 283 U. S. 359 . The record shows, and it is conceded, that defendants' regular business was the publication of malicious, scandalous and defamatory articles concerning the principal public officers, leading newspapers of the city, many private persons and the Jewish race. It also shows that it was their purpose at all hazards to continue to carry on the business. In every edition, slanderous and defamatory matter predominates to the practical exclusion of all else. Many of the statements are so highly improbable as to compel a finding that they are false. The articles themselves show malice. [ Footnote 2/1 ] Page 283 U. S. 725 The defendant here has no standing to assert that the statute is invalid because it might be construed so as to violate the Constitution. His right is limited solely to Page 283 U. S. 726 the inquiry whether, having regard to the point properly raised in his case, the effect of applying the statute is to deprive him of his liberty without due process of law. Page 283 U. S. 727 This Court should not reverse the judgment below upon the ground that, in some other case, the statute may be applied in a way that is repugnant to the freedom of the press protected by the Fourteenth Amendment. Castillo v. McConnico, 168 U. S. 674 , 168 U. S. 680 . Williams v. Mississippi, 170 U. S. 213 , 170 U. S. 225 . Yazoo & Miss. R. Co. v. Jackson Vinegar Co., 226 U. S. 217 , 226 U. S. 219 -220. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 , 232 U. S. 544 -546. This record requires the Court to consider the statute as applied to the business of publishing articles that are, in fact, malicious, scandalous and defamatory. The statute provides that any person who "shall be engaged in the business of regularly or customarily producing, publishing or circulating" a newspaper, magazine or other periodical that is (a) "obscene, lewd and lascivious" or (b) "malicious, scandalous and defamatory" Page 283 U. S. 728 is guilty of a nuisance, and may be enjoined as provided in the Act. It will be observed that the qualifying words are used conjunctively. In actions brought under (b) "there shall be available the defense that the truth was published with good motives and for justifiable ends." The complaint charges that defendants were engaged in the business of regularly and customarily publishing "malicious, scandalous and defamatory newspapers" known as the Saturday Press, and nine editions dated respectively on each Saturday commencing September 25 and ending November 19, 1927, were made a part of the complaint. These are all that were published. On appeal from the order of the district court overruling defendants' demurrer to the complaint, the state supreme court said (174 Minn. 457, 461, 219 N.W. 770): "The constituent elements of the declared nuisance are the customary and regular dissemination by means of a newspaper which finds its way into families, reaching the young as well as the mature, of a selection of scandalous and defamatory articles treated in such a way as to excite attention and interest so as to command circulation. . . . The statute is not directed at threatened libel, but at an existing business which, generally speaking, involves more than libel. The distribution of scandalous matter is detrimental to public morals and to the general welfare. It tends to disturb the peace of the community. Being defamatory and malicious, it tends to provoke assaults and the commission of crime. It has no concern with the publication of the truth, with good motives and for justifiable ends. . . . In Minnesota no agency can hush the sincere and honest voice of the press; but our constitution was never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends. . . . It was never the intention of the constitution to afford protection Page 283 U. S. 729 to a publication devoted to scandal and defamation. . . . Defendants stand before us upon the record as being regularly and customarily engaged in a business of conducting a newspaper sending to the public malicious, scandalous and defamatory printed matter." The case was remanded to the district court. Near's answer made no allegations to excuse or justify the business or the articles complained of. It formally denied that the publications were malicious, scandalous or defamatory, admitted that they were made as alleged, and attacked the statute as unconstitutional. At the trial, the plaintiff introduced evidence unquestionably sufficient to support the complaint. The defendant offered none. The court found the facts as alleged in the complaint, and, specifically, that each edition "was chiefly devoted to malicious, scandalous and defamatory articles" and that the last edition was chiefly devoted to malicious, scandalous and defamatory articles concerning Leach (mayor of Minneapolis), Davis (representative of the law enforcement league of citizens), Brunskill (chief of police), Olson (county attorney), the Jewish race, and members of the grand jury then serving in that court; that defendants, in and through the several publications, "did thereby engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper." Defendant Near again appealed to the supreme court. In its opinion (179 Minn. 40, 228 N.W. 326), the court said: "No claim is advanced that the method and character of the operation of the newspaper in question was not a nuisance if the statute is constitutional. It was regularly and customarily devoted largely to malicious, scandalous and defamatory matter. . . . The record presents the same questions, upon which we have already passed. " Page 283 U. S. 730 Defendant concedes that the editions of the newspaper complained of are "defamatory per se, " and he says: "It has been asserted that the constitution was never intended to be a shield for malice, scandal, and defamation when untrue, or published with bad motives, or for unjustifiable ends. . . . The contrary is true; every person does have a constitutional right to publish malicious, scandalous, and defamatory matter though untrue, and with bad motives, and for unjustifiable ends, in the first instance, though he is subject to responsibility therefor afterwards. " The record, when the substance of the articles is regarded, requires that concession here. And this Court is required to pass on the validity of the state law on that basis. No question was raised below, and there is none here, concerning the relevancy or weight of evidence, burden of proof, justification or other matters of defense, the scope of the judgment or proceedings to enforce it, or the character of the publications that may be made notwithstanding the injunction. There is no basis for the suggestion that defendants may not interpose any defense or introduce any evidence that would be open to them in a libel case, or that malice may not be negatived by showing that the publication was made in good faith in belief of its truth, or that, at the time and under the circumstances, it was justified as a fair comment on public affairs or upon the conduct of public officers in respect of their duties as such. See Mason's Minnesota Statutes, §§ 10112, 10113. The scope of the judgment is not reviewable here. The opinion of the state supreme court shows that it was not reviewable there, because defendants' assignments of error in that court did not go to the form of the judgment, and because the lower court had not been asked to modify the judgment. Page 283 U. S. 731 The Act was passed in the exertion of the State's power of police, and this court is, by well established rule, required to assume, until the contrary is clearly made to appear, that there exists in Minnesota a state of affairs that justifies this measure for the preservation of the peace and good order of the State. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 79 . Gitlow v. New York, supra, 268 U. S. 668 -669. Corporation Commission v. Lowe, 281 U. S. 431 , 281 U. S. 438 . O'Gorman & Young v. Hartford Ins. Co., 282 U. S. 251 , 282 U. S. 257 -258. The publications themselves disclose the need and propriety of the legislation. They show: In 1913 one Guilford, originally a defendant in this suit, commenced the publication of a scandal sheet called the Twin City Reporter; in 1916, Near joined him in the enterprise, later bought him out and engaged the services of one Bevans. In 1919, Bevans acquired Near's interest, and has since, alone or with others, continued the publication. Defendants admit that they published some reprehensible articles in the Twin City Reporter, deny that they personally used it for blackmailing purposes, admit that, by reason of their connection with the paper their reputation did become tainted, and state that Bevans, while so associated with Near, did use the paper for blackmailing purposes. And Near says it was for that reason he sold his interest to Bevans. In a number of the editions, defendants charge that, ever since Near sold his interest to Bevans in 1919, the Twin City Reporter has been used for blackmail, to dominate public gambling and other criminal activities, and as well to exert a kind of control over public officers and the government of the city. The articles in question also state that, when defendants announced their intention to publish the Saturday Press, they were threatened, and that, soon after the first publication, Page 283 U. S. 732 Guilford was waylaid and shot down before he could use the firearm which he had at hand for the purpose of defending himself against anticipated assaults. It also appears that Near apprehended violence, and was not unprepared to repel it. There is much more of like significance. The long criminal career of the Twin City Reporter -- if it is, in fact, as described by defendants -- and the arming and shooting arising out of the publication of the Saturday Press, serve to illustrate the kind of conditions, in respect of the business of publishing malicious, scandalous and defamatory periodicals, by which the state legislature presumably was moved to enact the law in question. It must be deemed appropriate to deal with conditions existing in Minnesota. It is of the greatest importance that the States shall be untrammeled and free to employ all just and appropriate measures to prevent abuses of the liberty of the press. In his work on the Constitution (5th ed.), Justice Story, expounding the First Amendment, which declares "Congress shall make no law abridging the freedom of speech or of the press," said (§ 1880): "That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatever he might please, without any responsibility, public or private, therefor is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of every other citizen. A man might, out of mere malice and revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn, all his domestic peace, and embitter his parental affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; Page 283 U. S. 733 might prejudice all a man's civil, and political, and private rights, and might stir up sedition, rebellion, and treason even against the government itself in the wantonness of his passions or the corruption of his heart. Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance to make up for the deficiencies of the law, and assassination and savage cruelties would be perpetrated with all the frequency belonging to barbarous and brutal communities. It is plain, then, that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation, and so always that he does not thereby disturb the public peace or attempt to subvert the government. It is neither more nor less than an expansion of the great doctrine recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And, with this reasonable limitation, it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form." (Italicizing added.) The Court quotes Blackstone in support of its condemnation of the statute as imposing a previous restraint upon publication. But the previous restraints referred to by him subjected the press to the arbitrary will of an administrative officer. He describes the practice (Book IV, p. 152): "To subject the press to the restrictive power of a licenser, as was formerly done both before and since the revolution [of 1688], is to subject all freedom Page 283 U. S. 734 of sentiment to the prejudices of one man and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. [ Footnote 2/2 ]" Story gives the history alluded to by Blackstone (§ 1882): "The art of printing, soon after its introduction, we are told, was looked upon, as well in England as in other countries, as merely a matter of state, and subject to the coercion of the crown. It was, therefore, regulated in England by the king's proclamations, prohibitions, charters of privilege, and licenses, and finally by the decrees of the Court of Star-Chamber, which limited the number of printers and of presses which each should employ, and prohibited new publications unless previously approved by proper licensers. On the demolition of this odious jurisdiction, in 1641, the Long Parliament of Charles the First, after their rupture with that prince, assumed the same powers which the Star-Chamber exercised with respect to licensing books, and during the Commonwealth (such is human frailty and the love of power even in republics), they issued their ordinances for that purpose, founded principally upon a Star-Chamber decree of 1637. After the restoration of Charles the Second, a statute on the same subject was passed, copied, with some few alterations, from the parliamentary ordinances. The act expired in 1679, and was revived and continued for a few years after the revolution of 1688. Many attempts were made by the government to keep it in force, but it was Page 283 U. S. 735 so strongly resisted by Parliament that it expired in 1694, and has never since been revived." It is plain that Blackstone taught that, under the common law liberty of the press means simply the absence of restraint upon publication in advance as distinguished from liability, civil or criminal, for libelous or improper matter so published. And, as above shown, Story defined freedom of the press guaranteed by the First Amendment to mean that "every man shall be at liberty to publish what is true, with good motives and for justifiable ends." His statement concerned the definite declaration of the First Amendment. It is not suggested that the freedom of press included in the liberty protected by the Fourteenth Amendment, which was adopted after Story's definition, is greater than that protected against congressional action. And see 2 Cooley's Constitutional Limitations, 8th ed., p. 886. 2 Kent's Commentaries (14th ed.) Lect. XXIV, p. 17. The Minnesota statute does not operate as a previous restraint on publication within the proper meaning of that phrase. It does not authorize administrative control in advance such as was formerly exercised by the licensers and censors but prescribes a remedy to be enforced by a suit in equity. In this case, there was previous publication made in the course of the business of regularly producing malicious, scandalous and defamatory periodicals. The business and publications unquestionably constitute an abuse of the right of free press. The statute denounces the things done as a nuisance on the ground, as stated by the state supreme court, that they threaten morals, peace and good order. There is no question of the power of the State to denounce such transgressions. The restraint authorized is only in respect of continuing to do what has been duly adjudged to constitute a nuisance. The controlling words are "All persons guilty of such nuisance may be enjoined, as hereinafter Page 283 U. S. 736 provided. . . . Whenever any such nuisance is committed . . . , an action in the name of the State" may be brought "to perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting or maintaining any such nuisance. . . . The court may make its order and judgment permanently enjoining . . . defendants found guilty . . . from committing or continuing the acts prohibited hereby, and in and by such judgment, such nuisance may be wholly abated. . . ." There is nothing in the statute [ Footnote 2/3 ] purporting to prohibit publications that have not been adjudged to constitute a nuisance. It is fanciful to suggest similarity between the granting or enforcement of the decree authorized by this statute to prevent further publication of malicious, scandalous and defamatory articles and the previous restraint upon the press by licensers as referred to by Blackstone and described in the history of the times to which he alludes. Page 283 U. S. 737 The opinion seems to concede that, under clause (a) of the Minnesota law, the business of regularly publishing and circulating an obscene periodical may be enjoined as a nuisance. It is difficult to perceive any distinction, having any relation to constitutionality, between clause (a) and clause (b) under which this action was brought. Both nuisances are offensive to morals, order and good government. As that resulting from lewd publications constitutionally may be enjoined, it is hard to understand why the one resulting from a regular business of malicious defamation may not. It is well known, as found by the state supreme court, that existing libel laws are inadequate effectively to suppress evils resulting from the kind of business and publications that are shown in this case. The doctrine that measures such as the one before us are invalid because they operate as previous restraints to infringe freedom of press exposes the peace and good order of every community and the business and private affairs of every individual to the constant and protracted false and malicious Page 283 U. S. 738 assaults of any insolvent publisher who may have purpose and sufficient capacity to contrive and put into effect a scheme or program for oppression, blackmail or extortion. The judgment should be affirmed. MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS, and MR. JUSTICE SUTHERLAND concur in this opinion. [ Footnote 2/1 ] The following articles appear in the last edition published, dated November 19, 1927: " FACTS NOT THEORIES" "'I am a bosom friend of Mr. Olson,' snorted a gentleman of Yiddish blood, 'and I want to protest against your article,' and blah, blah, blah, ad infinitum, ad nauseam." "I am not taking orders from men of Barnett's faith, at least right now. There have been too many men in this city and especially those in official life, who HAVE been taking orders and suggestions from JEW GANGSTERS, therefore we HAVE Jew Gangsters, practically ruling Minneapolis." "It was buzzards of the Barnett stripe who shot down my buddy. It was Barnett gunmen who staged the assault on Samuel Shapiro. It is Jew thugs who have 'pulled' practically every robbery in this city. It was a member of the Barnett gang who shot down George Rubenstein (Ruby) while he stood in the shelter of Mose Barnett's ham-cavern on Hennepin avenue. It was Mose Barnett himself who shot down Roy Rogers on Hennepin avenue. It was at Mose Barnett's place of 'business' that the '13 dollar Jew' found a refuge while the police of New York were combing the country for him. It was a gang of Jew gunmen who boasted that, for five hundred dollars, they would kill any man in the city. It was Mose Barnett, a Jew, who boasted that he held the chief of police of Minneapolis in his hand -- had bought and paid for him." "It is Jewish men and women -- pliant tools of the Jew gangster, Mose Barnett, who stand charged with having falsified the election records and returns in the Third ward. And it is Mose Barnett himself, who, indicted for his part in the Shapiro assault, is a fugitive from justice today." "Practically every vendor of vile hooch, every owner of a moonshine still, every snake-faced gangster and embryonic yegg in the Twin Cities is a JEW." "Having these examples before me, I feel that I am justified in my refusal to take orders from a Jew who boasts that he is a 'bosom friend' of Mr. Olson." "I find in the mail at least twice per week letters from gentlemen of Jewish faith who advise me against 'launching an attack on the Jewish people.' These gentlemen have the cart before the horse. I am launching, nor is Mr. Guilford, no attack against any race, BUT:" "When I find men of a certain race banding themselves together for the purpose of preying upon Gentile or Jew; gunmen, KILLERS, roaming our streets shooting down men against whom they have no personal grudge (or happen to have); defying OUR laws; corrupting OUR officials; assaulting businessmen; beating up unarmed citizens; spreading a reign of terror through every walk of life, then I say to you in all sincerity that I refuse to back up a single step from that 'issue' -- if they choose to make it so." "If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightfully call 'Jews,' they can easily do so BY THEMSELVES CLEANING HOUSE." "I'm not out to cleanse Israel of the filth that clings to Israel's skirts. I'm out to 'hew to the line, let the chips fly where they may.'" "I simply state a fact when I say that ninety percent of the crimes committed against society in this city are committed by Jew gangsters." "It was a Jew who employed JEWS to shoot down Mr. Guilford. It was a Jew who employed a Jew to intimidate Mr. Shapiro and a Jew who employed JEWS to assault that gentleman when he refused to yield to their threats. It was a JEW who wheedled or employed Jews to manipulate the election records and returns in the Third ward in flagrant violation of law. It was a Jew who left two hundred dollars with another Jew to pay to our chief of police just before the last municipal election, and:" "It is Jew, Jew, Jew, as long as one cares to comb over the records." "I am launching no attack against the Jewish people As A RACE. I am merely calling attention to a FACT. And if the people of that race and faith wish to rid themselves of the odium and stigma THE RODENTS OF THEIR OWN RACE HAVE BROUGT UPON THEM, they need only to step to the front and help the decent citizens of Minneapolis rid the city of these criminal Jews." "Either Mr. Guilford or myself stands ready to do battle for a MAN, regardless of his race, color or creed, but neither of us will step one inch out of our chosen path to avoid a fight IF the Jews ant to battle." "Both of us have some mighty loyal friends among the Jewish people, but not one of them comes whining to ask that we 'lay off' criticism of Jewish gangsters, and none of them who comes carping to us of their 'bosom friendship' for any public official now under our journalistic guns." " GIIL's [Guilford's] CHATTERBOX" "I headed into the city on September 26th, ran across three Jews in a Chevrolet; stopped a lot of lead, and won a bed for myself in St. Barnabas Hospital for six weeks. . . ." "Whereupon I have withdrawn all allegiance to anything with a hook nose that eats herring. I have adopted the sparrow as my national bird until Davis' law enforcement league or the K.K.K. hammers the eagle's beak out straight. So if I seem to act crazy as I ankle down the street, bear in mind that I am merely saluting MY national emblem." "All of which has nothing to do with the present whereabouts of Big Mose Barnett. Methinks he headed the local delegation to the new 'Palestine for Jews only.' He went ahead of the boys so he could do a little fixing with the Yiddish chief of police and get his twenty-five percent of the gambling rake-off. Boys will be boys, and 'ganefs' will be ganefs." GRAND JURIES AND DITTO "There are grand juries, and there are grand juries. The last one was a real grand jury. It acted. The present one is like the scion who is labelled 'Junior.' That means not so good. There are a few mighty good folks on it -- there are some who smell bad. One petty peanut politician whose graft was almost pitiful in its size when he was a public official has already shot his mouth off in several places. He is establishing his alibi in advance for what he intends to keep from taking place." "But George, we won't bother you. [Meaning a grand juror.] We are aware that the gambling syndicate was waiting for your body to convene before the big crap game opened again. The Yids had your dimensions, apparently, and we always go by the judgment of a dog in appraising people." "We will call for a special grand jury and a special prosecutor within a short time, as soon as half of the staff can navigate to advantage, and then we'll show you what a real grand jury can do. Up to the present, we have been merely tapping on the window. Very soon, we shall start smashing glass." [ Footnote 2/2 ] May, Constitutional History of England, c. IX. Duniway, Free dom of the Press in Massachusetts, cc. I and II. Cooley, Constitutional Limitations (8th ed.) Vol. II, pp. 880-881. Pound, Equitable Relief against Defamation, 29 Harv.L.Rev. 640, 650 et seq. Madison, Letters and Other Writings (1865 ed.) Vol. IV, pp. 542, 543. Respublica v. Oswald , 1 Dall. 319, 1 U.S. 325 . Rawle, A View of the Constitution (2d ed. 1829) p. 124. Paterson, Liberty of the Press, c. III. [ Footnote 2/3 ] "§ 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away" "(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or" "(b) a malicious, scandalous and defamatory newspaper, magazine, or other periodical," "is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided." " * * * *" "In actions brought under (b) above, there shall be available the defense that the truth was published with good motives and for justifiable ends and in such actions the plaintiff shall not have the right to report [resort] to issues or editions of periodicals taking place more than three months before the commencement of the action." "§ 2. Whenever any such nuisance is committed or is kept, maintained, or exists, as above provided for, the County Attorney of any county where any such periodical is published or circulated . . . may commence and maintain in the District Court of said county, an action in the name of the State of Minnesota . . . to perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting, or maintaining any such nuisance. . . ." "§ 3. The action may be brought to trial and tried as in the case of other actions in such District Court, and shall be governed by the practice and procedure applicable to civil actions for injunctions." "After trial, the court may make its order and judgment permanently enjoining any and all defendants found guilty of violating this Act from further committing or continuing the acts prohibited hereby, and in and by such judgment, such nuisance may be wholly abated." "The court may, as in other cases of contempt, at any time punish, by fine of not more than $1,000, or by imprisonment in the county jail for not more than twelve months, any person or persons violating any injunction, temporary or permanent, made or issued pursuant to this Act."

The Supreme Court ruled that a Minnesota statute authorizing public authorities to suppress newspapers publishing "scandalous and defamatory matter" against state officials was unconstitutional. The Court held that liberty of the press, protected by the Fourteenth Amendment, prohibits prior restraint on publication, with the exception of certain limitations not applicable in this case. The Court emphasized the historical importance of a free press, especially in censuring public officials and charging official misconduct.

Free Speech

Terminiello v. Chicago

https://supreme.justia.com/cases/federal/us/337/1/

U.S. Supreme Court Terminiello v. Chicago, 337 U.S. 1 (1949) Terminiello v. Chicago No. 272 Argued February 1, 1949 Decided May 16, 1949 337 U.S. 1 CERTIORARI TO THE SUPREME COURT OF ILLINOIS Syllabus In a meeting which attracted considerable public attention, petitioner addressed a large audience in an auditorium outside of which was an angry and turbulent crowd protesting against the meeting. He condemned the conduct of the crowd outside and vigorously criticized various political and racial groups. Notwithstanding efforts of a cordon of police to maintain order, there were several disturbances in the crowd. Petitioner was charged with violation of an ordinance forbidding any "breach of the peace," and the trial court instructed the jury that any misbehavior which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" violates the ordinance. Petitioner did not except to that instruction, but he did maintain at all times that, as applied to his conduct, the ordinance violated his right of free speech under the Federal Constitution. He was convicted on a general verdict, and his conviction was affirmed by an intermediate appellate court and by the Supreme Court of the State. Held: 1. As construed by the trial court and applied to petitioner, the ordinance violates the right of free speech guaranteed by the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 337 U. S. 4 -5. 2. It is immaterial that petitioner took no exception to the instruction, and that, throughout the appellate proceedings, the state courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting "fighting words," Page 337 U. S. 2 since the verdict was a general one, and it cannot be said that petitioner's conviction was not based upon the instruction quoted above. Stromberg v. California, 283 U. S. 359 . Pp. 337 U. S. 5 -6. 400 Ill. 23, 79 N.E.2d 39, reversed. Petitioner was convicted in a state court of violating a city ordinance forbidding any breach of the peace. The Illinois Appellate Court affirmed. 332 Ill.App. 17, 74 N.E.2d 45. The Supreme Court of Illinois affirmed. 400 Ill. 23, 79 N.E.2d 39. This Court granted certiorari. 335 U.S. 890. Reversed, p. 337 U. S. 6 . MR. JUSTICE DOUGLAS delivered the opinion of the Court. Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago, * and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the Page 337 U. S. 3 Christian Veterans of America. The meeting commanded considerable public attention. The auditorium was filled to capacity, with over eight hundred persons present. Others were turned away. Outside of the auditorium, a crowd of about one thousand persons gathered to protest against the meeting. A cordon of policemen was assigned to the meeting to maintain order, but they were not able to prevent several disturbances. The crowd outside was angry and turbulent. Petitioner, in his speech, condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare. The trial court charged that "breach of the peace" consists of any "misbehavior which violates the public peace and decorum", and that the "misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm." Petitioner did not take exception to that instruction. But he maintained at all times that the ordinance, as applied to his conduct, violated his right of free speech under the Federal Constitution. The Judgment of conviction was affirmed by the Illinois Appellate Court (332 Ill.App. 17, 74 N.E.2d 45) and by the Illinois Supreme Court. 396 Ill. 41, 71 N.E.2d 2; 400 Ill. 23, 79 N.E.2d 39. The case is here on a petition for certiorari, which we granted because of the importance of the question presented. The argument here has been focused on the issue of whether the content of petitioner's speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees. See Chaplinsky v. New Hampshire, 315 U. S. 568 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 . We do not reach that question, for there is a preliminary question that is dispositive of the case. Page 337 U. S. 4 As we have noted, the statutory words "breach of the peace" were defined in instructions to the jury to include speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance. . . ." That construction of the ordinance is a ruling on a question of state law that is as binding on us as though the precise words had been written into the ordinance. See Hebert v. Louisiana, 272 U. S. 312 , 272 U. S. 317 ; Winters v. New York, 333 U. S. 507 , 333 U. S. 514 . The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 365 , it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 315 U. S. 571 -572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U. S. 252 , 314 U. S. 262 ; Craig v. Harney, 331 U. S. 367 , 331 U. S. 373 . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas Page 337 U. S. 5 either by legislatures, courts, or dominant political or community groups. The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand. The fact that petitioner took no exception to the instruction is immaterial. No exception to the instructions was taken in Stromberg v. California, 283 U. S. 359 . But a judgment of conviction based on a general verdict under a state statute was set aside in that case because one part of the statute was unconstitutional. The statute had been challenged as unconstitutional, and the instruction was framed in its language. The Court held that the attack on the statute as a whole was equally an attack on each of its individual parts. Since the verdict was a general one, and did not specify the ground upon which it rested, it could not be sustained. For one part of the statute was unconstitutional, and it could not be determined that the defendant was not convicted under that part. The principle of that case controls this one. As we have said, the gloss which Illinois placed on the ordinance gives it a meaning and application which are conclusive on us. We need not consider whether as construed it is defective in its entirety. As construed and applied, it at least contains parts that are unconstitutional. The verdict was a general one, and we do not know on this record but what it may rest on the invalid clauses. The statute, as construed in the charge to the jury, was passed on by the Illinois courts and sustained by them over the objection that, as so read, it violated the Fourteenth Amendment. The fact that the parties did not dispute its construction makes the adjudication no less Page 337 U. S. 6 ripe for our review, as the Stromberg decision indicates. We can only take the statute as the state courts read it. From our point of view, it is immaterial whether the state law question as to its meaning was controverted or accepted. The pinch of the statute is in its application. It is that question which the petitioner has brought here. To say, therefore, that the question on this phase of the case is whether the trial judge gave a wrong charge is wholly to misconceive the issue. But it is said that, throughout the appellate proceedings, the Illinois courts assumed that the only conduct punishable and punished under the ordinance was conduct constituting "fighting words." That emphasizes, however, the importance of the rule of the Stromberg case. Petitioner was not convicted under a statute so narrowly construed. For all anyone knows, he was convicted under the parts of the ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about a condition of unrest. We cannot avoid that issue by saying that all Illinois did was to measure petitioner's conduct, not the ordinance, against the Constitution. Petitioner raised both points -- that his speech was protected by the Constitution; that the inclusion of his speech within the ordinance was a violation of the Constitution. We would, therefore, strain at technicalities to conclude that the constitutionality of the ordinance, as construed and applied to petitioner, was not before the Illinois courts. The record makes clear that petitioner at all times challenged the constitutionality of the ordinance as construed and applied to him. Reversed. * "All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city . . . shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense." Municipal Code of Chicago, 1939, § 193-1. MR. CHIEF JUSTICE VINSON, dissenting. I dissent. The Court today reverses the Supreme Court of Illinois because it discovers in the record one sentence in the trial court's instructions which permitted Page 337 U. S. 7 the jury to convict on an unconstitutional basis. The offending sentence had heretofore gone completely undetected. It apparently was not even noticed, much less excepted to, by the petitioner's counsel at the trial. No objection was made to it in the two Illinois appellate tribunals which reviewed the case. Nor was it mentioned in the petition for certiorari or the briefs in this Court. In short, the offending sentence in the charge to the jury was no part of the case until this Court's independent research ferreted it out of a lengthy and somewhat confused record. I think it too plain for argument that a reversal on such a basis does not accord with any principle governing review of state court decisions heretofore announced by this Court. Certainly, Stromberg v. California, 283 U. S. 359 (1931), as MR. JUSTICE FRANKFURTER demonstrates, offers no precedent for today's action. It will not do to say that, because the Illinois appellate courts affirmed the petitioner's conviction in the face of a constitutional attack, they necessarily must have approved the interpretation of the Chicago ordinance contained in the unnoticed instruction. The fact is that the Illinois courts construed the ordinance as punishing only the use of "fighting words." Their opinions plainly show that they affirmed because they thought that the petitioner's speech had been found by the jury to come within that category.* Their action was not, and cannot here be taken to be, an approval of the ordinance "as construed" by the instruction, because the record clearly shows that the case was treated on appeal, both by counsel and by the courts, as if no such instruction existed. This Court can reverse the conviction because of the instruction only if we are to say that every time a state Page 337 U. S. 8 court affirms a conviction, it necessarily must approve of every unnoticed and unobjected-to error which we may discover in the record. If such is the doctrine of this case, I feel compelled to register my emphatic dissent. The instruction informed the jury that they could return a verdict of guilty if they found that the petitioner's speech was one which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." If the petitioner's counsel, who carefully made other constitutional objections throughout the proceedings below, had brought any issue here as to the constitutional validity of that instruction, I would agree with the Court's decision. But the record gives me no basis on which to believe that the Illinois courts would not also have so decided if that issue had been presented to them. The Court, as I understand it, does not reach the issue which the parties argued here -- whether a properly instructed jury could constitutionally have found from the conflicting evidence in the record that, under the circumstances, the words in the petitioner's speech were "fighting words" to those inside the hall who heard them. Certainly the Court does not decide whether the violent opposition of those outside the hall, who did not hear the speech, could constitutionally warrant the conviction of the petitioner in order to keep the streets from becoming ideological battlegrounds. Since neither of these constitutional issues is decided by the Court, I think that it is not within my province to indicate any opinion concerning them. See Rescue Army v. Municipal Court, 331 U. S. 549 , 331 U. S. 568 (1947). * The opinions arc reported at 332 Ill.App. 17, 74 N.E.2d 45, and at 400 Ill. 2.3, 79 N.E.2d 39. See particularly 332 Ill.App. at pp. 23 and 38; 400 Ill. at p. 33. MR. JUSTICE FRANKFURTER, dissenting. For the first time in the course of the 130 years in which State prosecutions have come here for review, this Court is today reversing a sentence imposed by a State court Page 337 U. S. 9 on a ground that was urged neither here nor below and that was explicitly disclaimed on behalf of the petitioner at the bar of this Court. The impropriety of that part of the charge which is now made the basis of reversal was not raised at the trial, nor before the Appellate Court of Illinois. The fact that counsel for Terminiello wholly ignored it is emphasized by the objections that he did make in relation to other instructions given and not given. On appeal to the Supreme Court of Illinois, counsel still failed to claim as error that which this Court, on its own motion, now finds violative of the Constitution. It was not mentioned by the Illinois Supreme Court in its careful opinion disposing of other claims, and it was not included in the elaborate petition for rehearing in that court. Thus, an objection, not raised by counsel in the Illinois courts, not made the basis of the petition for certiorari here -- not included in the "Questions Presented," nor in the "Reasons Relied On for the Allowance of the Writ" -- and explicitly disavowed at the bar of this Court, is used to upset a conviction which has been sustained by three courts of Illinois. Reliance on Stromberg v. California, 283 U. S. 359 , for what is done today is wholly misplaced. Neither expressly nor by implication has that decision any bearing upon the issue which the Court's opinion in this case raises, namely, whether it is open for this Court to reverse the highest court of a State on a point which was not brought before that court, did not enter into the judgment rendered by that court, and at no stage of the proceedings in this Court was invoked as error by the State court whose reversal is here sought. The Stromberg case presented precisely the opposite situation. In that case, the claim which here prevailed was a ground of unconstitutionality urged before the California court; upon its rejection by that court it was made the basis of appeal Page 337 U. S. 10 to this Court; it was here urged as the decisive ground for the reversal of the California judgment. The Stromberg case dealt with a statute which proscribed conduct in a threefold way. The information upon which a verdict of guilty was secured was couched in the threefold terms of the statute, and in that form submitted to the jury. A general verdict followed. It was urged throughout the proceedings, and finally at the bar of this Court, that one of the proscriptions of the statute was invalid under the Fourteenth Amendment. That view was sustained. All that the case holds is that, where the validity of a statute is successfully assailed as to one of three clauses of a statute and all three clauses were submitted to the jury, the general verdict has an infirmity, because it cannot be assumed that the jury convicted on the valid portions of the statute, and not on the invalid. There was no question in that case of searching the record for an alleged error that at no time was urged against the State judgment brought here for review. In the Stromberg case, an error that was properly urged was sustained. In this case, a claim that was not urged but was disavowed is transmuted into a claim denied. Only the uninformed will deride as a merely technical point objection to what the Court is doing in this case. The matter touches the very basis of this Court's authority in reviewing the judgments of State courts. We have no authority to meddle with such a judgment unless some claim under the Constitution or the laws of the United States has been made before the State court whose judgment we are reviewing and unless the claim has been denied by that court.* How could there have been a Page 337 U. S. 11 denial of a federal claim by the Illinois courts, i.e., that the trial judge offended the Constitution of the United States in what he told the jury, when no such claim was made? The relation of the United States and the courts of the United States to the States and the courts of the States is a very delicate matter. It is too delicate to permit silence when a judgment of a State court is reversed in disregard of the duty of this Court to leave untouched an adjudication of a State unless that adjudication is based upon a claim of a federal right which the State has had an opportunity to meet and to recognize. If such a federal claim was neither before the State court nor presented to this Court, this Court unwarrantably strays from its province in looking through the record to find some federal claim that might have been brought to the attention of the State court, and, if so brought, fronted, and that might have been, but was not, urged here. This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency. Freedom of speech undoubtedly means freedom to express views that challenge deep-seated, sacred beliefs, and to utter sentiments that may provoke resentment. But those indulging in such stuff as that to which this proceeding gave rise are hardly so deserving as to lead this Court to single them out as beneficiaries of the first Page 337 U. S. 12 departure from the restrictions that bind this Court in reviewing judgments of State courts. Especially odd is it to bestow such favor not for the sake of life or liberty, but to save a small amount of property -- $100, the amount of the fine imposed upon the petitioner in a proceeding which is civil, not criminal, under the laws of Illinois, and thus subject only to limited review. City of Chicago v. Terminiello, 400 Ill. 23, 29, 79 N.E.2d 39, 43. This Court has recognized that fines of this nature are not within provisions of the Constitution governing federal criminal prosecutions. See Hepner v. United States, 213 U. S. 103 . The importance of freedom of speech, of course, cannot be measured by dollars and cents. A great principle may be at stake, as in the Case of the Ship Money, though the issue arise over the payment of a few shillings' tax. Were the Court to sustain the claim urged throughout these proceedings, in Illinois and here, namely, that a law is unconstitutional when it forbids Terminiello's harangue in the circumstances of its utterance, it would be immaterial that only $100 is involved. But to inject an error into the record in order to avoid the issue on which the case was brought here -- for certainly relief from the payment of a fine of $100 could not alone have induced this Court to excogitate a defect in the judgment which counsel thoughtfully rejected and which three State courts did not consider -- hardly raises the objection to the dignity of such a principle. If the Court refrained from taking phrases out of their environment and finding in them a self-generated objection, it could not be deemed to have approved of them even as abstract propositions. On the merits of the issue reached by the Court, I share MR. JUSTICE JACKSON's views. For I assume that the Court does not mean to reject, except merely for purposes of this case, the basic principle that guides scrutiny of Page 337 U. S. 13 a charge on appeal. I assume, that is, that a charge is not to be deemed a bit of abstraction in a non-existing world; the function which a charge serves is to give practical guidance to a jury in passing on the case that was unfolded before it -- the particular circumstances in their particular setting. MR. JUSTICE JACKSON and MR. JUSTICE BURTON join this dissent. * "Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied, Murdock v. City of Memphis , 20 Wall. 590; Haire v. Rice, 204 U. S. 291 , 204 U. S. 301 ; but to the particular claims duly made below, and denied. Seaboard Air Line Ry. v. Duvall, 225 U. S. 477 , 225 U. S. 485 -488. We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. Wiborg v. United States, 163 U. S. 632 , 163 U. S. 658 -660; Clyatt v. United States, 197 U. S. 207 , 197 U. S. 221 -222. This is a writ of error to a state court. Because we may not enquire into the errors now alleged, I concur in affirming the judgment of the state court." Concurring opinion of Mr. Justice Brandeis, joined by Mr. Justice Holmes, in Whitney v. California, 274 U. S. 357 , 274 U. S. 380 . MR. JUSTICE JACKSON, dissenting. The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello's speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore. But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot, and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two. When the trial judge instructed the jury that it might find Terminiello guilty of inducing a breach of the peace if his behavior stirred the public to anger, invited dispute, brought about unrest, created a disturbance or molested peace and quiet by arousing alarm, he was not speaking of these as harmless or abstract conditions. He was addressing his words to the concrete behavior and specific consequences disclosed by the evidence. He was saying to the jury, in effect, that, if this particular speech added fuel to the situation already so inflamed as to threaten to get beyond police control, it could be punished as inducing a breach of peace. When the light of the evidence not recited by the Court is thrown upon the Court's opinion, it discloses that underneath a little issue of Page 337 U. S. 14 Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other, and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. An old proverb warns us to take heed lest we "walk into a well from looking at the stars." To show why I think the Court is in some danger of doing just that, I must bring these deliberations down to earth by a long recital of facts. Terminiello, advertised as a Catholic Priest but revealed at the trial to be under suspension by his Bishop, was brought to Chicago from Birmingham, Alabama, to address a gathering that assembled in response to a call signed by Gerald L. K. Smith, which, among other things, said: ". . . The same people who hate Father Coughlin hate Father Terminiello . They have persecuted him, hounded him, threatened him, but he has remained unaffected by their anti-Christian campaign against him. You will hear all sorts of reports concerning Father Terminiello. But remember that he is a Priest in good standing, and a fearless lover of Christ and America." The jury may have considered that this call attempted to capitalize the hatreds this man had stirred and foreshadowed, if it did not intend to invite, the kind of demonstration that followed. Terminiello's own testimony shows the conditions under which he spoke. So far as material, it follows: ". . . We got there [the meeting place] approximately fifteen or twenty minutes past eight. The car stopped at the front entrance. There was a Page 337 U. S. 15 crowd of three or four hundred congregated there shouting and cursing and picketing. . . ." "When we got there, the pickets were not marching; they were body to body, and covered the sidewalk completely, some on the steps, so that we had to form a flying wedge to get through. Police escorted us to the building, and I noticed four or five others there." "They called us 'God damned Fascists, Nazis, ought to hang the so and sos.' When I entered the building, I heard the howls of the people outside. . . . There were four or five plain clothes officers standing at the entrance to the stage, and three or four at the entrance to the back door." "The officers threatened that, if they broke the door again, they would arrest them, and every time they opened the door a little to look out, something was thrown at the officers, including ice-picks and rocks." "A number of times, the door was broken, was partly broken through. There were doors open this way, and they partly opened, and the officers looked out two or three times, and each time, ice-picks, stones and bottles were thrown at the police at the door. I took my place on the stage; before this, I was about ten or fifteen minutes in the body of the hall." "I saw a number of windows broken by stones or missiles. I saw the back door being forced open, pushed open." "The front door was broken partly open after the doors were closed. There were about seven people seated on the stage. Smith opened the meeting with prayer, the Pledge of Allegiance to the Flag and singing of America. There were other speakers who spoke before me, and before I spoke, I heard things happening in the hall and coming from the outside. " Page 337 U. S. 16 "I saw rocks being thrown through windows, and that continued throughout at least the first half of the meeting, probably longer, and again attempts were made to force the front door, rather, the front door was forced partly. The howling continued on the outside, cursing could be heard audibly in the hall at times. Police were rushing in and out of the front door, protecting the front door, and there was a general commotion, all kinds of noises and violence -- all from the outside." "Between the time the first speaker spoke and I spoke, stones and bricks were thrown in all the time. I started to speak about 35 or 40 minutes after the meeting started, a little later than nine o'clock. . . ." The court below, in addition to this recital, heard other evidence that the crowd reached an estimated number of 1,500. Picket lines obstructed and interfered with access to the building. The crowd constituted "a surging, howling mob hurling epithets" at those who would enter, and "tried to tear their clothes off." One young woman's coat was torn off, and she had to be assisted into the meeting by policemen. Those inside the hall could hear the loud noises and hear those on the outside yell, "Fascists," "Hitlers" and curse words like "damn Fascists." Bricks were thrown through the windowpanes before and during the speaking. About 28 windows were broken. The street was black with people on both sides for at least a block either way; bottles, stink bombs and brickbats were thrown. Police were unable to control the mob, which kept breaking the windows at the meeting hall, drowning out the speaker's voice at times, and breaking in through the back door of the auditorium. About 17 of the group outside were arrested by the police. Knowing of this environment, Terminiello made a long speech, from the stenographic record of which I omit Page 337 U. S. 17 relatively innocuous passages and add emphasis to what seems especially provocative: "Father Terminiello: Now, I am going to whisper my greetings to you, Fellow Christians. I will interpret it. I said, 'Fellow Christians,' and I suppose there are some of the scum got in by mistake, so I want to tell a story about the scum: " ". . . And nothing I could say tonight could begin to express the contempt I have for the slimy scum that got in by mistake." ". . . The subject I want to talk to you tonight about is the attempt that is going on right outside this hall tonight, the attempt that is going on to destroy America by revolution. . . ." "My friends, it is no longer true that it can't happen here. It is happening here, and it only depends upon you, good people, who are here tonight, depends upon all of us together, as Mr. Smith said. The tide is changing, and if you and I turn and run from that tide, we will all be drowned in this tidal wave of Communism which is going over the world." ". . . I am not going to talk to you about the menace of Communism, which is already accomplished, in Russia, where from eight to fifteen million people were murdered in cold blood by their own countrymen, and millions more through Eastern Europe at the close of the war are being murdered by these murderous Russians, hurt, being raped and sent into slavery. That is what they want for you, that howling mob outside. " "I know I was told one time that my winter quarters were ready for me in Siberia. I was told that. Now, I am talking about the fifty-seven varieties that we have in America, and we have fifty-seven varieties of pinks and reds and pastel shades in this country, and all of it can be traced back to the Page 337 U. S. 18 twelve years we spent under the New Deal, because that was the build-up for what is going on in the world today." " * * * *" "Now, Russia promised us we would ga [ sic ] back to the official newspaper of Russia. Primarily, it was back about 1929. They quoted the words of George E. Dimitroff, who at that time was the Executive Secretary of the Communist International. I only quote you this one passage. I could quote thousands of paragraphs for you. Let me quote you: 'The worldwide nature of our program is not mere talk, but an all embracing blood-soaked reality.' That is what they want for us, a blood-soaked reality, but it was promised to us by the crystal gazers in Washington, and you know what I mean by the 'crystal gazers,' I presume." "First of all, we had Queen Eleanor. Mr. Smith said, 'Queen Eleanor is now one of the world's communists.' She is one who said this -- imagine, coming from the spouse of the former President of the United States for twelve long years -- this is what she said: 'The war is but a step in the revolution. The war is but one step in the revolution, and we know who started the war.'" "Then we have Henry Adolph Wallace, the sixty million job magician. You know we only need fifty-four million jobs in America, and everybody would be working. He wants sixty million jobs, because some of the bureaucrats want two jobs apiece. Here he is, what he says about revolution: 'We are in for a profound revolution. Those of us who realize the inevitableness of the revolution, and are anxious that it be gradual and bloodless instead of somewhat bloody. Of course, if necessary, we will have it more bloody. ' " Page 337 U. S. 19 "And then Chief Justice Stone had this to say: 'A way has been found for the effective suppression of speeches and press and religion, despite constitutional guarantee,' -- from the Chief Justice, from the Chief Justice of the United States." "Now, my friends, they are planning another ruse, and if it ever happens to this cou-try [ sic ], God help America. They are going to try to put into Mr. Edgar Hoover's position a man by the name of George Swarzwald. I think even those who were uneducated on so-called sedition charges, that the majority of the individuals in this department, that Christ-like men and women who realize today what is going on in this country, men who are in this audience today, who want to know the names of those people, before they are outside, they want to know the names if any. Did you hear any tonight that you recognize? Most of them probably are imported. They are imported from Russia, certainly. If you know the names, please send them to me immediately. . . ." ". . . Didn't you ever read the Morgenthau plan for the starvation of little babies and pregnant women in Germany? Whatever could a child that is born have to do with Hitler or anyone else at the beginning of the war? Why should every child in Germany today not live to be more than two or three months of age? Because Morgenthau wants it that way, and so did F.D.R. . . . You will know who is behind it when I tell you the story of a doctor in Akron, Ohio. He boasted to a friend of mine within the last few days, while he was in the service of this country as a doctor, he and others of his kind made it a practice -- now, this was not only one man -- made it a practice to amputate the limbs of every German they came in contact with whenever Page 337 U. S. 20 they could get away with it, so, that they could never carry a gun. Imagine men of that caliber, sworn to serve this beautiful country of ours, why should we tolerate them? " "My friends, this moment someone reminded me of the plan to sterilize them. The nurses, they tell me are going to inject diseases in them, syphilis and other diseases in every one that came there all of one race, all non-Christians. . . ." "Now, we are going to get the threats of the people of Argentine, the people of Spain. We have now declared, according to our officials, to have declared Franco to have taken the place of Hitler. Franco was the savior of what was left of Europe. " "Now, let me say, I am going to talk about -- I almost said, about the Jews. Of course, I would not want to say that. However, I am going to talk about some Jews. I hope that -- I am a Christian minister. We must take a Christian attitude. I don't want you to go from this hall with hatred in your heart for any person, for no person. . . ." "Now, this danger which we face -- let us call them Zionist Jews if you will, let's call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You remember the Apostles when they went into the upper room after the death of the Master, they went in there, after locking the doors; they closed the windows. (At this time there was a very loud noise as if something was being thrown into the building.)" "Don't be disturbed. That happened, by the way, while Mr. Gerald Smith was saying 'Our Father who art in heaven;' (just then, a rock went through the window.) Do you wonder they were persecuted in other countries in the world? . . . " Page 337 U. S. 21 " You know I have always made a study of the psychology, sociology of mob reaction. It is exemplified out there. Remember there has to be a leader to that mob. He is not out there. He is probably across the street, looking out the window. There must be certain things, money, other things, in order to have successful mob action; there must be rhythm. There must be some to beat a cadence. Those mobs are chanting; that is the caveman's chant. They were trained to do it. They were trained this afternoon. They are being led; there will be violence. " "That is why I say to you, men, don't you do it. Walk out of here dignified. The police will protect you. Put the women on the inside, where there will be no hurt to them. Just walk; don't stop and argue. . . . They want to picket our meetings. They don't want us to picket their meetings. It is the same kind of tolerance, if we said there was a bedbug in bed, 'We don't care for you,' or if we looked under the bed and found a snake and said, 'I am going to be tolerant and leave the snake there.' We will not be tolerant of that mob out there. We are not going to be tolerant any longer." "We are strong enough. We are not going to be tolerant of their smears any longer. We are going to stand up and dare them to smear us. . . ." "So, my friends, since we spent much time tonight trying to quiet the howling mob, I am going to bring my thoughts to a conclusion, and the conclusion is this. We must all be like the Apostles before the coming of the Holy Ghost. We must not lock ourselves in an upper room for fear of the Jews. I speak of the Communistic Zionistic Jew, and those are not American Jews. We don't want them here; we want them to go back where they came from." " * * * * Page 337 U. S. 22 " "Mr. Smith: I would like to ask that Miss Purcell would please go back to the front of the building and contact the police officer in charge of the detail. We are going to adjourn this meeting if and when Miss Purcell comes back and reports to me that the one in charge of the detail believes it is safe for us to go out on the street. I am sure it is. Sit still. We are not going to have anybody move. If there are any chiselers that want to go, we are going to take up an offering for Father Terminiello." "(There was further discussion to stimulate this offering which was not reported.)" Such was the speech. Evidence showed that it stirred the audience not only to cheer and applaud but to expressions of immediate anger, unrest and alarm. One called the speaker a "God damned liar," and was taken out by the police. Another said that "Jews, niggers and Catholics would have to be gotten rid of." One response was, "Yes, the Jews are all killers, murderers. If we don't kill them first, they will kill us." The anti-Jewish stories elicited exclamations of "Oh," and "Isn't that terrible," and shouts of "Yes, send the Jews back to Russia," "Kill the Jews," "Dirty kikes," and much more of ugly tenor. This is the specific and concrete kind of anger, unrest and alarm, coupled with that of the mob outside, that the trial court charged the jury might find to be a breach of peace induced by Terminiello. It is difficult to believe that this Court is speaking of the same occasion, but it is the only one involved in this litigation. Terminiello, of course, disclaims being a fascist. Doubtless many of the indoor audience were not consciously such. His speech, however, followed, with fidelity that is more than coincidental, the pattern of European fascist leaders. Page 337 U. S. 23 The street mob, on the other hand, included some who deny being communists, but Terminiello testified and offered to prove that the demonstration was communist-organized and communist-led. He offered literature of left-wing organizations calling members to meet and "mobilize" for instruction as pickets and exhorting followers: "All out to fight Fascist Smith." As this case declares a nationwide rule that disables local and state authorities from punishing conduct which produces conflicts of this kind, it is unrealistic not to take account of the nature, methods and objectives of the forces involved. This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a worldwide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe. Increasingly, American cities have to cope with it. One faction organizes a mass meeting, the other organizes pickets to harass it; each organizes squads to counteract the other's pickets; parade is met with counter-parade. Each of these mass demonstrations has the potentiality, and more than a few, the purpose, of disorder and violence. This technique appeals not to reason, but to fears and mob spirit; each is a show of force designed to bully adversaries and to overawe the indifferent. We need not resort to speculation as to the purposes for which these tactics are calculated, nor as to their consequences. Recent European history demonstrates both. Hitler summed up the strategy of the mass demonstration as used by both fascism and communism: "We should not work in secret conventicles, but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement, but by the conquest of the streets. We must teach the Marxists Page 337 U. S. 24 that the future master of the streets is National Socialism, just as it will some day be the master of the state." (Emphasis supplied.) 1 Nazi Conspiracy and Aggression (GPO, 1946) 204, 2 id. 140, Docs. 2760-PS, 404-PS, from " Mein Kampf. " First laughed at as an extravagant figure of speech, the battle for the streets became a tragic reality when an organized Sturmabteilung began to give practical effect to its slogan that "possession of the streets is the key to power in the state." Ibid. also Doc. 2168-PS. The present obstacle to mastery of the streets by either radical or reactionary mob movements is not the opposing minority. It is the authority of local governments which represent the free choice of democratic and law-abiding elements of all shades of opinion, but who, whatever their differences, submit them to free elections which register the results of their free discussion. The fascist and communist groups, on the contrary, resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation of moderates in discussions so fraught with violence, and real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent, and begin to think the time has come when they must choose sides in a false and terrible dilemma such as was posed as being at hand by the call for the Terminiello meeting: "Christian Nationalism or World Communism -- Which?" This drive by totalitarian groups to undermine the prestige and effectiveness of local democratic governments is advanced whenever either of them can win from this Court a ruling which paralyzes the power of these officials. This is such a case. The group of which Terminiello is a part claims that his behavior, because it involved a speech, is above the reach of local authorities. Page 337 U. S. 25 If the mild action those authorities have taken is forbidden, it is plain that, hereafter, there is nothing effective left that they can do. If they can do nothing as to him, they are equally powerless as to rival totalitarian groups. Terminiello's victory today certainly fulfills the most extravagant hopes of both right and left totalitarian groups, who want nothing so much as to paralyze and discredit the only democratic authority that can curb them in their battle for the streets. I am unable to see that the local authorities have transgressed the Federal Constitution. Illinois imposed no prior censorship or suppression upon Terminiello. On the contrary, its sufferance and protection was all that enabled him to speak. It does not appear that the motive in punishing him is to silence the ideology he expressed as offensive to the State's policy or as untrue, or has any purpose of controlling his thought or its peaceful communication to others. There is no claim that the proceedings against Terminiello are designed to discriminate against him or the faction he represents or the ideas that he bespeaks. There is no indication that the charge against him is a mere pretext to give the semblance of legality to a covert effort to silence him or to prevent his followers or the public from hearing any truth that is in him. A trial court and jury has found only that, in the context of violence and disorder in which it was made, this speech was a provocation to immediate breach of the peace, and therefore cannot claim constitutional immunity from punishment. Under the Constitution as it has been understood and applied, at least until most recently, the State was within its powers in taking this action. Rioting is a substantive evil which I take it no one will deny that the State and the City have the right and the duty to prevent and punish. Where an offense is Page 337 U. S. 26 induced by speech, the Court has laid down and often reiterated a test of the power of the authorities to deal with the speaking as also an offense. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring. about the substantive evils that Congress [or the State or City] has a right to prevent." (Emphasis supplied.) Mr. Justice Holmes, in Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . No one ventures to contend that the State, on the basis of this test, for whatever it may be worth, was not justified in punishing Terminiello. In this case, the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate. If this Court has not silently abandoned this longstanding test and substituted for the purposes of this case an unexpressed but more stringent test, the action of the State would have to be sustained. Only recently, this Court held that a state could punish as a breach of the peace use of epithets such as "damned racketeer" and "damned fascist," addressed to only one person, an official, because likely to provoke the average person to retaliation. But these are mild in comparison to the epithets "slimy scum," "snakes," "bedbugs," and the like, which Terminiello hurled at an already inflamed mob of his adversaries. MR. JUSTICE MURPHY, writing for a unanimous Court in Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572, said: "There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed Page 337 U. S. 27 that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." " Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 309 -310." In the latter case Mr. Justice Roberts, for a unanimous Court, also said: "The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious." 310 U.S. 296 , 310 U. S. 308 . How this present decision, denying state power to punish civilly one who precipitated a public riot involving hundreds of fanatic fighters in a most violent melee, can be squared with those unanimous statements of law is incomprehensible to me. And the Court recently cited these two statements as indicating that "The essential rights of the First Amendment, in some instances, are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. " Page 337 U. S. 28 United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 95 . However, these wholesome principles are abandoned today, and in their place is substituted a dogma of absolute freedom for irresponsible and provocative utterance which almost completely sterilizes the power of local authorities to keep the peace as against this kind of tactics. Before giving the First and Fourteenth Amendments to the Constitution this effect, we should recall that our application of the First Amendment to Illinois rests entirely on authority which this Court has voted to itself. The relevant parts of the First Amendment, with emphasis supplied, reads: " Congress shall make no law . . . abridging the freedom of speech." This restrains no authority except Congress. Read as literally as some would do, it restrains Congress in terms so absolute that no legislation would be valid if it touched free speech, no matter how obscene, treasonable, defamatory, inciting or provoking. If it seems strange that no express qualifications were inserted in the Amendment, the answer may be that limitations were thought to be implicit in the definition of "freedom of speech/" as then understood. Or it may have been thought unnecessary to delegate to Congress any power over abuses of free speech. The Federal Government was then a new and experimental authority, remote from the people, and it was supposed to deal with a limited class of national problems. Inasmuch as any breaches of peace from abuse of free speech traditionally were punishable by state governments, it was needless to reserve that power in a provision drafted to exclude only Congress from such a field of lawmaking. The Fourteenth Amendment forbade states to deny the citizen "due process of law." But its terms gave no notice to the people that its adoption would strip their local governments of power to deal with such problems of local Page 337 U. S. 29 peace and order as we have here. Nor was it hinted by this Court for over half a century that the Amendment might have any such effect. In 1922, with concurrence of the most liberty-alert Justices of all times -- Holmes and Brandeis -- this Court declared flatly that the Constitution does not limit the power of the state over free speech. Prudential Insurance Co. v. Cheek, 259 U. S. 530 , 259 U. S. 543 . In later years, the Court shifted its dogma, and decreed that the Constitution does this very thing, and that state power is bound by the same limitation as Congress. Gitlow v. New York, 268 U. S. 652 . I have no quarrel with this history. See Board of Education v. Barnette, 319 U. S. 624 . I recite the method by which the right to limit the state has been derived only from this Court's own assumption of the power, with never a submission of legislation or amendment into which the people could write any qualification to prevent abuse of this liberty, as bearing upon the restraint I consider as becoming in exercise of self-given and unappealable power. It is significant that provisions adopted by the people with awareness that they applied to their own states have universally contained qualifying terms. The Constitution of Illinois is representative of the provisions put in nearly all state constitutions, and reads (Art. II, § 4): "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty. " (Emphasis added.) That is what I think is meant by the cryptic phrase "freedom of speech," as used in the Federal Compact, and that is the rule I think we should apply to the states. This absence from the Constitution of any expressed power to deal with abuse of freedom of speech has enabled the Court to soar aloof from any consideration of the abuses which create problems for the states and to indulge in denials of local authority, some of which seem to me improvident in the light of functions which local governments Page 337 U. S. 30 must be relied on to perform for our free society. Quite apart from any other merits or defects, recent decisions have almost completely immunized this battle for the streets from any form of control. Streets and parks maintained by the public cannot legally be denied to groups "for communication of ideas." Hague v. CIO, 307 U. S. 496 ; Jamison v. Texas, 318 U. S. 413 . Cities may not protect their streets from activities which the law has always regarded subject to control, as nuisances. Lovell v. Griffin, 303 U. S. 444 ; Schneider v. State, 308 U. S. 147 . Cities may not protect the streets or even homes of their inhabitants from the aggressions of organized bands operating in large numbers. Douglas v. Jeannette, 319 U. S. 157 . As in this case, the facts are set forth fully only in the dissent, p. 319 U. S. 166 . See also Martin v. Struthers, 319 U. S. 141 . Neither a private party nor a public authority can invoke otherwise valid state laws against trespass to exclude from their property groups bent on disseminating propaganda. Marsh v. Alabama, 326 U. S. 501 ; Tucker v. Texas, 326 U. S. 517 . Picketing is largely immunized from control on the ground that it is free speech, Thornhill v. Alabama, 310 U. S. 88 , and police may not regulate sound trucks and loud-speakers, Saia v. New York, 334 U. S. 558 , though the Court finds them an evil that may be prohibited altogether. Kovacs v. Cooper, 336 U. S. 77 . And one-third of the Court has gone further, and declared that a position "that the state may prevent any conduct which induces people to violate the law, or any advocacy of unlawful activity, cannot be squared with the First Amendment . . . ," and it is only we who can decide when the limit is passed. Musser v. Utah, 333 U. S. 95 , 333 U. S. 102 . Whatever the merits of any one of these decisions in isolation, and there were sound reasons for some of them, it cannot be denied that their cumulative effect has been a sharp handicap on municipal control Page 337 U. S. 31 of the streets and a dramatic encouragement of those who would use them in a battle of ideologies. I do not think we should carry this handicap further, as we do today, but should adhere to the principles heretofore announced to safeguard our liberties against abuse, as well as against invasion. It should not be necessary to recall these elementary principles, but it has been a long time since some of them were even mentioned in this Court's writing on the subject, and results indicate they may have been overlooked. I begin with the oft-forgotten principle which this case demonstrates, that freedom of speech exists only under law, and not independently of it. What would Terminiello's theoretical freedom of speech have amounted to had he not been given active aid by the officers of the law? He could reach the hall only with their help, could talk only because they restrained the mob, and could make his getaway only under their protection. We would do well to recall the words of Chief Justice Hughes in Cox v. New Hampshire, 312 U. S. 569 , 312 U. S. 574 : "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. . . ." This case demonstrates also that this Court's service to free speech is essentially negative, and can consist only of reviewing actions by local magistrates. But if free speech is to be a practical reality, affirmative and immediate protection is required, and it can come only from nonjudicial sources. It depends on local police, maintained by law-abiding taxpayers, and who, regardless of their own feelings, risk themselves to maintain supremacy of law. Terminiello's theoretical right to speak free from interference would have no reality if Chicago should withdraw its officers to some other section of the city, or if the men assigned to the task should look the other Page 337 U. S. 32 way when the crowd threatens Terminiello. Can society be expected to keep these men at Terminiello's service if it has nothing to say of his behavior which may force them into dangerous action? No one will disagree that the fundamental, permanent and overriding policy of police and courts should be to permit and encourage utmost freedom of utterance. It is the legal right of any American citizen to advocate peaceful adoption of fascism or communism, socialism or capitalism. He may go far in expressing sentiments, whether pro-Semitic or anti-Semitic, pro-Negro or anti-Negro, pro-Catholic or anti-Catholic. He is legally free to argue for some anti-American system of government to supersede by constitutional methods the one we have. It is our philosophy that the course of government should be controlled by a consensus of the governed. This process of reaching intelligent popular decisions requires free discussion. Hence, we should tolerate no law or custom of censorship or suppression. But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching or public disorder is likely to get going without help of some speechmaking to some mass of people. A street may be filled with men and women, and the crowd still not be a mob. Unity of purpose, passion and hatred, which merges the many minds of a crowd into the mindlessness of a mob, almost invariably is supplied by speeches. It is naive, or worse, to teach that oratory with this object or effect is a service to liberty. No mob has ever protected any liberty, even its own, but, if not put down, it always winds up in an orgy of lawlessness which respects no liberties. In considering abuse of freedom by provocative utterances, it is necessary to observe that the law is more tolerant of discussion than are most individuals or communities. Law is so indifferent to subjects of talk that I think of none that it should close to discussion. Religious, Page 337 U. S. 33 social and political topics that, in other times or countries have not been open to lawful debate may be freely discussed here. Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. So it happens that, while peaceful advocacy of communism or fascism is tolerated by the law, both of these doctrines arouse passionate reactions. A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence, many speeches, such as that of Terminiello, may be legally permissible, but may nevertheless, in some surroundings, be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society. Determination of such an issue involves a heavy responsibility. Courts must beware lest they become mere organs of popular intolerance. Not every show of opposition can justify treating a speech as a breach of peace. Neither speakers nor courts are obliged always and in all circumstances to yield to prevailing opinion and feeling. As a people grow in capacity for civilization and liberty, their tolerance will grow, and they will endure, if not welcome, discussion even on topics as to which they are committed. They regard convictions as tentative, and know that time and events will make their own terms with theories, by whomever and by whatever majorities they are held, and many will be proved wrong. But, on our way to this idealistic state of tolerance, the police have to deal with men as they are. The crowd mind is never tolerant of any idea which does not conform to its herd opinion. It does not want a tolerant effort at meeting of minds. It does not know the futility of trying to mob an idea. Released from the sense of Page 337 U. S. 34 personal responsibility that would restrain even the worst individuals in it if alone and brave with the courage of numbers, both radical and reactionary mobs endanger liberty, as well as order. The authorities must control them, and they are entitled to place some checks upon those whose behavior or speech calls such mobs into being. When the right of society to freedom from probable violence should prevail over the right of an individual to defy opposing opinion presents a problem that always tests wisdom, and often calls for immediate and vigorous action to preserve public order and safety. I do not think that the Constitution of the United States denies to the states and the municipalities power to solve that problem in the light of local conditions, at least so long as danger to public order is not invoked in bad faith, as a cover for censorship or suppression. The preamble declares domestic tranquility, as well as liberty, to be an object in founding a Federal Government, and I do not think the Forefathers were naive in believing both can be fostered by the law. Certain practical reasons reinforce the legal view that cities and states should be sustained in the power to keep their streets from becoming the battleground for these hostile ideologies to the destruction and detriment of public order. There is no other power that can do it. Theirs are the only police that are on the spot. The Federal Government has no police force. The Federal Bureau of Investigation is, and should remain, not a police, but an investigative, service. To date, the only federal agency for preserving and restoring order when local authority fails has been the Army. And when the military steps in, the court takes a less liberal view of the rights of the individual, and sustains most arbitrary exercises of military power. See Korematsu v. United States, 323 U. S. 214 . Every failure of local authority to deal with riot problems results in a demand for the Page 337 U. S. 35 establishment of a federal police or intervention by federal authority. In my opinion, locally established and controlled police can never develop into the menace to general civil liberties that is inherent in a federal police. The ways in which mob violence may be worked up are subtle and various. Rarely will a speaker directly urge a crowd to lay hands on a victim or class of victims. An effective and safer way is to incite mob action while pretending to deplore it, after the classic example of Antony, and this was not lost on Terminiello. And whether one may be the cause of mob violence by his own personification or advocacy of ideas which a crowd already fears and hates is not solved merely by going through a transcript of the speech to pick out "fighting words." The most insulting words can be neutralized if the speaker will smile when he says them, but a belligerent personality and an aggressive manner may kindle a fight without use of words that, in cold type shock us. True judgment will be aided by observation of the individual defendant, as was possible for this jury and trial court, but impossible for us. There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it, as did Goebbels when he said: "When democracy granted democratic methods for us in the times of opposition, this [Nazi seizure of power] was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power, and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of [our] opposition." 1 Nazi Conspiracy and Aggression (GPO, 1946) 202, Doc. 2412-PS. Page 337 U. S. 36 Invocation of constitutional liberties as part of the strategy for overthrowing them presents a dilemma to a free people which may not be soluble by constitutional logic alone. But I would not be understood as suggesting that the United States can or should meet this dilemma by suppression of free, open and public speaking on the part of any group or ideology. Suppression has never been a successful permanent policy; any surface serenity that it creates is a false security, while conspiratorial forces go underground. My confidence in American institutions and in the sound sense of the American people is such that if, with a stroke of the pen, I could silence every fascist and communist speaker, I would not do it. For I agree with Woodrow Wilson, who said: "I have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out, and the world knows that he is a fool. So it is by the exposure of folly that it is defeated, not by the seclusion of folly, and, in this free air of free speech, men get into that sort of communication with one another which constitutes the basis of all common achievement." Address at the Institute of France, Paris, May 10, 1919. 2 Selected Literary and Political Papers and Addresses of Woodrow Wilson (1926) 333. But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In Page 337 U. S. 37 the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty, and that the factions engaged in this battle are not interested permanently in either. What would it matter to Terminiello if the police batter up some communists or, on the other hand, if the communists batter up some policemen? Either result makes grist for his mill; either would help promote hysteria and the demand for strong-arm methods in dealing with his adversaries. And what, on the other hand, have the communist agitators to lose from a battle with the police? This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds, and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. I would affirm the conviction. MR. JUSTICE BURTON joins in this opinion.

In Terminiello v. Chicago, the US Supreme Court ruled that a city ordinance prohibiting any "breach of the peace" violated the First Amendment right to free speech. The Court held that the ordinance, as interpreted by the trial court, was too broad and could be used to restrict protected speech. The Court also found that the petitioner's conviction under the ordinance was based on a general verdict, and it could not be certain that the conviction was not based on the unconstitutional interpretation of the ordinance. The Court reversed the conviction, protecting free speech even in cases of potential unrest or disturbance.